Resale (Rescinded July 30, 2018)

AUTHORITY: section 144.705, RSMo 1994. U.T. regulation 615-6 originally filed Oct. 28, 1975, effective Nov. 7, 1975. Refiled March 30, 1976. Rescinded: Filed Jan. 18, 2018, effective July 30, 2018. Wendy’s of Mid-America, Inc. v. Department of Revenue, Case No. RS-79-0222 (A.H.C. 7/22/82). Machinery and equipment used in fast food restaurants are not entitled to section 144.030(4), RSMo exemption because fast food restaurants clearly do not constitute manufacturing plants. Section 144.615(6), RSMo exemption from use tax is applicable to foil, wax paper and bags used in fast food restaurants because they are held solely to be incorporated into products which are resold in the regular course of taxpayer’s business. Paper bags transferred to customers by retail grocer were purchased by grocer for resale (see King v. National Super Markets, Inc., 653 SW2d 220 (Mo. banc 1983)). Wooden shipping pallets were not purchased for resale by shipper (see Floyd Charcoal Co., Inc. v. Director of Revenue, 599 SW2d 173 (Mo. banc 1980)); fact that soft drink bottles could be returned for deposit did not make jobbers liable for use tax on theory that they had purchased at retail (see Smith Beverage Co. of Columbia, Inc. v. Reiss, 568 SW2d 61 (Mo. En banc 1978)). Pryor Executive Planes, Inc. v. Director of Revenue, Case No. RS-82-0463 (A.H.C. 8/6/87). The Administrative Hearing Commission examined the case under 144.615(6), RSMo which limits the resale exemption to goods held by 1) retailers, 2) solely for resale, 3) in the regular course of business. As a retailer whose regular business was the sale of aircraft, petitioner met two prongs of the test. Petitioner failed to meet the second requirement because petitioner chartered the aircraft, rented the aircraft to its shareholders and depreciated the aircraft for income tax purposes. The commission stated these uses were inconsistent with petitioner’s holding of aircraft solely for resale, and instead constituted use or consumption sufficient to subject the acquisition of the aircraft to use tax.