92-1508 - Sales

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________

XXXXX )

:

Petitioner, ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

v. ) AND FINAL DECISION

:

COLLECTION DIVISION OF THE ) Appeal No. 92-1508

UTAH STATE TAX COMMISSION, :

Respondent. )

______________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a formal hearing on XXXXX. Alan Hennebold, Presiding Officer, heard the matter on behalf of the Commission. XXXXX, Vice President of XXXXX Construction, represented Petitioner. XXXXX, Assistant Utah Attorney General, represented Respondent.

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

FINDINGS OF FACT

1. The tax in question is sales and use tax.

2. The period in question is October XXXXX through December XXXXX.

3. Petitioner is a Utah corporation located in XXXXX, Utah. Its business consists primarily of construction work for various XXXXX agencies.

4. On XXXXX, Respondent assessed Petitioner with additional use tax of $$$$$, penalties totaling $$$$$, and interest accrued through XXXXX. Petitioner filed a timely appeal of the foregoing assessment with the Tax Commission.

5. On XXXXX, Respondent issued an amended audit. The amended audit did not reduce the amount of tax assessed against Petitioner, but corrected the computation of penalties, thereby reducing such penalties to $$$$$.

6. Petitioner does not contest the entire amount of the audit assessment, but only the assessment arising from its dealings with a materials vendor, XXXXX, and a subcontractor, XXXXX.

7. Petitioner's transaction with XXXXX occurred in connection with Petitioner's contract with XXXXX ("XXXXX" hereafter) to replace windows in base housing. During contract negotiations between Petitioner and XXXXX, Petitioner included in its proposal the cost of windows to be supplied by XXXXX, including the applicable Utah sales tax. XXXXX awarded the contract to Petitioner.

8. The plant at which XXXXX manufactured the windows in question is located in XXXXX. XXXXX also maintains distribution facilities in Utah and is required to collect sales tax on its Utah sales.

9. In anticipation of supplying Petitioner with the windows necessary for the XXXXX contract, XXXXX submitted its contract documents to Petitioner. Included was a Utah sales tax exemption certificate. Petitioner executed the exemption certificate by indicating it was purchasing the windows for a government agency, but also marked a box on the exemption certificate that instructed XXXXX to add sales tax to Petitioner's invoices.

10. Petitioner took delivery of the windows in question, and was billed by XXXXX for their purchase price. Not all the XXXXX invoices were submitted as evidence in this matter. Of those that were submitted, nineteen made no reference to sales tax. Two invoices included charges for Utah sales tax. One invoice contained the notation "No tax charged, tax number on file", apparently referring to the tax exemption certificate Petitioner had filed with XXXXX. Petitioner concedes that it was not charged sales tax on the bulk of its XXXXX invoices, and that it has not paid sales or use tax with respect to the windows which are the subject matter of those invoices.

11. After Petitioner completed performance of its contract, it received payment from XXXXX as specified in the contract. Included was payment for the XXXXX windows as well as sales tax on those windows.

12. After completion of the XXXXX contract, Petitioner was audited by the XXXXX ("XXXXX"). XXXXX was advised by Petitioner that it realized it had not been charged sales tax by XXXXX on the purchase of the windows in question. Petitioner further advised XXXXX that it would pay the sales tax when requested to do so by the State of Utah.

13. Petitioner hired XXXXX as a subcontractor to provide materials and labor necessary to repair windows which Petitioner had broken during the installation process, primarily at the XXXXX contract site. Petitioner did not pay sales or use tax on the materials used by Mr. XXXXX in the performance of his subcontracting work.

14. In addition to the foregoing, on one occasion XXXXX was employed to replace a window in Petitioner's backhoe.

CONCLUSIONS OF LAW

Utah's Sales and Use Tax Act levies a tax on the purchaser for the amount paid for retail sales of tangible personal property made within the state. (Utah Code Ann. 59-12-103(1).)

The Commission's RuleR865-19S-58 provides, in material part, that sales of tangible personal property to real property contractors and repairmen of real property are generally subject to tax. The person who converts the personal property into real property is the consumer of the personal property since he is the last one to own it as personal property.

