June 2, 2008
This is a letter ruling issued by the Director of Revenue pursuant to Section 536.021.10, RSMo, and Missouri Code of State Regulations 12 CSR 10-1.020 in response to your electronic mail dated April 8, 2008.
The facts as presented in your letter are summarized as follows:
Applicant sells and installs grave monuments. The monuments are permanent structures attached to secure concrete foundations. The monuments become part of the customer’s property after installation.
Are Applicant’s sales of grave monuments subject to sales tax as sales of tangible personal property?
No, under the facts provided, Applicant is acting as a contractor making improvements to real property and Applicant should not charge sales tax on its sales of the monuments when title to the monuments passes after installation. As a contractor, Applicant should pay sales tax on Applicant’s price Applicant pays for the monuments.
A contractor is considered to be the final user or consumer of the tangible personal property purchased to complete his contract to improve the real property. Acting as a contractor making improvement to real property, Applicant is not making sales of tangible personal property subject to sales tax. See 12 CSR 10-112.010 and Buchholz Mortuaries, Inc. v. Director of Revenue, 113 S.W.3d 192 (Mo. banc 2003).
Monuments are tangible personal property. However, when the monuments are permanently affixed to real property, the monuments lose their character as tangible personal property and become part of the real property to which they are affixed.
When Applicant contracts with a purchaser for the sale and installation of a monument is intended as part of the sale, the monument is permanently affixed to the real property and title passes after installation. No sales tax is due on the sale of the monument. Applicant is operating as a contractor; and a contractor is deemed to be the final consumer of tangible personal property prior to the tangible personal property becoming part of the real property. As the final consumer of the monument as tangible personal property, Applicant must pay sales tax on Applicant’s purchase of the materials for the monument.
If Applicant sells a monument without installation or under a contract where the price for the monument and the installation charge are separately stated and the title to the monument passes to the purchaser before installation, Applicant is making a retail sale of tangible personal property. Applicant must charge the purchaser sales tax on the sale of the monument but not the separately stated installation charge. See 12 CSR 10-103.600.
When Applicant both makes retail sales of monuments to some customers and also operates as a contractor for others, Applicant should purchase the monuments under a resale exemption certificate and not pay tax at the time of its purchases. Applicant should collect sales tax on its retail sales of monuments and self-accrue sales tax on the purchase price of monuments installed as a contractor.
This letter ruling is binding upon the Department of Revenue with respect to the Applicant for three (3) years from the date of this letter and is subject only to statutory changes by the General Assembly and to changes in the interpretation of law by the courts or administrative tribunals. If a change occurs, the taxpayer who relies upon an outdated interpretation may be subject to additional taxes, interest and penalties, which may be imposed prospectively from the date of the change. For this reason, the interpretation set forth above should be reviewed on a regular basis. Please note that any change in or deviation from the facts as presented will render this ruling inapplicable.
Should additional information be needed, please contact Senior Counsel Ron Clements, Office of General Counsel, Post Office Box 475, Jefferson City, Missouri 65105-0475 (phone 573-751-0961), or me.
Omar D. Davis