87-0919 - Sales

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX

Petitioner, :

v. : INFORMAL DECISION

AUDITING DIVISION OF THE : Appeal No. 87-0919

STATE TAX COMMISSION OF UTAH, )

Respondent. :

_____________________________________

STATEMENT OF CASE

This is an appeal to the Utah State Tax Commission from a decision of the Auditing Division of the Utah State Tax Commission (Respondent) to assess tax, penalty and interest on the purchase of a XXXXX by Petitioner. 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 appeared representing himself. Also present for Petitioner was XXXXX, his mother. XXXXX represented Respondent.

Petitioner stated that he was a nonresident of Utah residing at XXXXX. XXXXX, the date of the purchase of the subject vehicle, Petitioner did not know that he would later attend XXXXX and fully intended to reside and work in XXXXX. On or about XXXXX, Petitioner decided to attend XXXXX and hand-delivered his application for admission to XXXXX Petitioner then came to Utah on or about XXXXX and has resided in Utah continuously since then.

Respondent determined a tax base of $$$$$ on the purchase of the subject vehicle, assessed a sales tax (5.5%) of $$$$$, assessed a 100% penalty of $$$$$, and assessed interest (1% per month from XXXXX) of $$$$$ for a total amount due of $$$$$. Respondent stated that the nonresident affidavit executed by Petitioner only applies if the vehicle is not thereafter used in Utah other than for occasional irregular use in Utah. Respondent stated that Petitioner was required to register the vehicle in Utah even though Petitioner was a full-time student because Petitioner was employed in Utah.

FINDINGS

The Utah Code exempts vehicle sales to bona fide nonresidents of Utah from sales and use taxes. Utah Code Ann. 59-12-104(9) (1953) (old Section 59-15-6(1)(i)). The vehicle must not thereafter be used in Utah except as necessary to transport it to the borders of the state. "Despite the strict wording of the statute, as a matter of practicality, infrequent, occasional, nonbusiness use of a vehicle in Utah, such as by a tourist, will not void this exemption" Tax Bulletin 10-87, June 24, 1987.

At the time of the purchase of the vehicle, Petitioner was issued a temporary permit which expired XXXXX. Petitioner registered the subject vehicle in Idaho on XXXXX. This was approximately nine days after Petitioner established an intent to attend XXXXX in XXXXX. Petitioner's subsequent return to Utah to attend XXXXX voided the nonresident affidavit which had exempted Petitioner from Utah sales tax. The subsequent use by Petitioner of the vehicle in Utah was not an infrequent occasional nonbusiness use in Utah. Upon Petitioner's return to Utah he was required to register the vehicle in Utah and to pay the sales tax on the purchase of the vehicle. Petitioner did not do so.

Petitioner is liable for sales tax to the state of Utah for the purchase of the subject vehicle. A credit will be allowed for the payment of sales tax to the state of XXXXX. Petitioner was negligent when he registered the vehicle in XXXXX subsequent to his intent to return to Utah to attend school, thereby failing to register the vehicle in Utah and pay the sales tax in Utah. Petitioner is properly assessed a 10% negligence penalty. However, fraud has not been established in the present matter. Therefore the 100% fraud penalty is abated. Interest is properly assessed in this matter since the Tax Commission was denied the use of the money during the period of delinquency.

DECISION AND ORDER

It is the Decision and Order of the Utah State Tax Commission that the assessment of tax by the Auditing Division of the Utah State Tax Commission be affirmed. Credit shall be allowed for tax paid to XXXXX. A 10% negligence penalty is imposed in lieu of the 100% fraud penalty. Interest is properly assessed in this matter. The Auditing Division of the Utah State Tax Commission is hereby directed to adjust its records in accordance with this decision.

DATED this 11 day of December, 1987.

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