92-003

Sales

Signed 9/11/92

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

XXXXX )

Petitioner : FINDING OF FACT.,

) CONCLUSIONS OF LAW

: AND FINAL DECISION

v. )

:

AUDITING DIVISION OF THE ) Appeal No. 92-0003

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. XXXXX, Presiding Officer, heard the matter for and on behalf of the Commission. Petitioner was present and was represented by XXXXX, his certified public accountant. XXXXX, Assistant Utah Attorney General, appeared on behalf of Respondent.

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 and use tax.

2. Petitioner purchased a XXXXX Honda from XXXXX Honda, XXXXX, Utah on XXXXX.

3. At the time of the purchase, Petitioner signed a non-resident affidavit stating he resided at an R.V. park in XXXXX.

4. The non-resident affidavit was incomplete in that it lacked a printed backside. This missing reverse side defined the term resident and was referred to on the opposite side of the affidavit.

5. The Auditing Division determined that Petitioner was a Utah resident at the time of the purchase and assessed Petitioner sales and use tax on the purchase in addition to a 15% penalty, plus interest.

6. In XXXXX, Petitioner sometimes stayed at the XXXXX R.V. Park in XXXXX.

7. Petitioner used a mailing service in XXXXX in XXXXX where he would sometimes receive mail.

8. Petitioner listed an XXXXX address on his XXXXX federal income tax return. This address is where Petitioner's wife's sister lives. Petitioner stays at that address from time to time.

9. Petitioner gave this address on his federal return because (1) it was "convenient" and (2) he understood that XXXXX has no sales tax. (XXXXX, in fact, has sales tax, but does not have income tax.)

10. Petitioner stated that he selected the Honda in question in XXXXX and then arranged to buy it in Utah because Utah is where he was when he needed the car.

11. In XXXXX, Petitioner owned three vehicles all of which were registered in XXXXX. Petitioner registered the vehicles in XXXXX because 1) registrations are renewable at minimal cost every two years and 2) Petitioner spends some time in XXXXX.

12. In XXXXX, Petitioner had an XXXXX driver's license.

13. Petitioner was living in Utah when he retired in XXXXX. Since that time, Petitioner has been living in his R.V. and traveling the United States, Canada and Mexico.

14. Petitioner owned four properties in Utah in the XXXXX's. Petitioner sold three of them on contract in XXXXX and XXXXX. Petitioner continues to receive monies on these contracts.

15. Petitioner owns a duplex in Ogden, Utah. He has been renting the duplex since XXXXX.

16. XXXXX has been paying rent each month since XXXXX to Petitioner for a lease on one of the duplex's units.

17. The other side of the duplex was last occupied in XXXXX and XXXXX XXXXX by Petitioner's daughter and her family.

18. Petitioner testified that he parks his R.V. in front of the duplex's vacant unit whenever he visits to do routine maintenance and upkeep of the rental.

19. Petitioner hooks up his R.V. to the vacant unit's power. Petitioner contends that he does not use the interior of the vacant unit for anything although he does have limited furniture in the unit.

20. Petitioner's XXXXX federal retirement income statement was sent to Petitioner's unrented unit.

21. Petitioner does not own real property in any other state.

22. Petitioner is not registered to vote in any state.

23. Petitioner banks in XXXXX and Utah.

24. Petitioner maintains that he does not claim any one state as "home", but supposes that XXXXX would probably be his first choice because his vehicles are registered there.

25. Petitioner spent less than 10% of his time in Utah in XXXXX. Even less time was spent in XXXXX during the same period.

CONCLUSIONS OF LAW

Any person, except a tourist temporarily within Utah, or a student, 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 place of business is a resident for purposes of motor vehicle registration. Utah State Tax Commission Administrative Rule R873-22l-M(lA)(13).

DECISION AND ORDER

The fact that Petitioner owns and rents a residence in Utah is sufficient basis for a finding of Utah residency. Petitioner fails to advance any contention with sufficient evidence that another state is, in fact, Petitioner's residence.

It is interesting to note that when Petitioner retired in Utah and began his R.V. lifestyle he never intended to take another state as his residence or domicile. He retained two residences (the duplex) and an interest in three other Utah properties. It is Petitioner's ownership in Utah property that connects him to this state.

Petitioner's relationship to XXXXX and XXXXX is tenuous at best. It appears to be more the case that, depending on the occasion, Petitioner selects whichever address will best facilitate his needs.

Finally, in reference to the penalty, Petitioner cannot be penalized for intentionally misrepresenting himself when the applicable explanation of the law was not provided him on the reverse side of the affidavit.

Based upon the foregoing, the Tax Commission finds that Petitioner was a Utah resident for the year in question. The interest and 10% negligence penalty are not waived. It is so ordered.

DATED this 11th day of September, 1992

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco S. Blaine Willes

Commissioner Commissioner