United States: Recent Sales and Use Tax and Property Tax Developments

Originally published May 15, 2001

SALES AND USE TAX

1. People’s Choice TV Corporation, Inc. v. City of Tucson, 1 CA-TX 00-0010 (3-1-01). The Phrase "Interstate Telecommunication Services" in A.R.S. §42-6004(A)(2) Does Not Comprehend the Activities of Cable or Microwave Television Systems. The City of Tucson attempted to impose its privilege license tax under the telecommunication services classification on People’s Choice TV, which is a cable television system. A.R.S. §42-6004(A)(2) prohibits municipalities from imposing their privilege license taxes on income from "interstate telecommunication services." People’s Choice is essentially a cable tv network that charges for programming. It argued that since it received most of its programming from interstate satellite transmissions that its cable tv revenue was not subject to Tucson’s privilege license tax because of the prohibition of A.R.S. §42-6004(A)(2). The Court of Appeals disagreed, holding that the monthly cable fees were for programming and not for interstate telecommunication services and therefore were not protected by A.R.S. §42-6004(A)(2). In short, that statutory provision while applying to long-distance telephone service charges does not apply to cable tv fees.

2. Waldenbooks v. Arizona Department of Revenue, 1 CA-TX 99-0022 (11-2-00). Preferred Reader Membership Club Dues Are Subject to Tax Under the Retail Classification. Waldenbooks has a preferred reader club, with the membership fees being $10. The Program offered discounts on future purchases as well as check cashing privileges and notification of new book releases. The Department of Revenue assessed transaction privilege (sales) tax on the preferred reader club membership fees under the retail classification, taking the position that they were a part of Waldenbooks retail business activities. Waldenbooks argued that the sale of the membership interest in the Preferred Reader Program was the sale of an intangible, not taxable under the retail classification. Waldenbooks also argued that members of the club only obtained services as a part of their membership, and services are specifically exempted from the retail classification when separately stated pursuant to A.R.S. § 42-5061(A)(2). The Tax Court held for Waldenbooks but the Court of Appeals reversed. In reversing, the Court of Appeals noted that the three-part test of Holmes and Narver does not apply to the retail classification, where services are at issue, but would apply concerning the taxability of intangible discount purchase rights as distinguished from services. The Court of Appeals followed its prior decision in Arizona Rent-A-Car Systems v. City of Phoenix.

3. U S West Communications, Inc. v. City of Tucson, 1 CA-TX 99-0021 (10-24-00). Tucson 1.5% Tax On Persons Who Provide Telecommunication Services to Consumers In Tucson and Use City Rights-Of-Way Is a Permissible Transaction Privilege Tax. The Tucson City Code imposes a 1.5% tax on persons who provide telecommunication services to consumers in Tucson and use city rights-of- way in doing so. A.R.S. § 9-582(A) prohibits a city from imposing a tax, rent, fee or charge on a telecommunications corporation for the use of a public highway to provide telecommunication services. However, A.R.S. § 9-582(A)(1) exempts from that prohibition a "transaction privilege tax authorized by law on the business of providing telecommunication services." The primary issue presented in the case was whether the 1.5% tax was a "transaction privilege" within the exception provided in A.R.S. § 9-582(A)(1). The Tax Court had held that the 1.5% tax was not a "transaction privilege tax." The Court of Appeals reversed, finding that it was such a tax, which was thereby exempt from the prohibition of A.R.S. § 9-582(A). The Court of Appeals also concluded the 1.5% tax, which is properly characterized as a "transaction privilege tax" was not invalid as a double tax, was not invalid because it was beyond the authority conferred by the city’s charter, and did not violate U S West’s right to equal protection.

