03-0015
Sales Tax
Signed 5/6/03
BEFORE THE UTAH STATE TAX COMMISSION
____________________________________
PETITIONER, )
) ORDER
Petitioner, )
) Appeal No. 03-0015
v. )
)
AUDITING DIVISION OF ) Tax Type:
Sales Tax
THE UTAH STATE TAX )
COMMISSION, ) Judge: Phan
)
Respondent. )
_____________________________________
Presiding:
Jane Phan, Administrative Law Judge
Appearances:
For Petitioner: PETITIONER
For Respondent: Laron
Lind, Assistant Attorney General
Rod Boogard, Assistant Director Auditing
Amber Lader, Auditor
STATEMENT
OF THE CASE
This
matter came before the Utah State Tax Commission for an Initial Hearing
pursuant to the provisions of Utah Code Ann. '59-1-502.5, on April 16, 2003.
Petitioner is appealing the sales tax audit deficiency pertaining to
Petitioner's purchase of a motor vehicle on July 3, 2001. Petitioner had purchased the vehicle in Utah
and had not paid sales tax on the purchase transaction, claiming a nonresident
tax exemption. The vehicle at issue was
a VEHICLE.
After
purchasing the vehicle Petitioner represents that he took it to STATE and
registered the vehicle there. However,
shortly after the purchase, Petitioner brought the vehicle back to Utah for his
spouse, who was a resident of Utah, to use in this state. It was Respondent's position that Petitioner
did not qualify for the nonresident exemption from sales tax on the purchase
transaction.
Petitioner
explained that his employment had been transferred to STATE in 1989. He
moved to STATE during that year where he continues to reside
presently. He obtained an STATE divers
license and pays income tax as a resident of STATE. He considers himself an to be a resident of STATE for tax
purposes. His spouse, however, remained
in Utah and continued, up through the time of the hearing, to reside at the
residence they had purchased in Utah together, prior to Petitioner's move to STATE. Petitioner owns the Utah residence jointly
with his spouse. When he purchased the
vehicle at issue, he purchased solely in his name. When he registered the vehicle in STATE it was registered in both
his and his spouse's name.
At
the time of the purchase, Petitioner filled out and signed a Nonresident
Affidavit for Sales Tax Exemption. The
Affidavit lists the requirements necessary for the sales tax exemption which
are listed at Utah Admin. Rule R865-19S-98(B).
There are separate and distinct requirements for the nonresident sales
tax exemption than there are for residency for income tax purposes, or voting
purposes, or even drivers license purposes.
The incidence of taxation is the actual purchase of the motor vehicle in
Utah. A purchase of tangible personal
property within the state it is subject to state sales tax pursuant to Utah
Code Ann. Sec. 59-12-103(1) unless it fits within an exemption to sales tax
under Utah Code Ann. Sec. 59-12-104.
There is an exemption for nonresidents if they meet the specif requirements
of the rule. Petitioner, however, does
not meet the requirements of the rule as he continued to own a residence in
Utah and he allowed the vehicle to be used in Utah by a resident of Utah.
APPLICABLE
LAW
A
tax is imposed on the purchaser as provided in this part for amounts paid or
charged for the following transactions: (a) retail sales of tangible personal
property made within the state; . . .
(Utah Code Ann. 59-12-103(1)(a).)
The
following sales and uses are exempt from the taxes imposed by this chapter: .
. . (9) sales of vehicles of a type
required to be registered under the motor vehicle laws of this state which are
made to bona fide nonresidents of this state and are not afterwards registered
or used in this state except as necessary to transport them to the borders of
this state; . . . (Utah Code Ann. 59-12-104(9).)
In
order to qualify as a nonresident for the purposes of exempting vehicles from
sales tax under Subsection 59-12-104(9) and 59-12-104(32), a person may not:
1. be a resident of this state. The fact that a person leaves the state
temporarily is not sufficient to terminate residency;
2. be engaged in intrastate business and
operate the purchased vehicle as part of the business within this state;
3. maintain a vehicle with this state
designated as the home state;
4. except in the case of a tourist temporarily
within this state, own, lease, or rent a residence or a place of business
within this state, or occupy or permit to be occupied a residence or place of
business;
5. except in the case of an employee who can
clearly demonstrate the use of the vehicle in this state is to commute to work
from another state, be engaged in a trade, profession, or occupation or accept
gainful employment in this state;
6. allow the purchased vehicle to be kept or
used by a resident of this state; or
7. declare residency in Utah to obtain
privileges not ordinarily extended to nonresidents, such as attending school or
placing children in school without paying nonresident tuition or fees, or
maintaining a Utah driver's license.
(Utah Admin. Rule R865-19S-98(B).)
DECISION
AND ORDER
Based
on the foregoing, Petitioner was not entitled to a nonresident sales tax
exemption on his purchase in Utah of a VEHICLE. The Tax Commission sustains the audit assessment of sales tax and
interest. It is so ordered.
This
decision does not limit a party's right to a Formal Hearing. However, this Decision and Order will become
the Final Decision and Order of the Commission unless any party to this case
files a written request within thirty (30) days of the date of this decision to
proceed to a Formal Hearing. Such a
request shall be mailed to the address listed below and must include the
Petitioner's name, address, and appeal number:
Utah
State Tax Commission
Appeals
Division
210
North 1950 West
Salt
Lake City, Utah 84134
Failure
to request a Formal Hearing will preclude any further appeal rights in this
matter.
DATED
this 6th day of May , 2003.
________________________________
Jane Phan
Administrative Law Judge
BY ORDER OF THE UTAH STATE TAX COMMISSION.
The
Commission has reviewed this case and the undersigned concur in this decision.
DATED
this 6th day of May , 2003.
Pam Hendrickson R.
Bruce Johnson
Commission Chair Commissioner
Palmer DePaulis Marc
B. Johnson
Commissioner Commissioner