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VisionStream, Inc. v. Director of Revenue

Supreme Court of Missouri, En Banc

June 30, 2015

VISIONSTREAM, INC., Appellant,
v.
DIRECTOR OF REVENUE, Respondent

Argued and Submitted March 18, 2015

PETITION FOR REVIEW OF A DECISION OF THE ADMINISTRATIVE HEARING COMMISSION. The Honorable Karen A. Winn, Commissioner.

VisionStream was represented by Harry Charles, an attorney in St. Louis.

The director was represented by Rochelle L. Reeves and Solicitor General James R. Layton of the attorney general's office in Jefferson City.

Thomas A. Houdek of the department of revenue in Jefferson City.

OPINION BY:

LAURADENVIR STITH, Judge

The Administrative Hearing Commission (AHC) affirmed the Director of Revenue's rejection of VisionStream, Inc.'s request for a refund of Missouri sales taxes it remitted for its sale of trade show displays it produced and shipped in Missouri for use outside Missouri. In so doing, the AHC rejected VisionStream's argument that title of the displays did not transfer to customers until delivery outside the state.

This Court affirms the AHC's decision. The burden was on VisionStream to show that an exception to the sales tax applied because title to the goods it sold did not transfer until the goods had left the state. The only evidence introduced concerning the terms of VisionStream's sales of goods was a form display order that VisionStream's witnesses testified was given to new customers to show them the general terms of sales of displays. Although VisionStream claimed individual transactions often were conducted pursuant to emailed bids and acceptances, it did not produce any such emails for the transactions in question. The display order is the only evidence in the record concerning when the parties agreed title would transfer, and it provides that that delivery of the displays is " F.O.B. manufacturer" [1] and otherwise supports the AHC's finding that title transferred in Missouri. The transactions were subject to Missouri sales tax.

I. FACTUAL AND PROCEDURAL BACKGROUND

VisionStream is a Missouri corporation that designed and constructed trade show exhibits and displays, and provided related services, for client companies both within and outside Missouri.[2] In a typical transaction, VisionStream would produce a trade show display to the customer's specifications and transfer the display components to a common carrier for delivery to the trade show location, where the customer would inspect the display shortly before the event. The customer would be invoiced separately for the shipping charges either by VisionStream or directly by the common carrier itself. VisionStream typically billed its customers 30 to 60 days after the show.

Current and former VisionStream officers testified before the AHC that these transactions rarely utilized an executed, written contract, relying instead on email correspondence with customers for specific sales terms. The company failed to introduce any emails or other specific evidence of sales terms of particular transactions. But it did introduce into evidence a " Display Order" form, which set out " Terms and Conditions" regarding payments, taxes, delivery expenses, and inspection on arrival. VisionStream's former president testified that the display order " would be what we consider kind of our terms and agreement with something I put in front of somebody. If it was done on my behalf, it was done for a new client that kind of just spelled out payment schedule."

At the time of sale, VisionStream paid sales tax on the exhibits and displays it sent to its in-state and out-of-state customers pursuant to section 144.020.1,[3] which provides in relevant part:

A tax is hereby levied and imposed ... upon all sellers for the privilege of engaging in the business of selling tangible personal property or rendering taxable service at retail in this state. The rate of tax shall be as follows: (1) Upon every retail sale in this state of tangible personal property ... a tax equivalent to four percent of the purchase price paid or charged, ....

After an audit, VisionStream filed for a refund of sales taxes paid between February 1, 2007, and August 17, 2012, on those displays that it shipped for customer use outside of Missouri. The Director of Revenue denied the refund request, and VisionStream appealed to the AHC. After a hearing, the AHC determined that VisionStream was not entitled to a sales tax refund on purchases shipped out of state. VisionStream then filed a petition for review in this Court. Because this case involves the construction of a ...


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