BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF )

ACTION AUTOMOTIVE, INC., FROM A ) Docket No. 2008-89

DECISION OF THE EXCISE DIVISION OF )

THE DEPARTMENT OF REVENUE )

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

APPEARANCES

Mark E. Shubert, President and General Manager of Action Automotive, Inc. (Petitioner or Taxpayer), appeared pro se.

Cathleen D. Parker, Senior Assistant Attorney General, for the Department of Revenue (Department).

JURISDICTION

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). Mark E. Schubert, President and General Manager of Action Automotive, Inc., timely appealed the final decision of the Department effective August 15, 2008, and the Board has jurisdiction to decide this matter.

The Board, consisting of Chairman Thomas R. Satterfield, and Vice Chairman Thomas D. Roberts, held a hearing on February 3, 2009. Board Member, Steven D. Olmstead, was appointed to the Board on March 1, 2009, and participated in this matter by reviewing the record.

STATEMENT OF THE CASE

Petitioner, a Wyoming licensed used vehicle dealer, purchased a new 2005 Peterbilt truck from Peterbilt Motors Company through a Peterbilt dealer in Casper, Wyoming in March 2004, and took delivery on April 27, 2004. Petitioner also purchased and took delivery of a 1996 Reinke flatbed trailer on April 27, 2004. Petitioner kept the two vehicles until late February 2008, at which time they were sold to a Peterbilt dealer in Casper, Wyoming. The purchasing Peterbilt dealer required Petitioner to title the vehicles before the sale could be completed. On January 25, 2008, Petitioner attempted to have the vehicles titled into its name, but was informed by the Laramie County Treasurer that sales tax, along with interest and penalty fees were due. Petitioner protested, but eventually paid the sales tax, interest and fees on February 27, 2008. Petitioner then timely requested a “letter ruling” from the Department on the propriety of the sales tax, interest and fees paid. On July 16, 2008, the Department, in addressing Petitioner’s request for a letter ruling, denied a refund request, asserting the purchase and use of the two vehicles by Petitioner was taxable, and the county treasurer was correct with her collections. Petitioner timely appealed the July 16, 2008 decision of the Department to the Board. Both Petitioner and Department provided written Preliminary and Updated Statements. A hearing before the Board was held on February 3, 2009. On April 10, 2009, the Board issued an Order for Supplemental Briefing, and both Petitioner and Department timely responded.

We find for the Department.

ISSUE

The Petitioner and Department had differing issues identified, but ultimately the issue to be decided is:

Whether the purchase and use of a new truck and used flatbed trailer by a licensed Wyoming used vehicle dealer is a taxable event requiring imposition of sales taxes pursuant to Wyo. Stat. Ann.§ 39-15-103?

We find both purchases subject to sales tax.

FINDINGS OF FACT

1. Petitioner is a duly licensed Wyoming used vehicle dealer. [Exhibit 505, p. 0017; Hearing Recording].

2. In March 2004, Petitioner placed an order for a new 2005 Peterbilt truck through Peterbilt of Wyoming, which was delivered to Petitioner on April 27, 2004, as new vehicle on Peterbilt’s Certificate of Origin (a/k/a manufacturer’s statement of origin (MSO)). [Petitioner Exhibit 101, p. 0001; Department Exhibit 501, pp. 0003-0004; Department Exhibit 504, p. 0010; Hearing Recording].

3. In April 2004, Petitioner located a used 1996 Reinke flatbed trailer for sale and purchased it, taking delivery through Peterbilt of Wyoming, a dealer, on April 27, 2004, with a certificate of title. [Exhibit 101, p. 0002; Exhibit 504, p. 0010; Hearing Recording].

4. When Petitioner received the Peterbilt truck on April 27, 2004, it had been utilized to haul two other similar trucks from Canada, and was delivered to Petitioner with 1,827 miles on the odometer. [Exhibit 101, p. 0001; Exhibit 501, pp. 0003-0004; Exhibit 502, p. 0006; Exhibit 504, p. 0010; Hearing Recording].

