October 27, 2023
New Mexico tax department proposes rules clarifying when receipts from digital advertising services are taxable
The New Mexico Taxation and Revenue Department (NM TRD) proposed rules clarifying when receipts from digital advertising services are taxable. The proposed rules also would clarify the sourcing for those receipts. Interested parties have until November 9, 2023, to provide comments on the proposed rules.
Specifically, the NM TRD proposes new rule, NMAC Section 22.214.171.124 "Receipts of a Digital Platform that Displays Digital Advertising," which would clarify when receipts from digital advertising services are taxable under the Gross Receipts and Compensating Tax Act. Proposed amendments to NMAC Section 126.96.36.199 "General Rules for Determining Reporting Location" and NMAC Section 188.8.131.52 "Engaging in Business" would (1) detail which receipts from those services are taxable and which are deductible, (2) clarify the sourcing rules for receipts from digital advertising services and (3) clarify what "engaging in business" means for taxpayers that only have an economic nexus with the state.
Taxation of digital advertising services receipts
Proposed NMAC Section 184.108.40.206 would clarify that the gross receipts tax applies to receipts of digital platform providers if (1) the digital platform can be accessed or viewed in New Mexico, and (2) the providers display digital advertising services from the sale of those services to advertisers within and outside New Mexico. The proposed rule would also define key terms, including the following:
Amendments to NMAC Section 220.127.116.11(C) would add an example for determining the proper reporting location for gross receipts from digital advertising services and the related deduction. Under the example, a company provides digital advertising services to a customer. The digital advertisement can be viewed in New Mexico, and is intended to be viewed only in New Mexico, via the company's digital platform. Under this fact pattern, the NM TRD determined that the product of the digital advertising services would be delivered to the locations of all persons in New Mexico that can view or access the advertising. Under NMAC Section 18.104.22.168(C)(5)(e),1 the reporting location of the gross receipts from this digital advertising service and the related deduction would be "the location from which the product of the digital advertising service was transmitted to the purchaser."
Engaging in business
Proposed amendments to NMAC Section 22.214.171.124 would clarify the term "engaging in business" for taxpayers that only have an economic nexus with the state. Under the proposal, a taxpayer that only has an economic nexus with the state could close its gross receipts tax account following any calendar year in which it no longer meets the economic nexus threshold. In addition, the proposal would subject an unidentified taxpayer (i.e., a person who has not registered or been otherwise identified) to the provisions of the Tax Administration Act.
Hearing and comments
A public hearing on the proposal will be held on November 9, 2023. Written comments on the proposal are also due on that date. Additional information on the hearing and how to submit comments is available here.
The NM TRD noted in its Notice of Proposed Rulemaking that the final rule could be filed on or about November 24, 2023.
The proposed changes to the reporting location, which take into consideration where the digital advertising is transmitted, could impact taxpayers that have data centers or rent rack space or servers at data centers in New Mexico, creating a gross receipts tax liability that previously did not exist. Accordingly, affected taxpayers should review the proposal and consider submitting comments to the NM TRD.
Further, it is unclear when the new rule and proposed changes would apply as an effective date was not included in the NM TRD's Notice of Proposed Rulemaking.
Published by NTD’s Tax Technical Knowledge Services group; Jennifer A Brittenham, legal editor
1 This method applies when one of the four other methods for determining the reporting locations for gross receipts and related deduction under NMAC Section 126.96.36.199(C)(5)(a) through (d), does not apply. Under NMAC Section 188.8.131.52(C)(5)(e), "the reporting location of gross receipts and related deductions is the location from which the property or product of the service was shipped or transmitted to the purchaser."