The Department of Revenue ("Department") conducted a sales and use tax audit of Taxpayer's records. The audit resulted in the assessment of additional tax.
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Taxpayer states that it purchased items of tangible personal property exempt from sales/use tax because the items are used in the production of the tangible personal property it manufactures.
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In order to qualify for the exemption, both the regulation and the statute require that the equipment at issue be "directly used" in "direct production." That means that the equipment or device must have an "immediate effect" on the manufactured items being produced by Taxpayer.
Taxpayer has provided sufficient information to establish that the following transaction represents the acquisition of materials or equipment directly involved in Taxpayer's production process and which has an immediate effect on the Taxpayer's products;
Invoice F59663; $30.00
Taxpayer has also provided documents such as invoices related to the acquisition of various items such as "Pallets, "machining/coolant system," "Elliott Equipment," "Propane," "modular plug-in lighting," and the like on the ground that these items or supplies are directly involved in Taxpayer's production process and which presumably have an immediate effect on Taxpayer's products. Perhaps so, but there is no independent documentation, explanation, or confirmation for Taxpayer's position. There is simply Taxpayer's assertion that the items are used in direct production of Taxpayer's mechanical products and that items have an "immediate" effect on those items. Bearing in mind that the exemption is "strictly construed against exemption," the Department must conclude that Taxpayer has not met its burden of demonstrating that the exemption applies to these additional items.
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A transaction subject to the state's sales tax necessarily involves the transfer of "tangible personal property."
A review of the invoices provided by Taxpayer establishes that the following invoices represent costs paid for services.
Invoice 1266; Inc. $1,950.00
Invoice 12032; $2,385.00
Invoice 12192; $405.00
Invoice 12457; $500.00
Invoice 13942; $2,300.00
Invoice 022655; $670.00
Invoice 26503; $405.00
Invoice D0304; $153.34
Invoice 211712; $3,355.00
The Audit Division is requested to review the result of the original audit and remove the transactions noted above.
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Taxpayer protests the assessment of sales/use tax on lump-sum contracts it argues were for improvements to real property. Taxpayer cites to no legal authority but apparently relies in general on 45 IAC 2.2-3-9 (e) which states in part:
With respect to construction material a contractor acquired tax-free, the contractor is liable for the use tax and must remit such tax (measured on the purchase price) to the Department of Revenue when he disposes of such property in the following manner . . . (3) Lump sum contract. He converts the construction material into realty on land he does not own pursuant to a contract that includes all elements of cost in the total contract price.
Taxpayer has met its burden of demonstrating that the following represent lump sum contracts for which no use tax is due by Taxpayer.
Purchase Order X5602; LLC $6,480.55
Purchase Order X5601; LLC $2,383.00
Purchase Order X5381; LLC $2,850.00
Purchase Order X5600; LLC $4,758.00
Purchase Order 4504633922; LLC $6,299.00
Purchase Order 4504308279; LLC $1,695.00
Purchase Order 4504608279; LLC $1,090.00
Purchase Order X-5638; LLC $5,874.00
Purchase Order X-CAPX; $2,313.00
Purchase Order X-6478; $4,888.00
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Taxpayer argues that it was not required to pay sales tax or self-assess use tax on payments for "maintenance contracts" because the documents provided specify that the vendor will only supply services and will not provide tangible personal property.
Taxpayer maintains that payments it made on maintenance contracts are exempt. IC § 6-2.5-2-1(a) imposes a sales tax on retail transactions made in Indiana. IC § 6-2.5-4-1 provides that a retail transaction occurs when a seller "acquires tangible personal property for the purpose of resale; and . . . transfers that property to another for consideration." IC § 6-2.5-4-1(b).
Nonetheless 45 IAC 2.2-4-2 (a) in part states that, "Professional services, personal services, and services in respect to property not owned by the person rendering such services are not 'transactions of a retail merchant constituting selling at retail', and are not subject to gross retail tax."
The issue is whether the maintenance agreements into which taxpayer entered were subject to sales tax or whether the agreements merely constitute exempt contracts for the provision of professional services.
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Taxpayer has provided sufficient information to establish that the following transactions are exempt from sales or use tax.
Invoice F11303; $1,210.00
Invoice F11518; $1,210.00
Invoice F10903; $1,210.00
Invoice F11082; $1,210.00
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Taxpayer maintains it was not required to pay sales tax or self-assess use tax on the purchase of various packaging supplies.
IC § 6-2.5-5-9(d) provides that "[s]ales of wrapping materials and empty containers are exempt from the state gross retail tax if the person acquiring the material or containers acquires them for use as non-returnable packages for selling the contents that he adds." The applicable companion regulation is found at 45 IAC 2.2-5-16 (a) which states that "[t]he state gross retail tax shall not apply to sales of non-returnable wrapping materials and empty containers to be used by the purchaser as enclosures or containers for selling contents to be added." The regulation goes on to state that, in order to qualify for the exemption, "non-returnable wrapping materials and empty containers must be used by the purchaser in the following way: (A) The purchaser must add contents to the containers purchased; and (B) The purchaser must sell the contents added." 45 IAC 2.2-5-16 (d)(1).