5. Petitioner intended and used the Peterbilt truck and Reinke flatbed trailer as a “decoy” and as a “tool” for negotiations of a better freight delivery rate with independent truckers for its business products. [Exhibit 111, p. 0013; Exhibit 504, pp. 0010-0011; Hearing Recording].

6. The Peterbilt truck and Reinke flatbed trailer were kept on the Petitioner’s business property. The trailer was kept in the “yard”, and the “tractor parked inside a windowed building.” [Exhibit 112, p. 0013; Exhibit 502, p. 0006; Hearing Recording].

7. Petitioner placed the Peterbilt truck and Reinke flatbed trailer into the business inventory, without titling or licensing, and continued to own the tractor and trailer for the purpose of insuring good freight delivery rates for the business’ product by placing the two vehicles in such a manner as to be seen by the independent trucking delivery drivers hauling Petitioner’s products. The two vehicles were utilized as leverage for the continuation of acceptable delivery rates. [Exhibit 112, p. 0013; Exhibit 502, p. 0006; Hearing Recording].

8. In late 2007, Petitioner decided to sell the Peterbilt truck and Reinke flatbed trailer to a Peterbilt dealer in Casper, Wyoming. [Exhibit 112, p. 0013; Exhibit 504, p. 0011; Hearing Recording].

9. On January 25, 2008, Petitioner attempted to title the Peterbilt truck and Reinke flatbed trailer with the Laramie County Clerk, and was told to pay sales tax to the Laramie County Treasurer. Petitioner however balked at paying the sales tax and did not complete the titling process that day. [Exhibit 102, p. 0003; Exhibit 103, p. 0004; Exhibit 112, p. 0013; Exhibit 502, p. 0006; Exhibit 504, p. 0011; Hearing Recording].

10. Petitioner completed the titling process for the two vehicles on February 27, 2008, by paying the sales tax, with additional interest and civil fees. [Exhibit 106, p. 0007; Exhibit 107, p. 0008; Exhibit 504, pp. 0011-0012; Hearing Recording].

11. On February 27, 2008, under written protest, Petitioner paid a total of $5,651.61 sales tax, interest, and fees, for both the Peterbilt truck and the Reinke flatbed trailer. A Laramie County Receipt, dated 2/27/08, shows $3,052.20 sales tax, plus $1,373.49 interest, and $305.22 civil fee were paid on the 2005 Peterbilt truck transfer from Peterbilt of Wyoming to Petitioner. Another Laramie County Receipt, dated 02/27/08, shows $594.00 sales tax, plus $267.30 interest and $59.40 civil fee were paid on the 1996 Reinke flatbed trailer transfer from Peterbilt of Wyoming to Petitioner. [Exhibit 108, p. 0009; Exhibit 105, p. 0006; Exhibit 106, p. 0007; Exhibit 107, p. 0008; Exhibit 504, pp. 0011-0012; Hearing Recording].

12. On February 27, 2008, Petitioner filed a letter with the Department requesting a “Letter Ruling” on the imposition of the sales tax, interest and civil fees paid to the Laramie County Treasurer involving the 2005 Peterbilt truck and the 1996 Reinke flatbed trailer. Petitioner, questioning the decision of the Laramie County Treasurer, timely appealed and demanded a refund of the sales tax, interest and civil fees paid. [Exhibit 111-113, pp. 0012-0014; Exhibit 502, pp. 0005-0007; Hearing Recording].

