November 1, 1978
Subject:
Taxation; Ad Valorem Taxes; Mobile Homes; Tax Permits; Seller of Used Mobile Homes as "Retailer"; G.S. 105-316.1
Requested By:
Leon M. Killian, III Haywood County Attorney
Question:
- (1)
- Is an individual engaged in the business of buying and selling only used mobile homes a "retailer?
- (2)
- Is he required to obtain a tax permit before moving a mobile home into his inventory, or before moving a mobile home to the premises of a purchaser?
Conclusion:
- (1)
- Yes
- (2)
- No
An individual is engaged in the business of buying and selling used (and only used) mobile homes. Presumably he buys them from mobile home wholesalers or from individuals who first bought them at retail; and presumably he sells them at retail and not to others for resale. He is neither a lien holder nor a manufacturer.
G.S. 105-316.1(a) requires that a "tax permit" be obtained before a mobile home may be moved by anyone other than a manufacturer or retailer. G.S. 105-316.1(b) specifically provides that "manufacturer, retailers and licensed carriers of mobile homes" shall not be required to obtain such permits. The purpose of the permit is to prevent the avoidance or evasion of tax on highly mobile property, since to obtain the permit requires payment of the tax, and failure to obtain it is a misdemeanor. G.S. 105-316.2,.3,.6.
Heretofore, the businessman has been required by the tax collector to pay taxes and obtain permits before moving the units which are his stock in trade. It is not clear whether he has been required to get the permits when he acquires a unit for resale and moves it to his lot, or when he sells to a consumer and moves it from his lot, or both. However, we believe that under G.S. 105-316.4, neither is correct if he is a "retailer".
"Retailer" is not defined in the Machinery Act, and has not been judicially construed in the context of G.S. 105-316.1. However, it is defined in the Sales and Use Tax Act as "every person engaged in the business of making sales of tangible personal property at retail". G.S. 105-164.3(14) "Retail" means "the sale of any tangible personal property in any quantity or quantities for any use or purpose on the part of the purchaser other than for resale." G.S.
105-164.3(13). While there is no necessary transfer of meaning between the two Acts, we think that the Sales Tax definition catches the accepted sense of the word in that it is a sale to one for use or consumption and not for resale as part of a retail business. Thus, it is our opinion that the businessman in question is a "retailer" of used mobile homes and is not required to obtain a permit or pay delinquent taxes on a used mobile home when he moves it from the seller’s premises to his lot, or from his lot to the purchaser’s premises, under the provisions of G.S. 105-316.1(a) and (b). It appears to us that any other result would require amendment of the pertinent statutes.
If the tax collector if aware of the sale by the owner to the retailer, he might want to consider garnishment upon the retailer before the purchase price is paid to the owner. G.S. 105-368. Unfortunately, it is likely that he seldom if ever knows of the sale until after the fact.
Rufus L. Edmisten Attorney General
Myron C. Banks Special Deputy Attorney General