Taxpayer purchased pallets which it argues are not subject to tax. If Taxpayer uses the pallets to ship its products to its customers, the pallets are not exempt because pallets are "returnable" and do not fall within 45 IAC 2.2-5-16 (a). Alternatively, If Taxpayer's argument is that the pallets are used to transport its products within the production process, the argument fails because Taxpayer has not provided information to establish the premise.
Taxpayer also paid for staples, tape, "hot melt," "gray iron," all of which purportedly are used as wrapping or shipping materials. As with the pallets noted above in Part I, Taxpayer has not provided sufficient information to establish that it is entitled to this exemption.
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Taxpayer purchased certain items from an Indiana vendor. Taxpayer argues it should have been provided a "credit" for taxes paid on the purchase of the items because the property was destined to be shipped to and used at out-of-state locations.
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Taxpayer has not provided any legal authority in support of its protest. Taxpayer presumably relies on IC § 6-2.5-3-2(e) which states:
Notwithstanding any other provision of this section, the use tax is not imposed on the keeping, retaining, or exercising of any right or power over tangible personal property, if:
(1) the property is delivered into Indiana by or for the purchaser of the property;
(2) the property is delivered in Indiana for the sole purpose of being processed, printed, fabricated, or manufactured into, attached to, or incorporated into other tangible personal property; and
(3) the property is subsequently transported out of state for use solely outside Indiana.
In this case, Taxpayer bought materials from an Indiana vendor. Taxpayer states that it never took delivery of the materials but that the materials were shipped directly to an out-of-state location. Taxpayer's documentation establishes nothing of the sort; Indiana purchaser was purchasing materials from an Indiana vendor and the authority upon which Taxpayer apparently relies is inapplicable.
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Taxpayer reimbursed one of its executive staff members for certain expenses. Taxpayer argues that it was not required to pay sales tax or self-assess use tax on the reimbursements.
As first stated in Part I above, it is the Taxpayer's responsibility to establish that the existing tax assessment is wrong. IC § 6-8.1-5-1(c). In this particular instance, Taxpayer has not set out the arguments which either explain the circumstances underlying the reimbursements or the legal basis for its argument. In one particular instance, Taxpayer reimbursed its executive $7,410.55. Were the expenses exempt on their face or does Taxpayer maintain that the reimbursements were inherently exempt because Taxpayer did not acquire the underlying tangible personal property?
Taxpayer has not provided sufficient information to conclude that the underlying transactions were not subject to tax.
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Taxpayer paid for 16 membership/magazine subscriptions. Taxpayer maintains that the subscriptions were exempt from sales/use tax.
Taxpayer cites to no legal authority for its argument. Presumably Taxpayer relies 45 IAC 2.2-4-2 (a) which states as follows:
Professional services, personal services, and services in respect to property not owned by the person rendering such services are not "transactions of a retail merchant constituting selling at retail", and are not subject to gross retail tax. Where, in conjunction with rendering professional services, personal services, or other services, the serviceman also transfers tangible personal property for a consideration, this will constitute a transaction of a retail merchant constituting selling at retail unless . . . (3) the price charged for tangible personal property is inconsequential (not to exceed 10 [percent]) compared with the service charge . . . ."
The subscriptions cost approximately $20 each. There is no indication that the $20 represents primarily exempt services and not simply the price it pays to subscribe to a magazine.
The information is insufficient to sustain Taxpayer's argument that the magazine/membership subscriptions are exempt.
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Taxpayer argues that it is not required to pay sales tax or self-assess use tax on that portion of certain invoices which represent separately stated installation or labor charges. Taxpayer offers no legal argument but presumably relies on IC § 6-2.5-1-5(b) which states:
"Gross retail income" does not include that part of the gross receipts attributable to:
(1) the value of any tangible personal property received in a like kind exchange in the retail transaction, if the value of the property given in exchange is separately stated on the invoice, bill of sale, or similar document given to the purchaser;
(2) the receipts received in a retail transaction which constitute interest, finance charges, or insurance premiums on either a promissory note or an installment sales contract;
(3) discounts, including cash, terms, or coupons that are not reimbursed by a third party that are allowed by a seller and taken by a purchaser on a sale;
(4) interest, financing, and carrying charges from credit extended on the sale of personal property if the amount is separately stated on the invoice, bill of sale, or similar document given to the purchaser;
(5) any taxes legally imposed directly on the consumer that are separately stated on the invoice, bill of sale, or similar document given to the purchaser; or
(6) installation charges that are separately stated on the invoice, bill of sale, or similar document given to the purchaser. (Emphasis added).
Taxpayer has provided invoices that fall within the statutory exclusion of installation charges from the definition of "gross retail income."
Invoice 50731; $415.00
Invoice 525668; $2,300.00
Invoice 788543; $330.00
Invoice 030853; $5,625.00
Invoice 10-2208-02; $11,550.00
Invoice 10-2208-04; $2,720.00
Invoice 9005; LLC $245.70; $303.60
