[Code of Federal Regulations]
[Title 27, Volume 1]
[Revised as of April 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 27CFR40.22]

[Page 825-826]
 
            TITLE 27--ALCOHOL, TOBACCO PRODUCTS AND FIREARMS
 
 CHAPTER I--ALCOHOL AND TOBACCO TAX AND TRADE BUREAU, DEPARTMENT OF THE 
                                TREASURY
 
PART 40_MANUFACTURE OF TOBACCO PRODUCTS AND CIGARETTE PAPERS AND TUBES
--Table of Contents
 
                             Subpart C_Taxes
 
Sec. 40.22  Determination of sale price of large cigars.

    (a) General rule. The tax imposed on large cigars is computed based 
on the sale price (the price for which the large cigars are sold by the 
manufacturer). In addition to money, goods or services exchanged for 
cigars may be considered as part of the sale price.
    (b) Special cases.--(1) In general. If there is any question 
concerning the applicable sale price for tax purposes, the appropriate 
ATF officer will determine such price, applying rules similar to the 
constructive sale price rules in 26 U.S.C. 4216(b) and the implementing 
regulations in 26 CFR 48.4216(b)-1 through 48.4216(b)-4. These 
constructive sale price rules apply to cigars sold by a manufacturer at 
retail, sold on consignment, or sold (otherwise than through an arm's 
length transaction) at less than the fair market price. Sales of cigars 
between affiliated corporations may be analyzed under the constructive 
sale price rules. The appropriate ATF officer may make this analysis on 
his or her own initiative or upon the written request of a manufacturer. 
If ATF decides it is necessary, we will publish constructive sale price 
determinations in the ATF Bulletin in accordance with Sec. 70.701(d) of 
this chapter.
    (2) Adjustments in sale price.--(i) Reasons for adjustment. 
Adjustments to the sale price may occur as a result of a discount or 
price increase by the manufacturer or as a result of an ATF 
determination pursuant to paragraph (b)(1) above. In either case, the 
manufacturer must make conforming changes to the tax that was computed 
on the sale price before the adjustment.
    (ii) Time of adjustment. If an adjustment is made before the end of 
the same tax return period as the original determination of the tax, the 
adjustment may be made on the same return. If the price is increased or 
decreased

[[Page 826]]

retroactively (during a later return period), either by the manufacturer 
or by ATF's determination, the manufacturer must make an adjustment on 
the tax return for the current return period in which the price change 
was determined.
    (iii) Amount of adjustment. The taxpayer must compute the adjustment 
to the tax as the difference between the tax that was paid and the tax 
that should have been paid, based on the newly determined sale price, 
together with interest thereon and any applicable penalties. The 
interest must be computed from the time of payment of the original tax 
until the time the adjustment was made. Upon request, the appropriate 
ATF officer will provide information regarding interest rates applicable 
to specific time periods and any applicable penalties.
    (3) Pricing for different packaging. If different bona fide sale 
prices are applicable to different types of packaging (e. g., boxes of 
25 and boxes of 50), then the cigars in each type of packaging are taxed 
on the basis of their respective sale prices.
    (4) Pricing of seconds. If some of an otherwise identical cigar 
brand and size:
    (i) Are distinctive from other such cigars because of physical 
imperfections, (ii) Are offered to the consumer through clear labeling 
as ``imperfects'', ``seconds'', ``throw-outs'', or a comparable commonly 
understood term, and
    (iii) The manufacturer has a separate sale price for such cigars, 
then they are taxed on the basis of this separate sale price.
    (5) Combination packages. If a manufacturer has a sale price for a 
combination package containing cigars of different sizes, the cigars are 
taxed based on that combination sale price. If there is no sale price 
for the combination, then the cigars are taxed based on their individual 
sale prices.
    (6) Removals for another person. If a manufacturer makes taxable 
removals of a brand and size of cigar only for distribution by others 
who establish the sale price, the tax is based on such sale price even 
though the manufacturer who makes the removals does not establish the 
price.

[T.D. ATF-420, 64 FR 71939, Dec. 22, 1999]