Texas Comptroller of Public Accounts    STAR System


201006846H



SOAH DOCKET NO. 304-10-1078.14
CPA HEARING NO.   103,019


RE: *************
TAXPAYER NO: *************
AUDIT OFFICE: *************
AUDIT PERIOD: May 1, 2008 THROUGH May 1, 2008

Motor Vehicle Sales And Use Tax-TAC/RFD

BEFORE THE COMPTROLLER
OF PUBLIC ACCOUNTS
OF THE STATE OF TEXAS

SUSAN COMBS
Texas Comptroller of Public Accounts

DEANNE Z. CUMMINGS-SCOTT
Representing Tax Division

*************
Representing Claimant


SOAH DOCKET NO. 304-10-1079.14
CPA HEARING NO.   103,020


RE: *************
TAXPAYER NO: *************
AUDIT OFFICE: *************
AUDIT PERIOD: May 22, 2008 THROUGH May 22, 2008

Motor Vehicle Sales And Use Tax-TAC/RFD

BEFORE THE COMPTROLLER
OF PUBLIC ACCOUNTS
OF THE STATE OF TEXAS

SUSAN COMBS
Texas Comptroller of Public Accounts

DEANNE Z. CUMMINGS-SCOTT
Representing Tax Division

*************
Representing Claimant


SOAH DOCKET NO. 304-10-1080.14
CPA HEARING NO.   103,021


RE: *************
TAXPAYER NO: *************
AUDIT OFFICE: *************
AUDIT PERIOD: April 22, 2008 THROUGH April 22, 2008

Motor Vehicle Sales And Use Tax-TAC/RFD

BEFORE THE COMPTROLLER
OF PUBLIC ACCOUNTS
OF THE STATE OF TEXAS

SUSAN COMBS
Texas Comptroller of Public Accounts

DEANNE Z. CUMMINGS-SCOTT
Representing Tax Division

*************
Representing Claimant


SOAH DOCKET NO. 304-10-1081.14
CPA HEARING NO.   103,022


RE: *************
TAXPAYER NO: *************
AUDIT OFFICE: *************
AUDIT PERIOD: December 31, 2008 THROUGH December 31, 2008

Motor Vehicle Sales And Use Tax-TAC/RFD

BEFORE THE COMPTROLLER
OF PUBLIC ACCOUNTS
OF THE STATE OF TEXAS

SUSAN COMBS
Texas Comptroller of Public Accounts

DEANNE Z. CUMMINGS-SCOTT
Representing Tax Division

*************
Representing Claimant


SOAH DOCKET NO. 304-10-1082.14
CPA HEARING NO.   103,023


RE: *************
TAXPAYER NO: *************
AUDIT OFFICE: *************
AUDIT PERIOD: November 17, 2008 THROUGH November 17, 2008

Motor Vehicle Sales And Use Tax-TAC/RFD

BEFORE THE COMPTROLLER
OF PUBLIC ACCOUNTS
OF THE STATE OF TEXAS

SUSAN COMBS
Texas Comptroller of Public Accounts

DEANNE Z. CUMMINGS-SCOTT
Representing Tax Division

*************
Representing Claimant


SOAH DOCKET NO. 304-10-1083.14
CPA HEARING NO.   103,024


RE: *************
TAXPAYER NO: *************
AUDIT OFFICE: *************
AUDIT PERIOD: November 17, 2008 THROUGH November 17, 2008

Motor Vehicle Sales And Use Tax-TAC/RFD

BEFORE THE COMPTROLLER
OF PUBLIC ACCOUNTS
OF THE STATE OF TEXAS

SUSAN COMBS
Texas Comptroller of Public Accounts

DEANNE Z. CUMMINGS-SCOTT
Representing Tax Division

*************
Representing Claimant

COMPTROLLER’S DECISION

*************(Claimant) appealed the denial of his refund claims by the Texas
Comptroller of Public Accounts (Comptroller).  Claimant contends that he is 
entitled to the motor vehicle sales and use tax that he paid because the vehicles
were exported to another country.  Comptroller Staff (Staff) contends that the
denial should be upheld because Claimant has not demonstrated that the vehicles
were not used in Texas before they were shipped outside of Texas.  In his Proposal
for Decision, the Administrative Law Judge (ALJ) recommends that the refund denials
be affirmed.

