39-22-303.5–4 Calculation of Sales Factor.

The provisions of this rule apply to income tax years commencing on or after January 1, 2009, but prior to January 1, 2019. (1) In General. Section 39-22-303.5(1)(d), C.R.S., generally defines the term “sales” to mean all gross receipts of the taxpayer not allocated under subsection (5) of section 303.5, C.R.S. Thus, except as otherwise specifically provided, for the purposes of the sales factor of the apportionment formula for each trade or business of the taxpayer, the term “sales” means all gross receipts derived by the taxpayer from transactions and activity in the regular course of such trade or business. The following are rules for determining “sales” in various situations: (a) In the case of a taxpayer engaged in manufacturing and selling or purchasing and reselling goods or products, “sales” includes all gross receipts from the sales of such goods or products (or other property of a kind that would properly be included in the inventory of the taxpayer if on hand at the close of the tax period) held by the taxpayer primarily for sale to customers in the ordinary course of its trade or business. Gross receipts for this purpose means gross sales less returns and allowances, and includes all interest income, service charges, carrying charges, or time- price differential charges incidental to such sales. Federal and state excise taxes (including sales taxes) shall be included as part of such receipts if such taxes are passed on to the buyer or included as part of the selling price of the product. (b) In the case of cost-plus-fixed fee contracts, such as the operation of a government-owned plant for a fee, “sales” includes the entire reimbursed cost, plus the fee. (c) In the case of a taxpayer engaged in providing services, such as the operation of an advertising agency, the performance of equipment service contracts, or research and development contracts, “sales” includes the gross receipts from the performance of such services including fees, commissions, and similar items. (d) In the case of a taxpayer engaged in renting real or tangible property, “sales” includes the gross receipts from the rental, lease, or licensing the use of the property. (e) In the case of a taxpayer engaged in the assignment, or licensing of intangible personal property such as patents and copyrights, “sales” includes the gross receipts therefrom. (f) In the case of a taxpayer engaged in the sale of intangible personal property, including patents and copyrights, “sales” means the gain therefrom. (g) If a taxpayer derives receipts from the sale of equipment used in its business, such receipts constitute “sales”. (h) “Safe Harbor” lease income. All income and deductions created by “safe harbor” lease transactions shall be included in the numerator of the Colorado sales factor only if the lessor's commercial domicile is located in Colorado. All income and deductions created by “safe harbor” lease transactions shall not be included in the numerator of the Colorado sales factor if the lessor's commercial domicile is not in Colorado. (2) Exceptions. In some cases certain gross receipts should be disregarded in determining the sales factor in order that the apportionment formula will operate fairly to apportion to this state the income of the taxpayer's trade or business. (3) Colorado destination sales of a corporation not having nexus in Colorado when such corporation is an includable member of an affiliated group of corporations. In the case of a corporation that does not have nexus (is not doing business) in Colorado even though it is an “includable corporation” in an affiliated group of unitary corporations filing a combined Colorado return, the sales of such corporation of property delivered to purchasers in Colorado shall not constitute Colorado sales for purposes of determining the sales factor. (4) Denominator. The denominator of the sales factor shall include the total sales derived by the taxpayer from transactions and activity in the regular course of its trade or business, except receipts excluded under § 39-22-303.5(7)(b), C.R.S. (5) Numerator. The numerator of the sales factor shall include sales attributable to this state and derived by the taxpayer from transactions and activity in the regular course of its trade or business. All interest income, service charges, carrying charges, or time-price differential charges incidental to such gross receipts shall be included regardless of (1) the place where the accounting records are maintained or (2) the location of the contract or other evidence of indebtedness. (6) Consistency and Uniformity in Reporting. (a) Numerator/denominator consistency. In filing returns with this state, the taxpayer must use the same methodology in calculating both the numerator and the denominator of the sales factor. (b) Year-to-Year consistency. In filing returns with this state, if the taxpayer departs from or modifies the basis for excluding or including gross receipts in the sales factor used in returns for prior years, the taxpayer shall disclose in the return for the current year the nature and extent of the modification. (c) State-to-State uniformity. If the returns or reports filed by the taxpayer with all states to which the taxpayer reports under this section, Article IV of the Multistate Tax Compact or the Uniform Division of Income for Tax Purposes Act are not uniform in the inclusion or exclusion of gross receipts, then the taxpayer shall disclose in its return to this state the nature and extent of the variance or variances, except where such non- uniformity in reporting is a direct and necessary consequence of differences between the law of this state and the law of another state.