| (1) |
The location of the sale of tangible personal property or a product transferred electronically is the location where the seller receives the order if:
Terms Used In Utah Code 59-12-212- Contract: A legal written agreement that becomes binding when signed.
- Donee: The recipient of a gift.
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Personal property: includes :Utah Code 68-3-12.5
- Personal property: All property that is not real property.
- product transferred electronically: means a product transferred electronically that would be subject to a tax under this chapter if that product was transferred in a manner other than electronically. See Utah Code 59-12-102
- Property: includes both real and personal property. See Utah Code 68-3-12.5
- Purchaser: means a person to whom:
| (a) | a sale of tangible personal property is made; |
| (b) | a product is transferred electronically; or |
| (c) | a service is furnished. See Utah Code 59-12-102- rental: includes an agreement covering a motor vehicle and trailer if the amount of consideration may be increased or decreased by reference to the amount realized upon sale or disposition of the property as defined in Section 7701(h)(1), Internal Revenue Code. See Utah Code 59-12-102
- Sale: includes :
| (i) | installment and credit sales; |
| (ii) | any closed transaction constituting a sale; |
| (iii) | any sale of electrical energy, gas, services, or entertainment taxable under this chapter; |
| (iv) | any transaction if the possession of property is transferred but the seller retains the title as security for the payment of the price; and |
| (v) | any transaction under which right to possession, operation, or use of any article of tangible personal property is granted under a lease or contract and the transfer of possession would be taxable if an outright sale were made. See Utah Code 59-12-102- Seller: includes a marketplace facilitator. See Utah Code 59-12-102
- State: means the state of Utah, its departments, and agencies. See Utah Code 59-12-102
- Tangible personal property: includes :
| (v) | prewritten computer software, regardless of the manner in which the prewritten computer software is transferred. See Utah Code 59-12-102 |
| (a) |
the seller receives the order for the tangible personal property or product transferred electronically in this state; |
| (b) |
receipt of the tangible personal property or product transferred electronically by the purchaser or the purchaser’s donee occurs in this state; |
| (c) |
the location where receipt of the tangible personal property or product transferred electronically by the purchaser occurs is determined in accordance with Subsections (3) through (6); and |
| (d) |
at the time the seller receives the order, the record keeping system that the seller uses to calculate the proper amount of tax imposed under this chapter captures the location where the order is received. |
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| (2) |
| (a) |
Subject to Subsections (2)(b) through (d), for purposes of this section, the location where a seller receives an order is:
| (i) |
a physical location of the seller or a third party; and |
| (ii) |
where an order is initially received by or on behalf of the seller. |
|
| (b) |
A physical location of a seller or third party includes the following if operated by or on behalf of the seller:
| (i) |
an automated order receipt system; |
|
| (c) |
The location where a seller receives an order does not include the location:
| (i) |
where an order is accepted, completed, or fulfilled; or |
| (ii) |
from which tangible personal property or a product transferred electronically is shipped. |
|
| (d) |
| (i) |
For purposes of this Subsection (2), an order is considered to be received when all of the information necessary to the determination of whether the order can be accepted has been received by or on behalf of the seller. |
| (ii) |
If the seller is an establishment within any of the following classifications, as described in the 2022 North American Industry Classification System of the federal Executive Office of the President, Office of Management and Budget, the seller or the seller’s agent has not received all the information described in Subsection (2)(d)(i) until the purchaser communicates to the fulfillment location that the purchaser is prepared to receive the order:
| (A) |
NAICS Industry Group 2123, Nonmetallic Mineral Mining and Quarrying; |
| (B) |
NAICS Code 327320, Ready-Mix Concrete Manufacturing; or |
| (C) |
NAICS Code 324121, Asphalt Paving Mixture and Block Manufacturing. |
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| (3) |
| (a) |
A purchaser is not liable for a tax, penalty, or interest on a sale for which the purchaser remits a tax under this chapter to the seller in the amount the seller invoices if the amount is calculated at the total tax rate applicable to the location where:
| (i) |
receipt by the purchaser occurs; or |
| (ii) |
the seller receives the order. |
|
| (b) |
A purchaser may rely on a written representation by the seller as to the location where the seller receives the order for the sale. |
| (c) |
If a purchaser does not have a written representation by the seller as to the location where the seller receives the order for the sale, the purchaser may determine the total tax rate applicable to the location where the order is received by using a location indicated by a business address for the seller that is available from the business records:
| (i) |
of the purchaser; and |
| (ii) |
that are maintained in the ordinary course of the purchaser’s business. |
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| (4) |
If an item of tangible personal property or an item that is a product transferred electronically is sold with an item that is subject to Section 59-12-211, all of the items are subject to this section if the items are:
| (a) |
sold under a single contract; |
| (b) |
sold in the same transaction; and |
| (c) |
billed on the same billing statement. |
|
| (5) |
Notwithstanding Section 59-12-211, a seller may elect to determine the location of a sale, lease, or rental of a service under this section if the seller makes any sale, lease, or rental that is subject to this section. |
| (6) |
Except as provided in Subsection (5), this section does not apply to the lease or rental of:
| (a) |
tangible personal property; or |
| (b) |
a product transferred electronically. |
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Amended by Chapter 492, 2023 General Session
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