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B-211093 1 (1983-05-10)

handle is hein.gao/gaobadlbj0001 and id is 1 raw text is: THE COMPTROLLER GENERAL DECISION .u OF THE UNITEO STATES .., WASHINGTON. 0.C. 20548 'JNIT I FILE: B-211093 DATE: May 10, 1983 MATTER OF: Army Corps of Engineers--Payment of South Dakota, Sales Tax on Furnishing of Electricity DIGEST: Army Corps of Engineers is not immune from paying South Dakota gross receipts tax on furnishing of electricity. Wording of statute that imposes the tax in question and a deci- sion by the South Dakota Supreme Court make it clear that the legal incidence of the State tzx is on the vendor, not the United States. TheUnited States is not constitutionally immune from such a vendor tax. A Finance and Accounting Officer for the United States Army Corps of Engineers, Omaha, Nebraska has requested an advance decision as to whether the Corps may pay a voucher for sales tax in the amount of $11.56 applied against electricity charges by a public utility in South Dakota. For the reasons stated below, we hold that the voucher for sales tax may be paid. The record indicates that Cam Wal Electric Cooperative, Inc., billed the Corps for $289.08 for electricity furnished pursuant to a contract between the two parties. In addition, Cam Wal sent the Corps a voucher in the amount of $11.56 for the sales tax applied against the electricity bill. The tax in question is imposed under South Dakota Codi- fied Laws section 10-45-6, which provides, in pertinent part: There is hereby imposed a tax of four percent upon the gross receipts from sales, furnishing, or service of * * * electricity * * * when sold at retail in the state of South Dakota to consumers or users. It is obvious from the above-quoted provision of South Dakota law that the legal incidence of the tax in question falls on the electric utility rather than the consumer of electricity. This view is supported by the decision of the ( W -,0 -- / __j

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