87-0274 - Sales





            Petitioner,                                                         :           INFORMAL DECISION

v.                                                                                 :

AUDITING DIVISION OF THE                                :           Appeal No. 87-0274

STATE TAX COMMISSION OF UTAH,                  )

            Respondent.                                                     :



            This is an appeal to the Utah State Tax Commission from a decision of the Auditing Division of the Utah State Tax Commission to assess tax, penalty, and interest on the XXXXX, purchase of a XXXXX. Petitioner did not request an oral hearing.  Therefore, the Commission decides this matter based on the materials in the file.  Respondent indicated that the cash price for the vehicle was $$$$$ less a trade of $$$$$ for a tax base of $$$$$.  Respondent assessed a sales tax of $$$$$ (tax rate of %%%%%), a %%%%% penalty of $$$$$, and interest (%%%%% per month from XXXXX) of $$$$$ for a total amount due of $$$$$.  The Petitioner stated that he was not a resident of Utah but that he worked for approximately two months in Utah for XXXXX, a construction firm that does business in several western states.  Petitioner stated that his employer rented the apartment for him, that he never received a Utah driver's license, that he never listed his Utah apartment as his residence, that he never considered himself a Utah resident, and that he never had a telephone listed in his name.  Petitioner stated that he purchased the vehicle just before the end of his work in Utah and that he subsequently departed from Utah.


            Utah Code Ann.  59-15-6(1)(i) (1953) (new Section 59-12-104) exempts from sales tax the 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 not thereafter registered or used in this state except as necessary to transport them to the borders of this state.  Petitioner executed a nonresident affidavit on XXXXX, at XXXXX.  Petitioner stated on the affidavit that his current employment was in XXXXX, and that the vehicle would not be used in Utah, and that he has not been a resident of Utah or domiciled in Utah within the past 60 days. The Tax Commission finds that Petitioner was a resident of Utah for motor vehicle registration purposes pursuant to Tax Commission Rule R873-01V. Therefore, Petitioner did not qualify as a nonresident for purposes of Utah Code Ann.  59-15-6(1)(i). Rule 873-O1V(3) defines a resident for motor vehicle registration purposes as:

                        Any person, except a tourist temporarily within this state, or a    student covered under Rule R873-04V, who owns, leases, or rents a                                                 residence or a place of business within this state, or occupies or                         permits to be occupied, a Utah residence or place of business.

            The Commission finds that Petitioner's actions in filling out the nonresident affidavit rise to the level of negligence.  However, the Tax Commission does not find fraud in this matter.  Therefore, a %%%% negligence penalty is properly imposed in lieu of the %%%% fraud penalty.


            It is the Decision and Order of the Utah State Tax Commission that tax, interest, and a %%%% negligence penalty are properly imposed on the purchase of the XXXXX.  The Auditing Division is directed to adjust its records in accordance with this decision.

            DATED this 16 day of October, 1987.


R. H. Hansen                                                                Joe B. Pacheco

Chairman                                                                      Commissioner

G. Blaine Davis                                                                         Roger O. Tew

Commissioner   Commissioner