13. In a letter addressed to Petitioner, dated July 16, 2008, the Department denied the request for refund and agreed with the Laramie County Treasurer that the purchases of both the Peterbilt truck and Reinke trailer were subject to sales tax, and the tax and fees collected by the county treasurer were correct. The Department stated Petitioner’s purchase of the 2005 Peterbilt truck was used in the business as a negotiating tool and was new, because it was purchased from a manufacturer’s statement of origin. The Department determined Petitioner, as a used vehicle dealer, did not qualify for the resale of a new vehicle. Also, the use of the tractor and trailer as a decoy and negotiation tool was a use by a business which was covered by the Wyoming Department of Revenue Rules, Chapter 2, Section 15(bb), which makes the transfer of the vehicles to the Petitioner a taxable event. [Exhibit 500, pp. 0001-0002; Exhibit 115, pp. 0016-0017; Hearing Recording].

14. On August 15, 2008, Petitioner filed a Notice of Appeal with the Board challenging the sales tax, interest and civil fees refund denial. [Notice of Appeal].

15. On February 3, 2009 , the Board held a hearing which Petitioner, by and through Mark E. Shubert, attended and testified under oath. [Hearing Order; Hearing Recording]

16. Any portion of the Conclusions of Law: Principles of Law or the Conclusions of Law: Application of Principles of Law set forth below which includes a finding of fact, may also be considered a Finding of Fact and, therefore, is incorporated herein by reference.

CONCLUSIONS OF LAW: PRINCIPLES OF LAW

17. 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).

18. The Board’s Rules provide that:

Except as specifically provided by law or in this section, the 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. For all cases involving a claim for exemption, the Petitioner shall clearly establish the facts supporting an exemption. 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.

Rules, Wyoming State Board of Equalization, Chapter 2, § 20.

19. “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).

20. The role of this Board is strictly adjudicatory:

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.

21. 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).

22. “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).

23. 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).

24. Except as exempted by statute, the State of Wyoming levies an excise tax upon “[t]he sales price paid for motor vehicles,…trailers or semitrailers, as defined by W.S. 31-1-101.”

Wyo. Stat. Ann. §39-15-103(a)(i)(M).

25. “‘Vehicle’ means a device in, upon or by which any person or property may be transported or drawn upon a highway.…” Wyo. Stat. Ann. §31-1-101(a)(xxvi); Wyo. Stat. Ann. §31-16-101(xxv).

26. “‘Motor vehicle’ means every vehicle which is self-propelled....” Wyo. Stat. Ann. §31-1-101(a)(xv).

27. “‘Trailer’ means a vehicle without propelling power designed to be drawn by a motor vehicle....” Wyo. Stat. Ann. §31-1-101(a)(xxiii).

28. “‘Sale’ means any transfer of title or possession in Wyoming for a consideration....” Wyo. Stat. Ann. §39-15-101(a)(vii).

29. Wyoming Statute Annotated § 31-2-104 pertains to transfer of ownership, and provides in part that:

(g) No person shall transfer ownership of a vehicle from a manufacturer’s statement of origin or a manufacturer’s certificate of origin unless the person is the manufacturer of the vehicle or a properly licensed dealer.

30. Wyoming Statute Annotated § 39-15-103 pertaining to imposition of tax, provides in part that:

(b)(iii) Except for those vehicles specified under W.S. 39-15-107(b)(I), the sales price of motor vehicles,…trailers, or semitrailers shall be declared by the purchaser upon a copy of the original invoice from the vendor or upon an affidavit furnished by the department if not purchased from a vendor and the tax collected shall be based upon the declaration or invoice.

31. “Upon receipt of an application and payment of fees any county clerk shall, if satisfied that the applicant is the owner of the vehicle for which application for certificate of title is made, issue a certificate of title.…The county clerk shall not deliver a certificate of title issued under this section until presentation of a receipt for payment of sales or use tax pursuant to W.S. 39-15-107(b).…” Wyo. Stat. Ann. § 31-2-103(d).

32. “‘New vehicle’ means a motor vehicle which is in the possession of a manufacturer or has been sold by a manufacturer for distribution in the United States to the holders of a valid sales and service agreement, franchise or contract granted by the manufacturer for sale of the new motor vehicle and which is in fact new and on which the original motor vehicle title has not been issued from the franchised dealer.” Wyo. Stat. Ann. § 31-16-101(a)(xii).

