BEFORE THE UTAH STATE TAX COMMISSION
Petitioner, : FINDINGS OF FACT,
: CONCLUSIONS OF LAW,
v. : AND FINAL DECISION
AUDITING DIVISION OF THE : Appeal No. 91-1223
UTAH STATE TAX COMMISSION, :
: Account No. XXXXX
STATEMENT OF CASE
This matter came before the Utah State Tax Commission for a formal telephone hearing on XXXXX. Alan Hennebold, Presiding Officer, heard the matter for and on behalf of the Commission. The Petitioner participated by telephone. Present and representing the Respondent were XXXXX, Assistant Utah Attorney General, and XXXXX, Field Audit Supervisor with the Utah State Tax Commission.
Based upon the evidence and testimony 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. On the XXXXX, the Petitioner purchased a vehicle from XXXXX in Salt Lake City, Utah for a taxable purchase price of XXXXX.
4. In connection with his purchase of the foregoing vehicle, the Petitioner completed and signed a non-resident affidavit in which he stated that he was a resident of XXXXX, where he was employed by XXXXX. He further stated he had not been a resident of Utah or lived within Utah during the previous sixty days.
5. Prior to XXXXX, the Petitioner had resided with his wife in Utah. During the first of the year, his employer required that he move from Salt Lake City to XXXXX. He placed his Salt Lake City resident on the real estate market on XXXXX, and then moved to XXXXX. The Petitioner has purchased a home in XXXXX and has registered his other vehicles in XXXXX.
6. After purchasing the vehicle in question, it remained in Utah for approximately two days after which it was driven to XXXXX then to XXXXX. It has since been driven to Salt Lake City by the Petitioner or his wife on XXXXX or XXXXX occasions, in conjunction with their efforts to sell their home.
7. The Audit Division concluded that the foregoing transaction was subject to Utah sales tax because the Petitioner still owned his residence in Salt Lake City at the time he purchased the vehicle. It therefore assessed sales tax against Petitioner in the sum of $$$$$. It assessed a further penalty of 15% of the tax due, or $$$$$, on the grounds the Petitioner had executed his non-resident affidavit with intentional disregard of the Utah Sales Tax Act and regulations interpreting the same. The Audit Division also assessed associated interest against Petitioner.
CONCLUSIONS OF LAW
Utah Code Section 59-12-104(9) exempts from sales tax the purchase of vehicles to bona fide non-residents of this state if such vehicles are not thereafter registered or used in Utah except as necessary to transport them out of Utah.
Rule R873-22l-M (Utah Administrative Code 1990-91) defines "resident" as, among other things, every person who owns, leases or rents a residence within Utah.
DECISION AND ORDER
In this case, the preponderance of the available evidence establishes that the Petitioner moved to XXXXX at the end of XXXXX or early XXXXX and established residency in that state. It further appears that the vehicle in question was purchased in Utah in XXXXX, but then removed to XXXXX where it was duly licensed and registered and where it now is located.
Based upon the foregoing facts, the Tax Commission finds that the Petitioner was not a resident of Utah at the time he purchased the vehicle in question. The transaction is, therefore, not subject to Utah sales tax. Petitioner's request for redetermination is granted and the tax, penalty and interest previously assessed against Petitioner in this matter is hereby set aside. It is so ordered.
DATED this 12th day of November, 1991.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
R. H. Hansen Roger O. Tew
Joe B. Pacheco S. Blaine Willes