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October 26, 2006 OVERVIEW OF ARIZONAS SALES TAXATION OF CONTRACTING By: Pat Derdenger Partner, Steptoe & Johnson LLP
2 General Contractor Building Materials Vendors Owner Sub Sub-Sub
3 STRUCTURE OF THE ARIZONA CONTRACTING TAX The Prime Contractor is Taxable.
4 DEFINITION OF CONTRACTOR A.R.S. § G.2 defines contractor as beingsynonymous with the term builder and means a person, firm, partnership, corporation, association or other organization, or a combination of any of them, that undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or by or through others, construct, alter, repair, add to, subtract from...
5 DEFINITION OF CONTRACTOR … improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or other structure or works in connection therewith, and includes subcontractors and specialty contractors." This Section also provides that the definition will govern "without regard to whether or not the contractor is acting in fulfillment of a contract."
6 DEFINITION OF PRIME CONTRACTOR A.R.S. § G.6 defines "prime contractor" to mean "the contractor who supervises, performs or coordinates the construction, alteration, repair, addition, subtraction, improvement, movement, wreckage or demolition of any building, highway, road, railroad, excavation or other structure, project, development or improvement including the contracting, if any, with any subcontractors or specialty contractors and is responsible for the completion of the contract."
7 THE SUBCONTRACTOR EXEMPTION A.R.S. § D provides that a subcontractor is not liable for the Sales Tax "if the job was within the control of a prime contractor... and that the prime contractor... is liable for the tax on (its) gross income... attributable to the job and from which the subcontractors... were paid."
10 R C.1 Subcontractors are exempt provided that such persons are not acting in the capacity of prime contractors. A subcontractor is considered to be a prime contractor, and therefore liable for the tax, if: a.Work is performed for and payments are received from an owner-builder. b.Work is performed for and payments are received from an owner or lessee of real property.
11 PERSONS ACTING AS AGENTS OF THE OWNER ARE NOT TAXABLE AS PRIME CONTRACTORS 1. Mackey Plumbing Co. v. Arizona Department of Revenue 2. Jerry's Plumbing v. Arizona Department of Revenue 3. Mountain View Development Co. v. Arizona Department of Revenue BUT SEE: Camden Development Ormond Builders
12 NO TAX ON PURCHASE OF MATERIALS Tangible personal property sold to a person that is subject to tax under this article by reason of being engaged in business classified under the prime contracting classification under § , or to a subcontractor working under the control of a prime contractor that is subject to tax under article 1 of this chapter, if the property so sold is any of the following:
13 NO TAX ON PURCHASE OF MATERIALS (a) Incorporated or fabricated by the person into any real property, structure, project, development or improvement as part of the business. (b) Used in environmental response or remediation activities under § , subsection B, paragraph 6.
14 NO TAX ON PURCHASE OF MATERIALS (c) Incorporated or fabricated by the person into any lake facility development in a commercial enhancement reuse district under conditions prescribed for the deduction allowed by § , subsection B, paragraph 8. NOTE: Consumable items not incorporated into structure are taxable Equipment rented to contractors is taxable under the rental classification
15 PRIMARY DEDUCTIONS 1. Land Deduction (20% audit safe harbor) 2. 35% Labor Deduction or 65% Inclusion. 3. Contractors Deduction for State and Municipal Sales Taxes - Factoring: gross amount ÷.65 x(1 + tax rate) or taxable amount ÷ (1+ tax rate). Example: $1000 ÷ (1.081) = $925 (combined tax rate is 8.1%) DOR Automatic Factoring Worksheet!
16 OTHER DEDUCTIONS 1. Groundwater Measuring Devices. 2. Furniture, Furnishings, Fixtures and Appliances not attached to manufactured buildings (separately taxed under retail classification). 3. Military Re-Use Zone (Williams Air Force Base).
17 OTHER DEDUCTIONS 4. Qualified Environmental Technology Manufacturing Facility (must have been certified by Dept. of Commerce by June 30, 1996). 5. Remediation Work. 6. Installation of Exempt M&E - Not Permanently Attached.
