John M. Kuker, Romsa & Kuker, LLC, for Maverick Motorsports Group, LLC (Maverick).

William F. Russell, Senior Assistant Attorney General, for the Wyoming Department of Revenue (Department).

The State Board of Equalization (Board) shall review final decisions of the Department on application of any interested person adversely affected. Wyo. Stat. Ann. §39-11-102.1(c). The taxpayer’s appeal must be filed with the Board within thirty days of the Department’s final decision. Rules, Wyoming State Board of Equalization, Chapter 2, § 5(a). Maverick timely appealed the two final decisions of the Department on January 4, 2008, and the Board has jurisdiction to decide these matters.

The Board, Alan B. Minier, Chairman

, Thomas R. Satterfield, Vice Chairman, and Thomas D. Roberts, Board Member, held a hearing on August 5 and 6, 2008.

These appeals challenge two assessments of sales tax as the result of a sales and use tax audit of Maverick’s two Wyoming businesses for the period June 1, 2005, through September 30, 2006. The separate appeals were consolidated by Board Order dated March 26, 2008. All appeal issues except the applicability of sales tax on transactions by Maverick with non-resident customers were settled prior to the Board hearing.

We reverse the decision of the Department with respect to certain transactions in which Maverick employees made deliveries to customers residing outside Wyoming, but otherwise affirm the decision of the Department.

Maverick, in its prehearing pleadings, identified the following mixed issues of fact and law:

1. Whether the Department’s assessment of sales tax against Petitioner regarding its interstate sales to non-resident purchasers who paid excise tax to their state of residence regarding the same sales transactions in question was in error [or] legally improper under state and federal law?

2. Whether Petitioner’s sales to non-resident customers who paid tax to their state of residence regarding the same sales transactions at issue in the assessment are exempt from the sales tax because they are sales which the state of Wyoming is now prohibited from taxing under the Commerce Clause of the United States Constitution?

3. Whether the tax assessment at issue regarding Maverick’s interstate sales to non-Wyoming residents who paid sales tax to their state of residence on the same sales contravenes the Commerce Clause of the United States Constitution and is therefore void and of no effect?

4. Whether a sale of tangible personal property occurred in Wyoming with regard to Maverick’s interstate sales of vehicles to non-residents?

5. Whether Wyoming’s sales and use tax statutes, regulations, and other applicable state and federal law require that Maverick be given a credit for sales tax paid by its non-resident customers to their home state?

6. Whether the Department’s assessment of sales tax against the Petitioner regarding its interstate sales to non-resident purchasers that were delivered by Maverick or a third-party carrier out of state to its non-resident purchasers was in error and legally improper under applicable state and federal law?

7. Whether a sale of tangible personal property occurred in Wyoming with regard to the vehicle sales included in the assessment that were delivered our of state?

8. Whether the Department’s assessment was legally proper and in accordance with applicable state and federal law?

[Petitioner’s Summary of Remaining Issues of Fact and Law and Exhibit Index, pp. 1-2].

Certain additional issues involving intracompany transfers and tax exempt sales were resolved prior to the commencement of the hearing. [Transcript Vol. I, pp. 7-10].

The Department, in its prehearing pleadings, identified the following issues of fact concerning sales to out of state customers:

1. For the vehicles subject to this appeal, whether there was a transfer of title or possession for consideration in Wyoming.

2. Whether Maverick produced suitable records to support its claim that some vehicles were delivered out of state.

3. Whether the sales tax imposed upon mopeds, motorcycles, and off-road recreational vehicles shall be collected by the vendor and remitted to the Department by the vendor.

4. When a Wyoming vendor completes a sale in Wyoming to an out-of-state customer, and the customer subsequently remits sales or use tax to his home state, whether the State of Wyoming is required to credit the vendor for the taxes paid to the customer’s home state.

1. Maverick Motorsports Group LLC (Maverick) owns power sports stores in Cheyenne and Laramie, Wyoming. Maverick sells and services Harley Davidson motorcycles, Honda motorcycles and all-terrain vehicles, and Bombardier snowmobiles and all-terrain vehicles. Maverick also sells parts and accessories, and provides financing. [Transcript Vol. I, pp. 37-38, 57].

2. Justin Johnson is President of Maverick. Johnson started at a Harley Davidson dealership in Iowa in 1991. He became a partner and general manager in 2002 in a Harley Davidson dealership in Greeley, Colorado. Johnson’s experience in Iowa and Colorado was that a motorcycle dealer is not required to collect sales tax on sales to nonresident purchasers. [Transcript Vol. I, pp. 37, 50-53].

3. Maverick was formed in 2005 to purchase the assets of Lee’s Motorcycle, which operated two stores, one in Cheyenne, and one in Laramie. Jack Ross and his wife owned Lee’s Motorcycle. With approval by Harley Davidson, Maverick and Ross closed the sale on June 20, 2005, and Maverick became an authorized Harley Davidson dealer for a territory which included southeastern Wyoming, northern Colorado to Wellington, and western Nebraska to Scottsbluff. A Harley dealer is allowed to sell motorcycles outside its assigned territory, but is restricted to that territory for such matters as co-op advertising. [Transcript Vol. I, pp. 50, 53-56, 100-111].

4. Johnson applied for and received separate sales tax licenses for the Cheyenne and Laramie stores. Although Maverick’s authorized Harley Davidson territory includes portions of Colorado and Nebraska, it holds sales and use tax licenses only in Wyoming. [Transcript Vol. I, p. 117; Vol. II, p. 3].

5. Johnson received instruction on how to handle taxation of interstate sales from Ross. Ross instructed Johnson for interstate sales to mark on the purchase agreements the vehicle was delivered out of state. Johnson understood if Maverick did so, it did not need to charge sales tax on sales to nonresident customers. Johnson relied heavily on Ross for his understanding of Wyoming’s sales tax law, and did not review the Wyoming statutes or rules. Johnson noted what Ross taught him conformed to his experience in Iowa and Colorado. [Transcript Vol. I, pp. 60-62, 66, 68-69, 116-119, 124, 130, 143; Vol. II, pp. 10-11].

6. Johnson was responsible for the due diligence aspects of the transaction with Ross. In retrospect, Johnson’s attentions were focused on sales, which he characterized as “the most critical piece of the business, as far as profitability and return on investment to our company.” Johnson looked heavily at inventory, and talked to existing staff and a few customers. He looked at the growth pattern of Harley sales, and what Ross was generating as finance income. Johnson noticed Ross was only using a portion of the dealer management system software. Johnson acknowledged when Claire Smith joined Maverick as comptroller in January, 2006, she inherited “a sad state of affairs.” [Transcript Vol. I, pp. 43, 90, 115-116].

7. Maverick never gave a title or manufacturer’s statement of origin (MSO) to a customer at the time of the purchase. Those ownership documents were delivered after purchase by certified mail to the customer’s home address. There were a variety of reasons for this practice. A vehicle might be on Maverick’s floorplan lending arrangement, thus Maverick’s bank would have held the title document at the time of sale. There could be financing or registration issues. Maverick would want to be sure the customer’s check cleared. According to Johnson, the customers “don’t technically have possession of that vehicle, in my opinion, until we deliver that title to them.” [Transcript Vol. I, pp. 67, 70-74].

8. Maverick delivered vehicles to its nonresident customers using three methods. Under the first method, Maverick employees, including Johnson himself, delivered vehicles to destinations out of state. Maverick owned half a dozen trailers and a number of trucks which could be used for such purpose. Johnson recalled deliveries to Nebraska, Colorado, South Dakota, Iowa, and New Mexico. Maverick negotiated with the customer about whether the customer would pay a fee for delivery. Maverick did not memorialize those conversations. [Transcript Vol. I, pp. 44-45, 64, 78-79,149-150; Exhibit 100, p. 4 (bottom of page)].

9. Maverick’s deliveries were normally “a quick here/there type scenario” with little or no documentation of expense. As Claire Smith explained, employees often used Johnson’s credit card for trip expenses, but were not trained to bring back receipts. [Transcript Vol. I, p. 80; Vol. II, p. 31; Exhibit 104].

