Helen Emrick, pro se, Petitioner.


Monique B. DuPont Armijo, Assistant Attorney General, for the Department of Revenue.




This matter was considered by the State Board of Equalization (SBOE) consisting of Edmund J. Schmidt, Chairman, Roberta A. Coates, Vice-Chairman, and Ron Arnold, Member, on written information and argument presented pursuant to a Briefing Order (Expedited Docket) dated November 19, 1999. It arises from a decision by the Department of Revenue (DOR) denying Petitioner a sales tax refund related to Petitioner's purchase of a new vehicle and the denial of a refund for penalty and interest paid. Purchaser argued that the vehicle purchased in Sheridan County, Wyoming, was in fact delivered to her in Campbell County, Wyoming, which required imposition of only five percent (5%) sales tax. The DOR argued that the Affidavit submitted by the car dealership stated delivery was in Crook County, Wyoming and the odometer reading indicated that there was only ten (10) miles on the vehicle when delivery occurred, indicating that delivery had to have been made in Sheridan County which is more than 100 miles from Campbell County.




Upon application of any person adversely affected, the SBOE is mandated to review final DOR actions concerning state excise taxes. Wyo. Stat. 39-11-102.1(c).


The SBOE is required to "[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. 39-11-102.1(c)(iv).




Petitioner, Helen Emrick, purchased a 1999 Ford ExpIorer from Fremont Motors in Sheridan County, Wyoming on April 26,1999. On June 11, 1999, Petitioner paid sales tax of $1696.80 when she purchased her license plates in Crook County, Wyoming. This amount was based upon the sales tax rate of 6% in Sheridan County. Petitioner requested a refund from the DOR of 1% of the sales tax charged. Petitioner claimed that the vehicle was actually delivered in Campbell County where the applicable sales tax rate was 5%. The DOR denied Petitioner's refund request because the affidavit filed by the vehicle dealer indicated the vehicle was delivered in Crook County and the odometer statement indicated only 10 miles on the vehicle upon delivery. Petitioner also paid a penalty of $168.00 and interest of $16.80 for failure to pay sales tax in forty-five days. She has requested a refund of both the penalty and interest which was denied by the DOR.




1. Petitioner was at all times relevant hereto a resident of Crook County, Wyoming.


2. On April 26, 1999, Petitioner purchased the 1999 vehicle from Fremont Motors in Sheridan, Wyoming for $28,000.00. [ Exhibit A.]


3. On June 11, 1999, Petitioner paid sales tax to Crook County in the amount of $1,680.00 plus interest in the amount of $16.80 and a penalty in the amount of $168.00 for a total amount of $1,864.80. [ Exhibit D.]


4. Upon payment of the sales taxes, Petitioner was asked by the Crook County Treasurer's office if the vehicle had been delivered and Petitioner stated that it had not been. The Crook County Treasurer's office further clarified the question and specifically asked if Petitioner had picked up the vehicle, to which question Petitioner answered in the affirmative. [Exhibit A-14.]


5. A Wyoming Certificate of Origin dated April 26, 1999, which transferred title to Petitioner, specifically stated an official odometer statement of 10 miles at the time of transfer. [ Exhibit H.]


6. The Fremont Motor dealership, which is located in Sheridan County, executed an affidavit which stated the 1999 vehicle was delivered to Petitioner in Sundance, Wyoming. [Exhibit A-4.] This affidavit was not initially presented to the Crook County Treasurer's office when Petitioner applied for her license plates and paid the sales tax. [Exhibit A-14.]


7. On June 14, 1999, Petitioner sent a letter to a Crook County Commissioner stating that she had told the Crook County Treasurer's office that the vehicle was not delivered and then stated that the vehicle was actually picked up in Gillette, Wyoming. [Exhibit A-12.]


8. The County Clerk attempted to get information from Fremont Motors but the information received was also conflicting. [Exhibit A-14-16.]


9. The legal rates of sales tax in 1999 for Sheridan County, Campbell County and Crook County respectively were six percent, five percent and five percent. [Exhibit C.]


10. Petitioner applied for a refund of the penalty on June 14, 1999. [Exhibit B-5.]


11. On July 16, 1999, the DOR denied the refund request for penalty and interest. [Exhibit B-1]


12. On June 16, 1999, Petitioner applied for a sales tax refund of $280.00. [Exhibit J.]


13. The DOR denied Petitioner's sales tax refund request by letter dated July 16, 1999. The DOR concluded that there was a material dispute as to the alleged delivery of the motor vehicle. [Exhibit L]


14. The SBOE gave both parties the opportunity for a contested case hearing but neither party desired such a hearing and wanted the matter decided on the record. By letter dated December 13, 1999, Petitioner specifically informed the SBOE that she had previously submitted all facts for the SBOE to use in its decision.


15. Petitioner appealed the DOR decision to the SBOE on August 16, 1999.


16. Any Discussion above or Conclusion of Law below which includes a finding of fact may also be considered a Finding of Fact and, therefore, is incorporated herein by this reference.




17. Petitioner's Notice of Appeal was timely filed and the SBOE has jurisdiction to determine this matter. Rules, Chapter 2, Section 5, State Board of Equalization.


18. On appeal, the Petitioner has the burden of going forward and the burden of persuasion. If there is a question of whether or not there was a taxable event, the DOR has the burden of persuasion. Rules, Chapter 2, Section 19, State Board of Equalization.


19. It is undisputed that Petitioner failed to pay the sales tax within the forty five day period as provided by law. Wyo. Stat. 39-15-108 (b)(ii)(A)&(B) specifically provides for interest of one percent and a civil fee of ten percent if the vehicle taxes are not paid within 45 days after purchase. We believe the DOR was compelled to assess both interest and penalty because of Petitioner's failure to timely pay her sales taxes. The statutory provisions use the word "shall" which mandates that both interest and penalty be imposed. Russell v. State ex rel. Wyoming Workers' Safety and Comp. Div., 944 P.2d 1151,1155 (Wyo.1997).