33. “‘Used vehicle’ means any vehicle other than a new vehicle.” Wyo. Stat. Ann. § 31-16-101(a)(xvi).

34. “A “new vehicle dealer” means a vehicle dealer that deals solely in new vehicles or in new and used vehicles. It also includes a person who in the ordinary course of business is engaged in the business of selling new motor vehicles to consumers or other end users and who holds a valid sales and service agreement, franchise or contract, granted by a manufacturer, distributor or wholesaler for the sale of motor vehicles.” Wyo. Stat. Ann. § 31-16-101(a)(xviii)(A).

35. “A "used vehicle dealer" means a vehicle dealer that deals solely in used vehicles.”

Wyo. Stat. Ann. § 31-16-101(a)(xviii)(B).

36. “‘Licensed dealer’ means a vehicle dealer that is licensed by the department pursuant to this act as a new vehicle dealer or a used vehicle dealer.” Wyo. Stat. Ann. § 31-16-101(a)(xxix).

37. The relevant part of Wyo. Stat. Ann. § 31-16-102, reads “…[n]o person shall act as a vehicle dealer of a new vehicle without a valid license as a new vehicle dealer for new vehicles of the same line make issued by the department [of transportation] under this act.…”

38. Wyoming Statute Annotated § 39-15-103(a)(i)(A) and (M) provides:

(a) For a taxable event. The following shall apply:

(i) Except as provided by W.S. 39-15-105, there is levied an excise tax upon:

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

* * *

(M) The sales price paid for motor vehicles, house trailers, trailer coaches, trailers or semitrailers as defined by W.S. 31-1-101.

39. Wyoming Statute Annotated § 39-15-103(b)(i), and (ii) provides:

(b) Basis of tax. The following shall apply:

(i) Except as provided by W.S. 39-15-105, there is levied and shall be paid by the purchaser on all sales an excise tax upon all events as provided by subsection (a) of this section;

(ii) For purposes of W.S. 39-15-107(b)(i), the sales price of motor vehicles, house trailers, trailer coaches, trailers or semitrailers shall be declared by the purchaser upon a copy of the original invoice from the vendor or upon an affidavit furnished by the department if not purchased from a vendor and the tax collected shall be based upon the declaration or invoice.

40. Wyoming Statute Annotated § 39-15-107(b)(i) provides:

(b) Payment. The following shall apply:

(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.

41. Wyoming Statute Annotated § 39-15-107(b)(iii)(A)(B)(C) provides:

(iii) Motor vehicle vendors and vendors of house trailers, trailer coaches, trailers or semitrailers shall not be required to pay sales taxes on motor vehicles, house trailers, trailer coaches, trailers or semitrailers if they are registered in the vendor's name, are included as a part of the vendor's inventory and are held principally in the conduct of the vendor's business for sale, demonstration or delivery prior to sale and use, except a motor vehicle vendor shall be liable for payment of sales or use tax on the transfer of a motor vehicle with less than one thousand (1,000) miles on the odometer he purchases if:

(A) The vendor is not a properly licensed dealer under W.S. 31-16-101 et seq.;

(B) The vehicle he purchased was transferred with a manufacturer's statement of origin or manufacturer's certificate of origin from a properly licensed dealer; and

42. Wyoming Statute Annotated § 39-15-108(b)(ii)(A)(B)(C) provides:

(b) Interest. The Following shall apply:

(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:

(A) Interest shall accrue at the rate of one percent (1%) per month or fractional portion thereof from the fiftieth day after the date of sale until the date of payment of all sales tax interest and civil fees due. County treasurers shall collect interest due under this subsection which shall be forwarded to the department and credited to the state general fund;

(B) A civil fee of twenty-five dollars ($25.00) from the fiftieth day through the sixtieth day after the date of sale shall also be assessed by the county treasurer under this paragraph. If all sales tax, interest and civil fees due are not paid by the sixtieth day, the civil fee shall be the twenty-five dollar ($25.00) amount or ten percent (10%) of the amount of tax due, whichever is greater, and shall be assessed by the county treasurer. Civil fees collected under this subparagraph shall be credited to the general fund of the county which makes the collection;

(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.

