90-1377 - Sales

 

BEFORE THE UTAH STATE TAX COMMISSION

_______________________

XXXXX,

Petitioner, : FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

v. : AND FINAL DECISION

:

AUDITING DIVISION OF THE : Appeal No. 90-1377

UTAH STATE TAX COMMISSION, :

: Account No. XXXXX

Respondent. :

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a formal hearing on XXXXX. Paul F. Iwasaki, Presiding Officer, heard the matter for and on behalf of the Commission. Present and representing the Petitioner was XXXXX. Present and representing the Respondent was XXXXX, Assistant Attorney General.

Based upon the testimony and evidence presented at the hearing, the Tax Commission hereby makes its:

FINDINGS OF FACT

1. The tax in question is sales tax.

2. The period in question is XXXXX.

3. The Petitioner is a XXXXX corporation whose corporate office is located in the state of XXXXX. The Petitioner has regional offices in XXXXX, XXXXX, XXXXX, XXXXX, XXXXX, and XXXXX.

4. On or about XXXXX, an employee of the Petitioner's regional office in XXXXX came to Utah for the purpose of purchasing a XXXXX truck from XXXXX to be used by the regional office in XXXXX. No sales tax was paid on that transaction because the Petitioner's employee represented the Petitioner to be a nonresident of Utah.

5. After the purchase of the vehicle, the vehicle was immediately transported to XXXXX where it has remained.

6. The vehicle was purchased by the Petitioner in Utah only because of a complete lack of available, suitable trucks in XXXXX.

7. The Petitioner has a regional office located within Utah and does business through that regional office.

CONCLUSIONS OF LAW

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 thereafter registered to use in this state except as necessary to transport them to the borders of the state are exempt from sales tax. (Utah Code Ann. 59-12-104(9).)

Any person qualifying as a resident, who operates a vehicle, or allows the operation of a vehicle, in this state must register it immediately. For purposes of vehicle registration, the term "resident" means,...any person, except a tourist temporarily within the state, or a student, covered under rule R873-22M-4, who owns, leases, or rents a residence or a place of business within the state, or occupies or permits to be occupied, a Utah residence or a place of business. Utah State Tax Commission Administrative Rule R873-22l-M(B)(3).

DECISION AND ORDER

In the present case, the issue to be decided by the Commission is whether or not the Petitioner was a bona fide nonresident of this state within the meaning of Utah Code Ann. 59-12-104(9), and as defined by Utah State Tax Commission Administrative Rule R873-22l-M. Under Rule R873-22l-M(b)(3), the term "resident" includes any person who owns, leases, or rents a place of business within the state or occupies a place of business within the state.

In the present case, it is undisputed that Petitioner operated and occupied a place of business within the state of Utah, and did so at the time of the purchase of the vehicle in question. Therefore, by the express terms of the rule, the Petitioner is considered to be a resident of Utah for purposes of determining the applicability of the sales tax exemption.

The Tax Commission, therefore, finds that the Petitioner was not a bona fide nonresident of Utah for purposes of the sales tax exemption on the purchase of the vehicle in question and is liable for the payment of the sales tax due.

Having so decided, the Commission turns to the issue of whether or not the imposition of the penalty is appropriate.

Under the facts of the present case, the Tax Commission finds that the Petitioner's representative at the time of the purchase of the motor vehicle did not act negligently or fraudulently in representing the Petitioner to be a nonresident of the state of Utah. Therefore, the Tax Commission finds that waiver of the penalty imposed is appropriate.

Based upon the foregoing, the Tax Commission affirms the determination of the Auditing Division in its assessment of a sales tax deficiency against the Petitioner. The Tax Commission, however, finds that imposition of the penalty in this case was not appropriate and, therefore, waives the penalty assessed in this case. It is so ordered.

DATED this 15 day of January, 1991.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

ABSENT

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner