BEFORE THE STATE BOARD OF EQUALIZATION
FOR THE STATE OF WYOMING
IN THE MATTER OF THE APPEAL OF )
HELEN EMRICK FROM A DECISION ) Docket No. 99-98
BY THE DEPARTMENT OF REVENUE )
DENYING A TAX REFUND REQUEST )
FINDINGS OF FACT
CONCLUSIONS OF LAW
DECISION AND ORDER
Helen Emrick, pro se, Petitioner.
Monique B. DuPont Armijo, Assistant Attorney General, for the Department of
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.
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.
FINDINGS OF FACT
1. Petitioner was at all times relevant hereto a resident of Crook County,
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.
10. Petitioner applied for a refund of the penalty on June 14, 1999.
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.
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
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.
CONCLUSIONS OF LAW
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:
...no 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
IT IS THEREFORE HEREBY ORDERED:
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.
STATE BOARD OF EQUALIZATION
Edmund J. Schmidt, Chairman
Roberta A. Coates, Vice-Chairman
Ron Arnold, Member
Kathleen A. Lewis, Executive Secretary