10. Under the second delivery method, Johnson would refer the customer to a third party carrier. The contract for delivery was between the customer and the third party carrier, and billed by the carrier to the customer. Johnson avoided getting too involved in the details of these transactions, as he did not wish to become liable in the event of a problem. Johnson, however, freely recommended carriers. His favorites were Federated and Daily Direct, and on one occasion, he recommended Clint’s Customs. [Transcript Vol. I, pp. 81, 140-141,156].

11. Under the third delivery method, Maverick simply turned the vehicle over to the customer at one of its business locations; the customer then had possession of the vehicle during delivery. Maverick did, however, often lend one of its trailers to the customer. Maverick did not charge a customer for self-delivery. Maverick admits under this method of delivery, its customers took possession of their vehicles at a Maverick dealership in either Cheyenne or Laramie. [Stipulated Updated Summary of Uncontroverted Facts, ¶ 2; Transcript Vol. I, pp. 83, 149, 159].

12. The front side of the invoice, as presented as an exhibit, for each sale at issue, describes the vehicle being purchased and the terms of purchase. There is no reference to possession or passage of title. [Exhibits 502, 505]. The reverse side of the invoices were not provided. Johnson, however, did testify to a paragraph on the reverse side of the invoice most commonly used by Maverick which stated Maverick was not liable for any delivery failure or delay. Johnson did not point out any other provision on the reverse side of any invoice. [Transcript Vol. I, pp. 161-164].

13. Claire Smith, comptroller for Maverick, has been responsible for accounting and administration of Maverick’s two stores since January 3, 2006. She replaced a person who was “doing a job she didn’t quite have the skills set for.” Maverick’s “accounting system was a disaster.” [Transcript Vol. II, pp. 18-20].

14. Maverick relies on dealer management software widely used in the power sports industry. The software dictates how sales and service data feeds into accounting. It was not, however, set up correctly, thus Maverick “basically had a lot of garbage feeding into the accounting side.” By the end of her first month (January), Smith recognized there were discrepancies of hundreds of thousands of dollars between the sales and accounting sides. She then contacted the software company to arrange training. [Transcript Vol. II, pp. 20-21].

15. The software fix took months. The software trainer was not available until late March, and spent most of the visit correcting set-ups in the program. The trainer could not return until May. Smith did not become comfortable with the system until after advanced training in August, 2006. [Transcript Vol. II, p. 22].

16. In September, 2006, Smith made “massive journal entries,” causing “a pretty large hit to our income statement, which was a pretty hard pill for all of us to swallow.” Those entries led to another year of trying to reconstruct the accounting information for 2005, and the first part of 2006. [Transcript Vol. II, p. 22].

17. This was not the end. “[W]e had expenses that were out of control, no budget in place, no sort of system of paperwork trails.” Specifically, there was no system in place to associate credit card receipts with particular expenses such as delivering vehicles to nonresident customers. While the auditors were doing their field work in late 2006, and early 2007, Smith had the further distraction of preparing year-end financial statements, and “three complete physical inventories of all of our custom accessories in both stores.” [Transcript Vol. II, pp. 23-25, 27-28].

18. Taking these factors into account, Smith was understandably unable to find documents to support Maverick’s out of state deliveries. After the final assessment, “when I was hit with this large dollar amount that we were assessed, I made the sales tax issue a bit more of a priority.” [Transcript Vol. II, p. 28]. When she finally began to search in earnest, many records were missing, she was thus eventually forced to get duplicates of past monthly credit card statements. Specifically, receipts were not kept in a file of paid invoices, and employees had not been trained to turn in individual receipts after making a delivery. “If it was a delivery that was fairly close…they could take petty cash to pay for gas or meals, and again, petty cash receipts, this is not something that the former comptroller kept good track of.” [Transcript Vol. II, pp. 24-28, 31-32].

19. Using the Department’s list of transactions subject to assessment, Smith and Johnson worked with staff to identify customers for whom Maverick had made out of state deliveries. To do so, they had to review invoices to recall customer addresses and stir the recollection of staff. Smith focused on finding associated receipts. The result was two exhibits, a list of transactions where delivery was made by Johnson himself or an employee [Exhibit 100], and a modest compilation of supporting documents, mainly credit card receipts for the purchase of gasoline. [Exhibit 104; Transcript Vol. II, pp. 28-34, 42].

20. Johnson and Smith devoted a considerable portion of their testimony to identifying those nonresident customers who did not take possession of the vehicle in Cheyenne or Laramie – that is, when the vehicle was delivered by Maverick or a third party carrier. Broadly speaking, those customers are listed in Exhibit 100. Deliveries from the Cheyenne store appear on page 3 of Exhibit 100, and deliveries from the Laramie store appear on page 4. Exhibit 109 is the same as Exhibit 100, but adds cross-references to Exhibits 502 and 505 which facilitate comparison of Exhibit 100 and the transactions identified at hearing. [Transcript Vol. I, pp. 92-98; Vol. II, pp. 215-216].

21. At the hearing, Johnson identified additional deliveries not listed in Exhibit 100. These deliveries were identified by reference to purchase orders included in Exhibit 502, related to Cheyenne, and Exhibit 505, related to Laramie. [Transcript, Vol. I, pp. 101-108].

22. Prior to the hearing, the parties reached agreement regarding six transactions identified as Tax-Exempt Customers. [Transcript Vol. I, p. 8]. These transactions appear on the bottom half of page 4 of Exhibit 100. Since they are not at issue, we will not address them further.

23. Two other transactions listed on Exhibit 100 are no longer in dispute. These are a transaction dated 11/29/2005 involving Martin Lind [Exhibit 100, p. 3], and a transaction dated 7/16/2006 involving John Hicks. [Exhibit 100, p. 4; Transcript Vol. p. 170; Department’s Post-Hearing Brief, p. 9]. Since they are not at issue, we will not address them further.

24. The Cheyenne and Laramie stores were audited separately. Ron Trowbridge, from the Department of Audit (Audit) served as lead auditor for both audits. His Audit Findings for the two stores included an identical narrative of the course of the audit, reciting facts not in dispute:

The initial call to engage the audit was made on September 13^th, 2006. I spoke with Claire Smith (Controller) about scheduling a sales/use tax audit of the business for later in the year. An audit period of 6/1/2005 through 9/30/2006 was established. The Letter of Engagement was sent September 15^th, 2006.

The opening conference was held on December 4^th, 2006. Mike Robb and I met with Claire Smith. Claire informed me she has been the controller since the first of the year. She indicated we may find problems in 2005. Claire said we would be able to complete the sales portion of the audit for both locations in Cheyenne. The purchase invoices for the Laramie store will have to be examined in Laramie and records for (sic) Cheyenne store were in Cheyenne.

Maverick has a computer generated program in place for tracking sales….A customer folder is kept for sales of all “major units.” The folder contains the “Motor Vehicle Purchase Agreement”, and other related documents to the transaction including warranty agreements….

We made copies of all of the “Motor Vehicle Purchase Agreements”. Agreements for sales made to out of state customers claimed to be “delivered out of state” and were untaxed.

The closing conference was held on March 14^th, 2007. In attendance for Maverick was Justin Johnson (President), Jason Severson (General Manager) and Claire Smith, Bill McInerney (Supervisor) and I represented the State. Each issue of our audit findings was discussed. The greatest concern for Maverick was the sales transactions we captured. The sales in question were sales made to out of state customers….

25. Trowbridge prepared a schedule of all transactions where Maverick had not charged sales tax. This schedule includes adjustments for trade-in values normally reflected in Maverick’s purchase agreements. [Transcript Vol. I, pp. 159-160; Vol. II, p. 151; Exhibit 500].

26. The audit focus was consistent with the policy of the Department. Under its interpretation of the pertinent statutes, the Department holds the vendor responsible for collection and remittance of sales taxes related to the sale of motorcycles, mopeds, and off-road vehicles. Specifically, vendors must collect Wyoming sales taxes for nonresident customers unless the vehicle is delivered out of state by the vendor. [Transcript Vol. II, pp. 64, 95].

27. Trowbridge requested documentation to support how vehicles were delivered to the out of state customers. Maverick represented to Trowbridge the previous owner had trained the new owners to make a notation saying the unit was delivered out of state. Maverick’s owners understood there was an agreement with the Department no sales tax would be due if this notation was made. [Transcript Vol. II, pp. 152-153].

28. Trowbridge at the same time learned all or most units sold to out of state customers were not physically delivered out of state. As this was a common practice, Trowbridge made no effort to contact the hundreds of nonresident customers who had done business with Maverick. [Transcript Vol. II, pp. 154, 156].

29. Maverick did not present Audit with a list of vehicles physically delivered out of state until after the close of the audit, even though Audit allowed Maverick three extensions of time to respond to the auditors’ preliminary findings. The deadline set by the final extension was September 24, 2007. [Transcript Vol. II, pp. 150, 152 Exhibit 108, pp. 6, 40].

30. At the request of counsel for Maverick, Maverick met with State representatives on November 19, 2007:

The meeting was held at 9:40 on November 19, 2007 in the Department of Revenue’s conference room. In attendance for Maverick Motorsports Group, LLC were John Kuker, Justin Johnson, Jason Severson and Claire Smith. Representing the State of Wyoming were Dan Noble, Bill Russell and I [Trowbridge]. The only issue that continues to remain in contention is the sales to out of state customers. Mr. Kuker said since a customer pays sales tax to another state jurisdiction when they register the motorcycle; by Federal law Maverick has met their sales tax obligation. He said the State of Wyoming must give an off setting credit for sales tax paid to another state. We continue to disagree with their assertion.

Maverick is willing contact [sic] the customers for the sales in question and have them provide documentation proving they paid sales tax in another state. Bill Russell told them this was unnecessary. He said we are not questioning the fact they paid sales tax to another state jurisdiction. We are arguing the point that the State of Wyoming was entitled to the tax.

[Exhibit 108, pp. 6, 40]. Despite the disagreement between Maverick and the State, the Department affirmed Maverick has been generally cooperative and agreeable. [Transcript Vol. II, p. 80].

31. The Department memorialized its agreement not to contest whether Maverick’s customer’s paid tax in another jurisdiction by letter dated January 4, 2008. [Exhibit 101; correct date appears on page 2]. The agreement was summarized in a stipulation dated July 14, 2008:

So that Maverick is not required to provide proof that sales or use tax was paid by its non-resident customers, the Department has agreed not to contest whether sales tax or use tax was paid by the non-resident purchasers to the applicable taxing authorities in their home states with regard to each sale of tangible personal property to out-of-state residents included in the audit and assessment.

32. The parties have agreed the current amount in controversy is $150,406.75 (Cheyenne) plus $88,491.67 (Laramie) for a total of $238,898.42 plus interest. [Stipulated Updated Summary of Uncontroverted Facts, ¶ 1].

33. Upon application of any person adversely affected, the Board must review final Department actions concerning state excise taxes and “[h]old hearings after due notice in the manner and form provided in the Wyoming Administrative Procedure Act and its own rules and regulations of practice and procedure.” Wyo. Stat. Ann. § 39-11-102.1(c)(viii). The Board must “[d]ecide all questions that may arise with reference to the construction of any statute affecting the assessment, levy and collection of taxes, in accordance with the rules, regulations, orders and instructions prescribed by the department.” Wyo. Stat. Ann. § 39-11-102.1(c)(iv).

[T]he petitioner shall have the burden of going forward and the ultimate burden of persuasion, which burden shall be met by a preponderance of the evidence. If petitioner provides sufficient evidence to suggest the Department determination is incorrect, the burden shifts to the Department to defend its action…. In proceedings involving the question of whether or not there is a taxable event under Wyoming law, the Petitioner shall have the burden of going forward and the Department shall have the ultimate burden of persuasion.

35. “The phrase, ‘preponderance of the evidence,’ has been given various definitions by different courts but, according to McCormick et al. on Evidence 2nd Ed. H.B., s. 339, p. 794, the most acceptable meaning seems to be proof which leads the trier of fact to find that the existence of the contested fact is more probable than its non-existence.” Scherling v. Kilgore, 599 P.2d 1352, 1359 (Wyo. 1979).

It is only by either approving the determination of the Department, or by disapproving the determination and remanding the matter to the Department, that the issues brought before the Board for review can be resolved successfully without invading the statutory prerogatives of the Department.

Amoco Production Company v. Wyoming State Board of Equalization, 12 P.3d 668, 674 (Wyo. 2000). See also, Amoco Production Company v. Department of Revenue, 2004 WY 89, ¶ 22, 94 P.3d 430, 440 (Wyo. 2004). The Board’s duty is to adjudicate the dispute between taxpayers and the Department.

37. It is an elementary rule of statutory interpretation that all portions of an act must be read in pari materia, and every word, clause and sentence of it must be considered so that no part will be inoperative or superfluous. Also applicable is the oft-repeated rule it must be presumed the Legislature did not intend futile things. Hamlin v. Transcon Lines, 701 P.2d 1139, 1142 (Wyo. 1985). See also, TPJ v. State, 2003 WY 49, ¶ 11, 66 P.3d 710, 713 (Wyo. 2003).

38. “As we have often stated, our rules of statutory construction focus on discerning the legislature’s intent. In doing so, we begin by making an ‘inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection.’ Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1042 (Wyo.1993) (quoting Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)). We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia. State Department of Revenue and Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo.1994).” Chevron U.S.A., Inc. v. Department of Revenue, 2007 WY 79, ¶ 15, 158 P.3d 131, 136 (Wyo. 2007).

39. The Wyoming Supreme Court has previously summarized a number of useful precepts concerning statutory interpretation:

Statutes must be construed so that no portion is rendered meaningless. (citation omitted) Interpretation should not produce an absurd result. (citation omitted) We are guided by the full text of the statute, paying attention to its internal structure and the functional relation between the parts and the whole. (citations omitted) Each word of a statute is to be afforded meaning, with none to be rendered superfluous. (citation omitted) Further, the meaning afforded to a word should be that word’s standard popular meaning unless another meaning is clearly intended. (citation omitted) If the meaning of a word is unclear, it should be afforded the meaning that best accomplishes the statute’s purpose. (citation omitted) We presume that the legislature acts intentionally when it uses particular language in one statute, but not in another. (citations omitted) If two sections of legislation appear to conflict, they should be given a reading that gives them both effect. (citation omitted).

Rodriguez v. Casey, 2002 WY 111, ¶ 10, 50 P.3d 323, 326-327 (Wyo. 2002); quoted in Hede v. Gilstrap, 2005 WY 24, ¶ 6, 107 P.3d 158, 163 (Wyo. 2005).

40. “The omission of words from a statute must be considered intentional on the part of the legislature.…Words may not be supplied in a statute where the statute is intelligible without the addition of the alleged omission.…Words may not be inserted in a statutory provision under the guise of interpretation.…The Supreme Court will not read into laws what is not there.…” Matter of Adoption of Voss, 550 P.2d 481, 485 (Wyo. 1976) (citations omitted).

(xv) "Motor vehicle" means every vehicle which is self-propelled except vehicles moved solely by human power or motorized skateboards. The term includes the following vehicles as hereafter defined:

(I) A recreational vehicle primarily designed for off-road use which is fifty (50) inches or less in width, has an unladen weight of nine hundred (900) pounds or less and is designed to be ridden astride upon a seat or saddle and to travel on at least three (3) low pressure tires. A "low pressure tire" is a pneumatic tire at least six (6) inches in width, designed for use on wheels with a rim diameter of twelve (12) inches or less and having a manufacturer's recommended operating pressure of ten (10) pounds per square inch or less;

(II) Any unlicensed motorcycle which has an unladen weight of six hundred (600) pounds or less and is designed to be ridden off road with the operator astride upon a seat or saddle and travels on two (2) tires; and

(III) Any multi-wheeled motorized vehicle not required by law to be licensed and is designed for cross-country travel on or over land, sand, snow, ice or other natural terrain and which has an unladen weight of more than nine hundred (900) pounds.

(xxi) "Moped" means a motor-driven cycle both with foot pedals to permit muscular propulsion by human power and with a motor which produces no more than two (2) brake horsepower and which is capable of propelling the vehicle at a maximum speed of no more than thirty (30) miles per hour on a level road surface. If an internal combustion engine is used, the displacement shall not exceed more than fifty (50) cubic centimeters and the moped shall have a power drive system that functions directly or automatically without clutching or shifting by the driver after the drive system is engaged;

(xxii) "Motorcycle" means any motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three (3) wheels in contact with the ground, excluding off-road recreation vehicles as defined in W.S. 31-1-101(a)(xv)(K), but including a motor vehicle designed as a recreational vehicle primarily for off-road use to be ridden astride and to travel on four (4) wheels;

Unless the context otherwise requires, this article applies to transactions in goods; it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as security transaction nor does this article impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers.

"Goods" means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (article 8) and things in action.

Unless otherwise agreed all goods called for by a contract for sale must be tendered in a single delivery and payment is due only on such tender but where the circumstances give either party the right to make or demand delivery in lots the price if it can be apportioned may be demanded for each lot.

(i) The place for delivery of goods is the seller's place of business or if he has none his residence; . . .

(a) Each provision of this article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Insofar as situations are not covered by the other provisions of this article and matters concerning title become material the following rules apply:

(i) Title to goods cannot pass under a contract for sale prior to their identification to the contract (section 34.1-2-501), and unless otherwise explicitly agreed the buyer acquires by their identification a special property as limited by this act [§§34.1-1-101 through 34.1-10-104]. Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. Subject to these provisions and to the provisions of the article on secured transactions (article 9), title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties;

(ii) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading:

(A) If the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but

(B) If the contract requires delivery at destination, title passes on tender there.

(iii) Unless otherwise explicitly agreed where delivery is to be made without moving the goods:

(A) If the seller is to deliver a document of title, title passes at the time when and the place where he delivers such documents; or

(B) If the goods are at the time of contracting already identified and no documents are to be delivered, title passes at the time and place of contracting.

(iv) A rejection or other refusal by the buyer to receive or retain the goods, whether or not justified, or a justified revocation of acceptance revests title to the goods in the seller. Such revesting occurs by operation of law and is not a "sale".

(iii) Does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.

(vi) "Retail sale" means any sale, lease or rental for any purpose other than for resale, sublease or subrent;

(vii) "Sale" means any transfer of title or possession in this state for a consideration including the fabrication of tangible personal property when the materials are furnished by the purchaser but excluding an exchange or transfer of tangible personal property upon which the seller has directly or indirectly paid sales or use tax . . .

(xv) "Vendor" means any person engaged in the business of selling at retail or wholesale tangible personal property, admissions or services which are subject to taxation under this article. "Vendor" includes a vehicle dealer as defined by W.S. 31-16-101(a)(xviii);

(A) The sales price of every retail sale of tangible personal property within the state;

(ii) Every vendor and person liable for the payment of sales tax under this article shall preserve for three (3) years at his principal place of business, suitable records and books as may be necessary to determine the amount of tax for which he is liable under this article, together with all invoices and books showing all merchandise purchased for resale. All records, books and invoices shall be available for examination by the department during regular business hours except as arranged by mutual consent;

(iii) If any vendor or person liable for the payment of sales tax under this article fails to comply with paragraph (ii) of this subsection, he shall bear the burden of proof as to the correctness of any assessment of taxes imposed by the department for the period for which records were not preserved in any court action or proceeding;

(i) Except as provided by paragraph (viii) of this subsection, no vendor shall collect taxes imposed by this article upon the sale of motor vehicles, house trailers, trailer coaches, trailers or semitrailers. The taxes imposed shall be collected by the county treasurer prior to the first registration in Wyoming and not upon subsequent registration by the same applicant. The county treasurer shall collect and remit to the department the tax in effect in the county of the owner's principal residence;

(viii) Notwithstanding W.S. 39-15-107(b)(i), the tax imposed under this article upon the sale of mopeds and motorcycles as defined in W.S. 31-5-102(a) and off-road recreational vehicles defined by W.S. 31-1-101(a)(xv) shall be collected by the vendor in the manner prescribed by this section;

(i) If the amount of tax paid is less than the amount due, the difference together with interest thereon at the rate of one percent (1%) per month from the time the return was due shall be paid by the vendor or any person liable for the payment of the sales tax under this article within ten (10) days after notice and demand is made by the department. Effective July 1, 1994, interest at an annual rate equal to the average prime interest rate as determined by the state treasurer during the preceding fiscal year plus four percent (4%) shall be added to the delinquent tax. To determine the average prime interest rate, the state treasurer shall average the prime interest rate for at least seventy-five percent (75%) of the thirty (30) largest banks in the United States. The interest rate on delinquent taxes shall be adjusted on January 1 of each year following the year in which the taxes first became delinquent. In no instance shall the delinquent tax rate be greater than eighteen percent (18%) from any sale made on or after July 1, 1994. The interest rate on any delinquent tax from any sale made before July 1, 1994, shall be one percent (1%) per month from the date the return was due until paid;

(ii) If the sales or use tax on a vehicle, including local option sales or use tax, under W.S. 39-15-101 through 39-15-211 or 39-16-101 through 39-16-211, is not paid within fifty (50) days after the date of the sale, or in the case of a motor vehicle brought into this state, fifty (50) days after the vehicle is brought into the state if the owner submits to the county treasurer an affidavit and any other satisfactory proof as necessary to verify the date the vehicle was brought into the state:

(C) The tax is delinquent if the taxpayer or his agent knew or reasonably should have known that the tax liability was not paid within the fifty (50) day period.

(iii) The department shall allow a credit for sales tax legally imposed and paid to another state on a purchase equal to but not exceeding the liability for use tax under this article on that purchase. The department may require that any claim for a credit be substantiated in writing showing the sales tax paid.

54. Rules, Wyoming Department of Revenue, Chapter 2, Section 4(i)(iii), provides:

Credit for Sales Tax Payments Made to Another State. The Department shall allow credit for sales tax legally imposed and paid to another state on a purchase equal to but not exceeding the Wyoming use tax liability on that purchase. Claims for the off-setting credit shall be substantiated with copies of invoices showing sales tax paid. No off-setting credit shall be granted for use tax paid to another state. Off-setting credits can only be used within statutory time frames.

55. Rules, Wyoming Department of Revenue, Chapter 2, Sections 15(q)(i) & (iii) in effect during a portion of the audit time frame [Transcript Vol. I, p. 73], provided:

passes to the purchaser shall determine the location of the sale. Tangible personal property shipped by the vendor at the time of sale and not used in Wyoming, to an out of state location may be considered a destination sale and not subject to the sales tax.

(iii) Contract of sale, sales invoices, bills of lading or other documentary evidence of the passage of title or delivery of tangible personal property to the purchaser inside or outside this state shall be retained by the vendor to establish the nature of the sale. If no such evidence is present, it shall be presumed that the sale occurred within the state and the vendor shall be liable for the sales tax thereon.

56. The Board has jurisdiction to hear and decide this matter. Wyo. Stat. Ann. § 39-11-102.1(c).

57. Maverick sells and services motorcycles, snowmobiles, and all-terrain vehicles. Maverick is required to collect the appropriate sales tax on each transaction as imposed by Wyoming statute. Wyo. Stat. Ann. §§ 31-1-101; 31-5-102; 39-15-101; 39-15-107; Facts, ¶ 1; Conclusions,¶¶ 41, 42, 49, 51.

58. The same collection responsibilities are not placed on vendors of motor vehicles, house trailers, trailer coaches, trailers, or semitrailers. Vendors of those vehicles are prohibited from collecting sales tax. Wyo. Stat. Ann. § 39-15-107(b)(i); Conclusions, ¶ 51.

59. There are basically two questions which require an answer in order to resolve this appeal. The first asks which of the vehicle sales at issue occurred in Wyoming, and are thus subject to sales tax. Second, if a sale did occur in Wyoming, is an assessment of sales tax by the Department constitutionally prohibited.

60. A sale of tangible personal property is statutorily defined as “any transfer of title or possession” in Wyoming for consideration. Wyo. Stat. Ann. § 39-15-101(a)(vii). Conclusions, ¶ 49.

61. Maverick admits its customers, for the sales at issue, except for the sales listed in Exhibit 100, and certain others to which Johnson testified, took possession of their vehicles at a Maverick dealership in either Cheyenne or Laramie. [Stipulated Updated Summary of Uncontroverted Facts, ¶ 2; Facts, ¶¶ 11, 21].

