No. 29942 (Amendment): R865-19S-58. Materials and Supplies Sold to Owners, Contractors and Repairmen of Real Property Pursuant to Utah Code Ann. Sections 59-12-102 and 59-12-103

DAR File No.: 29942
Filed: 05/14/2007, 03:39
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The proposed amendment is necessary to provide guidance as to what constitutes "attachment" in the specific instance of telephone or communications equipment and associated wires and lines.

Summary of the rule or change:

The proposed amendment indicates when telephone or communications equipment and associated wires and lines remain tangible personal property even when attached to real property.

State statutory or constitutional authorization for this rule:

Sections 59-12-102 and 59-12-103

Anticipated cost or savings to:

the state budget:

Insignificant cost--Those who were treating this property as real property would have collected sales tax on their labor. Others were always treating this property as tangible personal property.

local governments:

Insignificant cost--Those who were treating this property as real property would have collected sales tax on their labor. Others were always treating this property as tangible personal property.

other persons:

Insignificant savings if purchasing this property from a seller that treated it as real property.

Compliance costs for affected persons:

The proposed amendment will make it easier for a retailer that provides telephone or communications systems to determine whether the seller is selling tangible personal property subject to sales tax, or is the final consumer of property and must pay sales tax on the purchase.

Comments by the department head on the fiscal impact the rule may have on businesses:

It will be easier to determine who owes sales tax. D'Arcy Dixon, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Tax Commission
Auditing
210 N 1950 W
SALT LAKE CITY UT 84134

Direct questions regarding this rule to:

Cheryl Lee at the above address, by phone at 801-297-3900, by FAX at 801-297-3919, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/02/2007

This rule may become effective on:

07/09/2007

Authorized by:

D'Arcy Dixon, Commissioner

RULE TEXT

R865. Tax Commission, Auditing.

R865-19S. Sales and Use Tax.

R865-19S-58. Materials and Supplies Sold to Owners, Contractors and Repairmen of Real Property Pursuant to Utah Code Ann. Sections 59-12-102 and 59-12-103.

[A.](1) Sales of construction materials and other items of tangible personal property to real property contractors and repairmen of real property are generally subject to tax if the contractor or repairman converts the materials or items to real property.

[1.](a) "Construction materials" include items of tangible personal property such as lumber, bricks, nails and cement that are used to construct buildings, structures or improvements on the land and typically lose their separate identity as personal property once incorporated into the real property.

[2.](b) Fixtures or other items of tangible personal property such as furnaces, built-in air conditioning systems, built-in appliances, or other items that are appurtenant to or incorporated into real property and that become an integral part of a real property improvement are treated as construction materials for purposes of this rule.

[B.](2) The sale of real property is not subject to sales tax, nor is the labor performed on real property. For example, the sale of a completed home or building is not subject to the tax, but sales of materials and supplies to contractors for use in building the home or building are taxable transactions as sales to final consumers.

[1.](a) The contractor or repairman who converts the personal property to real property is the consumer of tangible personal property regardless of the type of contract entered into--whether it is a lump sum, time and material, or a cost-plus contract.

[2.](b) Except as otherwise provided in [B.4]Subsection (2)(d), the contractor or repairman who converts the construction materials, fixtures or other items to real property is the consumer of the personal property whether the contract is performed for an individual, a religious or charitable institution, or a government entity.

[3.](c) Sales of construction materials or fixtures made to religious or charitable institutions are exempt only if the items are sold as tangible personal property.

[4.](d) Sales of materials are considered made to religious or charitable institutions and, therefore, exempt from sales tax, if:

[a)](i) the religious or charitable institution makes payment for the materials directly to the vendor; or

[b)](ii)(A) the materials are purchased on behalf of the religious or charitable institution.

[(i)](B) Materials are purchased on behalf of the religious or charitable institution if the materials are clearly identified and segregated and installed or converted to real property owned by the religious or charitable institution.

[5.](e) Purchases not made pursuant to [B.4.]Subsection (2)(d) are assumed to have been made by the contractor and are subject to sales tax.

[C.](3) If the contractor or repairman purchases all materials and supplies from vendors who collect the Utah tax, no sales tax license is required unless the contractor makes direct sales of tangible personal property in addition to the work on real property.

[1.](a) If direct sales are made, the contractor shall obtain a sales tax license and collect tax on all sales of tangible personal property to final consumers.

[2.](b) The contractor must accrue and remit tax on all merchandise bought tax-free and converted to real property. Books and records must be kept to account for both material sold and material consumed.

[D.](4) This rule does not apply to contracts where the retailer sells and installs personal property that does not become part of the real property. Examples of items that remain tangible personal property even when attached to real property are:

[1.](a) moveable items that are attached to real property merely for stability or for an obvious temporary purpose;

[2.](b) manufacturing equipment and machinery and essential accessories appurtenant to the manufacturing equipment and machinery;[ and]

[3.](c) items installed for the benefit of the trade or business conducted on the property that are affixed in a manner that facilitates removal without substantial damage to the real property or to the item itself[.]and

(d) telephone or communications equipment and associated wire and lines if the equipment, wire, and lines:

(i) are provided as part of a single transaction;

(ii) that are part of real property are an incidental portion of the transaction;

(iii) are primarily used for the operation of a telephone system or a communications system;

(iv) are installed for the benefit of the trade or business conducted on the property; and

(v) are attached to real property in a manner such that their removal from the real property does not cause substantial damage to the equipment, wire, or lines or to the real property to which they are attached.

 

KEY: charities, tax exemptions, religious activities, sales tax

Date of Enactment or Last Substantive Amendment: [November 17, 2006]2007

Notice of Continuation: March 13, 2007

Authorizing, and Implemented or Interpreted Law: 59-12-102; 59-12-103