23VAC10-230 Watercraft Sales and Use Tax

REGULATIONS

Vol. 25 Iss. 8 - December 22, 2008

TITLE 23. TAXATION

DEPARTMENT OF TAXATION

Chapter 230

Fast-Track Regulation

Titles of Regulations: 23VAC10-210. Retail Sales and Use Tax (amending 23VAC10-210-6060).

23VAC10-230. Watercraft Sales and Use Tax (amending 23VAC10-230-20, 23VAC10-230-30, 23VAC10-230-40, 23VAC10-230-80, 23VAC10-230-90, 23VAC10-230-110, 23VAC10-230-120; adding 23VAC10-230-70, 23VAC10-230-75).

Statutory Authority: § 58.1-203 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until 5 p.m. on February 20, 2009.

Effective Date: March 8, 2009.

Agency Contact: Jennifer Lewis, Tax Policy Analyst, Department of Taxation, P.O. Box 27185, Richmond, VA 23261-7185, telephone [phone], FAX [phone], or email [e-mail].

Basis: Section 58.1-203 of the Code of Virginia provides that the "Tax Commissioner shall have the power to issue regulations relating to the interpretation and enforcement of the laws of this Commonwealth governing taxes administered by the Department."

Purpose: The purpose of this regulatory action is to provide clarification with respect to Watercraft Sales and Use Tax as well as amend the regulation to reflect statutory changes regarding the maximum tax limitation, the titling requirements, the tax status of watercraft motors, and the definition of dealer watercraft. This regulatory action will also promulgate two new regulation sections, 23VAC10-230-70 and 23VAC10-230-75. 23VAC10-230-70 will clarify information already in the regulation and 23VAC10-230-75 will clarify TAX's existing policy on dealer exclusion. The Retail Sales and Use Tax regulation section regarding watercraft sales, leases, and rentals, repair and replacement parts, and maintenance materials will be amended to reflect a statutory change regarding maintenance contracts.

This regulatory action is necessary to ensure a predictable and adequate revenue stream for the government to provide for the health, safety, and welfare of its citizens.

Rationale for Using Fast-Track Process: As the new regulation will not make any changes to TAX’s current policy regarding the watercraft, this action is not expected to be controversial.

Substance: This regulatory action will provide clarification on the Watercraft Sales and Use Tax. The Retail Sales and Use Tax section subjecting "watercraft" to the Watercraft Sales and Use Tax will be amended to reflect a statutory change regarding maintenance contracts as well as the tax application for boat motors.

The Watercraft Sales and Use Tax definition section will be organized alphabetically and definitions currently found in other sections will be moved.

This regulatory action will also promulgate a new regulation 23VAC10-230-70. This section will incorporate language currently located in the definition section. The section will detail when a transaction is subject to the Retail Sales and Use Tax and reference 23VAC10-210-6060.

23VAC10-230-75 will clarify TAX's existing policy on dealer exclusion. This section will clarify the definition of gross receipts.

This regulatory action will also amend the regulation section to reflect statutory changes. Since the regulation was promulgated in the 1980s, there have been multiple statutory changes. In 1986, an exemption was added for watercraft purchased by nonprofit sea rescue squads. In 1987 a tax limitation was placed on the tax. In 1990 the tax limitation was increased to its current level of $2000. In 1994 boat motors were subjected to the Watercraft Sales and Use Tax. In 1997 the definition of watercraft was altered to include any vessel propelled by machinery, whether or not the machinery was the principle source of propulsion. The titling requirements set forth in §§ 29.1-712 through 29.1-722 of the Code of Virginia have also changed.

Issues: The regulatory action poses no disadvantages to the public or the Commonwealth. The primary advantage to the public and to the Commonwealth is that by updating the regulation to reflect statutory changes, the public will better understand the tax and how it is administered. Another advantage to the public and to the Commonwealth is that by adding additional examples, the public will better understand TAX's policy regarding watercraft.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Department of Taxation (Department) proposes several amendments to the Watercraft Sales and Use Tax regulations. There have been several statutory changes since this regulation was last amended. All proposed changes to the regulation are either straight from current statutes or are merely clarifying language and do not change requirements. Proposed amendments reflecting statutory change include: 1) adding a tax exemption for watercraft purchased by nonprofit sea rescue squads, 2) first establishing, and then raising the maximum tax limitation to its current level of $2000 (this maximum tax was first imposed in 1990), 3) amending the titling requirements, 4) addressing the tax status of watercraft motors, and 5) amending the definition of watercraft to include any vessel propelled by machinery. Further, the Department proposes numerous clarifying changes such as amending definitions, moving certain language from one section to another, adding examples, and updating Code citations as well as regulatory cross-references. Also, the Department proposes to add a new section to the regulations that would clarify existing policy on dealer exclusion and modify the definition of gross receipts.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The current regulation is inconsistent with parts of the Code of Virginia. When statutes and regulations conflict, the statutes prevail. Since all proposed changes are either straight from statute or are merely clarifying language, the proposed amendments do not change any requirements for the public and thus do not produce any cost. The proposed amendments will be beneficial for the public in that there will be less confusion on the law regarding watercraft sales and use tax.