Utah Code Ann. 59-1-401 provides the following penalties with respect to nonpayment or underpayment of taxes: a 10% penalty if the underpayment is due to negligence; a 15% penalty if the underpayment is due to intentional disregard of law or rule; a penalty of the larger of $$$$$ or 50% if the underpayment is due to intent to evade the tax; and, a penalty of the greater of $$$$$ or 100% of the tax due if the underpayment is due to fraud with intent to evade the tax.

For reasonable cause, the Commission may waive, reduce, or compromise any penalties or interest. (Utah Code Ann. 59-1401(8).)

Utah Code Ann. 59-12-106 provides, in material part, as follows:

. . . (I)t shall be presumed that tangible personal property . . . sold by any person for delivery in this state is sold for storage, use, or other consumption in this state unless the person selling such property . . . has taken from the purchaser an exemption certificate signed by and bearing the name and address of the purchaser to the effect that the property . . . was exempted under Section 59-12-104 . . . .

Utah Code Ann. 59-12-107 provides, in material part, as follows:

(l)(a) Each vendor shall pay or collect and remit the sales and use taxes imposed by this chapter . . . .

(2)(C)(i)(A) Each vendor shall give the purchaser a receipt for the use tax collected. . . .

(2)(C)(ii) The receipt or invoice is prima facie evidence that the vendor has collected the use tax and relieves the purchaser of the liability for reporting the use tax to the state as a consumer. . . .

DECISION AND ORDER

Petitioner concedes that its purchases of windows from XXXXX were subject to Utah sales tax. It argues, however, that it was XXXXX's duty to collect the tax and that because XXXXX failed to do so, the liability for such tax now rests with XXXXX, and not Petitioner.

Utah's Sales and Use Tax Act and the accompanying rules of the Tax Commission make clear that sales and use tax is levied on the purchaser for the amount paid for taxable goods or services. While it is true that the Act also imposes a duty on the vendor to collect the tax, the duty to pay the tax remains with the purchaser unless the vendor provides the purchaser with a receipt or invoice showing that the tax has been paid. Such a receipt or invoice is prima facie evidence that the tax has in fact been paid by the vendor to the state, and shifts the burden of payment from the purchaser to the vendor. (See Utah Code Ann. 59-12-107.)

In this case, Petitioner knew that its purchases of materials from XXXXX were subject to Utah sales tax. XXXXX's invoices showed that in almost all cases, no tax had been charged. Payment of the tax therefore remained Petitioner's responsibility. Petitioner acknowledged as much during its XXXXX audit. The Commission therefore affirms Respondent's assessment of sales tax against Petitioner arising from the XXXXX transactions.

With respect to the assessment of sales tax in connection with Petitioner's payments to XXXXX for repairs to windows that had been installed to real property, the Commission refers to its RuleR865-19S-57. That rule provides that the contractor or repairman who installs personal property to real property is the consumer of such personal property and is therefore subject to pay sales tax on his purchase of the materials. That being the case, XXXXX, not Petitioner, was the consumer of the materials in question and subject to the tax thereon.

The final issue to be resolved in this matter is the propriety of Respondent's assessment of a 50% penalty against Petitioner on the grounds Petitioner failed to pay its sales tax liability in the XXXXX matter with the intent to evade such tax. Based upon the record in this matter, the Commission concludes that Petitioner knew the XXXXX transactions were taxable. However, Petitioner's conduct does not appear to have been motivated by an intent to evade the tax so much as an intentional disregard for the applicable statutes and rules. Pursuant to Utah Code Ann. 59-1401, the Commission therefore reduces the penalty from 50% to 15%.

In summary, the Commission affirms Respondent's assessment of sales tax against Petitioner in connection with the XXXXX transactions. The Commission finds that Petitioner has no liability for sales tax arising from the XXXXX transactions. Finally, the penalty assessed against Petitioner is reduced from 50% to 15%. Respondent is instructed to recompute Petitioner's liability for sales tax, penalty and interest in accordance with this decision, and advise Petitioner of the same. It is so ordered.

DATED this 7th day of May, 1993.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco S. Blaine Willes

Commissioner Commissioner