43. Chapter 2, Section 13 of the Department’s Rules addresses the taxation of motor vehicles:

(a) Tax Rate for Purchases. The appropriate tax rate on the purchase of a motor vehicle shall be comprised of state sales or use tax and applicable county optional sales or use taxes. The appropriate tax rate shall be determined by the tax rate in effect in the county of the purchaser’s principal residence on the date of the sale.

Rules, Wyoming Department of Revenue, Chapter 2, § 13 (a).

44. The Department’s Rules specifically address purchases by businesses.

“Purchases by Businesses - Purchases by businesses and professional persons of equipment, tools and supplies for use (emphases added) in conducting their businesses or professions shall be subject to the sales or use tax.”

Rules, Wyoming Department of Revenue, Chapter 2, § 15 (bb).

45. The initial step in arriving at a correct interpretation of a statute is an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. A statute must be construed as a whole in order to ascertain its intent and general purpose and also the meaning of each part. We give effect to every word, clause and sentence and construe all components of a statute in pari materia. Parker Land & Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1042 (Wyo. 1993).

46. To address an apparent ambiguity, we may resort to extrinsic aids to interpretation to confirm plain meaning. Parker Land & Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1043 (Wyo. 1993). We will give deference to the statutory interpretation of an agency charged with administration of a statute, unless that interpretation is clearly erroneous. Parker Land & Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1045 (Wyo. 1993).

CONCLUSIONS OF LAW: APPLICATION OF PRINCIPLES OF LAW.

47. The Petitioner’s appeal was filed timely and the Board has jurisdiction to hear this matter.

48. This case presents the sales tax consequences which result from a licensed used vehicle dealer buying two vehicles and using them in a nontraditional way. In this matter, the two vehicles, a Peterbilt truck and a Reinke flatbed trailer, were purchased by the Petitioner, through the Peterbilt dealer in Casper, Wyoming. Facts, ¶ 3. Petitioner received an “MSO” on the Peterbilt truck, as new vehicle, and received a transferred title on the Reinke flatbed trailer, as a used vehicle. Facts, ¶¶ 2 and 3.

49. Petitioner stored the vehicles on the business property, but did not immediately title, register or license them. Facts, ¶ 6. The vehicles were initially purchased and continually used by Petitioner in the course of the business as a prop for leverage in negotiations for better freight delivery rates with independent truckers. Facts, ¶ 5.

50. Petitioner is a duly licensed used vehicle dealer. Facts ¶ 1. As such, Petitioner was prohibited, by Wyoming statute, from reselling a new vehicle on a manufacture’s statement of origin without a valid license as a new vehicle dealer, issued by the Department of Transportation. Conclusions ¶¶ 34 and 36.

51. Petitioner argues the Peterbilt truck was not new, but delivered to the business with 1,827 miles on the odometer. Facts, ¶ 4. However, Petitioner admitted it purchased and received the Peterbilt truck on the MSO, and the truck was untitled to any previous owner. Facts, ¶ 2. This was clearly a new vehicle as defined by Wyoming statutes. Conclusions, ¶ 32.

52. Additionally, Petitioner argued the purchase of the two vehicles was not a sales tax event, because the business did not use the vehicles, but placed them into inventory for resale. Although the vehicles may have been placed into the company’s inventory, Petitioner’s argument fails for three reasons:

First, the vehicles were used in conducting business, as admitted by Petitioner, as a decoy and leverage for better freight delivery rates from the independent truckers utilized in hauling the Petitioner’s products. Facts, ¶¶ 5, 7, and 38.

Second, Petitioner’s vehicles, as held in inventory, were not held principally in conduct of the vendor’s business for sale, demonstration or delivery prior to sale and use. Conclusions, ¶ 41.