Businesses and Entities Affected. These regulations potentially affect all Virginia taxpayers.

Localities Particularly Affected. The proposed amendments affect all localities. Localities along the coast or that particular feature other navigable waters may be particularly affected.

Projected Impact on Employment. Since the proposed amendments do not change current or future requirements, employment is not significantly affected.

Effects on the Use and Value of Private Property. Since the proposed amendments do not change current or future requirements, the use and value of private property is not significantly affected.

Small Businesses: Costs and Other Effects. Since the proposed amendments do not change current or future requirements, small business are not significantly affected.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments do not directly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The agency agrees with the Department of Planning and Budget’s economic impact analysis.

Summary:

This regulatory action provides clarification with respect to Watercraft Sales and Use Tax as well as amends the regulation to reflect statutory changes. This regulatory action will also promulgate two new regulation sections, 23VAC10-230-70 and 23VAC10-230-75, that clarify information already in the regulation. The retail sales and use tax regulation section regarding watercraft sales, leases, and rentals; repair and replacement parts; and maintenance materials is amended to reflect a statutory change regarding maintenance contracts.

23VAC10-210-6060. Watercraft sales, leases, and rentals, ; repair and replacement parts, ; and maintenance materials.

A. Generally. Sales, leases, and rentals of watercraft are not subject to the retail sales and use tax when such the same transactions are subject to the watercraft sales and use tax. See the Watercraft Sales and Use Tax Regulations, 23VAC10-230, for more information on the tax. Watercraft not subject to the watercraft sales and use tax are subject to the retail sales and use tax when sold, leased or rented.

B. Watercraft subject to the watercraft sales and use tax described. For the purposes of this regulation, watercraft subject to the watercraft sales and use tax shall mean every type of craft described in § 58.1-1401 of the Code of Virginia and the accompanying regulations.

C. B. Repair and replacement parts installed in watercraft sold, leased or rented and accessories .

1. Repair and replacement parts and, accessories, attachments, and lubricants installed on a watercraft at the time of sale, or on leased or rented watercraft, that are included in the sales price for computing the watercraft sales and use tax or in gross receipts from a lease or rental are exempt from the retail sales and use tax. Such items may be purchased by a dealer, as defined in § 58.1-1401 of the Code of Virginia and the accompanying regulations, exclusive of the retail sales and use tax when a resale exemption certificate, Form ST-10, is presented at the time of sale. Repair parts purchased by nondealers for installation on watercraft are not exempted from the retail sales and use tax.

2. Boat motors. Boat motors that will be installed on watercraft are subject to the Watercraft Sales and Use Tax. Any boat motors that will not be installed on watercraft are subject to the retail sales and use tax. See 23VAC10-230-40 B for more information on boat motors subject to the Watercraft Sales and Use Tax.

D. C. Maintenance contracts and materials. One-half the charge for maintenance contracts that provide for both repair labor and repair parts is subject to the tax. If a maintenance contract provides only for repair labor, the charge for the contract is tax exempt. Maintenance contracts for replacement parts only are taxable on the full charge for this contract. Maintenance materials such as oil, grease, soaps, cleaners, etc. used on watercraft are subject to the retail sales and use tax. See the Virginia Watercraft Sales and Use Tax Regulations for information relating to the watercraft sales and use tax generally.

23VAC10-230-20. Watercraft exclusion.

Effective January 1, 1982, watercraft Watercraft as defined in § 58.1-1401 of the Code of Virginia are not subject to the four percent Virginia retail sales and use tax imposed by Chapter 6 (§ 58.1-600 et seq.) of Title 58.1 but are subject to the two percent 2.0% watercraft sales and use tax imposed by Chapter 14 (§ 58.1-1400 et seq.) of Title 58.1 of the Code of Virginia.

23VAC10-230-30. Definitions.

The following words, and terms when used in this chapter shall have the following meanings: and phrases are defined herein for purposes of the tax imposed by Chapter 14 of Title 58.1 of the Code of Virginia only:

"Attachments thereon and accessories thereto" means all tangible personal property that is physically attached to watercraft or property that is customarily used in watercraft, whether or not affixed to the structure of the watercraft, and which was transferred in the same transaction as the watercraft as a part of the watercraft sale.

"Watercraft" means every description of watercraft, other than a seaplane on the water, used or capable of being used as a means of transportation on water and which are fifteen feet or more in overall length measured along the centerline and which have a gross weight in excess of four hundred pounds, except watercraft which are documented by the United States Coast Guard.

The term "overall length" as used here is the horizontal distance, measured along the centerline, that is, between the foremost part of the stem and the aftermost part of the stern, excluding bowsprits, bumpkins, rudders, outboard motor, and similar fittings or attachments. The term "gross weight" as used here includes the boat hull and motor and all other attachments thereon and accessories thereto.

Marine documentation is issued by the United States Coast Guard to the owner(s) of vessels or watercraft as evidence of ownership in such vessels or watercraft. Valid documentation becomes void upon sale and must be reinstated in the name(s) of the purchaser(s). Therefore, for purposes of this chapter, no watercraft will be considered to have a valid marine document when purchased either new or used and every watercraft purchased on or after January 1, 1982 which meets the length and weight requirements of this subparagraph will meet the definition of "watercraft."

