Can a fireworks seller in a permanent location in Mississippi switch from transient vendor to general business classification?

Plain-English summary

A fireworks vendor in Plantersville moved from a tent to a permanent mobile-home structure 15 years ago, but the previous business manager kept paying the $250 transient vendor tax. The owner now wants the business reclassified as a general business vendor. The mayor asked: can the Board do that?

The AG: no on both questions.

Question 1: Can the Board reclassify? No. The municipal tax collector, not the Board, has authority under Sections 27-17-451 and 27-17-453 to classify businesses and issue licenses. The 2011 Mullings opinion (citing 2007 Sanderson) explains: "Whether a particular business warrants the procurement of a privilege license or a transient vendor license is a determination to be made by the granting authority [tax collector]."

Question 2: Is fireworks still a transient business? Yes. Section 75-85-1 defines:

• Transient business: "any business conducted for the sale of merchandise or services that is carried on at a particular location for a period of less than six (6) months in each year, even though the owner of such business may conduct the business at another location for more than six (6) months in each year."
• Transient vendor: "any person who transacts transient business in this state." Includes vendors who "hire, lease, use or occupy any building, structure, motor vehicle, railroad car or real property."

A permanent building doesn't change the analysis. What matters is duration of business at the location.

Section 45-13-9 restricts fireworks sales to two windows: June 15-July 5 and December 5-January 2. About 50 days per year total. Less than six months. Therefore transient.

So the owner pays the $250 transient vendor privilege tax even with a permanent structure.

What this means for you

For mayors, aldermen, and municipal tax collectors

Under the opinion, the Board of Aldermen "does not have the authority to change the classification of a business from transient vendor to general business vendor." That authority sits with the municipal tax collector, who "has the authority to determine the proper classification of municipal businesses and shall issue the required license" under Sections 27-17-451 and 27-17-453. Quoting the Mullings opinion, the AG says "[w]hether a particular business warrants the procurement of a privilege license or a transient vendor license is a determination to be made by the granting authority," meaning the tax collector. So a reclassification request goes to the tax collector, not the Board, and even for the fireworks business in the request, the opinion says whether it "is a transient vendor is a determination that must be made by the municipal tax collector."

For fireworks and seasonal business owners

The opinion explains that a transient business is one "carried on at a particular location for a period of less than six (6) months in each year," and that a permanent building does not change that: the transient-vendor definition expressly includes a vendor who "hires, leases, uses or occupies any building, structure, motor vehicle, railroad car or real property." Because Section 45-13-9 allows fireworks retail sales only from June 15 to July 5 and December 5 to January 2, the opinion treats "any entity solely selling fireworks" as limited to less than six months a year, "and therefore falls into the category of a transient business." The opinion does not address vendor regulations, fees beyond the classification question, or any business other than a fireworks-only operation.

Common questions

Q: Can a town's Board of Aldermen reclassify a transient vendor as a general business vendor?
A: No. The opinion holds the Board "does not have the authority to change the classification of a business from transient vendor to general business vendor." That determination belongs to the municipal tax collector.

Q: Who decides a vendor's classification?
A: The municipal tax collector. The opinion says the tax collector "has the authority to determine the proper classification of municipal businesses and shall issue the required license" under Sections 27-17-451 and 27-17-453.

Q: Does a permanent building make a fireworks seller a general business vendor?
A: No. The opinion says a business operating at a location for less than six months is transient "even if a business is sited at one particular location," and the transient-vendor definition includes a vendor who "hires, leases, uses or occupies any building, structure" for the business.

Q: Why is a fireworks seller a transient business?
A: Because Section 45-13-9 limits fireworks retail sales to June 15-July 5 and December 5-January 2, which the opinion describes as "a total of fifty (50) days a year," well under the six-month threshold in the Section 75-85-1 definition of transient business.

Q: Did the AG definitively classify this particular fireworks business?
A: No. While the opinion says a fireworks-only business falls within the transient category by definition, it also states that "whether the specific fireworks business in your request is a transient vendor is a determination that must be made by the municipal tax collector."

Background and statutory framework

Tax collector authority (Sections 27-17-451 and 27-17-453): the opinion places classification and licensing with the municipal tax collector "as the granting authority," who "determines the classification and type of license a particular business requires after reviewing the information contained in the license application" (Mullings, citing Sanderson). The Board of Aldermen has no power to reclassify a transient vendor.