Third, Petitioner was not a qualified or a properly licensed dealer to resell a new vehicle. Conclusions, ¶¶ 28, 29, 34-37. It would have been improper for Petitioner to reconvey or sell the Peterbilt truck without a proper dealer’s license. Conclusions, ¶¶ 32 and 37.

53. The use of any equipment, such a vehicles, by the business in conducting its business is taxable. Conclusions, ¶ 44. Wyoming Department of Revenue Rules, Chapter 2, § 15 (bb), simply states “use”, but does not qualify or limit the definition of the term. Conclusions, ¶ 43.

54. “Use” is defined in pertinent part as: “1. to put or bring into action or service; employ for or apply to a given purpose.” Webster’s New World College Dictionary, Fourth Edition, p. 1574, (Wiley Publishing 2002). “Use” also is defined in pertinent part as: “1 [t]he application or employment of something; esp., a long-continued possession and employment of a thing for the purpose for which it is adapted, as distinguished from a possession and employment that is merely temporary or occasional.” Black’s Law Dictionary, Eighth Edition, p. 1577 (West Publishing 1999).

55. Petitioner acknowledged the two vehicles were kept for several months after an acceptable freight delivery rate was established between it and the independent truckers, as insurance or incentive for the truckers to maintain the acceptable rates. Facts, ¶¶ 5, 6. The vehicles were thus used for business purposes, and therefore were subject to taxation pursuant Department of Revenue Rules, Chapter 2, § 15 (bb).

56. The purchase and use of the two vehicles by Petitioner was a taxable event, subject to the sales tax, interest and civil penalty under Wyoming law. Conclusions, ¶¶ 38, 39, 41, and 42. When a person buys a vehicle from a dealer, sales tax is due on the entire transaction, and must be paid before the county clerk issues a title to the purchaser. Wyo. Stat. Ann. § 31-15-107(b)(i). Conclusions, ¶ 42.

57. The Laramie County Treasurer was correct in the assessment of the tax, interest, and civil penalty against Petitioner for the purchase of the Peterbilt truck and Reinke flatbed trailer. Facts, ¶ 11.

58. Petitioner’s purchase of the two vehicles and eventual sale to another dealer, resulted in the necessity for the vehicles to be properly titled. As such, it was necessary for Petitioner to pay the sales tax due upon the original purchase, plus the accrued interest and civil penalty. Conclusions ¶¶ 39 and 42. Although Petitioner asserts the two vehicles were placed into Petitioner’s inventory, they were not held principally in the conduct of the Petitioner’s business for sale, demonstration or delivery prior to sale. Conclusions, ¶ 41.

59. The Department properly concluded the transactions in question met the Wyoming statutory standards for imposition of sales tax. The tax is imposed when a sale occurs and when there is a transfer of title or possession in Wyoming for consideration. Delay in tendering the tax results in statutorily required interest and civil penalty. Conclusions, ¶¶ 39 and 42.

60. In this case, the sale of the Peterbilt truck from the Peterbilt dealer to Petitioner was a taxable event. The sale of the Reinke flatbed trailer to Petitioner was a second, separate taxable event. The accrued interest and civil penalty, as assessed by the county treasurer was proper, based upon the delay by Petitioner in paying the required sales tax. Petitioner had the burden of going forward and the ultimate burden of persuasion in this case, and failed to meet its burden of persuasion.

THIS SPACE INTENTIONALLY LEFT BLANK

THEREFORE, IT IS HEREBY ORDERED the Department’s decision to deny Petitioner’s request for a refund is 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.

DATED this day of June, 2009.

STATE BOARD OF EQUALIZATION

_____________________________________

Thomas R. Satterfield, Chairman

_____________________________________

Thomas D. Roberts, Vice-Chairman

_____________________________________

Steven D. Olmstead, Board Member

ATTEST:

________________________________

Wendy J. Soto, Executive Secretary