18 OTHER DEDUCTIONS 7. Lake Facility Development (Tempe Town Lake). 8. Exempt machinery and equipment and tangible personal property sold to qualifying hospital and 501(c)(3) organization engaging in job training, placement, etc. (Added effective January1, 1999 and Repeals Purchase Agency Requirement) 9. Construction of egg production facilities.
19 OTHER DEDUCTIONS 10. Construction of Agricultural pollution control facilities. 11. Installation of clean rooms (NOTE: equipment is also exempt). 12. Construction of non-profit residential apartments for low income/over age 62 (beginning July 1, 2001). See ARS §
20 DESIGN & ENGINEERING FEES EXCLUDED FROM TAX Direct Fees Are Excluded Indirect Are Not See Senate Bill 1293 (2004)
21 FOUR VARIANTS OF THE CONTRACTING CLASSIFICATION TAXING SCHEME 1. The Normal General Contractor 2. The Speculative Builder 3. The Owner Builder 4. The Construction Manager
22 Taxed Chart No. 1 Normal Prime Contractor Situation Owner Prime Contractor Sub Taxed Building Materials Vendors Exempt NORMAL GENERAL CONTRACTOR SITUATION
23 TAX COMPUTATION $1,000, , , ,295 x 8.1% $ 48,705 Gross income from contracting 35% Labor Deduction Taxable Amount (65% Tax Base) Factored Tax Deduction ($650, ) Tax Rate (State, County & City) Tax Construction Contract - $1 Million
24 Chart No. 2 Speculative Builder (Builds with Intent to Sell) Buyer Speculative Builder Owner & Prime Contractor Sub Taxed Sells $ Building Materials Vendors Exempt No Tax SPECULATIVE BUILDER
25 Compare to $48,705 (Prime Contractor) * Assume City has land deduction. TAX COMPUTATION Gross Sales Proceeds Land Value (20% safe harbor) 35% Labor Deduction Taxable Amount (65% Tax Base) Factored Tax Deduction ($1,040, ) Tax Rate (State, County & City*) Tax Land Value - $400,000 Construction Cost - $1 Million (paid to subs) $ 2,000, ,000 $ 1,600, ,000 $ 1,040, ,072 x 8.1% $ 77,928
26 Buyer Speculative Builder (Owner & Prime Contractor) Sub No Tax Sells $ Building Materials Vendors Taxed Exempt Taxed SPECULATIVE BUILDER Chart No. 2A Department of Revenues Unwritten Audit Position Speculative Builder Constructs House Without Contract In Place Before Completion DORs position is that state statute does not have a speculative builder classification as does Model City Tax Code Ignore definition of contractor: without regard to whether or not the contractor is acting in fulfillment of a contract
27 Buyer Sub No Tax Sells $ Building Materials Vendors Exempt Speculative Builder (Owner & Prime Contractor) Speculative Builder Taxed on Amounts Paid to Subs SPECULATIVE BUILDER Chart No. 2B Department of Revenues Unwritten Audit Position Taxed Speculative Builder Constructs House Without Contract In Place Before Completion Gives Forms 5005 to subcontractors Taxed
28 Buyer Speculative Builder (Owner & Prime Contractor) Sub Taxed Sells $ Building Materials Vendors Exempt SPECULATIVE BUILDER Chart No. 2C Department of Revenues Unwritten Audit Position Exempt Speculative Builder Constructs House With Contract To Sell In Place Before Completion
29 SPECULATIVE BUILDER So, Under DORs Position: A homebuilder (no dual structure) would not be taxed on sale of home if the house was not presold Subs would be taxable
30 Owner-Builder (Acts as Own Prime Contractor) Sub Taxed Exempt Building Materials Vendors OWNER-BUILDER Chart No. 3 Owner-Builder (Builds with Intent to Hold)
31 Land Value - $400,000 Construction Cost - $1 Million (paid to subs) Subs are taxed on $1 Million. $ 1,000, , , ,295 x 8.1% $ 48,705 Labor Deduction (65% Tax Base) Taxable Amount Factored Tax Deduction ($650, ) Tax Rate (State, County & Phoenix) Tax Compare to $48,705 (Normal Prime Contractor Situation) Note: If Owner-Builder uses a prime contractor that pays the tax on initial construction, Owner Builder is liable for tax on value of improvements made after substantial completion if sold within 24 months of substantial completion. TAX COMPUTATION
32 Taxed Owner Sub Construction Manager Building Materials Vendors Taxed Exempt *Is Fee taxed? * Under the Model City Tax Code, the cities position is that the fee is taxable. CONSTRUCTION MANAGER Who is taxed on $ paid to Subs? CM or Subs.
