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 municipal tax collectors
You classify, not the Board. When a business owner asks for reclassification, evaluate:
- How long does the business operate at the particular location each year?
- Does the operating period exceed six months? If yes, general business. If no, transient.
- Permanent structures (buildings, mobile homes, etc.) don't change the analysis if the business is open less than six months.
Document classification decisions. If a business owner disputes classification, your decision is the legal answer; the Board doesn't override it.
For mayors and aldermen
You don't have authority to reclassify vendors. Refer requests to the municipal tax collector.
For policy concerns about specific vendors paying lower tax under transient classification, the response is:
- State law sets the framework
- Local options to change tax structure are limited; Section 75-85-1 governs
- Lobbying the Legislature is the path for systemic change
For fireworks business owners
You're a transient vendor under Mississippi law. Section 45-13-9 caps your operating window at about 50 days per year. Less than six months means transient.
This affects:
- The privilege tax category (transient rate)
- Possibly inspection and licensing procedures
- Some vendor-specific regulations (advertising, signage, etc.)
The permanent structure investment doesn't change the legal classification. Plan accordingly.
For other seasonal businesses
Pumpkin patches, Christmas tree lots, Halloween costume stores, snow cone stands, agricultural farm stands, and similar businesses that operate less than six months a year are likely transient. Apply Section 75-85-1's six-month test.
For mixed-season operations (e.g., open year-round but with seasonal peak), look at total operating time at the location. The statute uses "carried on at a particular location for a period of less than six (6) months in each year."
For municipal clerks
Maintain a clear record of vendor licenses by classification. Tax collector decisions on classification can be reviewed for State Auditor purposes; documentation matters.
Common questions
Q: What's a "transient vendor"?
A: A person who transacts transient business in Mississippi, defined by Section 75-85-1. Either traveling place to place or operating at one location for less than six months a year.
Q: What's a "general business" vendor?
A: A person who carries on business at a particular location for more than six months a year. Distinct from transient.
Q: Why is the classification important?
A: Different tax rates, different licensing fees, different procedures may apply. The transient rate is often a flat amount ($250 in this case); general business classifications may have schedule-based privilege taxes.
Q: What if a fireworks vendor opens a year-round retail store selling fireworks plus other products?
A: Different analysis. If the store is open year-round selling other goods (lawn-care products, household items, etc.), it may qualify as general business. Section 45-13-9's restriction is on fireworks sales, not on the store's overall operation. The classification would depend on the store's primary nature and operating duration.
Q: What's "particular location" mean?
A: The specific physical site where business is conducted. A vendor who operates at a particular location less than six months is transient at that location, even if they conduct business elsewhere for more time.
Q: Can the tax collector be wrong?
A: Yes. If you disagree with a classification, options include:
1. Appeal through tax collector internal review
2. Petition for reclassification with new facts
3. Civil action challenging the classification
Q: Are food trucks transient?
A: Typically yes. Food trucks travel place to place (definition 1) or operate seasonally at one location (definition 2). Few food trucks operate at one fixed location for more than six months.
Q: What about farmers' market vendors?
A: Most farmers' market vendors are transient. Markets often run weekly or seasonally; vendors at one market location are typically there less than six months.
Q: Does the State Auditor review tax collector classifications?
A: The State Auditor reviews public expenditures and revenue. Wrongful classification (e.g., charging general-business rate when transient applies) could create State Auditor concerns. Accuracy matters.
Q: How do I challenge fireworks restrictions in Section 45-13-9?
A: Section 45-13-9 limits the legal sales windows. Operating outside those windows is unlawful sale. Lobbying the Legislature is the path to change the windows.
Background and statutory framework
Mississippi's framework for vendor classification:
Tax collector authority:
- Section 27-17-451: tax collector classifies businesses
- Section 27-17-453: tax collector issues licenses
- 2011 Mullings opinion: tax collector is the granting authority
Transient vendor definition (Section 75-85-1):
- Transient vendor: a person who transacts transient business
- Transient business: business at a particular location for less than 6 months/year
- Inclusion: vendors who use buildings, structures, vehicles, or real property to carry on transient business
- Exception: transient classification doesn't change just because the vendor operates at another location for longer
Fireworks restrictions (Section 45-13-9):
- No fireworks retail sales before June 15 or after July 5
- No fireworks retail sales before December 5 or after January 2
- Limited to about 50 days per year total
Municipal authority:
- Boards of Aldermen do not classify vendors (their role is legislative, ordinance-making)
- Municipal tax collectors classify under their statutory authority
- Reclassification disputes go through the tax collector, not the Board
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
- 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?
- Is the company still considered a transient vendor even though the building is stationary and conducts business twice a year?
Brief Response
- 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.
- 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