2006 Utah Code - 59-12-107 — Collection, remittance, and payment of tax by sellers or other persons -- Returns -- Direct payment by purchaser of vehicle -- Other liability for collection -- Rulemaking authority -- Credits -- Treatment of bad debt -- Penalties.

     59-12-107.   Collection, remittance, and payment of tax by sellers or other persons -- Returns -- Direct payment by purchaser of vehicle -- Other liability for collection -- Rulemaking authority -- Credits -- Treatment of bad debt -- Penalties.
     (1) (a) Except as provided in Subsection (1)(d) or Section 59-12-107.1 and subject to Subsection (1)(e), each seller shall pay or collect and remit the sales and use taxes imposed by this chapter if within this state the seller:
     (i) has or utilizes:
     (A) an office;
     (B) a distribution house;
     (C) a sales house;
     (D) a warehouse;
     (E) a service enterprise; or
     (F) a place of business similar to Subsections (1)(a)(i)(A) through (E);
     (ii) maintains a stock of goods;
     (iii) regularly solicits orders, regardless of whether or not the orders are accepted in the state, unless the seller's only activity in the state is:
     (A) advertising; or
     (B) solicitation by:
     (I) direct mail;
     (II) electronic mail;
     (III) the Internet;
     (IV) telephone; or
     (V) a means similar to Subsection (1)(a)(iii)(A) or (B);
     (iv) regularly engages in the delivery of property in the state other than by:
     (A) common carrier; or
     (B) United States mail; or
     (v) regularly engages in an activity directly related to the leasing or servicing of property located within the state.
     (b) A seller that does not meet one or more of the criteria provided for in Subsection (1)(a):
     (i) except as provided in Subsection (1)(b)(ii), may voluntarily:
     (A) collect a tax on a transaction described in Subsection 59-12-103(1); and
     (B) remit the tax to the commission as provided in this part; or
     (ii) notwithstanding Subsection (1)(b)(i), shall collect a tax on a transaction described in Subsection 59-12-103(1) if Section 59-12-103.1 requires the seller to collect the tax.
     (c) A person shall pay a use tax imposed by this chapter on a transaction described in Subsection 59-12-103(1) if:
     (i) the seller did not collect a tax imposed by this chapter on the transaction; and
     (ii) the person:
     (A) stores the tangible personal property in the state;
     (B) uses the tangible personal property in the state; or
     (C) consumes the tangible personal property in the state.
     (d) The ownership of property that is located at the premises of a printer's facility with which the retailer has contracted for printing and that consists of the final printed product, property that becomes a part of the final printed product, or copy from which the printed product

is produced, shall not result in the retailer being considered to have or maintain an office, distribution house, sales house, warehouse, service enterprise, or other place of business, or to maintain a stock of goods, within this state.
     (e) (i) As used in this Subsection (1)(e):
     (A) "affiliated group" is as defined in Section 59-7-101, except that "affiliated group" includes a corporation that is qualified to do business but is not otherwise doing business in this state;
     (B) "common ownership" is as defined in Section 59-7-101;
     (C) "related seller" means a seller that:
     (I) is not required to pay or collect and remit sales and use taxes under Subsection (1)(a) or Section 59-12-103.1;
     (II) is:
     (Aa) related to a seller that is required to pay or collect and remit sales and use taxes under Subsection (1)(a) as part of an affiliated group or because of common ownership; or
     (Bb) a limited liability company owned by the parent corporation of an affiliated group if that parent corporation of the affiliated group is required to pay or collect and remit sales and use taxes under Subsection (1)(a); and
     (III) does not voluntarily collect and remit a tax under Subsection (1)(b)(i).
     (ii) A seller is not required to pay or collect and remit sales and use taxes under Subsection (1)(a):
     (A) if the seller is a related seller;
     (B) if the seller to which the related seller is related does not engage in any of the following activities on behalf of the related seller:
     (I) advertising;
     (II) marketing;
     (III) sales; or
     (IV) other services; and
     (C) if the seller to which the related seller is related accepts the return of an item sold by the related seller, the seller to which the related seller is related accepts the return of that item:
     (I) sold by a seller that is not a related seller; and
     (II) on the same terms as the return of an item sold by that seller to which the related seller is related.
     (2) (a) Except as provided in Section 59-12-107.1, a tax under this chapter shall be collected from a purchaser.
     (b) A seller may not collect as tax an amount, without regard to fractional parts of one cent, in excess of the tax computed at the rates prescribed by this chapter.
     (c) (i) Each seller shall:
     (A) give the purchaser a receipt for the tax collected; or
     (B) bill the tax as a separate item and declare the name of this state and the seller's sales and use tax license number on the invoice for the sale.
     (ii) The receipt or invoice is prima facie evidence that the seller has collected the tax and relieves the purchaser of the liability for reporting the tax to the commission as a consumer.
     (d) A seller is not required to maintain a separate account for the tax collected, but is considered to be a person charged with receipt, safekeeping, and transfer of public moneys.
     (e) Taxes collected by a seller pursuant to this chapter shall be held in trust for the