20. Wyo. Stat. 39-15-107(b)(i) states: vendor shall collect taxes imposed by this article upon the sale of motor vehicles.... The taxes imposed shall be collected by the county treasurer prior to the first registration in Wyoming....


21. The DOR rules and regulations address what sales tax rate is to be applied to purchasers. "The appropriate tax rate shall be determined by the tax rate in effect at the point of sales and the tax rate in effect at the point where the vehicle will be owned and used by the purchasers." Chapter 2, Section 11(a), Rules and Regulations of the Department of Revenue.


22. When the tax rate of the location of the point of sale is different from the tax rate for the location where the vehicle will be owned and used by the purchaser, the tax rate where either title or possession transferred should be assessed. Wyo. Stat. 39-15-204. See definitions of "retail sale" and "sale" respectively in Wyo. Stat. 39-15-101 (a)(vi) and (vii).


23. However, in no case should the "Total tax rate collected ... exceed the greater of the two rates." Chapter 2, Section 11(a), Rules and Regulations of the Department of Revenue. Although this rule is not clearly enunciated, this Board believes the intent to be that the DOR cannot impose the tax rates in effect in both the county of purchase and the county of use.

24. The Petitioner had the burden of proof to establish that she took title or possession of the 1999 vehicle in either Campbell or Crook County. The affidavit submitted by the vehicle dealer stated that the vehicle was delivered in Sundance, Wyoming which is located in Crook County. However, Petitioner has affirmatively stated that this affidavit is incorrect because the vehicle was delivered in Gillette, Wyoming. Thus, this Board cannot rely upon the dealership affidavit as establishing point of delivery.


25. Neither can this Board rely upon Petitioner's assertion that the point of delivery was Gillette, Wyoming. Petitioner has been afforded ample opportunity to supplement the record both before the DOR and before this Board with a new affidavit from the dealership indicating delivery in Gillette, Wyoming. For whatever reason Petitioner has failed to avail herself of this opportunity.


26. We find more compelling the statements made by Petitioner to the Crook County Treasurer. These statements specifically make the point of delivery Sheridan County. These statements are further corroborated by the odometer reading indicating that the vehicle was delivered with only ten miles on it. We take judicial notice that Gillette, Wyoming is more than one hundred miles from Sheridan, Wyoming. Thus, unless the vehicle was trailered to Gillette, it is impossible for the vehicle to be delivered and yet have only ten miles on the odometer. Again, Petitioner could have provided this Board with such information but failed to do so even though she had the burden of proof. Consequently, this Board will not make such inferences and deductions.


27. The DOR apparently prepares and distributes to car dealerships an affidavit of delivery form with the following language:


If delivery of a vehicle is made to a bona fide resident of a county other than the county in which your place of business is located, this may be shown by an affidavit signed by a corporate officer, if the dealership is a corporation, or signed by the owner of the business, if the dealership is a partnership or sole proprietorship. This affidavit will allow your customer to pay the rate of sales tax in effect in the county of delivery, rather than the rate in the county where your place of business is located. If no affidavit is attached, tax will be collected at the rate in effect in the county where your place of business is located.


28. The above form was not submitted by Petitioner to the Crook County Treasurer when she applied for either the certificate of title or when she applied to license the vehicle and pay the appropriate sales tax. It is noteworthy that this affidavit was submitted after the fact when Petitioner was questioned as to the delivery point of the vehicle. It should be noted that while Petitioner states in her appeal letter of August 16, 1999, that the car dealer submitted an affidavit showing delivery in Gillette, the only affidavit in the record shows delivery in Sundance.


29. We do believe that DOR's affidavit of delivery form, literally read, would have authorized Petitioner to receive a refund because the Fremont Motor dealership did in fact submit an affidavit showing delivery in Crook County. But for Petitioner's rebuttal of the affidavit of delivery, we doubt that the form itself allows the DOR to refute the veracity and accuracy of the point of delivery contained therein. At least we cannot find any rules and regulations which speak to the affidavit of delivery and what action is taken if such affidavit is executed falsely. Thus, we encourage the DOR to reword the above language and promulgate a rule and regulation which addresses these concerns. We also believe that the form is not totally accurate because it authorizes a lower tax rate based upon delivery without considering where title passed. The sales tax law is clear that a sale takes place upon the transfer of title or possession. Wyo. Stat. 39-15-101 (a)(vii). Consequently, if a purchaser takes the certificate of title in the county of purchase, regardless of where the vehicle is delivered, a sale has already occurred and the tax rate in effect in that county should be imposed.


30. Moreover, if DOR has witnessed irregularities in the privilege of submitting these affidavit of delivery forms, we believe the DOR should pursue criminal action against dealerships which willfully submit false affidavits to assist purchasers in avoiding payment of a higher tax rate. By this statement we are not finding that Fremont Motor committed any such criminal act. We are merely stating that the form itself appears to authorize the purchaser to pay the tax rate pursuant to where the vehicle was delivered as evidenced by the affidavit. If DOR is not going to recognize the affidavit, then we assume that the affidavit is not accurate for one reason or another.

31. Because Petitioner has failed in her burden of proof, we find that the actions of the DOR in denying refunds for sales tax, interest and penalty should be affirmed.







A. The decision of the DOR denying a refund for sales tax, interest and penalty is affirmed.


Pursuant to Wyo. Stat. 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 27th day of April, 2000.




Edmund J. Schmidt, Chairman


Roberta A. Coates, Vice-Chairman


Ron Arnold, Member



Kathleen A. Lewis, Executive Secretary