Watercraft purchased and documented without this State and brought into this State for use in this State on or after January 1, 1982 may have valid documentation issued by the United States Coast Guard. Such vessels with valid documentation do not meet the definition of "watercraft."

"Commissioner" means the Tax Commissioner.

"Current market value" means the value of a watercraft considering age, make, model, and included accessories in accordance with such publications or other data as are customarily employed in ascertaining the sales price of used watercraft.

"Dealer" means any person the Tax Commissioner finds to be in the regular business of selling watercraft. If a person has held during the previous or current calendar year five or more watercraft for resale, (or use for compensation), the Commissioner may find such person to be a dealer for purposes of this chapter. watercraft dealer as defined in § 29.1-801 of the Code of Virginia.

"Person" means every natural person, firm, partnership, association, corporation, or other entity.

"Sale" means any transfer of ownership or possession, or both, exchange, barter, conditional or otherwise, in any manner or by any means whatsoever, of a watercraft. The term "sale" includes a transaction whereby possession is transferred but title is retained by the seller as security. However, "sale" excludes any transfer of ownership or possession which transfer is made to secure payment of an obligation. The term "sale" also includes any lease or rental for a period of time substantially equal to or exceeding 80% of the remaining life of the watercraft, and any lease or rental requiring total payments by the lessee during the lease or rental period which substantially equal the value of the watercraft. (a) The remaining life of the watercraft shall be estimated in accordance with generally accepted accounting principles, considering factors such as physical deterioration, normal obsolescence, maintenance, and intensity of use. (b) For purposes of this chapter, the term "substantially equal" shall mean "80% or more."

(c) For purposes of this chapter, the term "value of the watercraft" shall mean the current market value of the watercraft in accordance with such publications or other data as are customarily employed in ascertaining the maximum sale price of watercraft.

The same sale will not be subject to the tax more than once. However, unless it is an exempt transfer, each time a transfer of ownership or possession takes place, the new owner will be subject to the tax on the transfer.

As used in this chapter, the term "sale" does not include the following:

(a) Any transfer of ownership or possession which transfer is made to secure payment of an obligation.

(b) Any transfer of ownership or possession which is incidental to repossession under a lien and under which ownership is transferred to the repossessor, his nominee or a trustee, pending ultimate disposition or sale of the collateral.

(c) Any transfer of ownership or possession which is part of the sale of all or substantially all the assets of any business. The exemption applies only to watercraft upon which Virginia Watercraft Sales and Use Tax or Virginia Retail Sales and Use Tax has been paid by the transferor and does not include non-titled watercraft held for resale by a dealer or manufacturer or any other watercraft held or used for exempt purposes by the transferor. The tax status of such watercraft will be determined by the transferee's purposes and use of the watercraft. For purposes of this regulation the term "substantially all the assets" shall mean "80% or more."

(d) Any transfer of ownership or possession by survivorship, inheritance or gift.

(e) Any transfer of ownership or possession from an individual or partnership to a corporation or from a corporation to an individual or partnership if the transfer is incidental to the formation, organization, reorganization, or dissolution of a corporation in which the individual or partnership holds the controlling interest. For purposes of this exemption, a controlling interest means the ownership of at least 80% of all outstanding shares of voting stock.

(f) Any transfer of ownership or possession between affiliated corporations if Virginia Watercraft Sales and Use Tax or Virginia Retail Sales and Use Tax was paid on the acquisition or use of the transferred watercraft by the transferring corporation. For purposes of this exemption, two or more corporations shall be deemed to be affiliated if (a) one corporation owns at least 80% of the outstanding shares of voting stock of the other or others or (b) at least 80% of the outstanding shares of voting stock of two or more corporations is owned by the same interests.

Example 1

Corporation A purchased in 1979 a watercraft in excess of 15 feet in length and in excess of 400 pounds in weight and paid Virginia Retail Sales and Use Tax on the purchase. In 1982 Corporation A acquired all of the capital stock of Corporation B and transferred its watercraft to Corporation B. The transfer would not be subject to Virginia Watercraft Sales and Use Tax because it would represent a transfer between qualified affiliates (parent owning at least 80% of subsidiary) and because Virginia Retail Sales and Use Tax was paid on the acquisition of the transferred watercraft by the transferring corporation.

Example 2

Corporation C purchased a watercraft in excess of 15 feet in length and in excess of 400 pounds in weight in Delaware in March 1982. In June 1982 Corporation C acquired all of the capital stock of Corporation D, a Virginia corporation, and transferred its watercraft to Corporation D. The acquisition of the watercraft by Corporation D is subject to Virginia Watercraft Sales and Use Tax. While this would represent a transfer between qualified affiliates, Virginia Watercraft Sales and Use Tax was not paid on the acquisition of the transferred asset by the transferring corporation.

