Tax Type
Retail Sales and Use Tax
Description
Liability of Auctioneer for Tax.
Topic
Collection of Delinquent Tax
Date Issued
10-05-1966
This is in reply to your letter of September 30, 1966, which reads as follows:
"Section 1-9 of the Virginia Retail Sales and Use Tax regulations provides, `Auctioneers, agents or factors selling tangible personal property are liable for collection and payment of the sales tax. The tax applies to the gross sales price of each single sale without deduction for commissions, service charges or any other expenses.'
"Section 1-75 of the same regulations provides, `The tax does not apply to an occasional sale, which means a sale of tangible personal property not held or used by a seller in the course of an activity for which he is required to hold a certificate of registration. . . .'
"We have several auctioneers or common criers in our community who are called by individuals to conduct household and general sales for the owners. The service of the auctioneer or common crier is engaged for a flat fee, the auctioneer not owning the property nor receiving any commission of percentage from the sale of same, he acting only as agent for the owner. It is my opinion that §1-9 does not apply to sales of this kind, and that §1-75 would apply in that we would call it an occasional sale of tangible personal property in which the auctioneer or crier had no interest in the activity whatever except his employment for a stated fee to sell the property. I would like to have your opinion on this matter.'
In my opinion, the provisions of §1-75 of the Regulations issued by the Department of Taxation would not apply in this case. I do not believe that sales of this nature by a licensed auctioneer come within the definition of "an occasional sale' contained in § 58-441.6(m) of the Code. In my opinion, §1-9 of the Regulations applies.
I am sending a copy of this to Honorable C. H. Morrissett, State Tax Commissioner, so that if I am in error he may advise you to that effect.
Attorney General's Opinion