October 26, 2006 CITY SALES TAXATION: CITIES DO NOT FOLLOW THE STATE STRUCTURE By Pat Derdenger
34 City Sales Taxation: Cities Do Not Follow the State Structure Model City Tax Code Adopted by All Cities that Impose a Sales Tax Program Cities vs. Non-Program Cities Program Cities and Supplemental Audits
35 City Sales Taxation: Cities Do Not Follow the State Structure All Construction Contractors are Taxable Subcontractors are Exempt Only if it Receives Written Declaration from Another Construction Contractor (i.e., the general)
36 City Sales Taxation: Cities Do Not Follow the State Structure Speculative Builders Who Sell Improved Real Property Are Taxable Commercial Property – Within 24 months of Substantial Completion Residential Property – No Limit Credit for Taxes Paid by Construction Contractors
37 City Sales Taxation: Cities Do Not Follow the State Structure Owner Builders Are Taxable Upon Expiration of 24 Months of Substantial Completion If They Gave the Construction Contractors Owner-Builder Certificates Tax Based on Amounts Paid to Construction Contractors
38 City Sales Taxation: Cities Do Not Follow the State Structure Construction Managers MCTC Purports to Tax CM Fees Construction Contractor includes anyone receiving fees for supervision or coordination of the project
39 Land Deduction Most Cities Do Not Provide Land Deduction Cities That Do – Mostly Smaller Cities – 2 Methods Cost of Land, or Fair Market Value of Land Documented by appraisal, or 20% safe harbor
October 26, 2006 Patrick Derdenger Partner, Steptoe & Johnson LLP 201 E. Washington Street, 16th Floor Phoenix, Arizona (602) THANK YOU
October 26, 2006 SIGNIFICANT CASE LAW RELATED TO THE TAXATION OF CONSTRUCTION ACTIVITIES By Pat Derdenger
42 Duhame v. State Tax Commission, 65 Ariz. 268, 179 P.2d 252 (1947). Construction contracting income is distinct from retail sales, and taxation of contractors as a separate class is not discriminatory.
43 Moore v. Smotkin, 79 Ariz. 77, 283 P.2d 1029 (1955). Landowners subdividing and developing tracts of land are not taxable contractors.
44 Arizona State Tax Commission v. Staggs Realty Corp., 85 Ariz. 294, 337 P.2d 281 (1959). Speculative builder was not engaged in taxable contracting. Definition of a contractor changed. This definition shall govern without regard to whether or not such contractor is acting in fulfillment of a contract.
45 Combustion Engineering, Inc. v. Arizona State Tax Commission, 91 Ariz. 253, 371 P.2d 879 (1962). Comparatively insignificant local supervision and labor required to install boiler for APS where boiler was constructed outside the state constitutes interstate commerce and thus not taxable in Arizona.
46 State Tax Commission v. Parsons-Jurden Corp., 9 Ariz. App. 92, 449 P.2d 626 (1969). Procurement, consulting, and design and engineering fees are not taxable under the contracting classification.
47 Ebasco Services Inc. v. Arizona State Tax Commission, 105 Ariz. 94, 459 P.2d 719 (1969). Design and engineering fees received by a contractor and funds a contractor spends as a purchasing agent are not taxable contracting.
48 State Tax Commission v. Howard P. Foley Co., 13 Ariz. App. 85, 474 P.2d 444 (1970). Interstate commerce exemption did not apply to foreign corporations joint venture to perform one construction contract in the state using materials procured outside the state.
49 Lusk Corp. v. Arizona State Tax Commission, 462 F.2d 187 (9th Cir. 1972). Construction of off-site improvements to residential lots is taxable contracting.
50 State Tax Commission v. Holmes & Narver, Inc., 113 Ariz. 165, 548 P.2d 1162 (1976). As in Ebasco, design and engineering services are not taxable even where those services were not separately stated in the contract; a three part test was used to determine whether otherwise nontaxable services must be included in a construction contract.
