93-0593

Sales

Signed 8/26/93

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

XXXXX, )

:

Petitioner, ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

v. ) AND FINAL DECISION

:

AUDITING DIVISION OF THE ) Appeal No. 93-0593

UTAH STATE TAX COMMISSION, :

) Tax Type: Sales Tax Refund

Respondent. :

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a formal hearing on XXXXX. Lisa L. Olpin, Presiding Officer, heard the matter for and on behalf of the Commission. Petitioner was present and represented himself. Present and representing Respondent was XXXXX, Assistant Utah Attorney General.

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 on a motorcycle.

2. Petitioner has paid the sales and use tax on his motorcycle and is now requesting a refund in the same amount.

3. Petitioner argues he should not be required to pay sales and use tax on a motorcycle that he bought while stationed abroad and had delivered to Utah for pick-up.

4. Petitioner, a Michigan resident serving in the U.S. Air Force, was stationed in Spain in XXXXX. While there, he contracted through military services with Harley-Davidson Corporation on XXXXX to buy a motorcycle for $$$$$ (price included delivery charges to Orem, Utah). No sales and use tax was added.

5. At the time, Petitioner paid Harley-Davidson a $$$$$ deposit.

6. Over the next months, Petitioner paid monthly payments to Harley-Davidson.

7. Then, Petitioner transferred from Spain to Hill Air Force Base, Utah in October XXXXX.

8. In XXXXX, Petitioner took delivery of the motorcycle from Harley-Davidson in Orem, Utah. At the time of delivery, Petitioner paid Harley-Davidson the entire balance for he had secured Utah financing on the bike.

9. He then registered the motorcycle in Utah and paid the sales and use tax which he now protests.

10. Petitioner obtained an information statement from the Utah Department of Motor Vehicles and bases his appeal on its contents which state, in pertinent part: "Non Resident Military person purchases vehicle overseas or out of state, receives orders to be stationed in Utah NO USE SALES TAX IS DUE. Vehicle purchased prior to reporting for duty in Utah is exempt if purchaser is non resident military."

11. The Auditing Division argues that since Petitioner took delivery of the motorcycle in Utah and paid for it in full at that time, he is required to pay Utah sales and use tax.

CONCLUSIONS OF LAW

According to Utah law, there is levied a tax 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).

Further, Utah Administrative Rule R865-19-31S states: "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 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."

Regarding members of the U. S. armed forces, a member of the armed forces may register a vehicle in the state of his legal residence. Upon so registering the vehicle, he is exempt from registration requirements. Utah Admin. Rule R873-22-3M(B).

Additionally, "a nonresident member of the armed forces who is stationed in Utah under military orders who does not register his vehicle in his state of domicile, must register his vehicle in Utah by paying the registration fee." Utah Admin. Rule R873-22-3M(C).

DECISION AND ORDER

Based upon the foregoing, the Tax Commission determines that Petitioner purchased the motorcycle in Utah even though he contracted to buy it while he was still in Spain. The fact that he took delivery of the bike in Utah and paid for it here is indicative of a Utah purchase.

If, for example, Petitioner had bought the bike, accepted delivery and registered it in his home state of Michigan, he would not be liable for Utah sales tax.

Therefore, the Tax Commission finds that Petitioner rightfully owes Utah sales and use tax on the motorcycle in question. His refund request is denied. It is so ordered.

DATED this 26th day of August, 1993.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

W. Val Oveson* Roger O. Tew

Chairman Commissioner

Joe B. Pacheco Alice Shearer*

Commissioner Commissioner

NOTICE: You have twenty (20) days after the date of the final order to file a request for reconsideration or thirty (30) days after the date of final order to file in Supreme Court a petition for judicial review. Utah Code Ann. ''63-46b-13(1), 63-46b-14(2)(a).

*Since the hearing on this case, Chairman R. H. Hansen and Commissioner S. Blaine Willes have been replaced by Chairman W. Val Oveson and Commissioner Alice Shearer. Chairman Oveson and Commissioner Shearer participate in this decision after having been fully informed of the facts and circumstances regarding this case.

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