62. The Department asserts, based solely on the transfer of possession of a vehicle in Wyoming for consideration, a sale occurred in Wyoming, and sales tax is thus due. [Department’s Post-Hearing Brief, p. 5].

63. The Uniform Commercial Code (UCC), as adopted in Wyoming, is applicable to the vehicle transactions at issue. Wyo. Stat. Ann. §§ 34.1-2-102, 34.1-2-105(a); Park County Implement Co. v. Craig, 397 P.2d 800, 801 (Wyo. 1964). Conclusions, ¶¶ 43, 44

64. Under the UCC, all goods under a contract for sale must be tendered in a single delivery at the seller’s place of business unless otherwise agreed. Wyo. Stat. Ann. §§ 34.1-2-307, 34.1-2-308; Conclusions, ¶¶ 45, 46. Delivery of each of the vehicles at issue, except for those listed in Exhibit 100 and certain others to which Johnson testified, having occurred in Wyoming at a Maverick dealership, these requirements of the UCC have been fulfilled. Facts, ¶ 11.

66. These specific requirements of the UCC with regard to possession and title must apply unless Maverick and its purchaser have “otherwise agreed” with regard to delivery, and “otherwise explicitly agreed” with regard to the passage of title.

67. Maverick presented no evidence to support any agreement with its purchasers on the passage of title or on possession. The only testimony on either question was the statement of Maverick’s President, Justin Johnson, that, in his opinion, the customer did not “technically” have possession until they received the title or MSO. Facts, ¶ 7. There was, however, no testimony or other evidence that the non-resident customers in fact agreed with Maverick’s position with regard to passage of title and possession. This is particularly true with regard to the passage of title which requires an explicit agreement to override the applicable provisions of the UCC. Conclusions, ¶ 47.

68. The purchase invoices utilized by Maverick also do not support Maverick’s position on possession and passage of title. The front side of the invoice describes the vehicle being purchased and the terms of said purchase without reference to possession or passage of title. [Exhibits 502, 505]. The reverse side of the invoices were not provided, however, Johnson testified to a paragraph which stated Maverick was not liable for any delivery failure or delay. Johnson did not point out any other provision on the reverse side of any invoice which addressed either possession or passage of title. Facts, ¶ 12.

69. Maverick, in its post-hearing brief, asserts all of the “sales” at issue were destination sales, or interstate sales as defined by the Department Rules, and thus were not subject to sales tax:

Rules, Wyoming Department of Revenue, Chapter 2, Sections 15(q)(i). Conclusions, ¶ 55.

70. Maverick asserts its intention for each such sale was that title and possession would not transfer until delivery of the vehicle was made by its customer at a designated destination. It relies for support of its position on Hercules Powder Co. v. State Bd. of Equalization, 66 Wyo. 268, 208 P.2d 1096 (1949), and State ex rel. Wyoming Dept. of Revenue v. Union Pacific R. Co., 2003 WY 54, 67 P.3d 1176 (Wyo. 2003). Both decisions are, however, clearly distinguishable, thus neither justify a finding of destination or interstate sales.

71. Maverick asserts the Wyoming Supreme Court in Hercules concluded the usual rules with regard to passage of title in sales of personal property can be abrogated when the parties clearly intend otherwise “as reflected by the documents used.” [Petitioner Maverick Motorsports Group LLC’s Closing Argument and Brief in Support, p. 13]. While this assertion about the Court’s decision in Hercules is correct as a general premise, the quoted language from Maverick’s own brief points out the problem with its reliance on Hercules. An intent to alter the usual passage of title concepts in sales transactions requires a clear showing of such intent by contract:

That, as a general rule, the delivery of goods by a consignor to a common carrier, for account of a consignee, has effect as delivery to such consignee, is elementary.…Of course, the presumption of delivery arising from the application of any or all of these elementary rules would not control in a case where, by contract, it clearly appeared that, despite the shipment, the goods should remain at the risk of the consignor until arrival at the point of ultimate destination.

Hercules Powder Co. v. State Bd. of Equalization, 66 Wyo. 268, 293, 208 P.2d 1096, 1106 (1949) quoting United States v. R. P. Andrews & Co., 207 U.S. 229, 28 S.Ct. 100, 104 (1907). (Emphasis added). See also, Falls Industries, Inc. v. Consolidated Chemical Industries, Inc, 258 F.2d 277, 281 (5^th Cir. 1958) (“Generally, title passes to the buyer on the seller’s delivery of the goods to the carrier…”).

72. Maverick, in its closing brief, asserts: “Maverick and its customers intended that ownership and possession of the property would not transfer until delivered by the customer, Maverick or a third party to the home state of purchaser.” [Petitioner Maverick Motorsports Group LLC’s Closing Argument and Brief in Support, p. 13]. There is, in fact, no evidence in the record reflecting the position of the customers of Maverick with regard to passage of title. There is absolutely no documentary evidence or testimony to support a “clear intent” by both Maverick and its customer, to vary, by contract, the usual standards for passage of title which apply in commercial transactions. Conclusions, ¶ 65.

73. The Wyoming Supreme Court decision in Hercules does not support a destination or interstate sale argument under the facts in this matter.

74. We reach a similar conclusion with regard to Maverick’s reliance on State ex rel. Wyoming Dept. of Revenue v. Union Pacific R. Co., 2003 WY 54, 67 P.3d 1176 (Wyo. 2003).

75. Maverick asserts the Wyoming Supreme Court in Union Pacific recognized the concept of “constructive possession,” which allows a purchaser to be his own delivery agent for purposes of destination sales. [Petitioner Maverick Motorsports Group LLC’s Closing Argument and Brief in Support, p. 14]. There are, however, significant factual and legal differences between the sales transactions at issue in which a customer of Maverick “delivers” his own vehicle to himself in another state, and the delivery of ballast by a common carrier with acceptance out of state as occurred in Union Pacific.

76. This Board, in the appeal by Union Pacific from a sales/use tax audit assessment by the Department, concluded sales tax was due on purchases of “maintenance” ballast, i.e. crushed granite rock used by Union Pacific to maintain railroad beds, but that sales tax was not due on “construction” ballast, which consisted of purchases of ballast pursuant to a contract which called for acceptance of ballast upon inspection outside of Wyoming. Both Union Pacific and the Department filed petitions for judicial review. State ex rel. Wyoming Dept. of Revenue v. Union Pacific R. Co., 2003 WY 54, ¶¶ 1, 2, 67 P.3d 1176, 1178 (Wyo. 2003).

77. The Supreme Court, in affirming the Board’s decision on appeal, pointed out the critical difference between the “deliveries” by Maverick’s purchasers of their own vehicle, and the delivery of construction ballast, the sale of which the Board and the Court concluded was not subject to sales tax. The construction ballast was sold pursuant to a contract which specifically provided for acceptance of the ballast outside Wyoming:

This type of purchase is made pursuant to a contract between the vendor and the ultimate user that calls for acceptance of the ballast upon inspection at the time of delivery outside of Wyoming.

State ex rel. Wyoming Dept. of Revenue v. Union Pacific R. Co., 2003 WY 54, ¶ 4, 67 P.3d 1176, 1179 (Wyo. 2003). Facts, ¶ 11.

78. Title and possession of the construction ballast only pass to Union Pacific upon acceptance as purchaser even though Union Pacific is both the common carrier which delivers the ballast as well as the ultimate purchaser:

The fact that UPRC is usually both the common carrier and the ultimate purchaser of the “construction” ballast is of little consequence. UPRC indisputably exclusively controls and operates the trains and locomotives in which the ballast is loaded and transported. However, neither title or possession to the “construction” ballast passes from the vendor to UPRC until it is accepted by UPRC, as the purchaser, at a predetermined destination outside of Wyoming. UPRC loads and carries the “construction” ballast as the common carrier agent of the vendor and never obtains “complete control” over this ballast during shipment as asserted by DOR. UPRC, as a common carrier, is bound to deliver the ballast to the location outside of Wyoming as directed by the vendor. Title or possession of the ballast is not transferred until UPRC, as the buyer, inspects and accepts the ballast at the construction site.

