BEFORE THE UTAH STATE TAX COMMISSION
) Appeal No. 03-0015
AUDITING DIVISION OF ) Tax Type: Sales Tax
THE UTAH STATE TAX )
COMMISSION, ) Judge: Phan
Jane Phan, Administrative Law Judge
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.
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
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.
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