01-011
Response 4/13/01
REQUEST LETTER
TO: TP REPRESENTATIVE, Utah State Tax Commission
FROM: NAME
DATE: DATE
RE: STATE Manufacturer Plate Request
This is a request for written approval to use STATE manufacturer license plates in Utah for the 2002 Olympic Games. NAME is a major sponsor of this event and provides new vehicles to designated COMPANY personnel, members of the COMPANY and COMPANY, and various strategic partners for use throughout the event. Vehicles will not be used by the athletes. Beginning in DATE through DATE, about 1000 vehicles will be placed in service. From December, 2001 through February, 2002, another 3000 vehicles will be used. No vehicle will be in service longer than 180 days and the event should conclude by the end of DATE. All vehicles will have mandatory insurance. Utah approval to use STATE manufacturer plates on vehicles used in conjunctions with the Olympic Games will greatly contribute to its success.
RESPONSE LETTER
DATE
NAME
RE: Advisory Opinion – Registration of Vehicles Owned by COMPANY
Dear NAME:
You have
requested an advisory opinion concerning Utah’s registration requirements for
motor vehicles brought in from out-of-state.
As a sponsor of the 2002 Olympic Games, COMPANY will bring about 1000
vehicles into Utah, beginning in DATE, for use by designated COMPANY personnel,
members of the United States and Salt Lake Olympic Committees, and various
other “strategic partners.” From DATE
through DATE, COMPANY will supply another 3000 vehicles for the same use. No vehicle will be in service for more than
180 days. Under these circumstances,
NAME is requesting approval to use STATE manufacturer license plates on the
vehicles for the entire period they are present in Utah, instead of registering
the vehicles in Utah. We shall address
your registration and manufacturer plate request first, then discuss under what
circumstances COMPANY would incur Utah sales and use tax liability on these
vehicles.
A. Utah Registration Requirements. Utah Code Ann.
§41-1a-202(3) provides that “[u]nless
otherwise exempted under Subsection (2), registration under this chapter is
required for any motor vehicle, combination of vehicles, trailer, semitrailer,
or vintage vehicle within 60 days of the owner establishing residency in this
state.” Therefore, within 60 days of
bringing its vehicles into Utah, GM is required to register them under Section
202(3) unless an applicable exemption exists.
Section
202(2)(a) allows an exemption from Utah registration for “[v]ehicles registered
in another state and owned by a nonresident of [Utah] . . .” Assuming that having STATE manufacturer
license plates is considered registration in another state, COMPANY would still
have to qualify as a “nonresident” to receive the registration exemption. A “nonresident” is defined in Utah Code Ann.
§41-1a-102(34)(a) as “a person who is not a resident of this state as defined
by Section 41-1a-202, and who does not engage in intrastate business within
this state and does not operate in that business any motor vehicle, trailer, or
semitrailer within this state.” In
short, two requirements must be met before an entity is a “nonresident:” (1)
not to be a “resident,” as defined in statute, and (2) not to engage in
intrastate business in Utah while using a motor vehicle, trailer, or
semitrailer in Utah.
“Resident”
is defined in Section 202(1)(b)(i) to include:
(B) any individual, partnership, limited liability company,
firm, corporation, association, or other entity that:
(I) maintains a main office, branch office, or warehouse
facility in this state and that bases and operates a motor vehicle in this
state; or
(II) operates a motor vehicle in intrastate transportation
for other than seasonal work.
Under
Subsection 202(1)(b)(i)(B)(I), NAME would be considered a “resident” if it
maintains an office or other facility in Utah because its actions result in
motor vehicles being based and operated in Utah. Even should COMPANY maintain no facility in Utah, Subsection
202(1)(b)(i)(B)(II), still qualifies an entity as a “resident” if it operates a
motor vehicle in intrastate transportation for any non-seasonal work. COMPANY will be using its vehicles in Utah for
intrastate transportation. However, the
vehicles will not be operated for “seasonal work” because they will be in use
for an eleven-month period, while “seasonal work” applies to shorter periods,
usually dependent upon weather or harvest times. For this reason COMPANY would also be considered a “resident”
under this subsection rather than a “nonresident” under Section 41-1a-102, and
would not qualify for the Section 202(2) exemption from registration.
It
follows that since COMPANY is required to register these vehicles in Utah, the
use of STATE manufacturer plates is not permitted. Section 41-1a-202(3) provides that registration may occur within
60 days of an owner’s establishing residency in Utah. However, a party who is already a resident, such as COMPANY, must
register a vehicle immediately upon the vehicle arriving in state. Any reciprocity regarding the use of another
state’s license plates in Utah is available only to nonresidents. Again, because it is a resident, COMPANY
should register its vehicles immediately upon arrival.
B. Utah Manufacturer Plates. Utah Code Ann.
§41-3-501(3) provides that a:
manufacturer or remanufacturer may operate or move a
manufactured or remanufactured motor vehicle displaying a manufacturer plate issued
by the division upon the highways without registering it as required under
Title 41, Chapter 1a, Motor Vehicle Act, solely to: (a) deliver the motor
vehicle to a dealer; or (b) demonstrate a motor vehicle to a dealer or
prospective dealer.