Example 3

Individual A owns 100% of the voting stock of Corporation E and 85% of the voting stock of Corporation F. Both corporations operate businesses within Virginia. In 1982, Corporation E transfers to Corporation F a watercraft which it had previously purchased and on which it had paid Virginia Watercraft Sales and Use Tax. The transfer would not be subject to Virginia Watercraft Sales and Use Tax because it would represent a transfer between qualified affiliates (at least 80% of the voting stock of each corporation is owned by the same owner) and because Watercraft Sales and Use Tax was paid on the acquisition of the transferred watercraft by the transferring corporation.

(g) Transfer of watercraft repair parts, accessories, attachments, and lubricants, not included in the same transaction with the transfer of the watercraft. Sales of all such tangible personal property are subject to the Virginia Retail Sales and Use Tax and reportable on Form ST-9, Dealer's Retail Sales and Use Tax Return.

"Sale "Sales price" as used in this chapter means the total price paid for a watercraft and all attachments thereon and accessories thereto including all installation and labor charges, without any allowance or deduction for trade-ins or unpaid liens or encumbrances, but exclusive of any federal manufacturers' excise tax. Such tangible personal property transferred other than in the same transaction with the watercraft will be subject to the retail sales and use tax, except boat motors that will be placed on a watercraft. Charges for lettering and get-ready charges (cleaning, washing and preparing) are also included in the sales price when made in the same transaction with the watercraft transfer. However, excluded from the sales price are charges for federal manufacturer's excise tax, registration and titling fees, insurance, and gasoline, when separately stated on the invoice.

"Titled with the Department of Game and Inland Fisheries" means titled with the Department of Game and Inland Fisheries pursuant to § 29.1-713 of the Code of Virginia.

"Watercraft" means any vessel propelled by machinery whether or not the machinery is the principal source of propulsion. The term shall also include any sail-powered vessel that has an overall length in excess of 18 feet in length measured along the centerline. The term shall not include a seaplane on the water or a watercraft that has a valid marine titling document issued by the United States Coast Guard (USCG). See subsection D of 23VAC10-230-80 for more information on USCG marine titling. Any motor used to power a watercraft shall be deemed a "watercraft" for purposes of the tax. The term "overall length" as used here is the horizontal distance, measured along the centerline, that is, between the foremost part of the stem and the aftermost part of the stern, excluding bowsprits, bumpkins, rudders, outboard motor, and similar fittings or attachments.

The terms "attachments thereon" and "accessories thereto" as used herein mean all tangible personal property that is physically attached to watercraft, including installation charges, or property that is customarily used in watercraft, whether or not affixed to the structure of the watercraft, and which was transferred in the same transaction as the watercraft as a part of the watercraft sale. Such tangible personal property transferred other than in the same transaction with the watercraft will be subject to the four percent retail sales and use tax.

Charges for lettering and get-ready charges (cleaning, washing and preparing) are also included in the sale price when made in the same transaction with the watercraft transfer. However, excluded from the sale price are charges for federal manufacturer's excise tax, registration and titling fees, insurance, and gasoline, when separately stated on the invoice.

23VAC10-230-40. Tax levied.

A. Generally. On and after January 1, 1982, the The Watercraft Sales and Use Tax is imposed at the rate of two percent 2.0% upon the sale of every watercraft sold in Virginia that is required to be titled with the Department of Game and Inland Fisheries and upon the use in Virginia of any watercraft that is required to be titled with the Department of Game and Inland Fisheries.

1. There is a $2,000 maximum tax limitation on the amount of Watercraft Sales and Use Tax that may be levied on the sales price of watercraft sold in Virginia, on the sales price of watercraft sold elsewhere but required to be titled in Virginia, and on the market value of watercraft first required to be titled in Virginia six months or more after its acquisition. This maximum tax limitation does not apply to leases, charters or other uses of watercraft subject to the Watercraft Sales and Use Tax. The tax is to be collected by applying the following rate against the sale price:

(1) For watercraft sold in Virginia, the amount of tax is two percent of the sale price of the watercraft.

(2) For watercraft not sold in Virginia but required to be titled in Virginia, the amount of tax is two percent of the sale price of the watercraft, wherever sold; however, if

2. If the watercraft is not sold in Virginia and is first required to be titled in Virginia six months or more after its acquisition, the tax is imposed at two percent 2.0% of the current market value of the watercraft if such current market value is less than the sale sales price of the watercraft including the cost of any modifications, improvements or additions subsequent to initial acquisition.

B. Boat motors generally. The tax applies to all boat motors that will be placed on a watercraft as defined in 23VAC10-230-30.

1. Dealers who are in the regular business of selling watercraft, and who have agreed with the department to collect and remit watercraft tax on behalf of their customers, shall collect and remit the tax on motors sold that will be placed on watercraft.

2. If a dealer has not agreed with the department to collect and remit watercraft tax, the dealer must charge the retail sales and use tax. the department will subsequently refund the difference (between the retail sales and use tax and watercraft tax) directly to the customer upon application by the customer to the department.

3. See 23VAC10-230-75 and 23VAC10-230-90 C for more information on dealers.

B. C. The following list contains scenarios that are not considered sales for the purposes of the Watercraft Sales and Use Tax and are therefore not taxable transactions:

1. Any transfer of ownership or possession where the transfer is made to secure payment of an obligation.

2. Any transfer of ownership or possession that is incidental to repossession under a lien and under which ownership is transferred to the repossessor, his nominee or a trustee pending ultimate disposition or sale of the collateral.