I.  PROCEDURAL HISTORY, NOTICE & JURISDICTION

Staff referred the cases to the State Office of Administrative Hearings (SOAH) 
on October 30, 2009, for a hearing on written submission.  The cases were joined 
for purposes of issuing a Proposal for Decision.  There are no issues of notice or 
jurisdiction in this roceeding.  Therefore, these matters are set out in the 
Findings of Fact and Conclusions of Law without further discussion here.

Claimant represented himself, and Staff was represented by Assistant General 
Counsel DeAnne Cummings-Scott.  The record closed on June 1, 2010.

II. REASONS FOR DECISION

A.  Background Facts and Issues Presented

SOAH Docket No. 304-10-1078.14

Claimant purchased a 2008 Lexus LS460 (vehicle) on April 28, 2008, from COMPANY 
A in CITY A, Texas.  The dealer collected $************* for motor vehicle 
sales and use tax that was remitted to the ************* County Tax Assessor/
Collector.  A Texas Certificate of Title on the vehicle was issued to Claimant
on May 23, 2008.The vehicle was registered in Claimant’s name on May 1, 2008.
The vehicle registered an odometer reading of 15 miles on the Bill of Sale dated
April 28, 2008, on the Texas Certificate of Title dated May 23, 2008, and the
Tax Collector’s Receipt for a Texas Title/Registration/Motor Vehicle form dated
May 23, 2008.  Claimant shipped the vehicle from the LOCATION A to LOCATION B
the LOCATION C, via the Mersk Line.  Claimant executed a dock receipt dated
June 1, 2008.  The Bill of Lading showed a shipping date of June 7, 2008.
There was no odometer reading recorded on either the Dock Receipt or Bill of
Lading.  

On June 23, 2008, Claimant filed a claim for a refund of the motor vehicle 
sales and use tax paid on the purchase of the vehicle.  The Comptroller denied
the refund claim on July 24, 2009, and the stated basis for the denial was 
“[t]ax due on the motor vehicles per Rule 3.90.”  Claimant requested a refund
hearing.

SOAH Docket No. 304-10-1079.14

Claimant purchased a 2008 BMW BX3 (vehicle) on March 14, 2008. [ENDNOTE: (1)]
Motor vehicle sales and use tax in the amount of $*************was remitted to 
the *************County Tax Assessor/Collector. [ENDNOTE: (2)] a Texas 
Certificate of Title on the vehicle was issued to Claimant on June 5, 2008.
The vehicle was registered in Claimant’s name on May 22, 2008. [ENDNOTE: (3)]
The vehicle registered an odometer reading of six miles on the Bill of Sale dated
March 14, 2008, on the Texas Certificate of Title dated June 5, 2008, and the
Texas Title Receipt dated May 22, 2008.  Claimant shipped the vehicle from the
LOCATION A to LOCATION B, the LOCATION C, via the Mersk Line. Claimant executed
a Dock Receipt.  The Bill of Lading showed a shipping date of June 28, 2008.
There was no odometer reading recorded on either the Dock Receipt or Bill of
Lading.

On August 8, 2008, Claimant filed a claim for a refund of the motor vehicle 
sales and use tax paid on the purchase of the vehicle.  The Comptroller denied
the refund claim on July 24, 2009, and the stated basis for the denial was 
“[t]ax due on the motor vehicles per Rule 3.90.”  Claimant requested a refund
hearing.

