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This is a hypothetical situation. John owns a vehicle worth $5000. John gave this vehicle to his friend David for free and one week later, David gave John a $5000 monetary gift for John's birthday.

In this scenario, is it lawful for David not to pay sales tax for this vehicle as they both agree that the selling price for the vehicle is $0?

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    I think xkcd.com/1494 is obligatory here. Jun 16, 2023 at 2:20
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    Also, intent matters. Was it the intent of the parties that the "gift" was actually in exchange for the car, or were both transfers truly voluntary gifts whose timing and amount were purely coincidental (and do they have evidence to support this)? Jun 16, 2023 at 2:23
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    And even though the state can't read John and David's minds, it can still prove in court that their intent was an exchange, by drawing inferences from their actions. For instance, if the two of them have never given each other such high-value gifts before, or if their financial situations don't suggest that they could afford to give such gifts. It is even possible that the state could prove this even if John and David really did intend in their hearts for them to be gifts. Jun 16, 2023 at 4:51
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    I think the step transaction doctrine would apply, as I don't think anyone would be convinced John and David simply exchanged gifts.
    – chepner
    Jun 16, 2023 at 14:29
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    In some countries private sales of second hand goods (including vehicles) are exempt from sales tax/VAT. So there would be no need to try and evade it in the first place. Jun 16, 2023 at 15:51

4 Answers 4

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If the situation described is accurate, then maybe

First, let's deal with the implicit assumption that sales tax is not payable on gifts. Whether that is true or not depends on the law in your jurisdiction.

For example, in there is no Goods and Services Tax (GST) payable on a gift because a gift is not a "supply" under the law. Technically, a value-added tax like the GST is not a sales tax but close enough.

However, exchanging a "gift" for something of value (airline points, for example) is not a gift.

Of course, Australian States and Territories levy Stamp Duty on the transfer of a vehicle's registration, and this is calculated on the sale price or the market price whichever is the greater. Also, technically, that's not a sales tax either.

If it's a tax avoidance scheme, then no and it's a crime

Assuming that there is no sales tax payable on a gift; if John and David entered into this arrangement (not a contract because of its illegal purpose) to avoid tax, then tax is payable and they are now criminals.

If the relevant tax authority learns what happened and decides to investigate, then John and David might have some explaining to do. If David can show that he has routinely given John large cash gifts on John's birthday, then they may convince the authority not to prosecute. If they can't, then they get to try to convince a judge.

It is not atypical for tax law to reverse the onus of proof: the government doesn't have to prove tax is payable, John and Dave have to prove it isn't.

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    Regarding your last paragraph, that applies only to the tax assessment, not the criminal liability, right? Jun 16, 2023 at 14:22
  • @R..GitHubSTOPHELPINGICE not necessarily
    – Dale M
    Jun 16, 2023 at 21:32
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If you receive a vehicle as a gift you must pay [provincial sales tax] on the fair market value of the vehicle, unless a specific exemption applies.

(British Columbia, "PST on Vehicles", p. 10)

There are exemptions for inheritance, relatives, charities, lotteries, and transfers during property division during dissolution of a marriage or marriage-like relationship.

Since the vehicle is worth $5,000 or less, the transfer is exempt from taxation (Saskatchewan, "Information Bulletain: PST-58").

If you receive a vehicle as a gift, you will generally have to pay tax based on the fair value of the vehicle determined using the Canadian Red Book listing or a review by the Provincial Tax Commission (Nova Scotia, "Tax on Privately Purchased Vehicles").

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    This is also true in at least some US states if not all of them.
    – phoog
    Jun 16, 2023 at 10:34
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As you likely expect, most locales have laws to handle these sorts of attempted workarounds. In for example (source), transferring a motor vehicle for $0 is considered a "gift" if the recipient is an immediate family member, estate, or non-profit organization. Such a gift is subject to a gift tax (currently $10). The recipient is merely a friend in your scenario, so the following rule would apply:

The transfer of a motor vehicle for no consideration, that does not qualify as a gift, is taxed as a sale and SPV procedures may apply.

SPV is the "Standard Presumptive Value". You can think of this as the average selling price for that specific vehicle. So in other words, you'll have to pay the same taxes as if the car was sold for a fair price.

"Hey, that's easy to get around as well. I'll sell it for $10, that way it's not a transfer 'for no consideration'!"

When you buy a vehicle, the law says you pay tax on "the greater of the sales price or 80 percent of the vehicle’s SPV". If you try to cheat the tax man by selling the vehicle for an unreasonably low price, you'll be taxed based on the SPV instead. If the car you're buying is in awful condition and its actual value is much less than the SPV, you can avoid being taxed on the greater amount by presenting "a valid certified appraisal" that confirms the vehicle's fair market price.

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The IRS

The IRS has "gift taxes". Generally the donor pays, but there are fairly large exemptions.

However, you are using reciprocal gifts to conceal what's actually a barter. (well a barter with money on one leg is technically a sale). IRS casts a wide net looking for such transactions: to show the extremes to which they go, consider three brothers each with a trust fund for their children. The brothers wanted to gift six times the legally exempt amount for in-family giving... so they made a pact for each brother to give to all three trust funds, and their spouses to do the same. IRS objected and tax court sided with IRS. So no, the illusionary gifts will not be treated as such, and will be treated as a barter or sale.

At the Federal level, the sale would not be a taxable event: First, buying things doesn't create income tax. The seller would only need to pay income tax on the net profits, meaning sale price minus what they paid for it. And since cars generally decline in value, they probably have a higher cost basis than they sold it for, so no tax owed.

As such, it is unlikely that the IRS would take an interest in this transaction - the juice isn't worth the squeeze... But don't confuse "no penalty" with "lawful". The "fake gifts" equating to a barter or sale is absolutely not lawful.

The states

It will matter to the state on a couple of levels. First, most states will want to collect sales tax, and this process is generally built right into the vehicle titling and registration system. Second, in many states the registration fee is based on the sales price. In both these cases, the state will have a stake, and will see things the same way the IRS does. So they certainly will see this as an attempt at tax fraud, and they will consider the juice to be worth the squeeze.

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  • Thank you for the answer! I am just curious how the authorities find out that David gave John $5k as a gift. If say there is a recent bank transfer from David to John, they may notice it. But if there is a $5k cash withdrawal from David's bank account, I am not sure this will be sufficient evidence that this money was given to John. Or if David simply gave John $5k using the cash in his wallet, how would anyone else know?
    – Zuriel
    Jun 18, 2023 at 13:09

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