3. Any transfer of ownership or possession that is part of the sale of all or substantially all the assets of any business. The exemption applies only to watercraft upon which Virginia Watercraft Sales and Use Tax or Virginia Retail Sales and Use Tax has been paid by the transferor and does not include nontitled watercraft held for resale by a dealer or manufacturer or any other watercraft held or used for exempt purposes by the transferor. The tax status of such watercraft will be determined by the transferee's purposes and use of the watercraft. For purposes of this exclusion, the term "substantially all the assets" shall mean "80% or more."

4. Any transfer of ownership or possession by survivorship, inheritance or gift.

5. Any transfer of ownership or possession from an individual or partnership to a corporation or from a corporation to an individual or partnership if the transfer is incidental to the formation, organization, reorganization, or dissolution of a corporation where the individual or partnership holds the controlling interest. For purposes of this exclusion, a controlling interest means the ownership of at least 80% of all outstanding shares of voting stock.

Example 1. Corporation ABC transfers ownership of its watercraft to Partnership JKL, where the transfer is incidental to the dissolution of Corporation ABC and Partnership JKL owns 85% of the voting stock of Corporation ABC. The transfer is not considered a sale for the purposes of the Watercraft Sales and Use Tax.

Example 2. Same facts as example 1, except that Partnership JKL owns 50% of the voting stock of Corporation ABC. The transfer is considered a sale for the purposes of the Watercraft Sales and Use Tax.

6. Any transfer of ownership from a partner to the partnership in which he is a partner will be deemed a taxable sale only in part. The part taxable is the gained aggregate interest of the partnership. Similarly, any transfer of ownership from a partnership to a partner will be deemed a taxable sale only on the gained aggregate interest of the partner.

Example. Partner T owned a watercraft that he has transferred to Partnership RST. Partnership RST has two partners in addition to Partner T, where all partners are equal shareholders possessing 1/3 of the partnership. The gained aggregate interest of Partnership RST is 2/3, while as a member of Partnership RST, Partner T is maintaining possession of 1/3. The tax must be paid on 2/3 the current market value or the purchase price of the watercraft, whichever is lower.

7. Any transfer of ownership or possession between affiliated entities if Virginia Watercraft Sales and Use Tax or Virginia Retail Sales and Use Tax was paid on the acquisition or use of the transferred watercraft by the transferring entity. For purposes of this exclusion, two or more entities shall be deemed to be affiliated if (i) one entity owns at least 80% of the outstanding shares of voting stock (or equivalent ownership interests) of the other or others or (ii) at least 80% of the outstanding shares of voting stock (or equivalent ownership interests) of two or more entities is owned by the same interests. For purposes of this exclusion, entity means a business organization, other than a sole proprietorship, that is a corporation, limited liability company, or partnership, including general partnership, limited partnership, or limited liability partnership, duly organized under the laws of the Commonwealth or another state.

Example 1. Corporation A purchased a watercraft in Virginia and paid Virginia Watercraft Sales and Use Tax on the purchase. The following year, Corporation A acquired all of the capital stock of Corporation B and transferred its watercraft to Corporation B. The transfer would not be subject to Virginia Watercraft Sales and Use Tax because it would represent a transfer between qualified affiliates (parent owning at least 80% of subsidiary) and because the tax was paid on the acquisition of the transferred watercraft by the transferring corporation.

Example 2. Individual A owns 100% of the voting stock of Corporation E and 85% of the voting stock of Corporation F. Both corporations operate businesses within Virginia. In 1982, Corporation E transfers to Corporation F a watercraft that it had previously purchased and on which it had paid Virginia Watercraft Sales and Use Tax. The transfer would not be subject to Virginia Watercraft Sales and Use Tax because it would represent a transfer between qualified affiliates (at least 80% of the voting stock of each corporation is owned by the same owner) and because Watercraft Sales and Use Tax was paid on the acquisition of the transferred watercraft by the transferring corporation.

D. Each transaction taxable. The same transaction will not be subject to the tax more than once. However, each time a sale or transfer takes place, or a watercraft is brought into use in Virginia and required to be titled, the new owner or new user in Virginia will be subject to the tax and will be required to title the watercraft with the Department of Game and Inland Fisheries.

C. Requirement to be titled. "Required to be titled" as used in this section refers to the titling and registration provisions of Chapter 17 of Title 62.1 of the Code of Virginia (Repealed). Section 62.1-186.2 of the Code of Virginia (Repealed) requires that any owner, except a registered dealer, of any watercraft acquired after January 1, 1982, or in which an interest is transferred after that date, must apply for a title with the Department of Game and Inland Fisheries within 30 days of acquisition or transfer. Furthermore, § 62.1-186.2 of the Code of Virginia (Repealed) requires that "any owner who renews the certificate of number for his watercraft, shall apply for a certificate of title at the time of such renewal."

