Bus. Aviation, LLC v. Dir. Revenue

• Decision Date: 16 July 2019
• Docket Number: No. SC 97475,SC 97475
• Citation: Bus. Aviation, LLC v. Dir. Revenue, 579 S.W.3d 212 (Mo. 2019)
• Parties: BUSINESS AVIATION, LLC and Vaughn C. Zimmerman, et al., Appellants, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Supreme Court

579 S.W.3d 212

BUSINESS AVIATION, LLC and Vaughn C. Zimmerman, et al., Appellants,

v.DIRECTOR OF REVENUE, Respondent.

No. SC 97475

Supreme Court of Missouri, en banc.

Opinion issued July 16, 2019

Mary R. Russell, Judge

Business Aviation LLC and its members (collectively, "Appellants")¹ appeal the Administrative Hearing Commission’s ("AHC") decision assessing use tax, additions to tax, and interest against Appellants as a result of Business Aviation’s purchase of an aircraft. The aircraft was purchased in Kansas and then leased by Business Aviation to Burgess Aircraft Management LLC,² a common carrier in Missouri. Although the AHC found that the right to use the aircraft was transferred from Business Aviation to Burgess, it found it was not fully transferred for valuable consideration. As a result, the AHC determined Appellants owed the use tax.

Appellants argue they qualify for the resale use tax exemption through the interplay of sections 144.018.1(4), 144.615(3), and 144.030.2(20).³ In particular, section 144.030.2(20) provides an exemption for sales of aircraft to common carriers. Further, to constitute a "sale," the right to use the aircraft must be transferred for valuable consideration paid or to be paid. See section 144.605(7), RSMo 2000 (use tax definition of "sale"); section 144.010.1(9) (sales tax definition of "sale"). Because Business Aviation transferred the right to use the aircraft to a common carrier for valuable consideration paid or to be paid, the lease agreement constituted a sale pursuant to both the use and sales tax definitions. Accordingly, Appellants qualify for the resale exemption. The AHC’s decision is reversed, and the matter is remanded.

Background

Business Aviation purchased an aircraft from Cessna Finance Corporation in Kansas. That same day, Business Aviation entered into an aircraft lease agreement with Burgess, a common carrier that provides Part 135 air charter transportation services to third parties.⁴ Burgess transported the aircraft from Cessna to Burgess' site of operations in Missouri.

Pursuant to the lease agreement, Burgess was granted "the exclusive care, custody and control of the Aircraft during the term of [the Lease] and at all times during any Part 135 charter operations conducted by [Burgess]." Further, Burgess was required to perform all maintenance pursuant to Part 91.⁵ Burgess was also to manage the aircraft, maintain necessary records, and provide pilots and supplies necessary for the aircraft to operate in accordance with Federal Aviation Act regulations.

Business Aviation was to pay all costs for maintenance, insurance, management, cleaning, and repairs, as well as the hangar fees.

The lease further provided in section three:

(c) As consideration for this Lease and use of the Aircraft, [Burgess] shall pay [Business Aviation] the sum of $900.00 per hour based on the Hobbs meter (lift off to touch down) (the "Hourly Rate"), payable on the fifteenth (15^th) day of the month immediately following the month in which such hours were operated (the "Lease Payments"), payable in advance on the first Business Day of each month thereafter during the Term.

(d) All lease payments and other amounts payable by [Burgess] hereunder shall be net to [Business Aviation], and free and clear of all deductions, taxes and withholdings of any nature whatsoever, except any amounts due [Burgess] from [Business Aviation] as provided herein.

Although the lease also provided Business Aviation was required to pay all costs and expenses related to its operation of the aircraft if it chartered or used it, Business Aviation never operated or chartered the aircraft.

Burgess prepared and provided to Business Aviation monthly financial summaries, which included charges billed to Business Aviation as well as income credited to Business Aviation for Burgess' use of the aircraft. When parties other than Zimmerman Properties and Foster chartered the aircraft, Burgess paid Business Aviation $900 per flight hour. When Zimmerman Properties or Foster chartered the aircraft, they paid Burgess only $434.77 per flight hour, and Burgess then paid that same amount to Business Aviation.

The director determined Business Aviation owed use tax of $75,674.41 and issued this assessment to Business Aviation, Foster, and Zimmerman Properties as well as to each of Zimmerman Properties' members. Business Aviation appealed the director’s assessment of the use tax to the AHC.⁶

The AHC found that although Burgess was a common carrier, Business Aviation was not entitled to the use tax exemption because Business Aviation’s lease agreement was not a sale for purposes of that exemption. Specifically, the AHC found that although the right to use the aircraft was transferred from Business Aviation to Burgess, it was not fully transferred for valuable consideration. Business Aviation petitioned this Court for review of the AHC’s decision.⁷

Standard of Review

This Court will affirm a decision of the AHC if it: (1) is authorized by law; (2) is supported by competent and substantial evidence on the whole record; (3) does not violate mandatory procedural safeguards; and (4) is not clearly contrary to the General Assembly’s reasonable expectations. Brinker Mo., Inc. v. Dir. of Revenue , 319 S.W.3d 433, 435 (Mo. banc 2010) (citing section 621.193). The AHC’s interpretation of revenue statutes receives de novo review. Union Elec. Co. v. Dir. of Revenue , 425 S.W.3d 118, 121 (Mo. banc 2014).