4. Arizona Department of Revenue v. Care Computer Systems, Inc., Court of Appeals No. 1 CA-TX 98-0003 (July 25, 2000). Out-of-State Mail Order Retailer Had Sufficient Nexus for Arizona to Impose Its Transaction Privilege Tax On Sales Made to Arizona Customers; DOR Regulation Providing That the Transaction Privilege Tax Is Only Imposed On Out-of-State Vendors That Maintain An Office In the State Did Not Control Outcome (Even Though Care Did Not Have An Office In-State). Care Computer Systems was based in the State of Washington and was a mail-order retailer of computer software for the healthcare industry. It did not have an office or permanently based employees in Arizona. It had a salesman based in Los Angeles that made periodic trips to Arizona to visit customers and potential customers. That salesman did not take orders and did not have the authority to accept orders. All orders were sent by the customers directly to Care’s home office in Washington where they were processed, accepted and filled. Title to the goods passed in the State of Washington. Care also would send its personnel to train their customers on the use of the new software. Those training sessions would usually take a day, or so. The training personnel were not based in Arizona but came from out-of-state. The Court of Appeals held that the presence of the travelling salesman and the training personnel was sufficient nexus since it allowed Care to "maintain its market" in the State of Arizona.

A Department of Revenue regulation provided that the transaction privilege tax is imposed on out-of-state vendors that maintain an office in Arizona. The majority opinion indicated that the regulation did not control the outcome, although Care did not maintain an office in the State. The dissent strongly objected indicating that the regulation should control and since Care did not have an office in the State, the transaction privilege tax would not apply.

5. Cable Plus Co. L.P. v. Arizona Department of Revenue, Court of Appeals, Division I, No. 1 CA-TX 99-0009 (April 20, 2000). Provision of Cable Television Services to Arizona Residents Were Interstate In Nature and Not Taxable. Cable Plus operated a satellite master antenna television service in Arizona. Its customers were apartment complexes, rather than individual homes. Specifically, Cable Plus sold its services to residents of 13 apartment complexes and one mobile home park. Cable Plus installed satellite receiving dishes on the rooftop of each one of the properties it served. Cable Plus received locally-broadcast TV signals through a regular UHF/VHF antennae. Cable Plus received programming from HBO, ESPN, CNN, MTV, etc. through its satellite dishes. It would then translate those satellite signals into a useable form and assign them to a new carrier signal for cable transmission to its subscribers’ television sets. Cable Plus charged its subscribers only for providing the programming that it received from its satellite feed and not for the locally broadcast programming.

The Department of Revenue took the position that Cable Plus was taxable under the telecommunications classification. It should be noted that the telecommunications classification taxes only intra-state transmission and not interstate transmissions. The Department argued that Cable Plus since it translated the satellite signals and assigned them to a new carrier signal was engaged in providing intra-state transmission services and thus was taxable. The Court of Appeals held that the signals originated from out-of-state and thus were interstate, and not taxable.

6. City of Tucson v. Tucson Hotel Equity Limited Partnership, dba Doubletree Inn, Court of Appeals, Division I, No. 1 CA-TX 99-0016 (April 25, 2000). Doubletree Not Entitled to Refund of Sales Taxes Erroneously Collected From Its Customers; Doubletree’s Receipts Represented By the Difference Between Its Guest Charges for Interstate Long Distance Calls and Its Own Cost for Those Calls Was Not Taxable Under the Telecommunications Service Classification. Doubletree collected from its customers and paid sales taxes on receipts from facsimile services mistakenly reported as taxable at 4%, rather than the correct 2% rate. It also collected and paid sales tax at the 4% rate on non-taxable laundry services. It was clear that Doubletree was not liable for the 4% tax on fax services but rather only the 2% tax and it was not taxable at all on the laundry services. Doubletree factored those taxes and did not separately state them. The Court of Appeals held that the Tucson Model City Tax Code required Doubletree to remit excess taxes to the City whether erroneously collected or not, and whether separately stated or not. Thus, it was not entitled to a refund.

Doubletree also charged its guests for interstate long distance calls and tagged on a profit over and above Doubletree’s actual cost of the services. The City of Tucson attempted to tax that profit element under the telecommunication service classification. The Court of Appeals held that the Model City Tax Code exempts from taxation all of Doubletree’s income from guests’ interstate telephone calls.