D. E. Watercraft not sold in Virginia; use tax. When the watercraft is not sold in Virginia but is required to be titled for use in Virginia, i.e., when the owner applies for renewal of his certificate of number, the use tax applies. Any watercraft purchased without this state, even if before January 1, 1982, and subsequently required to be titled in Virginia, is subject to the two percent 2.0% use tax based on the sale sales price, or the current market value of the watercraft if purchased six or more months before being required to be titled in Virginia and if such value is less than the sales price, including the cost of any modifications, improvements or additions subsequent to initial acquisition.

E. Current market value. "Current market value" as used in this section means an average value considering age, make, model, and included accessories in accordance with such publications or other data as are customarily employed in ascertaining the sale price of used watercraft.

F. Occasional sale. In addition to transfers by dealers, the tax applies to an occasional sale of a watercraft. Occasional sale means a sale of a watercraft by anyone not a dealer in watercraft.

E. See 23VAC10-230-90 for information concerning payment of tax.

23VAC10-230-70. Transfer of watercraft repair parts, accessories, attachments, and lubricants, not included in the same transaction with the transfer of the watercraft.

Sales of all watercraft repair parts, accessories, attachments, and lubricants not included in the same transaction with the transfer of the watercraft are subject to the Virginia Retail Sales and Use Tax and reportable on Form ST-9, Dealer's Retail Sales and Use Tax Return. All such tangible personal property is only subject to the Watercraft Sales and Use Tax when it is considered an attachment thereon or accessory thereto and part of the sales price. See 23VAC10-210-6060 for more information on the application of the retail sales and use tax.

23VAC10-230-75. Dealer exclusion.

A. Generally. Any person determined by the Tax Commissioner to be a dealer and who desires to transfer ownership in watercraft without first titling them, must apply with the Tax Commissioner for a dealer certificate of registration.

If a person is determined by the Tax Commissioner to be a dealer in watercraft and is registered, he will be exempt from the Watercraft Sales and Use Tax as to all watercraft he purchases for resale or for lease, charter, or other use for compensation. However, a registered dealer is subject to a tax of 2.0% of the gross receipts from the lease, charter, or other use of any watercraft so used.

B. Gross receipts. Gross receipts includes hourly rental, maintenance, and all other charges for use of such watercraft. Also, unless separately stated on the invoice, gross receipts includes charges for piloting, crew, or other services in connection with the use of such watercraft.

For purposes of the dealer exclusion, the dealer is the user of the watercraft and is subject to tax on his gross receipts. Therefore, gross receipts from rentals, leases or charters to the United States or any governmental agencies thereof, or to the Commonwealth of Virginia or any political subdivision thereof, are includible in the dealer's gross receipts and subject to the tax.

23VAC10-230-80. Other exemptions Exemptions and exclusions.

A. Governments, insurance companies. The watercraft sales and use tax does not apply to sales to or use by the United States or any of the governmental agencies thereof, the Commonwealth of Virginia or any political subdivision thereof, or sold to an insurance company for the sole purpose of disposition when such insurance company has paid the registered owner of the watercraft on a total loss claim, nor does the tax apply to ships or vessels used or to be used exclusively in interstate or foreign commerce.

For sales to the United States, the Commonwealth of Virginia or any political subdivision to be exempt from the tax, the purchases must be pursuant to required official purchase orders to be paid for out of public funds. Sales to governmental employees for their own use are taxable. If pursuant to an official purchase order, the tax will not apply to sales to or use by officers' clubs, noncommissioned officers' clubs, officers' messes, noncommissioned officers' messes, and post exchanges organized, operated and controlled under Department of Defense regulations. The exemption does not cover individuals or organizations operating on a military reservation in their own right. No person is relieved from liability for payment of, collection of, or accounting for the tax on the ground that the sale or use occurred in whole or in part within a federal area.

In the first sentence of this section, the phrase "use by" relates to the exempt use in this state the Commonwealth of any watercraft purchased without this state by a governmental agency as set out above. It has no application in cases where the renter, lessee, or other user is a governmental agency.

B. Owners on January 1, 1982. Any person who was the owner of a watercraft before January 1, 1982, is not liable for the watercraft sales and use tax on the watercraft and may apply for title without payment of the tax. The purchase in Virginia before January 1, 1982, would have been subject to the four percent retail sales and use tax unless it was an exempt sale. However, any watercraft purchased without Virginia before January 1, 1982, and which is first used in Virginia on or after January 1, 1982, is subject to the two percent use tax. See 23VAC10-230-120 for credit provisions.

C. B. Commercial watermen. Any watercraft constructed by a commercial waterman for his own use in extracting fish, bivalves or crustaceans from waters for commercial purposes is exempt from the watercraft sales and use tax Watercraft Sales and Use Tax so long as such watercraft is used solely and exclusively for such purposes. If such watercraft is used primarily for exempt purposes but also for non-exempt nonexempt purposes, it will be subject to tax on a pro rata portion of its value based on the percentage of non-exempt use; if not used primarily for exempt purposes, its entire value will be subject to tax. For purposes of this subparagraph subsection the term "used primarily" means used more than fifty percent 50% for exempt purposes.