SOAH Docket No. 304-10-1080.14

Claimant purchased a 2008 BMW X3 (vehicle) on April 20, 2008, from COMPANY B
BMW in CITY A, Texas.  The dealer collected $************* for motor vehicle 
sales and use tax that was remitted to the ************* County Tax Assessor/
Collector.  A Texas Certificate of Title on the vehicle was issued to Claimant
on May 13, 2008.  The vehicle was registered in Claimant’s name on April 22,
2008.  The vehicle registered an odometer reading of five miles on the Bill of
Sale dated April 20, 2008, on the Tax Collector’s Receipt for Texas Title\
Application/Registration/Motor Vehicle Tax dated April 22, 2008, and the Texas
Certificate of Title dated May 13, 2008.  Claimant shipped the vehicle from the
LOCATION A to LOCATION B, the LOCATION C, via the Mersk Line.  Claimant executed
a Dock Receipt.  The Bill of Lading showed a shipping date of June 8, 2008.
There was no odometer reading recorded on either the Dock Receipt or Bill of Lading.

On August 4, 2008, Claimant filed a claim for a refund of the motor vehicle 
sales and use tax paid on the purchase of the vehicle.  The Comptroller denied
the refund claim on July 24, 2009, and the stated basis for the denial was
“[t]ax due on the motor vehicles per Rule 3.90.”  Claimant requested a refund
hearing.

SOAH Docket No. 304-10-1081.14

Claimant purchased a 2009 BMW X3 (vehicle) on November 24, 2008. [ENDNOTE: (4)] 
Motor vehicle sales and use tax in the amount of $*************was remitted to 
the *************County Tax Assessor/Collector. [ENDNOTE: (5)] A Texas Certificate
of Title on the vehicle was issued to Claimant on January 12, 2009.   The vehicle
registered an odometer reading of 21 miles on the Bill of Sale dated November 24,
2008, on the Tax Collector’s Receipt for Texas Title Application/ Registration/Motor
Vehicle Tax dated December 31, 2008, and the Texas Certificate of Title dated
January 12, 2009.  The vehicle was registered in Claimant’s name in Texas on
December 31, 2008. [ENDNOTE: (6)] Claimant shipped the vehicle from the Pot of
CITY A to LOCATION B, the LOCATION C, via the Mersk Line.  The Bill of Lading
showed a shipping date of February 5, 2009.  There was no odometer reading on
the Bill of Lading.

On March 10, 2009, Claimant filed a claim for a refund of the motor vehicle 
sales and use tax paid on the purchase of the vehicle.  The Comptroller denied
the refund claim on July 24, 2009, and the stated basis for the denial was 
“[t]ax due on the motor vehicles per Rule 3.90.”  Claimant requested a refund
hearing.

SOAH Docket No. 304-10-1082.14

Claimant purchased a 2009 BMW X3 (vehicle) on October 31, 2008, from COMPANY B
BMW in CITY A, Texas.  The dealer collected $*************for motor vehicle tax 
that was remitted to the ************* County Tax Assessor/Collector.  A Texas 
Certificate of Title on the vehicle was issued to Claimant on December 1, 2008.
The vehicle was registered in Claimant’s name on November 17, 2008.  The vehicle
registered an odometer reading of five miles on the Bill of Sale dated October 30,
2008, on the Tax Collector’s Receipt for Texas Title Application/Registration/
Motor Vehicle Tax dated November 17, 2008, and the Texas Certificate of Title
dated December 1, 2008.  Claimant shipped the vehicle from the LOCATION A to
LOCATION B, the LOCATION C, via the Mersk Line.  The Bill of Lading showed a
shipping date of December 21, 2008.  There was no odometer reading recorded on
the Bill of Lading.

On March 6, 2009, Claimant filed a claim for a refund of the motor vehicle 
sales and use tax paid on the purchase of the vehicle.  The Comptroller denied 
the refund claim on July 24, 2009, and the stated basis for the denial was 
“[t]ax due on the motor vehicles per Rule 3.90.”  Claimant requested a refund 
hearing.

SOAH Docket No. 304-10-1083.14 [ENDNOTE: (7)]

Claimant purchased a 2009 BMW X3 (vehicle) on October 31, 2008, from COMPANY B 
BMW in CITY A, Texas.  The dealer collected $*************for motor vehicle 
sales and use tax that was remitted to the ************* County Tax Assessor/
Collector.  A Texas Certificate of Title on the vehicle was issued to Claimant
on December 1, 2008.  The vehicle was registered in Claimant’s name on
November 17, 2008.  The vehicle registered an odometer reading of five miles on
the Tax Collector’s Receipt for Texas Title  Application/Registration/Motor
Vehicle Tax dated November 17, 2008, and the Texas Certificate of Title dated
December 1, 2008.  Claimant shipped the vehicle from the LOCATION A to LOCATION
B, the LOCATION C, via the Mersk Line.  The Bill of Lading showed a shipping date
of December 21, 2008.  There was no odometer reading recorded on the Bill of Lading.