Nevertheless,…, if ballast was able to be shipped by the vendor through some other means by a common carrier other than UPRC, the purchases of “construction” ballast by UPRC must absolutely be characterized as destination sales and non-taxable under Wyoming law.

State ex rel. Wyoming Dept. of Revenue v. Union Pacific R. Co., 2003 WY 54, ¶¶ 14, 16, 67 P.3d 1176, 1183-1184 (Wyo. 2003).

79. There is no equivalent contractual agreement between Maverick and its customers with regard to delivery and acceptance. Acceptance by a Maverick customer of his or her vehicle occurs in Wyoming when the customer takes possession of the vehicle at either Maverick dealership. Conclusions, ¶¶ 46, 48.

80. The non-taxable status as destination sales of construction ballast to Union Pacific is further distinguished from the “delivery” of the vehicles by Maverick customers by the fact the vendor of the construction ballast was responsible for delivery as well as return charges if the ballast was not accepted:

In the event that UPRC does not accept the ballast, the ballast must be shipped back to the quarry at the vendor's expense, and title or possession to the ballast never transfers from the vendor.

State ex rel. Wyoming Dept. of Revenue v. Union Pacific R. Co., 2003 WY 54, ¶ 15, 67 P.3d 1176, 1183 (Wyo. 2003).

81. There is no evidence of a similar agreement between Maverick and its customers with regard to acceptance and the charges for a return delivery if a vehicle is not accepted. Maverick, in fact, pursuant to a paragraph on the reverse side of its most commonly used invoice, according to Johnson as President of Maverick, denies liability for any delay or failure of delivery. Facts, ¶ 12.

82. Both possession and title transferred in Wyoming in those transactions at issue in which the customers of Maverick accepted delivery of their vehicle at a Maverick dealership in either Cheyenne or Laramie. Facts, ¶ 11. Such transactions were thus sales in Wyoming subject to sales tax.

83. We next turn our attention to Exhibits 100 and 109 identifying the sales which Maverick asserts were in fact delivered outside Wyoming in a manner other than by the purchasing customer. Facts, ¶¶ 9, 10, 20.

84. Exhibits 100 and 109, on page three of each, list sales from the Cheyenne dealership which Maverick asserts were out of state deliveries by other than the customers. It is our conclusion the testimony under oath of Johnson, as President of Maverick [Transcript, Vol. I, pp. 94-98]; the invoices in Exhibit 502 for the sales in Exhibits 100 and 109; as well as the limited supporting documentation provided in Exhibit 104, are sufficient to fulfill Maverick’s burden of going forward, and without opposing evidence by the Department, to fulfill its burden of proof to substantiate the transactions listed below were delivered outside of Wyoming by other than the purchasing customer. These transactions were therefore not sales in Wyoming subject to sales tax:

CUSTOMER	EXHIBIT 502 INVOICE BATES PAGE
Florence	75
Quickert	92
Soneson	106
Kelly	100
Ward	133
Erlich	142
Holst	149
Lind	152
Lind	153
Murdoch	154
Weimer	157
Soneson	178
Roche	192
Lind	214
Lind	215
Gonzales	207
Nagle	218
Pankeweicz	219
Loyd	247
Hurley	241
Lind	245
Florence	269
Florence	279

85. The sale to Mike & Rita Leonard, [Exhibit 502, Bates page 112], relied on a third-party carrier suggested by Maverick, Daily Direct, which contracted directly with the Leonard’s as purchasers. [Transcript, Vol. I, p. 95]. There was thus a sale to Leonard’s in Wyoming as possession and title transferred to them through Daily Direct as the purchaser’s consignor for delivery. Facts, ¶ 10; Conclusions, ¶ 71

86. The sale, [Exhibit 502, Bates page 212], to Mark Kreft, an employee of Maverick, was a self-delivery which, as previously discussed, was a sale in Wyoming subject to sales tax. [Transcript, Vol. I, pp. 96-97].

87. Exhibits 100 and 109, on page four of each, list the sales from the Laramie dealership which Maverick asserts were out of state deliveries by other than the customers. It is our conclusion the testimony under oath of Johnson [Transcript Vol. I, pp. 98-100], and the invoices in Exhibit 505 for the sales in Exhibits 100 and 109, are sufficient to fulfill Maverick’s burden of going forward, and without opposing evidence from the Department, to fulfill its burden of proof to substantiate the transactions listed below were delivered outside of Wyoming by other than the purchasing customer. These transactions were therefore not sales in Wyoming subject to sales tax:

CUSTOMER	EXHIBIT 505 INVOICE BATES PAGE
Smith	354
Gansen	372
Connet	386
Roche	421
Farstad	432
Roche	439
McCall	435
Hicks	464
Kunz	494
Self	495
Garcia	545

88. There was no invoice listed for the sale to Gilbert Connet on November 28, 2005, deal number 268, thus Maverick did not fulfill its burden of proof with regard to this sale.

89. The sale, [Exhibit 505, Bates page 393], to Jason Lindburg, an employee of Maverick, appears to be a self-delivery which, as previously discussed, was a sale in Wyoming subject to sales tax. [Transcript, Vol. I, pp. 98-99].

90. There is a lack of sufficient evidence to support the manner of delivery in the three sales to Vanna Putikanid on April 24, 2006. [Exhibit 505, Bates pages 479, 480, 481]. It can be presumed, based on the testimony of Johnson with regard to Putikanid’s request for special packaging, the three vehicles were shipped out of Wyoming. Absent evidence as to how the three vehicles were in fact delivered outside Wyoming, Maverick has not fulfill its burden of proof to overturn the assessment by the Department for these three sales. [Transcript, Vol. I, pp. 99-100].

91. Johnson testified to a number of transactions not listed on either Exhibit 100 or Exhibit 109 for which Maverick asserts there was an out of state delivery other than self-delivery by the customer. It is our conclusion the testimony under oath of Johnson, [Transcript, Vol. I, pp. 104-106, 188], and the invoices in Exhibits 502 and 505, are sufficient to fulfill Maverick’s burden of going forward, and without opposing evidence from the Department, to fulfill its burden of proof, to substantiate the transactions listed below were delivered outside of Wyoming by other than the purchasing customer. These transactions were therefore not sales in Wyoming subject to sales tax:

CUSTOMER	INVOICE BATES PAGE
Weimer	Exhibit 502 - 96
Kentner	Exhibit 502 - 126
Hudson	Exhibit 502 - 165
Muldenhauer	Exhibit 502 - 252
Lies	Exhibit 505 - 331
Lies	Exhibit 505 - 332
Lies	Exhibit 505 - 392

92. Johnson also testified concerning the sales to Huegerich, [Exhibit 502, Bates page 117]; Braun, [Exhibit 502, Bates page 124]; and Stefani, [Exhibit 502, Bates page 260]. Each sale relied for delivery on a third-party carrier, Federated, as suggested by Maverick. Federated then contracted directly with the purchasers. [Transcript, Vol. I, pp. 101-102, 105-106]. There was thus a sale to each purchaser in Wyoming as possession and title transferred to them through Federated as the purchaser’s consignor for delivery. Facts, ¶ 10; Conclusions, ¶ 71.

93. The final two transactions addressed by Johnson in his testimony are the sale to David Livingstone, [Exhibit 502, Bates page 50], and the sale to Fay Meyers, [Exhibit 502, Bates page 55]. Both transactions were assessed by the Department. [Exhibit 500, Bates 01].

94. Johnson testified Maverick collected sales tax on the Livingstone sale. The invoice does, in fact, indicate sales tax was collected, however the rate was 6.7%, not 6%, which was the rate in Cheyenne at the time of the sale as indicated by the Department’s assessment. [Exhibit 500, Bates page 01; Exhibit 502, Bates page 50]. The Livingstone invoice contains the phone number and mailing address for Larimer County, Colorado, where Livingstone apparently resided, along with the notation “6.7%”. [Exhibit 502, Bates page 50]. It appears any tax collected was forwarded to Larimer County, Colorado. Maverick has not provided sufficient evidence to indicate the tax was paid to Wyoming, and thus has not fulfilled its burden of proof to overcome the Department assessment.

