[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: 27CFR53.96]

[Page 991-992]
 
            TITLE 27--ALCOHOL, TOBACCO PRODUCTS AND FIREARMS
 
 CHAPTER I--ALCOHOL AND TOBACCO TAX AND TRADE BUREAU, DEPARTMENT OF THE 
                                TREASURY
 
PART 53_MANUFACTURERS EXCISE TAXES_FIREARMS AND AMMUNITION--Table of 
Contents
 
     Subpart J_Special Provisions Applicable to Manufacturers Taxes
 
Sec. 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 section 4216(a) 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 section 4216(a) 
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 ATF 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

[[Page 992]]

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]