How to Drive an RV Through a Loophole : The Ethics and Legality of LLC Formation for Sales Tax Avoidance

The Louisiana Supreme Court addressed the issue of whether someone could form an out-of-state LLC for no other purpose than to avoid the sales tax imposed on the purchase of vehicles. Plaintiff Roger Thomas freely admitted that he incorporated Angel Rocks, LLC under the laws of the State of Montana exclusively to purchase a $351,800 RV and subsequently avoid the sales tax his home state would impose, which would amount to more than $30,000. At each level of assessment and appeal, the Louisiana Department of Revenue ruled that tax, penalties, and interest were due in the amount of $46,509.60. After exhausting his administrative remedies, Thomas appealed to the District Court for the Parishes of Livingston, St. Helena & Tangipahoa, which ruled in his favor, saying he owed no tax. Fearing a flood of Montana license plates on Louisiana's roads, the Department of Revenue sought review from the First Circuit Court of Appeal and, finally, the Louisiana Supreme Court, both of which affirmed that Mr. Thomas owed no tax. The Louisiana Supreme Court stated that the Department of Revenue had not justified the piercing of the "corporate veil", no matter how thin. (Never mind that LLCs do not have "corporate veils".) In doing so, the 6-to-1 majority of Justices stated that the design of the state' tax code was done with numerous policy considerations in mind, and that "[their] function is to merely interpret the laws passed by the legislature, not to make laws." This article analyzes the pertinent areas of the tax code in light of the Supreme Court's decision, proposes corrective legislation, and discuses whether, in the interim, all decision-makers with a fiduciary duty may be remiss if they do not follow the same scheme