51 Department of Revenue v. Hane Construction Co., 115 Ariz. 243, 564 P.2d 932 (Ct. App. 1977). Out-of-state contractor was taxable under contracting classification on construction contract with BIA for work done on Indian reservation; contracting activity was not barred by federal exemption from state tax, federal preemption, or insufficient contacts with the state.
52 Dennis Development Co. v. Department of Revenue, 122 Ariz. 465, 595 P.2d 1010 (Ct. App. 1979). Gross income from the sale of land separately priced in a construction contract is not taxable contracting.
53 Knoell Brothers Construction, Inc. v. State, Department of Revenue, 132 Ariz. 169, 644 P.2d 905 (Ct. App. 1982). Standard 35% labor deduction computed after land value is deducted from gross income.
54 Kitchell Contractors, Inc. v. City of Phoenix, 151 Ariz. 139, 726 P.2d 236 (Ct. App. 1986). Exemption for retail sales of tangible personal property to non-profit hospital applies to contractors retail sales of building materials to hospital; and the standard deduction is computed on income net of the deduction allowable for building materials.
55 Gosnell Development Corp.. v. Arizona Department of Revenue, 154 Ariz. 539, 744 P.2d 451 (Ct. App. 1987). Contractors in same class must be treated equally; prior court of appeals decision must be applied so as to treat taxpayers the same.- -those that paid the tax must get refund and those that did not would not be assessed..
56 Tucson Mechanical Contracting, Inc. v. Arizona Department of Revenue, 175 Ariz. 176, 854 P.2d 1162 (Ct. App. 1992). Prime contractor not exempt on work done for federal government; discrimination against Arizona-based contractors not shown.
57 RDB Thomas Road Partnership v. City of Phoenix, 180 Ariz. 194, 883 P.2d 431 (Ct. App. 1994). Owner-builder selling project within twenty- four months of substantial completion is subject to municipal sales tax.
58 Arizona Department of Revenue v. M. Greenberg Construction, 182 Ariz. 397, 897 P.2d 699 (Ct. App. 1995). Construction contracts with Arizona school districts for work performed on Indian reservations are taxable.
59 Irby Construction Company v. Arizona Department of Revenue, 184 Ariz. 105, 907 P.2d 74 (Ct. App. 1995). Arizona Department of Revenue collaterally estopped from imposing transaction privilege tax on a builder who constructed electrical power transmission lines.
60 Brink Electric Construction Co. v. Arizona Department of Revenue, 184 Ariz. 354, 909 P.2d 421 (Ct. App. 1995). Materials and supplies provided in performing construction do not qualify for retail sales tax exemptions; permitting such exemptions for contractors acting as purchase agents did not violate equal protection; and taxable contracting does not require permanent attachment to real property.
61 Centric-Jones Co. v. Town of Marana, 188 Ariz. 464, 937 P.2d 654 (Ct. App. 1996). Arizona town had authority to impose transaction privilege tax on a Colorado prime contractor working on a one-time construction project.
62 Estancia Development Associates LLC v. City of Scottsdale, 196 Ariz. 87, 993 P.2d 1051 (1999). The speculative builder provision of the Model City Tax Code does not apply to sale of real property that is unimproved at the time of sale, even though the sales contract requires subsequent improvements to be made by the seller.
63 Arizona Department of Revenue v. Blaze Construction Co., 526 U.S. 32 (1999). State may tax a contractor performing services for the federal government on Indian reservations for the benefit of an Indian tribe (see Hane Construction).
64 Arizona Department of Revenue v. Arizona Outdoor Advertisers, Inc., 202 Ariz. 93, 41 P.3d 631 (Ct. App. 2002). Reasonable person test governs determination of real versus personal property for tax purposes--does it apply to the contracting classification?
65 Arizona Joint Venture v. Arizona Department of Revenue, 205 Ariz. 50, 66 P.3d 771 (Ct. App. 2003). Department not estopped because the taxpayer could not show any detriment to its reliance on the Departments prior positions.
