BEFORE THE STATE TAX
COMMISSION OF UTAH
_____________________________________
XXXXX, )
:
Petitioner, )
:
v. ) INFORMAL DECISION
:
)
COLLECTION
DIVISION OF THE : Appeal No. 86 0357
STATE TAX
COMMISSION OF UTAH, ) Acct. No. XXXXX
:
Respondent. )
_____________________________________
STATEMENT OF CASE
This
is an appeal to the Utah State Tax Commission from a decision of the Collection
Division of the Utah State Tax Commission (Respondent) to assess penalty and
interest on sales and use tax account No. XXXXX. An Informal Hearing was held on XXXXX, in the offices of the Utah
State Tax Commission. David J.
Angerhofer, Hearing Officer, heard the matter for the Commission. XXXXX and XXXXX represented the Petitioner.
On
or about XXXXX, Petitioner purchased a mobile concrete pump from XXXXX of
XXXXX, Utah. Petitioner stated that the
sales representative of XXXXX told the Petitioner that the Utah State
Legislature recently repealed the sales tax law as it applied to major pieces
of construction equipment and that no sales tax would apply to the purchase of
the mobile concrete pump.
Sales
and use tax auditors from the Tax Commission determined that sales taxes were
due on the purchase of the mobile concrete pump. The position of the sales and use tax auditors was that since the
invoice to Petitioner stated "F.O.B. XXXXX, Minnesota", XXXXX was not
responsible to collect and remit the taxes.
Petitioner was responsible for the taxes. Respondent assessed a penalty
of $$$$$ and interest of $$$$$ on the purchase of the concrete pump.
Petitioner
stated that the sales taxes due should have been collected and remitted by
XXXXX. Petitioner has paid the tax but
requests a waiver of the penalty and interest.
FINDINGS
XXXXX
was a vendor of mobile concrete pumps pursuant to Utah Code Ann. § 59-15-5(3)(1953). XXXXX had or utilized "an office,
distribution house, sales house, warehouse, service enterprise, or other place
of business" in XXXXX, Utah at the time of the sale of the mobile concrete
pump to Petitioner. As a vendor, XXXXX
was responsible for the collection of the amount of the tax imposed on the
mobile concrete pump sale. See, Section 59-15-5(1).
The
sale of the mobile concrete pump did not occur outside of Utah even though the
invoice stated "F.O.B. XXXXX, Minnesota." Petitioner presented a copy of the final invoice from XXXXX
illustrating that XXXXX and not XXXXX (the manufacturer) billed Petitioner for
the pump. Petitioner also presented
copies of the checks with which Petitioner purchased the pump. The checks were made to the order of XXXXX
of XXXXX, Utah, and were deposited by XXXXX in XXXXX of XXXXX, Utah. Finally, Petitioner presented a copy of the
certificate of origin for the mobile concrete pump. Assignment No. 1 was from XXXXX to XXXXX of XXXXX, Minnesota.
Assignment No. 2 was from XXXXX to XXXXX of XXXXX, Utah. Assignment No. 3 was
from XXXXX to XXXXX of XXXXX, Utah.
Petitioner
sent his operator to Minnesota to pick up the mobile concrete pump based on the
recommendation of both manufacturer and the vendor that the operator travel to
the factory to attend the "new owner orientation program." The operator was taught the operation and
maintenance of the pumping unit in Minnesota.
Once
Petitioner brought the mobile pumping unit into Utah, Petitioner immediately
went to the Tax Commission to obtain a license and fuel permits. The mobile concrete pump was classified as
"Special Mobile Equipment" pursuant to Section 41-1-l(n) and was
exempted from registration. Petitioner
did not attempt to conceal the purchase of the mobile concrete pump.
Petitioner
was required to pay the sales tax on the purchase of the pump and has done
so. However, XXXXX (the vendor) and not
Petitioner was responsible for the collection of the sales tax. Therefore, Petitioner may not be assessed
penalty and interest for failure to collect and remit sales tax.
DECISION AND ORDER
It
is the Decision and Order of the Utah State Tax Commission that Petitioner's
request for waiver of penalty and interest on sales and use tax account No.
XXXXX be granted.
The
Collection Division of the Utah State Tax Commission is hereby ordered to
adjust its records in accordance with this decision.
DATED
this 1 day of December, 1986.
BY ORDER OF THE STATE TAX COMMISSION OF UTAH.
R. H. Hansen Roger
O. Tew
Chairman Commissioner
Joe B.
Pacheco G.
Blaine Davis
Commissioner Commissioner