27 CFR 53.96 - Constructive sale price; special rule for arm's-length sales.

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§ 53.96 Constructive sale price; special rule for arm's-length sales.

(a) In general. Section 4216(b)(2) of the Code provides a special rule under which a manufacturer shall determine a constructive sale price for this sale of taxable articles at retail, and to retail dealers, under certain conditions. The rule is applicable where:

(1) The manufacturer regularly sells such articles at retail, or to retailers, or both, as the case may be,

(2) The manufacturer also regularly sells such articles to one or more wholesale distributors in arm's-length transactions, and the manufacturer establishes that its prices in such cases are determined without regard to any benefit to be derived under section 4216(b)(2) of the Code, and

(3) The transactions are arm's-length transactions.

(4) A manufacturer meeting the foregoing requirements shall base its tax liability for sales at retail and sales to retailers on the lower of its actual sale price or the highest price for which it sells the same articles under the same conditions to wholesale distributors.

(b) Definitions. For purposes of section 4216(b)(2) of the Code and this section:

(1) Actual sale price. “Actual sale price” means the actual selling price for an article determined in the same manner as sale price is determined for a taxable sale. Accordingly, such price must reflect the inclusions and exclusions set forth in sections 4216(a) and (e) of the Code, and any price adjustments described in section 6416(b)(1) of the Code.

(2) Highest price to wholesale distributors. The “highest price” charged wholesale distributors for an article by a manufacturer, producer, or importer thereof, is the highest price at which the manufacturer, producer, or importer sells the article to wholesale distributors, determined without regard to quantity. Such price shall be determined in the same manner as sale price is determined for a taxable sale with respect to the inclusions and exclusions under sections 4216(a) and (e) of the Code; however, since the price is to be a “highest” price, no further adjustment may be made for price readjustments under section 6416(b)(1) of the Code.

(3) Regular sales. An article is considered to be sold “regularly” at retail or to retailers if sales are made at retail or to retailers periodically and recurringly as a regular part of the seller's business. If a seller makes only isolated or casual sales of an article at retail or to retailers, it is not considered to be selling “regularly” at retail or to retailers. Similarly, a manufacturer is considered to be making regular sales of an article to one or more distributors if it sells the article to at least one distributor periodically and recurringly as a regular part of its business.

(4) Normal method of sales in industry. In the absence of a showing to the appropriate TTB officer of a more appropriate manner of determining the normal method of sales within an industry which is practical in application, the normal method of sales within an industry shall be regarded as not being at retail or to retailers, or both, if the industry dollar volume of sales which are at retail or to retailers, or both, is less than half the total industry dollar volume of sales at all levels of distribution by manufacturers, producers, or importers, including sales to other manufacturers, producers, or importers.

[T.D. ATF-308, 56 FR 303, Jan. 3, 1991, as amended by T.D. ATF-312, 56 FR 31083, July 9, 1991; T.D. TTB-91, 76 FR 5481, Feb. 1, 2011]

This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.

This list is taken from the Parallel Table of Authorities and Rules provided by GPO [Government Printing Office].

It is not guaranteed to be accurate or up-to-date, though we do refresh the database weekly. More limitations on accuracy are described at the GPO site.

United States Code

§ 4181 - Imposition of tax

§ 4182 - Exemptions

§ 4216 - Definition of price

§ 4217 - Leases

§ 4218 - Use by manufacturer or importer considered sale

§ 4219 - Application of tax in case of sales by other than manufacturer or importer

§ 4221 - Certain tax-free sales

§ 4222 - Registration

§ 4223 - Special rules relating to further manufacture

§ 4225 - Exemption of articles manufactured or produced by Indians

§ 6001 - Notice or regulations requiring records, statements, and special returns

§ 6011 - General requirement of return, statement, or list

§ 6020 - Returns prepared for or executed by Secretary

§ 6021 - Listing by Secretary of taxable objects owned by nonresidents of internal revenue districts

§ 6061 - Signing of returns and other documents

§ 6071 - Time for filing returns and other documents

§ 6081 - Extension of time for filing returns

§ 6091 - Place for filing returns or other documents

§ 6101 - Period covered by returns or other documents

§ 6102 - Computations on returns or other documents

§ 6103 - Confidentiality and disclosure of returns and return information

§ 6104 - Publicity of information required from certain exempt organizations and certain trusts

§ 6109 - Identifying numbers

§ 6151 - Time and place for paying tax shown on returns

§ 6155 - Payment on notice and demand

§ 6161 - Extension of time for paying tax

§ 6301 - Collection authority

§ 6302 - Mode or time of collection

§ 6303 - Notice and demand for tax

§ 6311 - Payment of tax by commercially acceptable means

§ 6402 - Authority to make credits or refunds

§ 6404 - Abatements

§ 6416 - Certain taxes on sales and services

§ 7502 - Timely mailing treated as timely filing and paying

§ 7805 - Rules and regulations