On March 6, 2009, Claimant filed a claim for a refund of the motor vehicle 
sales and use tax paid on the purchase of the vehicle.  The Comptroller denied
the refund claim on July 24, 2009, and the stated basis for the denial was
“[t]ax due on the motor vehicles per Rule 3.90.”  Claimant requested a refund
hearing.

Parties’ Arguments

Claimant contends that it is entitled to the refunds because the vehicles were 
exported abroad after their purchase.  Claimant further argues that the vehicles
were not used or driven in the United States.

Staff initially argued that Claimant’s refund claims should be denied because 
he lacked standing to file the claims.  Staff insisted that Claimant had to 
secure assignments from the motor vehicle dealers before their refund claims 
could be accepted.  Staff, however, in its pleading filed with SOAH on May 17, 
2010, withdrew this argument.  Staff pointed to the proposed rule change 
published in the April 2, 2010, issue of the Texas Register that amends
34 TEX. ADMIN. CODE Section 3.75 to provide that the county tax assessor-collector,
who remits the motor vehicle sales and use tax, authorizes the Comptroller to 
accept refund requests directly from the purchaser.  Staff, however, continues 
to insist that the denial of the refund claims should be affirmed, but on other 
rounds.  Staff contends that Claimant has provided no evidence showing that the 
vehicles were not used in Texas.  Staff argues that the documents offered by 
Claimant do not explain the “vehicles’ whereabouts in the weeks preceding their 
delivery to the shipper.”  There also is no record of the vehicles’ mileage on
the date the vehicles were delivered for shipping abroad.

B.  Evidence Presented

Staff submitted the administrative record consisting of the pleadings filed by 
the parties while the case was pending before the Comptroller.  Staff also 
submitted a copy of the refund denial letter and of Comptroller’s Decisions.  
Attached to Claimant’s Statement of Grounds were copies of the refund claims, 
the bills of sale, the bills of lading, dock receipts, the certificates of 
title, title application receipts, the tax collector’s receipts for a Texas 
title/ registration/motor vehicle, and the Texas Department of Transportation 
Inquiry Receipt.  No other evidence was submitted directly to SOAH.

C.  Authorities and ALJ’s Analysis

A motor vehicle sales tax at the rate of 6.25 percent is imposed on each retail 
sale of a motor vehicle. [ENDNOTE: (8)] A “retail sale” means the sale of a 
motor vehicle except certain sales to dealers. [ENDNOTE: (9)] Claimant is not a 
dealer; therefore, the sale to Claimant was a retail sale that is subject to 
tax, unless Claimant can establish an exemption applies.

Motor vehicle sales tax is not due on the retail sale of a vehicle if the 
vehicle is “transported out of state, prior to any use in this state other than
the transportation of the vehicle out of state, for use exclusively outside this
state.” [ENDNOTE: (10)] The exemption must be claimed at the time of the purchase.
[ENDNOTE: (11)]  The Tax Code contemplates that the purchaser knows at the time
that the vehicle is intended for use exclusively outside of Texas and that the only 
permissible use in Texas after the purchase is the operation of the vehicle to 
get it outside of Texas. [ENDNOTE: (12)]

The exemption provided for vehicles purchased for transport out of the state is 
strictly construed.  In COMPTROLLER’S DECISION NO. 100,189 (2008), the Claimant 
parked the vehicle until it was shipped.  The vehicle was parked for at least a 
month and a half following its purchase.  The Comptroller held that, “parking 
is still a use in Texas that goes beyond the permissible use of riving the 
vehicle out of state.”

