Materials purchased for use in construction contracts are exempt from the additional 1/2% sales and use tax levied by Act 3 of 1991 if the qualifications set out in this regulation are met.
Office of Field Audit Administration
P. 0. Box 1272
Room 112
Little Rock, Arkansas 72203
Some construction contractors maintain an inventory of materials and pay sales or use tax on "withdrawals from stock" (Ark. Code Ann 26-52-103) or "withdrawals for use" (Ark. Code Ann 26-53-102(5)(a)(4). Where a construction contractor claims the exemption, granted by Act 548 of 1991 for withdrawals, the construction contractor shall maintain all records required by this regulation including maintaining copies of the contracts for which the exemption is claimed.
Some construction contractors report the use tax due on materials purchased from out-of-state sellers directly to the Revenue Division of the Department of Finance and Administration. When such a construction contractor claims the exemption granted by Act 548 of 1991 the construction contractor shall keep all records required by this regulation including maintaining copies of the contracts for which the exemption is claimed.
On May 6, 1991, a construction contractor purchases a hammer and 50 pounds of nails for use in framing an apartment building. The construction contractor furnishes all necessary information required by this regulation to the seller.
The additional one-half cent tax is due on the price of the hammer. The hammer will not become a recognizable part of the completed structure and therefore is not exempt.
The nails are exempt from the additional one-half cent tax. The nails become part of the frame of the house. The nails cannot be seen after the house is completed, but they remain as a recognizable part of the house.
The burden of proving entitlement to an exemption is on the taxpayer. In the case of an audit of a seller's business, the burden is on the seller to keep records adequate to prove the validity of the claimed exemptions. In the case of an audit of a construction contractor's business, the burden is on the construction contractor to keep records adequate to prove the validity of the claimed exemptions. Failure to keep records adequate to prove the validity of the claimed exemptions will result in the exemptions being disallowed and applicable tax, penalty and interest being assessed on the taxpayer.
This regulation shall be effective from and after May 1, 1991.
FINDING OF IMMINENT PERIL AND STATEMENT OF REASONS THEREFOR
Act 548 of 1991 was signed by the Governor of the State of Arkansas on March 14, 1991, and is in full force and effect from and after that date. The Act provide for the exemption from the application of the 1/2% Arkansas Gross Receipts Tax and Arkansas Compensating Use Tax to materials purchased for a construction contract entered into before May 1, 1991.
Section 4 of Act 401 of 1979 (Ark. Code Ann 26-18-3 01) provides that the Commissioner of Revenues shall administer and enforce the provisions of every State tax law, including the Arkansas Gross Receipts Tax and the Arkansas Compensating Use Tax, and shall promulgate rules and regulations necessary for the enforcement thereof.
There are currently no rules or regulations regarding the application of Act 548 of 19 91, exemption for, or the imposition of the 1/2% Arkansas Gross Receipts Tax or Arkansas Compensating Use Tax to the materials purchased for a construction contract entered into before May 1, 1991.
To ensure understanding of and compliance with Act 54 8 of 19 91, and to prescribe procedures for the implementation of the law, emergency regulations as authorized by Section 3 of Act 434 of 19 67, the same being Ark. Code Ann 23-15-204, to be effective immediately upon filing thereof with the Secretary of State, are necessary.
For the above reasons it is found that there exists an imminent peril to the welfare of the State of Arkansas and the attached emergency regulations, regarding the application of the 1/2% Arkansas Gross Receipts Tax and the Arkansas Compensating Use Tax to materials purchased for a construction contract, are necessary.
006.05.91 Ark. Code R. 005