BEFORE THE UTAH STATE TAX
COMMISSION
_____________________________________
XXXXX )
Petitioner, : FINDINGS OF FACT,
: CONCLUSIONS
OF LAW,
v. : AND FINAL DECISION
AUDITING
DIVISION OF THE : Appeal No. 91-0698
UTAH STATE TAX COMMISSION, :
: Account
NO. XXXXX
Respondent. :
_____________________________________
STATEMENT OF CASE
This
appeal came before the Utah State Tax Commission for formal hearing on
XXXXX. Alan Hennebold, Administrative
Law Judge, heard the matter on behalf of the Commission. XXXXX appeared on his own behalf. XXXXX, Assistant Utah Attorney General,
represented the Auditing Division.
On
XXXXX, the Administrative Law Judge reopened the proceedings to allow the
parties to submit additional evidence.
Based
upon the evidence now before the Commission, the Commission hereby makes its:
FINDINGS OF FACT
1. The tax in question is sales tax.
2. The period in question is XXXXX.
3. Prior to XXXXX, XXXXX owned a XXXXX. XXXXX permitted XXXXX to use the aircraft
from time to time.
4. On about XXXXX, XXXXX and XXXXX agreed to
purchase the aircraft from XXXXX. At
that time, XXXXX paid XXXXX his portion of the purchase price.
5. XXXXX applied XXXXX payment to a loan at
XXXXX, which loan was secured by the aircraft.
At the same time, XXXXX executed a Bill of Sale transferring the
aircraft to XXXXX and XXXXX. XXXXX left
the Bill of Sale with his bank, believing that the bank would not file the Bill
of Sale until XXXXX had received payment from XXXXX. Instead, the bank recorded the Bill of Sale during XXXXX.
6. XXXXX was ultimately unable to raise the
money to pay his share of the aircraft's purchase price.
7. When XXXXX and XXXXX learned that XXXXX was
unable to perform his part of the purchase agreement, the entire transaction
was cancelled. XXXXX returned XXXXX
money to him. XXXXX transferred record
ownership of the airplane back to XXXXX in XXXXX.
8. During the time that the aircraft sale
agreement remained executory, XXXXX retained possession of the aircraft. During that time, XXXXX was allowed to use
the aircraft on the same terms as before he agreed to purchase it.
9. The Auditing Division learned of XXXXX
agreement to purchase the airplane and sent him a questionnaire to obtain more
information. XXXXX completed and
returned the questionnaire during XXXXX, reporting thereon that he had
purchased the aircraft for $$$$$. Based
upon that information, the Auditing Division assessed sales tax and interest
against XXXXX. No penalty was assessed.
CONCLUSIONS OF LAW
Sales
tax is levied on the purchaser for the amount paid or charged for retail sales
of tangible personal property made within the state. (Utah Code Ann. §59-12-103(1)(a).)
Ordinarily,
the time and place of a sale are determined by the contract of sale between the
seller and buyer. The intent of the
parties is the governing factor in determining both time and place of the sale
subject to the general law of contracts.
If the contract of sale requires the seller to deliver or ship goods to
a buyer, title to the property passes upon delivery to the place agreed upon
unless the contract of sale provides otherwise. (Utah Administrative Code, RuleR865-19S-31.)
Credit
against sales tax liability may be allowed for the amount of tax attributable
to returned goods and repossessions.
(Utah Administrative Code, RuleR865-19S-20.)
DECISION AND ORDER
The
question presented in this appeal is not whether the sale of an aircraft is
subject to Utah's sales tax. Such a
sale clearly is subject to tax. Instead, the issue presented by this appeal is
whether a sale took place at all.
The
time and place of a sale are determined by general contract law, which in turn
looks to the intent of the parties.
(See RuleR865-19S-31.) XXXXX has established that for a number of years,
he had used the airplane in question by permission of its owner, XXXXX. During XXXXX, XXXXX and another individual
agreed to jointly purchase the airplane.
XXXXX paid his share of the purchase price to XXXXX, but his partner was
unable to pay his share. As a result,
the sale was cancelled and XXXXX refunded XXXXX payment.
Both
XXXXX Bill of Sale and XXXXX answers to the Auditing Division's questionnaire
anticipated that the sale could be completed as agreed. Due to unforseen
events, the sale was cancelled and neither the Bill of Sale nor the
questionnaire accurately described what took place.
The
foregoing circumstances are analagous to the situation that exists when goods
are purchased, then returned. The
Commission's rules recognize that a sales tax credit may be allowed in such
circumstances.
In
light of the foregoing, the Commission concludes that no sale of the subject
airplane was completed and that no sales tax is due. The Commission therefore abates all tax, penalty and interest
assessed against XXXXX in this matter.
It is so ordered.
DATED
this 17 day of December, 1992.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
W. Val
Oveson Roger
O. Tew
Chairman Commissioner
ABSENT
Joe B.
Pacheco Alice
Shearer*
Commissioner Commissioner