The evidence of record establishes that Claimant registered each of the 
vehicles in Texas.  Under 34 TEX. ADMIN. CODE Section 3.90(a)(3) the 
registration of a motor vehicle in Texas will create the presumption that the
vehicle is for use within Texas.  Each of the vehicles in question was in Texas
for more than 30 days, following their registration, until they were shipped out
of the country.  Claimant has failed to rebut the presumption that the vehicles
were used in Texas, consequently Claimant has failed to prove that the purchases
qualified for the exemption. [ENDNOTE: (13)]

C.  Recommendation

The ALJ recommends that the denial of the refund claims be upheld.

III. FINDINGS OF FACT

1.  *************(Claimant) purchased a 2008 Lexus LS460 (vehicle) on April 28, 
2008, and paid $************* for motor vehicle sales and use tax that was 
remitted to the ************* County Tax Assessor/Collector.

2.  On June 23, 2008, Claimant filed a refund claim for the $************* in 
motor vehicle sales and use tax.

3.  Claimant purchased a 2008 BMW BX3 (vehicle) on March 14, 2008, and paid 
$*************in motor vehicle sales and use tax that was remitted to the 
************* County Tax Assessor/Collector.

4.  On, August 8, 2008, Claimant filed a refund claim for the $*************in 
motor vehicle sales and use tax.

5.  Claimant purchased a 2008 BMW X3 (vehicle) on April 20, 2008, and paid
$************* in motor vehicle sales and use tax that was remitted to the 
************* County Tax Assessor/Collector.

6.  Claimant filed a refund claim on August 4, 2008, for the $*************in 
motor vehicle sales and use tax.

7.  Claimant purchased a 2009 BMW X3 (vehicle) on November 24, 2008, and paid
$*************in motor vehicle sales and use tax that was remitted to the 
************* County Tax Assessor/Collector.

8.  On March 10, 2009, Claimant filed a refund claim for the $************* in 
motor ehicle sales and use tax.

9.  Claimant purchased a 2009 BMW X3 (vehicle) on October 31, 2008, and paid 
$*************in motor vehicle sales and use tax that was remitted to the 
************* County Tax Assessor/Collector.

10.  On, March 6, 2009, Claimant filed a refund claim for the $*************in 
motor vehicle sales and use tax.

11.  Claimant purchased a 2009 BMW X3 (vehicle) on October 31, 2008, and paid 
$************* in motor vehicle sales and use tax that was remitted to the 
************* County Tax Assessor/Collector.

12.  On, March 6, 2009, Claimant filed a refund claim for the $************* in 
motor vehicle sales and use tax.

13.  On July 24, 2009, the Texas Comptroller of Public Accounts (Comptroller) 
denied the refund claims.

14.  Claimant requested refund hearings contesting the denial of the refund 
claims.

15.  On October 30, 2009, Comptroller Staff (Staff) referred the cases to the 
State Office of Administrative Hearings for a hearing on written submission.  A
notice of filing was issued to Claimant.  The cases were joined for purposes of
issuing a Proposal for Decision.

16.  The notice of filing contained a statement of the nature of the hearing; a 
statement of the legal authority and jurisdiction under which the hearing was to
be held; a reference to the particular sections of the statutes and rules involved;
and a short, plain statement of the matters asserted.

17.  The record closed on June 1, 2010.

18.  Each of the vehicles purchased by Claimant was kept in Texas for at least 
30 days before they were shipped out of the country.

19.  Claimant did not provide an explanation of the location of the vehicles 
during the period preceding their shipment out of the country, or what use if any
they were put to during that period.

IV. CONCLUSIONS OF LAW

1.  The Comptroller has jurisdiction over this matter pursuant to TEX. TAX CODE 
ANN. ch. 111.

2.  The State Office of Administrative Hearings has jurisdiction over matters 
related to this proceeding, including the authority to issue a proposal for
decision, pursuant to TEX. GOV’T CODE ANN. ch. 2003.

3.  The Comptroller provided proper and timely notice of the hearing pursuant 
to TEX. GOV’T CODE ANN. ch. 2001.

4.  A motor vehicle sales and use tax is not due on a retail sale of a motor 
vehicle that is transported out of state, prior to any use in this state other
than the transportation of the vehicle out of state, for use exclusively outside
this state.  TEX. TAX CODE ANN. Section 152.092(a).

