103 KAR 30:235. Sales of utility services to the federal government.

 

      RELATES TO: KRS 139.470

      STATUTORY AUTHORITY: KRS Chapter 13A

      NECESSITY, FUNCTION, AND CONFORMITY: The 1976 Kentucky General Assembly amended the sales tax law to exempt sales to Kentucky State Government and to local governments in Kentucky, effective July 1, 1976. Sales of utility services to the federal government have continued to be taxed under policy that has been followed since the inception of the sales tax in 1960. All other sales to the federal government had been exempt. Recent research by the Attorney General's Office reveals some case law supporting the government's claim that to continue to tax sales to the federal government constitutes discrimination against the federal government. This administrative regulation explains how the sales tax is to apply to transactions involving the federal government, consistent with the case law referred to above.

 

      Section 1. On and after the 30th day following the effective date of this administrative regulation, sales tax does not apply to receipts from sales to the federal government. This administrative regulation is prospective only and no refunds or credit adjustments will be made for purchases made prior to the 30th day following the effective date of this administrative regulation. Also, no assessments will be made on sales that were exempted administratively by the cabinet during that same period.

 

      Section 2. The term "federal government" as used in this administrative regulation means federal agencies, instrumentalities or corporations which are exempt from all state taxation under the Federal Constitution or statutes. An agency, corporation or instrumentality is not entitled to the exemption simply because it is regulated by or receives funds or grants from the federal government.

 

      Section 3. The exemption applies only to sales made directly to the federal government for use in the government function. Any official or employee who uses his position to make a tax-free purchase for his own personal use or that of any other person will subject himself to the penalties provided in KRS 139.990 and other applicable laws.

 

      Section 4. Sales made directly to the federal government are to be included in the gross receipts to be entered on line one (1) of the retailer's Kentucky Sales and Use Tax Return. Retailers may deduct such sales on line twenty-one (21) of the return. Retailers claiming a deduction for sales to the federal government must maintain in their files a copy of the exemption authorization letter issued to the federal agency and a copy of the invoice upon which an official, or an employee exercising comparable authority, of the federal government has signed and acknowledged in writing that delivery of the property was actually made to the federal government.

 

      Section 5. The exemption may not be claimed by contractors purchasing property to be used in fulfilling contracts with the federal government. As provided by 103 KAR 26:070, sales of property to contractors for use in fulfilling contracts with the federal, state, or local governments for erecting, remodeling, or repairing structures or improvement on or to real estate are subject to tax.

 

      Section 6. All federal government agencies seeking exemption under authority of this administrative regulation must apply to the Sales and Severance Tax Division for a tax exemption authorization letter. The application form may be obtained from the Sales and Severance Tax Division, Capitol Annex Building, Frankfort, Kentucky, 40601 or from one (1) of the cabinet's eleven (11) field offices. (3 Ky.R. 716; eff. 7-6-77.)