87-0977 - Sales




XXXXX                                                                                  )           INFORMAL DECISION

            Petitioner,                                                         :

v.                                                                                 :           Appeal No. 87-0977

AUDITING DIVISION OF THE                                :

STATE TAX COMMISSION OF UTAH                   )

            Respondent.                                                     :



            This matter came before the Utah State Tax Commission for an Informal Hearing on XXXXX.  James E. Harward, Hearing Officer, heard the matter for the Tax Commission.  XXXXX appeared representing the Petitioner.  XXXXX appeared representing the Respondent.

            On XXXXX, XXXXX purchased a XXXXX automobile from the Petitioner, XXXXX.  XXXXX are residents of the XXXXX and employed by XXXXX to work at the XXXXX.  The car was purchased in Utah and financed through a Utah bank, XXXXX. XXXXX flies in for a week at a time every couple of months in conjunction with his work at the XXXXX.

            Respondent argued that since the purchaser of the automobile was employed by a Utah Company, then the Petitioner should have known that the transaction was subject to sales tax and, therefore, the dealership, i.e., the Petitioner is responsible.


            The Tax Commission notes that the XXXXX executed an out of state nonresident affidavit upon which the Petitioner relied in not collecting sales tax.  It appears that the only connection that the purchasers have with the State of Utah is that the purchasers are employed by XXXXX at the XXXXX.  In conjunction with that, the Petitioner, XXXXX spends several weeks a year at the XXXXX in Utah.  The purchasers  do not live in Utah and they do not reside in Utah.

            The Respondent would like the Commission to affirm the tax, penalty, and interest in this matter based solely on the fact that the employer of the purchasers was a Utah Corporation, and the purchasers spend several weeks a year in Utah in conjunction with his employment at the XXXXX by the Utah Corporation.  The Commission declines to affirm the assessment on this basis.  It was alluded to during the course of the hearing that the automobile is located in the State of Utah and has never been taken to the XXXXX.  This allegation would go toward the purchasers, XXXXX, and not to the sellers of the vehicle, the Petitioners in this case.  Therefore, the Commission has given little weight to the evidence regarding the existence of the vehicle in Utah after the purchase.

            After reviewing all of the evidence, the Commission feels that the Petitioner was proper in all of its dealing in obtaining the nonresident affidavit and, therefore, declines to affirm the deficiency assessment. However, the Commission feels that there is some proof that a deficiency assessment should be made against the purchasers, XXXXX if the vehicle has been kept in the State of Utah and used in the State of Utah.  Therefore, the Respondent is encouraged  to proceed against the purchasers, XXXXX.

            DATED this 20 day of October, 1987.


R. H. Hansen                                                                Roger O. Tew

Chairman                                                                      Commissioner

Joe B. Pacheco                                                            G. Blaine Davis

Commissioner   Commissioner