1. Chapter 214, Laws 2000 (H.B. 2287). Solar Energy Device Exemption Provided for Contractors. A sales tax exemption of up to $5,000 is provided for the retail cost of each solar device supplied and installed by a prime contractor. The prime contractor must register with the Department of Revenue as a solar energy contractor and that registration constitutes an agreement by the contractor to make its books and records available to the Department for inspection as they relate to solar energy devices. The exemption is retroactive to December 31, 1996 and expires on December 31, 2010.

2. Chapter 297, Laws 2000 (S.B. 1513). Municipal Tax Code Commission. This bill makes three important changes dealing with the Model City Tax Code Commission and city sales taxes.

3. Chapter 69, Laws 2000 (H.B. 2663). Closing Agreements for Reservation Business. This session law authorizes the Department of Revenue to enter into closing agreements with taxpayers that have operated a restaurant or transient lodging business on an Indian reservation. The intent and purpose of the legislation was to force the Department of Revenue to enter into closing agreements with those types of businesses on the same terms that the Department had used to settle other audits of similarly situated taxpayers. If there is a refund involved, the refund claim must be filed by December 31, 2000 (retroactive to 1994).

4. Chapter 53, Laws 2000 (S.B. 1056). City and County Use Tax Authorized on Electricity and Natural Gas Sales. This provision will conform city and county tax provisions relating to the sale of electricity and natural gas by out-of-state sellers with the state structure, which is to impose a use tax on the consumer of the electricity or natural gas which has been purchased from an out-of-state seller of those items.

5. Chapter 397, Laws 2000 (H.B. 2334). Exemption For Internet Access Services. A.R.S. § 42-5064.A is amended to provide a deduction for "sales of Internet access services to the taxpayers’, subscribers and customers." A similar exemption is added to A.R.S. § 42-6004, which prohibits cities from taxing Internet access services.

6. Chapter 33, Laws 2000 (H.B. 2385). Exterminators Are Not Contractors. The prime contracting classification is amended to exempt insect extermination, except pre-treatments with respect to homes under construction, from the transaction privilege tax. This legislation is retroactive to December 31, 1983.

7. Chapter 401, Laws 2000 (H.B. 2624). Supplemental Air Carriers Are Included In Aircraft Exemption. The aircraft exemption for sales of aircraft and parts is broadened to include sales to a person holding a supplemental air carrier certificate under federal aviation regulations (14 C.F.R. Part 121). The existing statute exempts sales of aircraft and equipment made to a person holding a federal certificate of public convenience and necessity or a foreign air carrier certificate or foreign air carrier permit. The act replies retroactively to taxable periods beginning from and after May 31, 1998. All claims for refund must be filed by December 31, 2000 and the maximum revenue impact from the refunds cannot exceed $10,000.

8. Chapter 69, Laws 2000 (H.B. 2663). Closing Agreements For Taxpayers Operating Restaurants Or Hotels On Indian Reservations. This legislation allows closing agreements made as a substantial misunderstanding of tax statute to apply retroactively to July 1, 1985 to taxpayers who operate a restaurant or transient lodging business on an Indian reservation.

9. Chapter 372, Laws 2000 (S.B. 1220) (Proposition 302 – Passed). Football Stadium Legislation. The voters approved Proposition 302 on the November 2000 general election. Proposition 302 will impose the following new transaction taxes to finance the construction of a football stadium (multipurpose stadium).

10. Chapter 314, Laws 2000 (S.B. 1375). Repeal of Recreational Vehicle Space Surcharge. A.R.S. § 48-4235 is repealed. It authorized the imposition of a recreational vehicle space surcharge for major league spring training.

11. Chapter 405, Laws 2000 (S.B. 1504). The Sale of Used Alternative Fuel Exempt From Sales And Use Tax. A.R.S. §§ 42-5061 and 42-5159 are amended to provide that a retail sale of a used alternative fuel vehicle is exempt from transaction privilege tax and use tax. This adds to the already in place exemption for the sale or lease of new alternative fuel vehicles. Note: This exemption was subsequently repealed by Chapter 1, 7 th Spec. Sess. (SB 1004).