Transient vendor and transient business (Section 75-85-1): the opinion quotes the definitions. A transient vendor is "any person who transacts transient business in this state either in one locality or by traveling from place to place," including a vendor who "hires, leases, uses or occupies any building, structure, motor vehicle, railroad car or real property" for the business. Transient business is "any business conducted for the sale of merchandise or services that is carried on at a particular location for a period of less than six (6) months in each year, even though the owner of such business may conduct the business at another location for more than six (6) months in each year."

Fireworks sales windows (Section 45-13-9): the opinion quotes the statute barring retail fireworks sales "before the fifteenth day of June and after the fifth day of July and before the fifth day of December and after the second day of January of each year," which it describes as restricting fireworks sales "to a total of fifty (50) days a year."

Citations and references

Statutes:

• Miss. Code Ann. § 27-17-451, tax collector classification authority
• Miss. Code Ann. § 27-17-453, tax collector license issuance
• Miss. Code Ann. § 45-13-9, fireworks sales windows
• Miss. Code Ann. § 75-85-1, transient vendor definitions

Prior AG opinions cited:

• MS AG Op., Mullings (Apr. 22, 2011), tax collector as granting authority
• MS AG Op., Sanderson (May 18, 2007), transient vendor classification

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/08/S.Shannon-August-22-2022-Transient-Vendor-Licensing.pdf

Original opinion text

August 22, 2022

The Honorable Shelton Shannon
Mayor, Town of Plantersville
Post Office Box 507
Plantersville, Mississippi 38862

Re: Transient Vendor Licensing

Dear Mayor Shannon:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, a local fireworks vendor has been doing business in Plantersville since 2000. Originally, the business operated out of a mobile tent, and the owner paid an annual transient vendor privilege tax of $250. It has recently come to the attention of the owner that his previous business manager continued to pay the transient vendor tax even after the business moved to a permanent location. The owner moved the business to a permanent mobile home fifteen years ago and would like the business' classification changed from that of transient vendor to a general business vendor.

Questions Presented

1. Does the Plantersville Board of Aldermen (the "Board") have the authority to change the status of a previously classified transient vendor to a general business vendor at the vendor's request, and if so, what are the procedures?
2. Is the company still considered a transient vendor even though the building is stationary and conducts business twice a year?

Brief Response

1. No. The Board does not have the authority to change the classification of a business from transient vendor to general business vendor. The municipal tax collector has the authority to determine the proper classification of a business and the type of license it requires.
2. Yes. A company in the business of selling fireworks may only operate from the fifteenth day of June to the fifth day of July and the fifth day of December to the second day of January each year and therefore falls into the category of a transient business, which by definition operates for less than six months of each year.

Applicable Law and Discussion

The municipal tax collector has the authority to determine the proper classification of municipal businesses and shall issue the required license. Miss. Code Ann. §§ 27-17-451 and 27-17-453. The tax collector, as the granting authority, determines the classification and type of license a particular business requires after reviewing the information contained in the license application. MS AG Op., Mullings at 1 (Apr. 22, 2011). The Board does not have the authority to reclassify a transient vendor. This office has previously opined that "[a] transient vendor, by definition, carries on business at a location for a period of less than six months. Whether a particular business warrants the procurement of a privilege license or a transient vendor license is a determination to be made by the granting authority [tax collector]." Mullings at 1 (citing MS AG Op., Sanderson (May 18, 2007)).

A transient vendor is defined as "any person who transacts transient business in this state either in one locality or by traveling from place to place in this state. The term includes a vendor who for the purposes of carrying on such business hires, leases, uses or occupies any building, structure, motor vehicle, railroad car or real property." Miss. Code Ann. § 75-85-1(a) (emphasis added). Transient business is then defined in the same statute as "any business conducted for the sale of merchandise or services that is carried on at a particular location for a period of less than six (6) months in each year, even though the owner of such business may conduct the business at another location for more than six (6) months in each year." Id. at (b). Therefore, even if a business is sited at one particular location, if it is in operation for less than six months, it is considered a transient business, and the owner is a transient vendor.

The sale of fireworks is governed by Section 45-13-9, which states, in part, that "[n]o fireworks shall be sold or offered for sale at retail before the fifteenth day of June and after the fifth day of July and before the fifth day of December and after the second day of January of each year." Section 45-13-9 restricts the sale of fireworks to a total of fifty (50) days a year. Therefore, any entity solely selling fireworks is limited to conducting such business for less than six months each year by Mississippi law.

According to Section 75-85-1, any business that operates in a particular location for less than six months out of the year is, by definition, a transient vendor. However, whether the specific fireworks business in your request is a transient vendor is a determination that must be made by the municipal tax collector.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Misty Monroe
Misty Monroe
Assistant Attorney General