benefit of the state and for payment to the commission in the manner and at the time provided for in this chapter.
     (f) If any seller, during any reporting period, collects as a tax an amount in excess of the lawful state and local percentage of total taxable sales allowed under this chapter, the seller shall remit to the commission the full amount of the tax imposed under this chapter, plus any excess.
     (g) If the accounting methods regularly employed by the seller in the transaction of the seller's business are such that reports of sales made during a calendar month or quarterly period will impose unnecessary hardships, the commission may accept reports at intervals that will, in the commission's opinion, better suit the convenience of the taxpayer or seller and will not jeopardize collection of the tax.
     (3) (a) Except as provided in Subsection (4) and Section 59-12-108, the sales or use tax imposed by this chapter is due and payable to the commission quarterly on or before the last day of the month next succeeding each calendar quarterly period.
     (b) (i) Each seller shall, on or before the last day of the month next succeeding each calendar quarterly period, file with the commission a return for the preceding quarterly period.
     (ii) The seller shall remit with the return under Subsection (3)(b)(i) the amount of the tax required under this chapter to be collected or paid for the period covered by the return.
     (c) Each return shall contain information and be in a form the commission prescribes by rule.
     (d) The sales tax as computed in the return shall be based upon the total nonexempt sales made during the period, including both cash and charge sales.
     (e) The use tax as computed in the return shall be based upon the total amount of sales and purchases for storage, use, or other consumption in this state made during the period, including both by cash and by charge.
     (f) (i) Subject to Subsection (3)(f)(ii) and in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the commission may by rule extend the time for making returns and paying the taxes.
     (ii) An extension under Subsection (3)(f)(i) may not be for more than 90 days.
     (g) The commission may require returns and payment of the tax to be made for other than quarterly periods if the commission considers it necessary in order to ensure the payment of the tax imposed by this chapter.
     (4) (a) On each vehicle sale made by other than a regular licensed vehicle dealer, the purchaser shall pay the sales or use tax directly to the commission if the vehicle is subject to titling or registration under the laws of this state.
     (b) The commission shall collect the tax described in Subsection (4)(a) when the vehicle is titled or registered.
     (5) If any sale of tangible personal property or any other taxable transaction under Subsection 59-12-103(1), is made by a wholesaler to a retailer, the wholesaler is not responsible for the collection or payment of the tax imposed on the sale and the retailer is responsible for the collection or payment of the tax imposed on the sale if:
     (a) the retailer represents that the personal property is purchased by the retailer for resale; and
     (b) the personal property is not subsequently resold.
     (6) If any sale of property or service subject to the tax is made to a person prepaying sales or use tax in accordance with Title 63, Chapter 51, Resource Development, or to a contractor or

subcontractor of that person, the person to whom such payment or consideration is payable is not responsible for the collection or payment of the sales or use tax and the person prepaying the sales or use tax is responsible for the collection or payment of the sales or use tax if the person prepaying the sales or use tax represents that the amount prepaid as sales or use tax has not been fully credited against sales or use tax due and payable under the rules promulgated by the commission.
     (7) (a) For purposes of this Subsection (7):
     (i) Except as provided in Subsection (7)(a)(ii), "bad debt" is as defined in Section 166, Internal Revenue Code.
     (ii) Notwithstanding Subsection (7)(a)(i), "bad debt" does not include:
     (A) an amount included in the purchase price of tangible personal property or a service that is:
     (I) not a transaction described in Subsection 59-12-103(1); or
     (II) exempt under Section 59-12-104;
     (B) a financing charge;
     (C) interest;
     (D) a tax imposed under this chapter on the purchase price of tangible personal property or a service;
     (E) an uncollectible amount on tangible personal property that:
     (I) is subject to a tax under this chapter; and
     (II) remains in the possession of a seller until the full purchase price is paid;
     (F) an expense incurred in attempting to collect any debt; or
     (G) an amount that a seller does not collect on repossessed property.
     (b) A seller may deduct bad debt from the total amount from which a tax under this chapter is calculated on a return.
     (c) A seller may file a refund claim with the commission if:
     (i) the amount of bad debt for the time period described in Subsection (7)(e) exceeds the amount of the seller's sales that are subject to a tax under this chapter for that same time period; and
     (ii) as provided in Section 59-12-110.
     (d) A bad debt deduction under this section may not include interest.
     (e) A bad debt may be deducted under this Subsection (7) on a return for the time period during which the bad debt:
     (i) is written off as uncollectible in the seller's books and records; and
     (ii) would be eligible for a bad debt deduction:
     (A) for federal income tax purposes; and
     (B) if the seller were required to file a federal income tax return.
     (f) If a seller recovers any portion of bad debt for which the seller makes a deduction or claims a refund under this Subsection (7), the seller shall report and remit a tax under this chapter:
     (i) on the portion of the bad debt the seller recovers; and
     (ii) on a return filed for the time period for which the portion of the bad debt is recovered.
     (g) For purposes of reporting a recovery of a portion of bad debt under Subsection (7)(f), a seller shall apply amounts received on the bad debt in the following order:

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     (i) in a proportional amount:
     (A) to the purchase price of the tangible personal property or service; and
     (B) to the tax due under this chapter on the tangible personal property or service; and
     (ii) to:
     (A) interest charges;
     (B) service charges; and
     (C) other charges.
     (8) (a) A seller may not, with intent to evade any tax, fail to timely remit the full amount of tax required by this chapter.
     (b) A violation of this section is punishable as provided in Section 59-1-401.
     (c) Each person who fails to pay any tax to the state or any amount of tax required to be paid to the state, except amounts determined to be due by the commission under Sections 59-12-110 and 59-12-111, within the time required by this chapter, or who fails to file any return as required by this chapter, shall pay, in addition to the tax, penalties and interest as provided in Section 59-12-110.
     (d) For purposes of prosecution under this section, each quarterly tax period in which a seller, with intent to evade any tax, collects a tax and fails to timely remit the full amount of the tax required to be remitted, constitutes a separate offense.

Amended by Chapter 253, 2006 General Session