Was the constructed sarcophagus a taxable tangible memorial or an improvement to real property?

Plain-English summary

The October 2, 1968 letter followed a September 16 hearing in San Diego on a petition for redetermination. Counsel described the facts as undisputed and framed the question as whether one constructed and sold sarcophagus was a monument or memorial under former Ruling 43 or a private-mausoleum structure and improvement to realty.

The sarcophagus was not the kind of monument or memorial treated as tangible personal property under the ruling. It was a functional structure designed to house the dead and improve real property.

The letter distinguished functional structures from tombstones and similar markers that merely commemorate or mark a grave, can be fabricated elsewhere, transported to the cemetery, placed at a spot, and are more readily removable.

The sarcophagus had been built by a construction contractor, not a memorial dealer, and the contractor reported and paid tax on the materials it consumed. Counsel recommended deleting item A from the liability measure and eliminating item B because it was a credit for that contractor-paid material tax.

Source and live-annotation limits

The letter references but does not reproduce Ruling 43, the petition, hearing record, sarcophagus plans, grave and property records, construction contract, materials, invoices, returns, payment records, determination, items A and B or their amounts, revised assessment, Board order, or later outcome. Its analogy to the complex marker housing the eternal flame over President Kennedy's grave illustrates function and removability but supplies no separate authority.

The live annotation changes the date to October 1 and generalizes the result to a sarcophagus, columbarium, mausoleum, or other structure designed and constructed to house the dead and governed in construction by part 5 of division 8 of the Health and Safety Code. The source letter itself concerns only one sarcophagus, identifies no columbarium, and does not cite that code part. The annotation omits the petition and hearing, Ruling 43 analysis, contractor and material tax, items A and B, recommendation posture, Kennedy example, and missing records.

What this means for you

Cemetery businesses, contractors, and tax professionals

Document whether property merely marks or commemorates a grave or functions as a burial structure, together with design, removability, construction, installation, real-property status, contractor material tax, and transaction records. Do not extend the one-sarcophagus source beyond its facts without current authority.

Common questions

Did serving as a memorial make the sarcophagus tangible property?

No. Its functional role as a burial structure controlled over its commemorative character.

Who constructed it?

A construction contractor, not a memorial dealer, according to the letter.

Did the letter decide all mausoleums and columbaria?

The published annotation generalizes the category, but the complete letter's actual facts and decision concern one sarcophagus.

Citations and references

• Former California Sales and Use Tax Ruling 43 — interpreted but not reproduced
• California Health and Safety Code, division 8, part 5 — cited only in the live annotation
• Petition, hearing record, sarcophagus plans and construction records, determination items A and B, and contractor material-tax records — described but not included

Verbatim support

From the official October 2, 1968 letter:

Summarily, it is our conclusion that the sarcophagus in your case is not the type of memorial considered to be tangible personal property under Ruling 43.

We are recommending, therefore, that the matter be redetermined and that item A be deleted from the measure of tax liability.

Source

• Annotated Legal Opinions collection: https://cdtfa.ca.gov/taxes-and-fees/annotations-menu.htm
• Annotation page: https://cdtfa.ca.gov/lawguides/vol2/suta/350-0000-all.html
• Original supporting opinion: https://cdtfa.ca.gov/lawguides/annotations/350-0020.pdf

Original ruling text

350.0020

STATE OF CALIFORNIA

STATE BOARD OF EQUALIZATION
October 2, 1968
Gentlemen:
This is with reference to the petition for redetermination filed on behalf of "E" and the hearing held on the matter last September 16 in San Diego. We have reviewed the facts which appear to be undisputed and see the question as one involving the interpretation of Ruling 43. Here the question relates to the construction and sale of one sarcophagus and whether it is a monument or memorial within the meaning of the term as used in Ruling 43, and is the type of monument contemplated under the ruling, or whether it is, as you have contended a structure designed for use as a private mausoleum and, as such, an improvement to realty. We understand the sarcophagus was not the work of a memorial dealer, but rather the work of a construction contractor who reported and paid tax on the cost of the materials consumed in the construction. It is our opinion that Ruling 43 was adopted to tax the sales of tombstones and similar types of markers or memorials which serve only as a marker or memorial marking a grave. The ruling contains language which indicates that the type of memorial to be considered as tangible personal property is that which could be fabricated or manufactured elsewhere and transported to the cemetery and placed on some specific spot, one which is more or less readily removable and one which is not functional as a structure, but rather functional only to commemorate a person or group of persons, and which mayor may not identify a grave site. While we do not have the problem in California, we think it highly improbable that Ruling 43 would dictate taxing, as tangible personal property, a memorial such as the complex marker housing the eternal flame over the late President Kennedy's grave. Summarily, it is our conclusion that the sarcophagus in your case is not the type of memorial considered to be tangible personal property under Ruling 43. We are recommending, therefore, that the matter be redetermined and that item A be deleted from the measure of tax liability. This will also require eliminating item B from the determination, since it represents a credit for the tax on the materials paid by the contractor who constructed the sarcophagus. Very truly yours, Robert H. Anderson Tax Counsel RHA/vs [ lb ]