5.  Registration of a motor vehicle in Texas will create the presumption that 
the vehicle is for use within Texas.  34 TEX. ADMIN. CODE Section 3.90(a)(3).

6.  Based on the foregoing Findings of Fact and Conclusions of Law, Claimant 
has not tebutted the presumption that the vehicles were used in Texas.

7.  Based on Conclusion of Law No. 6, Claimant is not entitled to an exemption 
from the motor vehicle sales and use tax and Staff’s denial of the refund claims
should be affirmed.


Hearing Nos. 103,019; 103,020; 103,021; 103,022; 103,023; and 103,024


ORDER OF THE COMPTROLLER

On June 2, 2010, the State Office of Administrative Hearings’ Administrative 
Law Judge, Peter Brooks, issued a Proposal for Decision in the above referenced
matter.  The parties were given fifteen days from the date of the Decision to
file exceptions with SOAH.  No exceptions were filed, and the Comptroller has 
determined that the Administrative Law Judge’s Proposal for Decision, except 
for minor changes to correct typographical or clerical errors, should be 
adopted as written.

The above Decision is approved and adopted in all respects.  This Decision 
becomes final twenty days after the date Claimant receives notice of this 
Decision.  If either party desires a rehearing, that party must file a motion 
for rehearing, which must state the grounds for rehearing, no later than twenty 
days after the date Claimant receives notice of this Decision.  Notice of this 
Decision is presumed to occur on the third day after the date of this Decision.

Signed on this 29th day of June 2010.


SUSAN COMBS
Texas Comptroller of Public Accounts


by: Martin A. Hubert
Deputy Comptroller

ENDNOTE(S)
(1) The Bill of Sale states that the vehicle was purchased from COMPANY C in 
North Carolina.  Sales tax in the amount of $*************was paid to the state 
of North Carolina.  It appears that the vehicle was subsequently transported to
Texas.  Claimant explained in a pleading filed on May 28, 2010, that the vehicle
was transported via Transport Company to Texas and was not driven to Texas.  No
evidence was provided by Claimant to that effect, although the odometer readings
do support Claimant’s explanation that it was not driven to Texas.
(2) The motor vehicle sales and use tax was remitted on May 22, 2008, to the 
************* County Tax Assessor/Collector.
(3) According to the Texas Department of Transportation Inquiry Receipt issued 
on August 1, 2008, the vehicle was registered in Claimant's name on May 22, 
2008.
(4) The Bill of Sale states that the vehicle was purchased from COMPANY D, in 
Illinois.  It appears that the vehicle was subsequently transported to Texas.
(5) The motor vehicle sales and use tax was remitted on December 31, 2008, to 
the ************* County Tax Assessor/Collector.
(6) According to the Texas Department of Transportation Title Application 
Receipt the vehicle was registered in Claimant’s name on December 31, 2008.
(7) Although the dates of this transaction track those in 304-10-1082.14 and 
involve the same make and model, the two hearings involve different vehicles.
(8) TEX. TAX CODE ANN. Section 152.021.
(9) TEX. TAX CODE ANN. Section 152.001(2).
(10) TEX. TAX CODE ANN. Section 152.092(a).
(11) TEX. TAX CODE ANN. Section 152.092(b).
(12) Comptroller's Decision No. 100,189, State Tax Automated Research (STAR) 
Accession No. 200805124H.
(13) Claimant in its May 28, 2010 pleading asserts that the LOCATION A required 
that he hold title before the vehicle could be exported out of the country.  
Claimant further claimed that it took about six weeks for him to actually 
physically receive the title.  According to Claimant this is why he registered 
the vehicles and why it took so long for the vehicles to be exported after they 
were purchased.  He also stated that during this period the vehicles were not 
driven.  Claimant, however, has provided no evidence to support any of the 
claims made in his pleading.  Consequently, the presumption remains unrebutted.




ACCESSION NUMBER: 201006846H
SUPERSEDED: N
DOCUMENT TYPE: H
DATE: 06/29/2010
TAX TYPE: MOTOR VEHICLE