12. Chapter 359, Laws 2000 (S.B. 1531). Exemption For Space Port And Domestic Violence Shelters. The prime contracting classification is amended to add a deduction for a contract entered into for the construction of a space port launch site, as defined in 14 C.F.R., part 401.5.

The legislation also adds a deduction under the prime contracting classification for the construction of a domestic violence shelter that is owned and operated by a 501(c)(3) charitable organization.

13. Proposition 301 – Passed. Increases transaction privilege tax and use tax by .6% for education. Proposition 301 was passed by the voters at the November 2000 general election. The tax increase of .6% applies to both the transaction privilege tax and the use tax, with the proceeds being used for education purposes. The tax increase is effective June 1, 2001.

14. Chapter 1, 7th Special Session (SB 1004). Alternative fuel bill repeals the transaction privilege tax and use tax and municipal sales tax exemptions for the purchase or lease of alternative fuel vehicles. This special session legislation repealed the alternative fuel vehicle sales tax exemptions and the refundable income tax credit. The transaction privilege tax and use tax and municipal sales tax exemptions for the purchase or lease of alternative fuel vehicles is repealed, except for new diesel vehicles converted to operated on an alternative fuel. Those diesel converted vehicles will still be exempt from the transaction privilege tax and use tax. The special session legislation also repealed a refundable income tax credit unless the purchaser had taken delivery of the vehicle by December 1, 2000 or paid for the vehicle in full by that date.

1. Circle K Stores, Inc. v. Apache County, et al., 1 CA-TX00-0002 (filed 2-8-01). The Arizona voters passed Proposition 101 in 1996 which added a provision allowing the Legislature to exempt from taxation a maximum of $50,000 of the full cash value of "personal property of a taxpayer" that is used for agricultural, trade, or business purposes. The issue raised in this case is whether the term "taxpayer" in new Article 9, Section 2(6) of the Arizona Constitution refer o the owner to taxable personal property, and "assessment account," or "property location?" Simplified, is a business that has multiple locations throughout the state entitled to only one $50,000 personal property exemption or is entitled to an exemption for each business location? The Court of Appeals concluded that the term "taxpayer" is used in the constitutional amendment means the owner of the described property pays taxes and thus a taxpayer is entitled to a single, statewide exemption.

2. Havasu Springs Resort Co. v. LaPaz County, 1 CA-TX 00-0012 (filed 2-01-01). Havasu Springs Resort Co. owns a resort on the Colorado River. It leased the underlying land from the Bureau of Land Management and then constructed the resort improvements on that land. If the improvements are owned by the Bureau of Land Management, the lessor, then the improvements will not be subject to Arizona property taxation, because there is an exemption for property of the United States Government. On the other hand, if the buildings are owned by Havasu Springs Resort, then they will be subject to property taxation. The court concluded that the undisputed facts show that Havasu Springs is not the owner of the improvements and therefore it was not subject to real property tax on those improvements. Additionally, the interest Havasu Springs held in those buildings was a leasehold or possessory interest and there is no possessory interest property tax in Arizona.

3. Park Central Mall, LLC v. Maricopa County, Court of Appeals, 1 CA-TX 98-0020 (April 27, 2000 amended July 27, 2000). Court Cannot Issue Notice of Error for Current Year Until 3 rd Monday in August. When a county attempts to correct an assessment error for the current tax year by the Notice of Error procedures of A.R.S. § 42-16252, the county must wait until after the third Monday in August of that year before issuing the Notice of Error. In this case, Maricopa County issued the Notice of Error for the current year prior to the third Monday in August. The court invalidated that notice as premature. The assessor may still issue a September 30 th notice to pick up the new construction.