95. Fay Meyers is a motorcycle dealer in Denver, Colorado. The transaction with Fay Meyers, [Exhibit 502, Bates page 55], was, as testified by Johnson without opposing evidence by the Department [Transcript, Vol. I, pp. 185-186], a dealer to dealer transfer, not a retail sales, thus no sales tax would be due. Wyo. Stat. Ann. §§ 39-15-101(a)(vi); 39-15-103(a)(I)(A). Conclusions,¶¶ 49, 50.

96. In reaching our conclusion Maverick fulfilled its burden of proof through testimony and exhibits with regard to the identified out of state sales, we are not unmindful of the records requirements imposed by statute. Conclusions, ¶ 51. The acceptance of hearing testimony and limited documentation in this appeal should be viewed as a rare exception, and not as an invitation for vendors to neglect the records retention requirements in the hopes of being able to substitute testimony and documentation in an appeal.

97. Maverick asserts that even if the transactions at issue were sales in Wyoming subject to sales tax, the Department is prohibited by the Commerce Clause of the United States Constitution, Article I, § 8, clause 3, from assessing tax based on the assertion, uncontested by the Department, that sales tax was paid by all purchasers in their resident state. Supra, ¶ 31. Maverick argues the Department must thus allow it a credit or offset against any Wyoming tax which might be due based on the tax paid in the other states in order to comply with federal law.

98. The transactions at issue involve the sale, i.e., the transfer of title and possession, of tangible goods in Wyoming. The constitutional propriety of the assessment of sales tax on the sale of tangible goods in light of the Commerce Clause was generally discussed in a United States Supreme Court decision in 1939 concerning California use tax:

The prohibited burden upon commerce between the states is created by state interference with that commerce, a matter distinct from the expense of doing business. A discrimination against it, or a tax on its operations as such, is an interference. A tax on property or upon a taxable event in the state, apart from operation, does not interfere. This is a practical adjustment of the right of the state to revenue from the instrumentalities of commerce and the obligation of the state to leave the regulation of interstate and foreign commerce to the Congress.

Southern Pacific Co. v. Gallagher, 306 U.S. 167, 177-178, 59 S.Ct. 389, 394 (1939).

99. The constitutional propriety of a sales tax on the sale of tangible goods was specifically addressed by the United States Supreme Court in a 1940 decision, McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 60 S.Ct. 388 (1940), concerning the taxation of coal mined in Pennsylvania and delivered and sold in New York, and reaffirmed in 1995:

It has long been settled that a sale of tangible goods has a sufficient nexus to the State in which the sale is consummated to be treated as a local transaction taxable by that State. McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565 (1940) (upholding tax on sale of coal shipped into taxing State by seller).

Oklahoma Tax Commission v. Jefferson Lines, Inc. 514 U.S. 175, 184, 115 S.Ct. 1331, 1338 (1995).

100. The Wyoming Supreme Court has also directly addressed the constitutionality of a sales tax on the sale of tangible goods, citing both Southern Pacific and McGoldrick:

In cases involving such taxes the court must take into consideration not only the commerce clause of the U.S. Constitution, art. 1, § 8, cl. 3, but also the power of the state to tax for the purpose of continuing its existence, and while the latter fact was overlooked in earlier years, and that without particular harm, it has come into prominence in the last decade so that courts have sought a compromise by protecting, in so far as necessary, equality of interstate commerce with intrastate commerce, while at the same time leaving to the states reasonable means to collect necessary revenues. Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586. ...

It is now fully recognized that interstate business must pay its way. Postal Telegraph-Cable Co. v. Richmond, 249 U.S. 252, 259, 39 S.Ct. 265, 63 L.Ed. 590;Gwin, White & Prince v. Henneford, 205 U.S. 434, 59 S.Ct. 325, 83 L.Ed. 272;Western Livestock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823, 115 A.L.R. 944. See 38 Col.L.R. 49. As stated by Mr. Justice Stone in McGoldrick v. Berwin-White Coal M. Co., 309 U.S. 33, 60 S.Ct. 388, 392, 84 L.Ed. 565, 128 A.L.R. 876:“It was not the purpose of the commerce clause to relieve those engaged in interstate commerce of their just share of state tax burdens, merely because of an incidental or consequential effect of the tax as an increase in the cost of doing the business.” And Mr. Justice Reed stated in Southern Pacific Co. v. Gallagher, supra [306 U.S. 167, 59 S.Ct. 394, 83 L.Ed. 586], that “the prohibited burden upon commerce between the states is created by state interference with that commerce, a matter distinct from the expense of doing business. A discrimination against it, or a tax on its operations as such, is an interference. A tax on property or upon a taxable event in the state, apart from operation, does not interfere.” See also Coverdale v. Arkansas-Louisiana Pipe Line Co., 303 U.S. 604, 58 S.Ct. 736, 82 L.Ed. 1043. It has been stated several times by the Supreme Court that interstate commerce should not be exposed to the risk of multiple taxation. Western Livestock v. Bureau of Revenue, supra; Gwin, White & Prince v. Henneford, supra; J. D. Adams Mfg. Co. v. Storen, 204 U.S. 307, 58 S.Ct. 913, 916, 82 L.Ed. 1365, 117 A.L.R. 429. And the court has not yet had the opportunity to sufficiently elucidate that rule, so that it can be definitely determined under what state of facts it applies. We do not, however, understand the rule to be applicable in a case in which there is a definite taxable event in the taxing state which cannot be duplicated in any other state. That is true in the case at bar. The title of the property passed and delivery of possession was made in this state. The Berwin-White Coal M. Co. case, supra.

Morrison-Knudson Co. v. State Board of Equalization, 58 Wyo. 500, 135 P. 2d 927, 933-934 (Wyo. 1943). [Emphasis added].

101. Maverick, notwithstanding the noted authority holding a sales tax on the sale of tangible goods in the state wherein the sale occurs is constitutional, nevertheless argues the assessment by the Department is invalid. Maverick asserts the sales tax is not in compliance with the four prong test set out by Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed. 2d 326 (1977), to be applied to determine whether a state tax violates the Commerce Clause:

Appellee, in its turn, relies on decisions of this Court stating that ‘(i)t was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business,’ Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254, 58 S.Ct. 546, 548, 82 L.Ed. 823 (1938). These decisions [footnote omitted] have considered not the formal language of the tax statute but rather its practical effect, and have sustained a tax against Commerce Clause challenge when the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State.

The Philadelphia Eagles Football Club, Inc. v. City of Philadelphia, 823 A.2d 108, 128 (Penn. 2003) (referencing Complete Auto Transit, Inc. v. Brady, supra.). The Wyoming sales tax complies with each requirement.

103. The element of nexus is fulfilled by the fact the sale of tangible goods occurs in Wyoming. McGoldrick v. Berwind-White Coal Co., supra; Conclusions, ¶¶ 98, 99, 100.

104. The tax on the sale of tangible goods, as has occurred with the transactions at issue, need not be apportioned even if the goods are subsequently transported out of Wyoming:

In reviewing sales taxes for fair share, however, we have had to set a different course. A sale of goods is most readily viewed as a discrete event facilitated by the laws and amenities of the place of sale, and the transaction itself does not readily reveal the extent to which completed or anticipated interstate activity affects the value on which a buyer is taxed. We have therefore consistently approved taxation of sales without any division of the tax base among different States, and have instead held such taxes properly measurable by the gross charge for the purchase, regardless of any activity outside the taxing jurisdiction that might have preceded the sale or might occur in the future. See, e.g., McGoldrick v. Berwind-White Coal Mining Co., supra.

Such has been the rule even when the parties to a sales contract specifically contemplated interstate movement of the goods either immediately before, or after, the transfer of ownership. See, e.g., Wardair Canada Inc. v. Florida Dept. of Revenue, 477 U.S. 1, 106 S.Ct. 2369, 91 L.Ed.2d 1 (1986) (upholding sales tax on airplane fuel); State Tax Comm'n of Utah v. Pacific States Cast Iron Pipe Co., 372 U.S. 605, 83 S.Ct. 925, 10 L.Ed.2d 8 (1963) (per curiam) (upholding tax on sale that contemplated purchaser's interstate shipment of goods immediately after sale).