The use of COMPANYs vehicles in
Utah during the Olympics will be for purposes other than those allowed under
Subsection 501(3). While COMPANY is a
recognized vehicle manufacturer, Utah law does not authorize COMPANY to operate
its vehicles while displaying a Utah manufacturer plate under the circumstances
described.
II. Sales and
Use Tax
You state that
vehicles brought into Utah will be used by designated COMPANY personnel,
members of the United States Olympic Committee (USOC) and Salt Lake Olympic
Committee (SLOC), as well as various other “strategic partners.” Whether sales and use tax is due at the time
the vehicles are registered depends upon the actual use of the vehicles. As explained below, there are different tax
treatments for vehicles owned by COMPANY depending upon whether they are used
by COMPANY personnel, whether their use is donated by COMPANY to another
entity, or whether they are subsequently leased for compensation.
A. Vehicles Used by COMPANY. While tangible
personal property held as inventory is exempt from taxation, sales tax is
imposed when an item is removed from inventory and used primarily for company
purposes. (Utah Admin. Rule
865-19S-82(C).) We consider vehicles in
Utah, used by COMPANY personnel, to be removed from inventory for use for
company purposes. Accordingly, sales
and use tax is due on these vehicles when they are registered, with the tax
applied to the amount COMPANY “paid” for the vehicles. Because a vehicle manufacturer does not
purchase the vehicles it produces, the amount COMPANY “paid” for the vehicles
is unknown. Instead, Utah imposes the
tax on an estimate of the manufacturer’s material and parts cost at 50% of the
normal invoice price to a dealer. Thus,
when registering vehicles in Utah that will be used by COMPANY personnel,
COMPANY should pay sales and use tax according to these terms.
B. Vehicles Donated to Another Entity. COMPANY is also
donating the use of vehicles to other entities, including USOC, SLOC, and other
“strategic partners.” Utah Admin. Rule
865-19S-68(A) (Rule 68) addresses the taxation of donated items by providing
that:
Donors of articles of tangible personal property, which are
given away as premiums or otherwise, are regarded as the users or consumers
thereof and the sale to them is a taxable sale. Exceptions to this treatment are items of tangible personal
property donated to or provided for use by exempt organizations who would
qualify for exemption under R865-19S-43 or R865-19S-54 if a sale of such items
were made to them. . . .
As a result, COMPANY is liable for
sales and use tax when donating the use of a vehicle to a “strategic partner, ”
unless that entity itself qualifies for an exemption from sales and use tax as
a governmental, religious, or charitable organization. If the “strategic partner” is not entitled
to an exemption under Utah law, then COMPANY should pay sales and use tax on
50% of the normal dealer invoice price when it registers the vehicle in Utah.
However,
as indicated, donating the use of a vehicle to an entity that is entitled to an
exemption under Utah law may absolve COMPANY of sales and use tax
liability. For sales and use tax
purposes, any entity that applies and qualifies for an “N” designation on its
sales tax account number from the Tax Commission is considered exempt. A 501(c)(3) entity is, by definition, a
charitable organization and automatically qualifies for an “N” number
designation. A donation to a charitable
organization is not usually taxable, as long as the entity uses the property in
the conduct of its regular functions and activities. (See Utah Code Ann. §59-12-104(8)(a).) Rule 68 further clarifies that donations are exempt if the donee
would have been exempt had “a sale of such items [been] made to them.”
SLOC and, we assume, USOC1 are 501(c)(3) entities, which qualifies both for the
religious or charitable exemption from sales tax offered under Subsection
59-12-104(8)(a). They would be exempt
from taxation if they purchased vehicles like the ones COMPANY is donating and
used them in their normal course of business.2 Accordingly, COMPANY is relieved of sales and
use tax liability on vehicles donated to SLOC and USOC.
C. Leased Vehicles. We understand
some of the vehicles that COMPANY donates will subsequently be leased by SLOC
to other parties. When a vehicle is
leased, the lessor is not liable for sales and use tax at the time of
registration under the resale exemption.
However, the lessor must collect and remit sales and use tax on 100% of
the amount charged for the rental. SLOC
is required to collect sales tax on any vehicle it rents out during the
Olympics; as such a transaction is an exception from the religious or
charitable exemption usually afforded 501(c)(3) entities. (See Section 59-12-104(8)(b).)
Vehicles donated by NAME, and subsequently leased out by SLOC, could have been purchased tax exempt by SLOC under the resale exemption. NAME may therefore, following Rule 68, donate the use of these specific vehicles to SLOC without paying sales and use tax when registering the vehicles. Any tax liability will instead fall on SLOC, which is required to collect and remit sales and use tax on its subsequent rental or lease transactions.
The opinions expressed herein are based on the facts presented in your email request. Should other relevant facts exist which are at this time unknown, our response might be different. Please contact us if you have any other questions.
For the Commission,
Marc B. Johnson
Commissioner
MBJ/KC
01-011
1 Should USOC not be a 501(c)(3) entity, GM would automatically incur sales and use tax liability upon registering a vehicle that it donated to USOC.