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Foundation end use determines state’s taxing of ready mixed and rebar

Missouri provides contrasting outcomes in application of sales tax on concrete for foundations. The Missouri Department of Revenue’s Letter Ruling 7780 concludes that a taxpayer’s purchase of ready mixed and rebar used to construct wind turbine tower foundations qualifies for the sales tax exemption covering machinery and equipment used in manufacturing. Production of electricity for sale has been determined to be a qualifying manufacturing activity, the ruling notes, and the sales tax exemption at issue, Section 144.030.2(6) RSMo, applies to machinery and equipment plus “materials and supplies solely required for installation or construction of such machinery and equipment.” Because the wind turbine cannot function properly without a foundation, the Department concluded the turbine tower foundation concrete and rebar purchase qualified for the sales tax exemption.

In contrast to Ruling 7780, notes Dallas-based tax services provider Ryan LLC, the Missouri Administrative Hearing Commission issued an early-2017 decision in Potter Farms, Inc. v. Director of Revenue, upholding Department denial of a refund on sales tax for concrete used to construct grain bin foundations. Section 144.030.2(35) RSMo exempts “[a]ll sales of grain bins for storage of grain for resale,” Ryan accountants note, while Regulation 12 CSR 10-110.900(3)(D) states that “[g]rain bins, including all parts, that are used in production of a farm product and qualify as farm machinery and equipment are exempt.”

The Commission ruled the concrete foundations were not “part” of the grain bins and, therefore, do not qualify for the exemption, despite what Ryan tax specialists note are formal Finding of Facts that: a) “[g]rain bin foundations are made of concrete due to the weight they must be able to sustain”; b) the manufacturer’s installation manual detailed the recommended concrete foundation, “including instructions regarding the type of concrete to be used, foundation surface, curing process, elevation and anchoring the grain bins to the concrete”; and, c) the “manufacturer’s warranty on the grain bins would be terminated if the grain bins were not erected in accordance with the installation manuals.”