66 Luther Construction Co. v. Arizona Department of Revenue, 205 Ariz. 602, 74 P.3d 276 (Ct. App. 2003). A taxpayer claiming equitable estoppel against the Department may rely upon a written letter from the department, formal action taken on a refund claim, and an audit assessment.
67 Thank you. Patrick Derdenger Steptoe & Johnson LLP
68 THE UTILITIES CLASSIFICATION By Patrick Derdenger
69 THE UTILITIES CLASSIFICATION – A.R.S. § The utilities classification is comprised of: 1.Gas and water. Producing and furnishing or furnishing to consumers natural or artificial gas and water. See A.R.S. § A.1. 2.Electricity. Providing to retail electric customers ancillary services, electric distribution services, electric generation services, electric transmission services and other services related to providing electricity. A.R.S. § A.2.
70 CASES In Tucson Elec. Power C. v. Arizona Dept of Revenue, 170 Ariz. 145, 822 P.2d 498 (App. 1991), the Court broadly interpreted what constituted the business of producing and furnishing electricity and held that Tucson Electric Power Co. was liable for tax on payments that did not result from actually furnishing electricity– stand by or minimum demand charges.
71 CASES In Winterhaven Water & Dev. Co. v. Arizona Dept of Revenue, Arizona Board of Tax Appeals, Division 2, No (July 17, 1989), the Board held that a cooperative water company incorporated as a non- profit corporation for the mutual benefit of owners and residents of property in a subdivision is liable for the sales tax on the monthly charges paid by the members to whom it furnishes water.
72 SECURITY DEPOSITS Security deposits are not subject to the sales tax until recognized by the utility as earned income. R
73 IRRIGATION DISTRICTS Electricity or gas furnished to an irrigation district for the purpose of producing water for irrigation of farm lands is subject to the sales tax. R ; see also Arizona Public Serv. Co. v. Department of Revenue, Arizona Board of Tax Appeals, No S (April 10, 1995).
74 IRRIGATION DISTRICTS In Flowing Wells Irrigation Dist. v. City of Tucson, 176 Ariz. 623, 863 P.2d 915 (Tax Ct. 1993), the Arizona Tax Court held that the City of Tucson may assess its sales tax on an irrigation districts income from the sale of water to residential customers because supplying water to such customers is a proprietary function, which is taxable, and not an exempt governmental function.
75 EXCLUSIONS AND DEDUCTIONS Exclusions 1. Resales. Sales of ancillary services, electric distribution services, electric generation services, electric transmission services and other services related to providing electricity, gas or water to a person who resells the services. 2. Alternative Fuel For Motor Vehicles. Sales of natural gas or liquefied petroleum gas used to propel a motor vehicle.
76 EXCLUSIONS AND DEDUCTIONS 3. Sales To Used Oil Fuel Burner. Sales of alternative fuel to a used oil fuel burner. 4. Out Of State Sales. Sales of ancillary services, electric distribution services, electric generation services, electric transmission services and other services that are related to providing electricity to a retail electric customer who is located outside this state for use outside this state if the electricity is delivered to a point of sale outside this state.
77 EXCLUSIONS AND DEDUCTIONS Deductions 5. CIAC Received by a municipal utility. 6. CIAC Received by a Privately Owned utility.
78 EXCLUSIONS AND DEDUCTIONS 7. Sales to: (a) Qualifying hospitals as defined in § (b) A qualifying health care organization as defined in § if the tangible personal property is used by the organization solely to provide health and medical related educational and charitable services.
79 EXCLUSIONS AND DEDUCTIONS 8. Sales to an environmental technology manufacturer, producer or processor of a utility product and that is used directly in environmental technology manufacturing, producing or processing.
80 USE TAX ON ELECTRICITY OR NATURAL GAS PURCHASED FROM OUT-OF-STATE PROVIDER. The use tax is imposed on the consumer of electricity or natural gas which has been purchased from an out-of-state seller of those items who has no nexus with Arizona. See A.R.S. § A.
81 CIAC In Arizona Public Service Co. v. Arizona Department of Revenue (Ariz. App. 2006), the Court of Appeals ruled that CIAC is NOT included in the property tax valuation base.