Exemptions are "strictly construed against the taxpayer," and any doubt is resolved in favor of assessing the tax. Bartlett Int'l, Inc. v. Dir. of Revenue , 487 S.W.3d 470, 472 (Mo. banc 2016). The taxpayer must demonstrate by "clear and unequivocal proof" that an exemption applies. TracFone Wireless, Inc. v. Dir. of Revenue , 514 S.W.3d 18, 21 (Mo. banc 2017).

Analysis

The issue in this case is whether Business Aviation’s purchase of the aircraft qualifies for a resale tax exemption as provided in section 144.018.1(4), which exempts sales for resale if the subsequent sale would be otherwise exempt under chapter 144. Appellants argue the purchase qualifies for this resale exemption through the use tax exemption in section 144.615(3), which cross-references to an exemption in section 144.030.2(20) for "[a]ll sales of aircraft to common carriers for storage or for use in interstate commerce." Pursuant to this interplay of statutes, Business Aviation’s purchase of the aircraft qualifies for this resale tax exemption if the lease agreement transferred the right to use the aircraft for consideration paid or to be paid. See section 144.605(7), RSMo 2000; section 144.010.1(9).

A use tax is imposed on tangible personal property purchased outside of Missouri and then used within the state if the purchase would have been subject to sales tax had it occurred in-state. Section 144.610, RSMo 2000; Fall Creek Const. Co. v. Dir. of Revenue , 109 S.W.3d 165, 169 (Mo. banc 2003). "Purchase" is defined as "the acquisition of the ownership of, or title to, tangible personal property, through a sale, as defined herein, for the purpose of storage, use or consumption in this state." Section 144.605(5), RSMo 2000. An aircraft is an item subject to the Missouri sales tax and, accordingly, is tangible personal property. Five Delta Alpha, LLC v. Dir. of Revenue , 458 S.W.3d 818, 821 (Mo. banc 2015) (citing section 144.605(11), RSMo 2000 ). Because Business Aviation purchased the aircraft from Cessna in Kansas for use within Missouri, the aircraft is subject to use tax unless Appellants can show they qualify for an exemption.

Section 144.018.1(4) outlines exemptions from sales and use tax for tangible personal property purchased for resale and provides in pertinent part:

1. Notwithstanding any other provision of law to the contrary ... when a purchase of tangible personal property or service subject to tax is made for the purpose of resale, such purchase shall be either exempt or excluded under this chapter if the subsequent sale is: ...

(4) Subject to tax but exempt under this chapter[.]

Section 144.615 lists use tax exemptions, providing:

There are specifically exempted from the taxes levied in sections 144.600 to 144.745: ...

(3) Tangible personal property, the sale or other transfer of which, if made in this state, would be exempt from or not subject to the Missouri sales tax pursuant to the provisions of subsection 2 of section 144.030[.]

Section 144.030.2(20) exempts from sales and use tax "[a]ll sales of aircraft to common carriers for storage or for use in interstate commerce."

It is not disputed that Business Aviation purchased the aircraft and then entered into an aircraft lease agreement with Burgess, a Missouri common carrier. Accordingly, if the lease agreement was a sale pursuant to this statutory scheme, Business Aviation would be exempt from use tax on the aircraft.

Because Business Aviation claims a use tax exemption pursuant to section 144.615(3), which cross-references section 144.030.2 (a list of exemptions in the sales tax portion of the statute), Business Aviation must prove there was a sale to Burgess under both the use and sales tax definitions of "sale."⁸ The use tax definition of "sale," section 144.605(7), RSMo 2000, provides in pertinent part:

"Sale," any transfer, barter or exchange of the title or ownership of tangible personal property, or the right to use, store or consume the same, for a consideration paid or to be paid, and any transaction whether called leases, rentals, bailments, loans, conditional sales or otherwise, and notwithstanding that the title or possession of the property or both is retained for security.

In other words, the use tax definition of a "sale" requires "(1) a transfer, barter or exchange; (2) of the title or ownership of tangible personal property or the right to use, store or consume the same; (3) for a consideration paid or to be paid." Brambles Indus., Inc. v. Dir. of Revenue , 981 S.W.2d 568, 570 (Mo. banc 1998). Accordingly, to...