[Code of Federal Regulations]
[Title 27, Volume 2]
[Revised as of April 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 27CFR53.95]

[Page 175-176]
 
            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.  53.95  Constructive sale price; basic rules.

    (a) In general. Section 4216(b)(1) of the Code sets forth the 
conditions that require the Secretary to construct a sale price on which 
to compute a tax imposed under chapter 32 of the Code on the price for 
which an article is sold. The section requires a constructive sale price 
to be established where a taxable article is:
    (1) Sold at retail;
    (2) Sold while on consignment; or,
    (3) Sold otherwise than through an arm's-length transaction at less 
than fair market price.
    (b) Sales at retail. Section 4216(b)(1)(A) of the Code relates to 
the determination of a constructive sale price for sales of taxable 
articles sold at arm's-length and at retail. In the case of such sales, 
the constructive sale price is the highest price for which such articles 
are sold to wholesale distributors, in the ordinary course of trade, by 
manufacturers or producers thereof, as determined by the Secretary. If 
the constructive sale price is less than the actual sale price, the 
constructive sale price shall be used as the tax base. If the 
constructive sale price is not less than the actual sale price, the 
actual sale price shall be considered as not less than fair market, and 
shall be used as the tax base. In determining the highest price for 
which articles are sold by manufacturers to wholesale distributors, 
there must be taken into consideration the normal industry practices 
with respect to inclusions and exclusions under section 4216(a) of the 
Code. However, once a constructive sale price has been determined by the 
Secretary, no further adjustment of such price shall be made. The 
provisions of section 4216(b)(1)(A) of the Code and this paragraph shall 
not apply in those instances where the provisions of section 4216(b)(2) 
of the Code and Sec.  53.96 apply.

[[Page 176]]

    (c) Sales on consignment. As in the case of sales at retail, the 
constructive sale price for sales on consignment shall be the price for 
which such articles are sold, in the ordinary course for trade, by 
manufacturers or producers thereof, as determined by the Secretary. For 
purposes of section 4216(b)(1)(B) of the Code and this paragraph, an 
article is considered to be sold on consignment if it is sold while it 
is on consignment to a person which has the right to sell, and does 
sell, such article in its own name, but never receives title to the 
article from the manufacturer. Ordinarily, the constructive sale price 
of an article sold on consignment is the net price received by the 
manufacturer from the consignee. The provisions of section 4216(b)(1)(B) 
of the Code and this paragraph shall not apply if the provisions of 
section 4216(b)(2) of the Code and Sec.  53.96 apply.
    (d) Sales not at arm's-length. For purposes of section 4216(b)(1)(C) 
of the Code and this paragraph, a sale is considered to be made under 
circumstances otherwise than at ``arm's-length'' if:
    (1) One of the parties is controlled (in law or in fact) by the 
other, or there is common control, whether or not such control is 
actually exercised to influence the sale price, or
    (2) The sale is made pursuant to special arrangements between a 
manufacturer and a purchaser.

In case of an article sold otherwise than at arm's-length, and at less 
than fair market price, the constructive sale price shall be the price 
for which such articles are sold, in the ordinary course of trade, by 
manufacturers or producers thereof, as determined by the Secretary. Once 
such a constructive sale price has been determined, no further 
adjustment of such price shall be made. See sections 4216(b) (3) and (4) 
of the Code, and Sec.  53.97, for specific methods for determining 
constructive sale prices for intercompany sales under certain defined 
conditions.