Request By:
Mr. Marshall P. Eldred
Attorney at Law
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Alex W. Rose, Assistant Attorney General
An opinion of the Attorney General, styled OAG 74-901, was issued on December 23, 1974 and directed to you. In that opinion the following factual situation was hypothesized:
". . . A customer of the Liberty National Bank and Trust Company comes to the bank and places an order for the purchase of certain gold coins which are neither owned nor held by the bank. The customer directs the bank to place the order with a coin dealer whose place of business is out of Kentucky. The bank places the order with the coin dealer who then forwards the coins to the bank for delivery to the customer. A customer then pays the bank the purchase price of the coins and the bank remits to the seller the purchase price less a small commission for acting as agent in the transaction."
The question which that opinion addressed was whether the bank was liable for use tax on such purchases to the Commonwealth of Kentucky.
Subsection (1)(b) of KRS 139.100 defines "retail sale" alternatively as:
"The delivery in this state of tangible personal property by an owner or former owner thereof or by a factor, or agent of such owner, former owner or factor, if the delivery is to a consumer or person for redelivery to a consumer pursuant to a retail sale made by a retailer not engaged in business in this state. The person making the delivery shall include the retail selling price of the property in his gross receipts. "
Section 1 of 103 KAR 25:050 states as follows:
"A factor, or agent of an owner, or former owner or factor, to whom property is consigned, entrusted, or otherwise delivered for the purpose of selling shall be considered the retailer of such property when sold. Said factor, or agent, shall include the retail selling price of said property in his gross receipts and be liable for the sales tax thereon; provided, however, that said factor or agent need not include the retail selling price of the subject property in his gross receipts in those instances where the principal is a retail permit holder under the Kentucky Sales and Use Tax Act, and said principal includes the retail selling price of the subject property in his gross receipts. "
Section 2 of 103 KAR 25:050 states as follows:
"The delivery in this state by a factor, or agent of an owner, or former owner or factor, to a consumer or person for redelivery to a consumer pursuant to a retail sale made by a retailer not engaged in business in this state shall be considered a retail sale. Said factor, or agent, shall include the retail selling price of said property in his gross receipts and be liable for the sales tax thereon; provided, however, that said factor or agent need not include the retail selling price of the subject property in his gross receipts in those instances where the principal involved is a retail permit holder under the Kentucky Sales and Use Tax Act, and said principal includes the retail selling price of the subject property in his gross receipts. "
Consequently, based upon the above-cited statute and regulation, the bank would be a retailer subject to the sales tax imposed under KRS 139.200, in the event that the out-of-state coin dealer was not a retail permit holder under the Kentucky Sales and Use Tax Act. The bank, as retailer, would be required to remit 5% of its gross receipts to the Commonwealth as sales tax pursuant to KRS 139.200.
Subsection (1) of KRS 139.500 states that:
"The storage, use or other consumption in this state of property, the gross receipts from the sale of which are required to be included in the measure of the tax levied under KRS 139.200 is not subject to the use tax. "
Since the sales tax would apply to the bank in the event that the out-of-state coin dealer was not a retail permit holder, levy of the use tax would not occur. In the event that the sales tax were not applicable to the above-described hypothetical situation, the bank would be liable for the use tax pursuant to KRS 139.340.
The earlier opinion of the Attorney General, styled OAG 74-901, is hereby withdrawn.