Section 117 Refund Claims Sourced in ? 144.190.2, RSMo

• Library: Tax Law 2009

Usually, a taxpayer will initiate and follow the procedures set out in § 144.190.2, RSMo Supp. 2007 (if the claim procedure in § 144.100.4, RSMo 2000, does not apply) when any tax, penalty, or interest has been:

• paid more than once

• erroneously or illegally collected; or

• erroneously or illegally computed

These procedures will also apply if the taxpayer asserts that sales taxes have been unconstitutionally imposed or assessed.

Much of the earlier refund claim caselaw under § 144.190 involved whether the proper taxpayer claimed the refund. Much of the intrigue has been removed by a 1988 statutory amendment. Section 144.190.1 and .2—as well as § 144.190.3, which prescribes a refund claim’s essential ingredients—specifically names as the proper claimant “the person legally obligated to remit the tax.” Thus, the proper claimant would be the vendor for sales and vendor’s use tax returns and the purchaser for consumer’s use tax returns (and either sales or use tax for purchases through direct pay permits).

Regulation 12 C.S.R. § 10-3.520 was rescinded in 2000. But much the same guidance is currently set forth in 12 C.S.R. § 10-102.016. Both the “old” and “new” regulations specify that the vendor is the proper party to request a sales tax refund or credit to the exclusion of all others. See also Kerr Glass Mfg. Corp. v. Dir. of Revenue, RS-80-0317, 1982 WL 12043 (Mo. Admin. Hearing Comm’n, Sept. 21, 1982) (vendor use tax recovery was time-barred even though MoDOR had contractually extended the refund claim statute of limitations for its customers). Both regulations instruct that the vendor has the paramount claim to a recovery from MoDOR and that persons who make erroneous payments to a vendor should seek a refund from their vendor. 12 C.S.R. § 10-102.016(2)(b); see also Bert v. Dir. of Revenue, 935 S.W.2d 319 (Mo. banc 1996) (apartment owners cannot recover sales tax on utility services because utility company paid the tax to MoDOR). There is logical support for this position, in addition to its administrative simplicity Section 144.210, RSMo 2000, states that the purpose of the Sales Tax Law, §§ 144.010–144.525, RSMo 2000 and Supp. 2007, is to tax the vendor on the privilege of selling and that primary liability for the resultant sales tax rests with the vendor. Likewise, § 144.080.4, RSMo 2000, specifies that the sales tax burden remains on a vendor even if the vendor cannot or does not collect tax from customers. Warren Bringaze & Partners v....