82 Thank you. Patrick Derdenger Steptoe & Johnson LLP
83 THE AMUSEMENTS CLASSIFICATION By Patrick Derdenger
84 THE AMUSEMENTS CLASSIFICATION – A.R.S. § The amusements classification is comprised of the business of operating or conducting theaters, movies, operas, shows, exhibitions, concerts, carnivals, circuses, amusement parks, menageries, fairs, races, contests, games, billiard or pool parlors, bowling alleys, public dances, dance halls, boxing and wrestling matches, skating rinks, certain tennis courts, video games, pinball machines, sports events. Or any other business charging admission or user fees for exhibition, amusement or entertainment.
85 THE AMUSEMENTS CLASSIFICATION – A.R.S. § Includes the operation or sponsorship of events by a tourism and sports authority (TSA--Cardinals Stadium). Sky Boxes. Admission or user fees include any revenues derived from any form of contractual agreement for rights to or use of premium or special seating facilities or arrangements.
86 EXCLUSIONS 1. Activities or projects of bona fide religious or educational institutions. 2. Private or group instructional activities such as performing arts, martial arts, gymnastics and aerobic instruction. 3. State fair and county fairs. 4. Musical, dramatic or dance group or a botanical garden, museum or zoo that are 501(c)(3) organizations.
87 EXCLUSIONS 5. Baseball Spring Training 6.Rodeos 7.The Super Bowl 8.Homeowner associations
88 EXCLUSIONS (c)(6) organizations (business leagues, chamber or commerce) that produce, organize or promote cultural or civic related festivals or events. 10. Arranging an amusement activity as a service to a persons customers if that person is not otherwise engaged in the business of operating or conducting an amusement themselves or through others.
89 DEDUCTIONS 1. Health and fitness club memberships (including monthly & initiation fees); must be for 28 days or more. 2. Certain pari-mutuel wagering proceeds.
90 DEDUCTIONS 3. Hotel golf and tennis memberships (including monthly and initiation fees); must be for 28 days or more.
91 DEDUCTIONS 4. Sales of amusements to hotels if: a) The hotel resells the amusement to another person (guest). b) The consideration received by the hotel is equal to or greater than the amount deducted. c) The hotel has provided a resale exemption certificate to the amusement business.
92 DEDUCTIONS 5. Sale of amusements by hotel if the amusement provider pays the tax (converse of the above exemption).
93 HAYRIDES Until December 31, 1998, revenues from hayrides and other animal-drawn amusement rides, from horseback riding and riding instruction and from recreational tours using motor vehicles designed to operate on and off public highways (Pink Jeep Tours) are exempt.
94 BOOKS AND RECORDS If a person is engaged in the business of offering both exhibition, amusement or entertainment (taxable) and private group instructional activities (not taxable), the persons books shall be kept to show separately the gross income from each. If the books do not provide separate accounting, the tax is imposed on the total gross income. A.R.S. § E.
95 CASES (Wilderness World, Inc. v. Arizona Dept of Revenue, 182 Ariz. 196, 895 P.2d 108 (1995). The sales tax under the amusements classification does not apply to river rafting trips down the Colorado River.
96 CASES In McElhaney v. Arizona Dept of Revenue, Arizona Board of Tax Appeals, Division Two, No S (May 15, 1990), the Board dealt with the issue of the application of the transaction privilege tax to golf lessons given by professional golfers at the golf and pro shops driving range. The court held that because the instructional fee for golf lessons does not provide access or admission to nonpublic portions of the golf course, the instruction fee is not an admission fee for instruction, and thus, is not subject to the transaction privilege tax.
97 In Rowe International, Inc. v. Arizona Department of Revenue, 165 Ariz., 122, 796 P2d 924 (Ariz. App. 1990), the Court of Appeals held that sales of coin operated video games was taxable as a retail sale and was not an exempt sale for resale. Taxpayer argued it was paying tax under amusements classification of revenue from video games and thus sale for resale exemption applied or tax on sale of games constituted double taxation.
98 LEGISLATION 2006 Legislation Developments House Bill 2132, chapter 171. Cities are precluded from taxing the Arizona State Fair on ride ticket sales at the annual state fair. See New A.R.S. § A.10
99 Thank you. Patrick Derdenger Steptoe & Johnson LLP