Oklahoma Tax Commission v. Jefferson Lines, Inc.. 514 U.S. at 186-187, 115 S.Ct. at 1339 [emphasis added].

105. The Wyoming sales tax does not differentiate between sales of tangible goods destined for intrastate movement, and those destined for movement interstate. All sales of tangible goods in Wyoming, as defined by statute, subject to limited statutory exemptions, are subject to sales tax. Wyo. Stat. Ann. §§ 39-15-103, 39-15-105. There is therefore no discrimination against interstate commerce:

A State may not “impose a tax which discriminates against interstate commerce…by providing a direct commercial advantage to local business.” Northwestern States Portland Cement Co. v. Minnesota, 358 U.S., at 458, 79 S.Ct., at 362; see also American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266, 269, 107 S.Ct. 2829, 2832-2833, 97 L.Ed.2d 226 (1987). Thus, States are barred from discriminating against foreign enterprises competing with local businesses, see, e.g., id., at 286, 107 S.Ct., at 2841-2842, and from discriminating against commercial activity occurring outside the taxing State, see, e.g., Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977).

As with a tax on the sale of tangible goods, the potential for interstate movement after the sale has no bearing on the reason for the sales tax. See, e.g., Wardair Canada, Inc. v. Florida Dept. of Revenue, 477 U.S. 1, 106 S.Ct. 2369, 91 L.Ed.2d 1 (1986) (upholding sales tax on airplane fuel); cf. Commonwealth Edison Co., 453 U.S., at 617-619, 101 S.Ct., at 2953-2954 (same for severance tax). Only Oklahoma can tax a sale of transportation to begin in that State, and it imposes the same duty on equally valued purchases regardless of whether the purchase prompts interstate or only intrastate movement. There is no discrimination against interstate commerce.

Oklahoma Tax Commission v. Jefferson Lines, Inc., 514 U.S. at 197, 199, 115 S.Ct. at 1345.

106. The “fairly related” requirement of Complete Auto is fulfilled as well. Maverick, and its customers, even those who may live out of state and whose only activity in the Wyoming was the purchase of a product from Maverick, are protected by the advantages conferred by maintenance of a civilized society:

Finally, the Commerce Clause demands a fair relation between a tax and the benefits conferred upon the taxpayer by the State. See Goldberg, 488 U.S., at 266-267, 109 S.Ct., at 591-592; D.H. Holmes, supra, 486 U.S., at 32-34, 108 S.Ct., at 1624-1625; Commonwealth Edison, supra, 453 U.S., at 621-629, 101 S.Ct., at 2955-2960. The taxpayer argues that the tax fails this final prong because the buyer's only benefits from the taxing State occur during the portion of the journey that takes place in Oklahoma. The taxpayer misunderstands the import of this last requirement.

The fair relation prong of Complete Auto requires no detailed accounting of the services provided to the taxpayer on account of the activity being taxed, nor, indeed, is a State limited to offsetting the public costs created by the taxed activity. If the event is taxable, the proceeds from the tax may ordinarily be used for purposes unrelated to the taxable event. Interstate commerce may thus be made to pay its fair share of state expenses and “ ‘contribute to the cost of providing all governmental services, including those services from which it arguably receives no direct “benefit.” ’ ” Goldberg, supra, 488 U.S., at 267, 109 S.Ct., at 592, quoting Commonwealth Edison, supra, 453 U.S., at 627, n. 16, 101 S.Ct., at 2958, n. 16 (emphasis in original). The bus terminal may not catch fire during the sale, and no robbery there may be foiled while the buyer is getting his ticket, but police and fire protection, along with the usual and usually forgotten advantages conferred by the State's maintenance of a civilized society, are justifications enough for the imposition of a tax. See Goldberg, supra, at 267, 109 S.Ct., at 592. Complete Auto 's fourth criterion asks only that the measure of the tax be reasonably related to the taxpayer's presence or activities in the State. See Commonwealth Edison, 453 U.S., supra, at 626, 629, 101 S.Ct., at 2958, 2959-2960. What we have already said shows that demand to be satisfied here. The tax falls on the sale that takes place wholly inside Oklahoma and is measured by the value of the service purchased.

Oklahoma Tax Commission v. Jefferson Lines, Inc.. 514 U.S. at 197, 199, 115 S.Ct. at 1345.

107. Maverick also contends the out of state purchasers’ tax payments in their resident state render any Wyoming assessment unconstitutional. The United States Supreme Court has addressed this concern. It concluded the sales tax on goods based upon a transfer of ownership and possession in one state should protect the purchaser from further taxation. A sales tax can not be validly assessed by a state if title was obtained outside of that state:

The sale, we held, was “an activity which ... is subject to the state taxing power” so long as taxation did not “discriminat[e]” against or “obstruc[t]” interstate commerce, Berwind-White, 309 U.S., at 58, 60 S.Ct., at 398, and we found a sufficient safeguard against the risk of impermissible multiple taxation of a sale in the fact that it was consummated in only one State. As we put it in Berwind-White, a necessary condition for imposing the tax was the occurrence of “a local activity, delivery of goods within the State upon their purchase for consumption.” Ibid. So conceived, a sales tax on coal, for example, could not be repeated by other States, for the same coal was not imagined ever to be delivered in two States at once. Conversely, we held that a sales tax could not validly be imposed if the purchaser already had obtained title to the goods as they were shipped from outside the taxing State into the taxing State by common carrier. McLeod v. J.E. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304 (1944). The out-of-state seller in that case “was through selling” outside the taxing State. Id., at 330, 64 S.Ct., at 1025. In other words, the very conception of the common sales tax on goods, operating on the transfer of ownership and possession at a particular time and place, insulated the buyer from any threat of further taxation of the transaction.

True, it is not Oklahoma that has offered to provide a credit for related taxes paid elsewhere, but in taxing sales Oklahoma may rely upon use-taxing States to do so. This is merely a practical consequence of the structure of use taxes as generally based upon the primacy of taxes on sales, in that use of goods is taxed only to the extent that their prior sale has escaped taxation. Indeed the District of Columbia and 44 of the 45 States that impose sales and use taxes permit such a credit or exemption for similar taxes paid to other States. See 2 Hellerstein & Hellerstein ¶ 18.08, p. 18-48; 1 All States Tax Guide ¶ 256 (1994). As one state court summarized the provisions in force:

“These credit provisions create a national system under which the first state of purchase or use imposes the tax. Thereafter, no other state taxes the transaction unless there has been no prior tax imposed ... or if the tax rate of the prior taxing state is less, in which case the subsequent taxing state imposes a tax measured only by the differential rate.” KSS Transportation Corp. v. Baldwin, 9 N.J.Tax 273, 285 (1987).

Oklahoma Tax Commission v. Jefferson Lines, Inc.. 514 U.S. at 187, 194 115 S.Ct. at 1339, 1343 [emphasis added].

108. This conclusion with regard to multiple taxation by the United States Supreme Court also answers in the negative Maverick’s assertion the Wyoming sales and use tax statutes are facially discriminatory because a credit against Wyoming sales tax is not allowed for sales tax paid in another state. Conclusions, ¶ 107.

109. The issue of multiple taxation arises in this matter solely because Maverick failed to collect sales tax on Wyoming sales. A vendor cannot improperly fail to collect tax on a Wyoming sale, and then allege unlawful multiple taxation because another state may thereafter collect what would normally be a use tax. In point of act, there would be no multiple taxation issue if Maverick had properly collected Wyoming sales tax which most states would allow the purchaser to claim as a credit against any subsequent tax assessed by their resident state. Conclusions, ¶ 107. Oklahoma Tax Commission v. Jefferson Lines, Inc. 514 U.S. at 194 115 S.Ct. at 1343.

IT IS THEREFORE ORDERED the sales tax assessments by the Department of Revenue are reversed and remanded with respect to those transactions identified in ¶¶ 84, 87, 91, 95 of this decision, but in all other respects, except as previously settled by the parties, are affirmed.

Pursuant to Wyo. Stat. Ann. § 16-3-114 and Rule 12, Wyoming Rules of Appellate Procedure, any person aggrieved or adversely affected in fact by this decision may seek judicial review in the appropriate district court by filing a petition for review within 30 days of the date of this decision.