Dart Industries, Inc.

04-03

Dart Industries, Inc., manufacturer and marketer of Tupperware products, entered into a franchise distribution agreement with Susan Carnell, who is located in Albuquerque. An audit performed by the Multistate Tax Commission on behalf of the Department found that Dart’s activities in New Mexico were sufficient to establish nexus with the state and also exceeded the scope of sales activities protected by Public Law 86-272 (15 U. S. C Section 381). On October 28, 1995, the Department assessed Dart for $22,019.00 in corporate income tax, franchise tax, penalty and interest for the years 1990-1992. Dart protested the assessment, arguing that Dart’s only business activities in New Mexico were solicitations of sales in interstate commerce by a foreign corporation, which are protected from taxation by Public Law 86-272. Dart argued that its New Mexico distributor was an independent contractor who sold Tupperware products on her own behalf and not on behalf of Dart. The hearing officer found that, in the operation of her franchised distributorship, Ms. Carnell was also acting on behalf of Dart. As a representative of Dart, rather than an independent contractor, Ms. Carnell’s maintenance of an Albuquerque office for her Tupperware distributorship constituted presence of the company in New Mexico and exceeded the scope of activities protected by Public Law 86-272. The hearing officer also found that, under the terms of the franchise agreement, distributors were required to perform a number of activities that went beyond the solicitation of orders for sales of Tupperware products. Dart’s licensing of intangible property, such as its trademark, for use in New Mexico also goes well beyond the solicitation of orders. Dart’s protest was denied.