C. United States Coast Guard marine documentation. Vessels with valid marine documentation do not meet the definition of "watercraft" (see 23VAC10-230-30). Marine documentation is issued by the United States Coast Guard to the owner(s) of vessels as evidence of ownership in such vessels. Valid documentation becomes void upon sale and must be reinstated in the name(s) of the purchaser(s). Therefore, for purposes of this chapter, no watercraft will be considered to have a valid marine document when purchased either new or used.

D. See § 58.1-1404 of the Code of Virginia for additional exemptions.

NOTE: E. The exemptions of this section do not apply with respect to rentals, leases or charters in the case of a dealer who pays a gross receipts tax under the dealer exclusion, as the gross receipts tax is levied on the dealer and not upon the renter, lessee, or other user.

23VAC10-230-90. Payment of tax required for title.

A. Generally. The watercraft sales and use tax is to be paid by the purchaser or user of watercraft and is to be collected by the Tax Commissioner at the time the owner is required to apply for a title for the watercraft.

Application for title is to be made with the Department of Game and Inland Fisheries. As used in this section, the phrase "at the time the owner is required to apply for a title" refers to the requirement given in § 62.1-186.2(A) of the Code of Virginia (Repealed) as follows:

"Any owner, except a registered dealer, of any watercraft acquired after January one, nineteen hundred eighty-two, or in which an interest is transferred after that date, shall apply to the Commission for a certificate of title in the name of the owner within thirty days of such acquisition or transfer."

1. If a watercraft originally acquired for tax exempt use and titled without payment of tax is subsequently utilized for nonexempt purposes, it then becomes subject to the tax based on the lower of its cost or current market value.

2. If no title is required on a watercraft, then the watercraft sales and use tax will not be levied on the watercraft, unless transferred under a lease defined as a sale under 23VAC10-230-90 or unless the owner chooses to apply for a title under Section 62.1-186.2(D) of the Code of Virginia (Repealed) with the Department of Game and Inland Fisheries.

Unless a watercraft is exempt from the Watercraft Sales and Use Tax, title may not be issued unless the applicant shows to the satisfaction of the Department of Game and Inland Fisheries that the tax has been paid.

B. Payment and collection of tax. The tax may be paid to the Department of Taxation at the Richmond headquarters or at the department's nine field district offices. Payment may also be made or to the Department of Game and Inland Fisheries in Richmond except in cases where no title change is involved. In such cases, tax payment must be made directly to the Department of Taxation. See the department's website, www.tax.virginia.gov, for more information about payment and forms.

C. Dealer collection. The Tax Commissioner may also enter into agreements with registered dealers allowing them to collect the tax from their customers. If a registered dealer desires to collect the 2.0% Watercraft Sales and Use Tax on all his taxable transfers of watercraft, he may do so by signing an agreement with the Tax Commissioner. In agreeing with the Tax Commissioner to collect the 2.0% tax on transfers of watercraft, the dealer must agree to abide by the following regulations:

1. Collection of tax by dealers from their customers.

a. Generally. The tax must be paid to the state Commonwealth by the dealer, but the dealer must separately state on the invoice the amount of the tax and add the tax to the sales price or charge. As to a purchaser, the tax is then deemed paid to the Department of Taxation and thereafter Thereafter, the tax is a debt from the purchaser, consumer or lessee to the dealer until paid and is recoverable at law in the same manner as other debts.

b. Advertising absorption of tax prohibited. A dealer may not advertise or hold out to the public in any manner, directly or indirectly, that he will absorb all or any part of the watercraft sales or use tax Watercraft Sales and Use Tax, or that he will relieve the purchaser, consumer or lessee of the payment of all or any part of the tax.

c. Erroneous collection on nontaxable transactions. Any dealer collecting the watercraft sales or use tax Watercraft Sales and Use Tax on nontaxable transactions must transmit to the Department of Taxation such erroneously or illegally collected tax unless he can show that the tax has been refunded to the purchaser or credited to the purchaser's account.

2. Dealers' monthly returns and payment of tax.

a. Generally. Every dealer authorized by execution of "Dealer Agreement" to collect Watercraft Sales Tax is required to file a return on or before the twentieth day of the month following each reporting period even if no tax has been collected. Returns are prescribed and furnished by the Department of Taxation.

b. Payment to accompany dealer's return. At the time of filing the return, the dealer must pay the full amount of tax collected or invoiced to purchasers. Failure to pay the tax will cause it to become delinquent.

c. Penalties. A dealer who fails to file a return and pay the full amount of tax by the due date is subject by "Dealer Agreement" to a penalty of 5.0% 6.0% of the amount due for each month or portion thereof that the failure continues, not to exceed 25% 30%. The penalty may be waived by the Tax Commissioner if there is good cause for the failure to file and/or pay on time. Request for waiver of penalty must be made in writing to the Department of Taxation and must include all pertinent facts to support the request.

d. Interest. Interest at a rate determined in accordance with § 58.1-15 of the Code of Virginia will by "Dealer Agreement" accrue on the unpaid amount of the tax from the due date until the time of payment. Interest will accrue whether or not any penalty is waived.

