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