4. Bruce A. Friedemann v. James Lee Kirk, Pima County Treasurer, Arizona Court of Appeals, Division II, No. 2 CA-CV 99-0176 (June 20, 2000). An Owner of Real Property Was Barred From Redeeming the Tax Liens On the Property For Delinquent Property Taxes After Judgment Was Entered In a Judicial Foreclosure Action. The property owner failed to pay past years property taxes and they became delinquent. As a result, property tax liens arose by statute on the property. Those liens were sold to a tax lien purchaser who paid the county the amount of the back taxes plus interest. The tax lien purchaser then brought a judicial foreclosure action to foreclose the property owner’s right to redeem the property by paying the amount of the back taxes. The property tax lien statutes provide that an owner may redeem the property by paying the full amount of the delinquent taxes, plus interest, plus costs but that must be done before a judgment is entered by the court in favor of the tax lien purchaser. In this case, Pima County accepted funds from the owner to redeem the property but after judgment of judicial foreclosure was entered against the property owner. The result was that the purchaser of the tax lien was entitled to a deed to the property and the owner of the property was precluded from redeeming the property and lost it.

5. Southwest Airlines Co. v. Arizona Department of Revenue and Maricopa County, Court of Appeals, 1 CA-TX 99-0005 (April 4, 2000). Only one $20,000 Attorney Fee Award May Be Made in a Case Even Though Case Went to Court of Appeals. The issue in the Southwest case was the amount of attorneys’ fees that the taxpayer was statutorily entitled to. The attorney’s fee statute provides the limitation of $20,000 per "action." Southwest went through the Tax Court and then the Court of Appeals and requested fees totaling $40,000, $20,000 for each level of appeal. The Court of Appeals concluded that Tax Court proceedings and appellate court proceedings in the same case are not separate "actions" within the meaning of A.R.S. § 12-348, which authorizes the court to award up to $20,000 to a taxpayer who prevails on the merits in an action challenging the assessment or collection of taxes. The Court of Appeals limited Southwest’s attorney’s fee award to $20,000.

6. Aida Renta Trust v. Department of Revenue and Maricopa County, 314 Ariz. Adv. Rptr. 26 (App. Feb. 1, 2000). Maricopa County Not Required to Settle Case On Same Basis As Settlement With Other Taxpayers. This case involved the issue of whether the equal protection clause and the uniformity clause required Maricopa County to extend the same settlement terms involving apartment valuation cases that it had offered to one set of taxpayers (the county and the taxpayers settled on that basis) to another set of taxpayers. The court concluded no, thereby permitting Maricopa County to settle one set of property tax cases with one group of taxpayers but litigate the same issue and the same legal theory with the second set of taxpayers, which were the plaintiffs in this case.

7. Frederickson v. Maricopa County, 1 CA-TX 98-0018 (opinion filed 11-26-99). Who Is a "New Owner" of Property – One Who Purchased Property After December 15 th of Valuation Year. The issue in this case was who is a "new owner" of property for purposes of bringing a property tax valuation appeal. A.R.S. §42-16205(B) provides that a "new owner" may appeal the valuation of property on or before December 15 th of the year in which the tax was levied. In the normal appeal circumstance, an owner of a property must bring the appeal by December 15 th of the year (valuation year) prior to the year in which the taxes are levied (tax year). Thus a tax appeal for the 1999 valuation year had to be filed by December 15, 1998. However, a "new owner" can bring an appeal for the 1999 year, by December 15, 1999. The court held that a new owner is one that purchased the property after December 15 th of the valuation year.

1. Chapter 214, Laws 2000 (H.B. 2287). Valuation of Renewable Energy Equipment For Electric And Gas Distribution Utility Property. The value of renewable energy equipment is set at 20% of the depreciated cost of the equipment. "Renewable energy equipment" means electric, gas distribution or combination electric and gas distribution property that is located in Arizona and used for the generation, storage, transmission or distribution of electric power, energy or fuel derived from solar, wind or other non-petroleum renewable sources. It does not include materials, supplies and licensed vehicles. The equipment must be fully owned by a utility company that is licensed to deliver natural gas or electricity to wholesale or retail customers in or outside Arizona. This valuation method will be used until December 31, 2011. Effective 7-18-00.

2. Chapter 384, Laws 2000 (H.B. 2324). New Statutory Formula For Valuing Wholesale Electric Generation Utility Property. A new valuation formula is established for valuing "electrical generation facilities," which are defined as facilities that manufacture electricity and sell electricity at wholesale, not retail. The valuation formula does not cover electric generation facilities where the electricity is sold to retail customers; nor does not apply to transmission and distribution facilities.