3. Extension not allowed. No extension will be allowed for filing and/or paying the tax due for the month.

4. Dealer compensation not allowed. A dealer will not be allowed any deduction from the amount of the two percent watercraft sales 2.0% Watercraft Sales and use tax Use Tax due on his return to compensate him for accounting for and paying the tax.

5. See 23VAC10-230-40 B for information on payment of the tax for a boat motor.

23VAC10-230-110. Retention of documents.

A. Seller of watercraft. Any person who sells a watercraft in Virginia must retain a copy of the invoice required by § 58.1-1403 of the Code of Virginia for six years following the sale (See 23VAC10-230-100).

B. Dealer paying gross receipts tax. Any dealer taxed on gross receipts under § 58.1-1402 of the Code of Virginia (see 23VAC10-230-70) must retain a copy of all invoices for lease, charter or other usage of watercraft for six years following the transaction.

C. Invoice information therein. Each invoice must accurately describe the watercraft sold, leased or used.

1. Watercraft sales invoices must contain a complete description of the watercraft sold, including its sale sales price, its make, model, year, length, builder's hull number, if any, and the manufacturer's engine serial number, if an inboard; for an outboard motor, its make, model, year, horsepower, and manufacturer's serial number.

2. For purposes of a dealer's monthly or periodic invoice for lease, rental or other usage of watercraft, the required description is limited to make, model and year; provided the dealer retains a copy of the original purchase invoice for each watercraft so used. See also 23VAC10-230-100.

D. Examination by Tax Commissioner. The Tax Commissioner may examine during the usual business hours of the day records, books, papers, or other documents of any dealer or other person selling or purchasing watercraft, relating to the receipts or sales prices for any watercraft, to verify the truth and accuracy of any statement or any other information as to a particular sale, lease or other taxable transaction.

23VAC10-230-120. Credit for payment of tax.

A credit A. Credit will be given against the Virginia Watercraft Sales and Use Tax imposed on the use of watercraft in Virginia for the amount of tax paid by the owner to another state or to this State by reason of the imposition of a similar tax on his purchase or use of the watercraft. The credit is primarily applicable to sales or use taxes paid by the owner on the purchase or use of a watercraft prior to its use in Virginia. It has very limited application to Virginia Retail Sales and Use Tax because any watercraft purchased or used in Virginia on or after January 1, 1982, is exempt from Virginia Retail Sales and Use Tax (§ 58.1-609.1(9) of the Code of Virginia) and because any watercraft purchased in Virginia prior to January 1, 1982, is exempt from Virginia Watercraft Sales and Use Tax (§ 58.1-1404 of the Code of Virginia).

NOTE: B. Credit against the tax will not be given for state Virginia retail sales tax paid on component parts or kits used in construction of a watercraft. Whereas watercraft constructed by commercial watermen for their own use are exempt from the tax under § 58.1-1404 of the Code of Virginia, watercraft constructed by a person other than a commercial waterman will be subject to the watercraft sales and use tax in order to be titled in Virginia.

Example 1. A moved his residence to Virginia in 1981 and brought with him a watercraft purchased in 1979 two years before in the state of his former residence. The watercraft was originally purchased for $20,000 and sales tax was paid in the amount of $600 to the state of his former residence. The published pricing guide value of the watercraft when moved into Virginia was $16,000. Since the watercraft was not required to be titled in Virginia until six months or more after its acquisition, the Virginia watercraft use tax will be two percent 2.0% of its current market value, or $320. The credit for a similar tax paid to another state completely offsets the Virginia watercraft tax.

Example 2. In January 1982, B purchased a boat in Virginia which was eighteen feet long and weighed three hundred fifty pounds. Since its weight was not in excess of four hundred pounds, it did not meet the definition of a watercraft and Virginia retail sales tax in the amount of $320 based on an $8,000 purchase price was paid. Subsequently, in February 1982, marine accessories and engine were purchased and installed for $4,000 and Virginia retail sales tax was paid in the amount of $160. The boat then qualified as a "watercraft" since it then weighed in excess of four hundred pounds. It was then subject to titling requirements and to Watercraft sales tax, but no tax was due because Virginia retail sales tax paid on the original purchase of the boat exceeded the Virginia watercraft sales tax liability.

Example 3. 2. X purchased a watercraft in State A which imposed no tax on the purchase; the watercraft was used in State C and a use tax was imposed by State C in the amount of $200. X then moved the watercraft to Virginia for use in this State Commonwealth and the Virginia watercraft use tax based on the lower of original cost or current market value was $320. X required to pay $120 Virginia watercraft use tax ($320 tax liability less $200 credit for a similar tax paid to another state.)

Example 4. 3. Y purchased parts and materials and built a watercraft valued at $12,000 when completed and required to be titled in Virginia. The watercraft use tax liability was $240 and Y sought credit for $200 Virginia retail sales tax which he paid on parts and materials purchased to construct the watercraft. No credit was allowable because no similar tax was paid to Virginia or to another state on the watercraft. The tax paid on parts and materials was is not considered a similar tax paid on the purchase or use of the watercraft.

VA.R. Doc. No. R09-1543; Filed December 2, 2008, 12:11 p.m.