Request By:
Mr. J. C. Noffsinger
Muhlenberg County Court Clerk
P.O. Box 272
Greenville, Kentucky 42345
Opinion
Opinion By: Robert F. Stephens, Attorney General; By William S. Riley, Assistant Attorney General
In your recent letter to the Attorney General it is stated that George Jessup incorporated as Jessup Log and Lumber Company, Inc. and incorporation papers were filed August 18, 1977. A 1972 truck, owned by Mr. Jessup for several years, was licensed June 6, 1978, and at that time transferred to Jessup Log and Lumber Company. Motor vehicle usage tax was not collected on the vehicle under KRS 138.470(8) which exempts from motor vehicle usage tax vehicles transferred to a corporation from a proprietorship when the business is incorporated. The Motor Vehicle Usage Tax Section has billed you for the usage tax on the theory that a transfer has to be made to a corporation at the time the corporation is organized.
The question is whether the transfer of a vehicle from a proprietorship to a corporation must take place on the same day or a reasonable number of days after the incorporation papers are filed for the exemption to apply.
It will be noted that the exemption uses the word "when" the business is incorporated the exemption applies. The term "when" means, at what time, at, during, or after the time that, at or just after the moment that. See In Re Morrow's Will, 73 P.2d 1360, 1364, 41 N.M. 723. The ordinary meaning of the adverb "when" is, at the time that. See City of St. Louis v. Withaus, 3 S.W. 395, 397, 90 Mo. 646. Also see State v. Donahoe, Del., 63 A. 643, 646, 5 Pennewill, 278, where the word "when" means, at the time or at that time.
From an examination of the statute and the cases interpreting the use of the word "when", we cannot say that the Department of Revenue's requirement that a transfer of a motor vehicle from a proprietorship to a corporation must take place on the same day the corporation is formed or a reasonable number of days thereafter is in conflict with the statute.