3. Chapter 84, Laws 2000 (H.B. 2331). Phase In Of Single Personal Property Tax Roll Over 3 Years. In 1999 the legislature combined the secured and unsecured personal property tax rolls into one personal property tax roll (Laws 1999, ch. 253, H.B. 2428). the combination of the two rolls into a single roll is to become effective December 31, 2000. This legislation allows counties to phase in the transition to one personal property tax roll combining secured and unsecured property. The counties are allowed to phase in the single roll so that at least 25%, 50% and 75% of the assessed valuation of unsecured personal property is listed on the combined tax roll in the tax years 2001, 2002 and 2003, respectively. The deadline for combining the two rolls completely is the 2004 year.

The legislation also changes the timing and procedures for appealing the valuation of unsecured personal property.

4. 2000 Ariz. Sess Laws, House Concurrent Resolution 2028. Freeze Of Value Of Low Income Elderly’s Primary Residence. This resolution proposed a constitutional amendment which was passed in the November 2000 general election. It would freeze the value of the taxpayer’s primary residence at the full cash value when the option was filed. To qualify, a taxpayer must be 65 years and older and that person’s gross income cannot exceed 400% of the supplemental security income tax benefit rate. If the property is jointly owned, such as by a husband and wife, then the combined gross income cannot exceed 500% of the supplemental security income tax benefit rate. Each owner must be 65 years or older, and the taxpayer must have resided at the residence for more than two years. The county assessor is required to review the taxpayer’s income qualifications every three years and the taxpayer must reapply for the freeze every three years. The freeze also applies to mobile home.

5. Chapter 164, Laws 2000 (S. B. 1063). Exemption For State Capitol Government Buildings. This legislation provides a property tax exemption for two office buildings located on the Capitol Mall while they are under construction and thereafter while occupied by the state and used for a government activity. These buildings are evidently owned by a private entity, which will be leasing them to the state.

6. Chapter 258, Laws 2000 (S.B. 1218). Cemetery Exemption Extended to for Profit Cemeteries. This legislation would extend the exemption for cemeteries, now applicable only to non-profit cemeteries, to for profit cemeteries. It required voter approval and which was passed in the November 2000 general election. The constitutional amendments is contained in Senate Concurrent Resolution 1010.

7. Chapter 125, Laws 2000 (S.B. 1427). Notice For Sale Of Personal Property For Payment Of Delinquent Taxes Required. The legislation requires that a notice of the time, place and terms of sale of any seized property to be sold for payment of delinquent taxes on that property must be given to the owner by either personal service or by certified mail (such personal notice was not previously required). The county sheriff must also post notices of the sales in public locations. Before selling the property, the sheriff must wait three weeks, rather than the current five days, after the taxpayer receives the notice. If the sheriff does not provide proper notice, the property owner can redeem the property at any time and the sale will be voided. (Effective July 18, 2000).

8. Chapter 196, Laws 2000 (S.B. 1251). Valuation of Homeowner Association Common Areas. Prior legislation provided for the combination of all common area parcels owned by homeowner associations (except golf courses and common areas of a condominium), and provided that the total assessment for the common area parcels is not to exceed $500. This bill changes the requirements for ownership of common areas. The residential property owners must either be members of the non-profit association which owns the common areas or they must be obligated to pay mandatory assessments to maintain the common area. Previously, all residential property owners must be required to be members of the association. This bill is effective retroactively to December 31, 1998.

9. Chapter 390, Laws 2000 (S.B. 1424). Property Tax Corrections Act – Correcting Last Year’s "Class Consolidation Bill." The 1999 Legislature enacted H.B. 2634 (Chapter 344) which was known as the "Class Consolidation Bill." That bill consolidated property classes 1, 2 and 3 into class 1. H.B. 2634 had a number of conflicts and mistakes in cross citations, etc. This bill corrects those conflicts and mistakes.

Copyright © Steptoe & Johnson LLP. All Rights Reserved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.