§ 39-15-108 — Enforcement

Wyoming § 39-15-108

• Jurisdiction: Wyoming
• Title 39: Taxation and Revenue
• Ch. 15: SALES TAX
• Art. 1: STATE SALES TAX

Text

(a) Audits. To assess credits and deficiencies against
taxpayers and vendors, the department is authorized to rely on
final audit findings made by the department of audit, taxpayer
information, vendor information or department review subject to
the following conditions:
(i) Audits shall commence when the taxpayer or vendor
receives written notice of the engagement of the audit. The
issuance of the written notice of the audit shall toll the
statute of limitations provided in W.S. 39-15-110 for the audit
period specified in this subsection. The audit shall be
completed by the department of audit with final findings issued
to the taxpayer or vendor within one (1) year of the date of the
notice of engagement. This time limit may be extended only upon
mutual agreement between the taxpayer or vendor and the
department;
(ii) After receiving notice of an audit under this
subsection, the taxpayer or vendor shall preserve all records
and books necessary to determine the amount of tax due for the
time period that is being audited;
(iii) Except as otherwise provided in this paragraph,
audits shall encompass a time period not to exceed three (3)
years immediately preceding the reporting period when the audit
is engaged. The three (3) year limit shall not apply to an audit
if:
(A) There is evidence of a violation of
paragraph (c)(iv) or subsection (f) of this section by the
taxpayer or vendor for the reporting period being audited; or
(B) There is evidence of gross negligence by the
taxpayer or vendor in reporting or remitting taxes for the
reporting period being audited.
(iv) If a taxpayer is not willing or able to produce
adequate records to demonstrate taxes due, the department or the
department of audit may project taxes based on the best
information available. If a vendor is not willing or able to
comply with the record requirements of paragraph (c)(xi) of this
section, the department or the department of audit may project
taxes based on the best information available;
(v) Audits under this subsection are subject to the
authority and procedures provided in W.S. 9-2-2003;
(vi) Any assessment or levy, including the assessment
of a penalty and interest, if any, resulting from final audit
findings or department review shall be issued not later than one
(1) year following the completion of the audit or review.
(b) Interest. The following shall apply:
(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
sixty-five (65) days after the date of the sale, or in the case
of a motor vehicle brought into this state, sixty-five (65) 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
sixty-fifth 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 sixty-fifth day through the seventy-fifth 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 seventy-fifth 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 sixty-five (65) day period.
(iii) The department may credit or waive interest
imposed by this subsection as part of a settlement or for any
other good cause.
(c) Penalties. The following shall apply:
(i) If any part of the deficiency is due to
negligence or intentional disregard of rules and regulations but
without intent to defraud there shall be added a penalty of ten
percent (10%) of the amount of the deficiency plus interest as
provided by paragraph (b)(i) of this section. The taxes, penalty
and interest 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;
(ii) If any part of the deficiency is due to fraud
with intent to evade there shall be added a penalty of
twenty-five percent (25%) of the amount of the deficiency plus
interest as provided by paragraph (b)(i) of this section. The
taxes, penalty and interest 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;
(iii) No vendor shall advertise or state directly or
indirectly to the public that the taxes imposed by this article
shall be assumed by the vendor or that it will not be considered
in the price, or if added, will be refunded;
(iv) Any vendor who under the pretense of collecting
the taxes imposed by this article collects and retains an
excessive amount or who intentionally fails to remit to the
department the full amount of taxes when due is guilty of:
(A) A misdemeanor if the amount of taxes
collected is five hundred dollars ($500.00) or less punishable
by a fine of not more than seven hundred fifty dollars
($750.00), or imprisonment in the county jail for not more than
six (6) months, or both; or
(B) A felony if the amount of taxes collected
exceeds five hundred dollars ($500.00) punishable by a fine of
not more than five thousand dollars ($5,000.00), or imprisonment
for not to exceed three (3) years, or both.
(v) Any person who violates W.S. 39-15-102(e) is
guilty of a misdemeanor. Each violation is a separate offense;
(vi) Any person who files a false or fraudulent
return is subject to the provisions of W.S. 6-5-303;
(vii) Any person who violates any provision of this
article for which there are no specific penalties is guilty of a
misdemeanor. Each violation is a separate offense;
(viii) The department may, after providing two (2)
written notices of intent to revoke identifying the reasons
therefore, revoke the license of any vendor violating any
provision of this article. The notices shall be provided at
least one (1) week apart and the final notice shall be provided
at least thirty (30) days prior to any revocation. The
revocation of the department shall inform the vendor of all
steps necessary to conform with the revocation and shall include
the consequences of failure to cease business activities and the
opportunity to appeal as provided in this subsection. The vendor
may appeal a revocation under this paragraph to the state board
of equalization not more than thirty (30) days following the
revocation of the license. Appeals before the state board shall
be conducted as contested case proceedings under the Wyoming
Administrative Procedure Act. If a license is revoked under this
subsection, no license shall thereafter be issued to that person
until the applicant has:
(A) Filed a new application with the department;
(B) Filed with the department all past due
returns and has remitted in full all taxes, penalties and
interest due.
(ix) The department may, after providing notice and
an opportunity for a hearing, suspend the license of any vendor
violating any provision of this article until the time the
vendor is in compliance;
(x) Upon request of the department, the attorney
general may institute proceedings to restrain and enjoin any
person from:
(A) Acting as a vendor until they have received
a license as required by W.S. 39-15-106(a);
(B) Continuing to act as a vendor if they have
not remitted to the department, when due, all taxes, penalty and
interest imposed by this article.
(xi) Every vendor 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;
(xii) If a vendor fails to file a return as required
by this article, the department shall give written notice by
mail to the vendor to file a return on or before the last day of
the month following the notice of delinquency. If a vendor then
fails to file a return the department shall make a return from
the best information available which will be prima facie correct
and the tax due therein is a deficiency and subject to penalties
and interest as provided by this article;
(xiii) The department may impose a penalty of ten
dollars ($10.00) upon any vendor who fails to file his return in
a timely manner as required by W.S. 39-15-107(a) provided the
vendor files his return within thirty (30) days of receiving
notice from the department pursuant to paragraph (xii) of this
subsection. The department may impose a penalty of twenty-five
dollars ($25.00) upon any vendor who fails to file his return
within thirty (30) days of receiving notice from the department
pursuant to paragraph (xii) of this subsection;
(xiv) The department, for good cause, may waive a
penalty imposed for failure to file a return provided that the
taxpayer requests the waiver in writing within ninety (90) days
after the due date, setting forth the reasons for the late
filing;
(xv) The department may credit or waive penalties
imposed by this subsection as part of a settlement or for any
other good cause;
(xvi) Notwithstanding W.S. 39-15-102(e), if any
vendor or taxpayer is one hundred fifty (150) days or more
delinquent on taxes due under this article, has not entered into
a formal payment arrangement with the department and after
thirty (30) days notice provided by first class mail, the
department shall post monthly the name of the vendor or
taxpayer, the sales and use tax license number, physical address
and the unpaid balance owed by the vendor or taxpayer on the
website of the department indicating that the vendor or taxpayer
has not paid the tax due under this article.
(d) Liens. The following shall apply:
(i) Any tax due under this article constitutes a debt
to the state from the persons who are parties to the
transaction, other than any vendor or other seller who is
prohibited or not authorized by law to collect any tax under
this article, and is a lien from the date the tax is due on all
the real and personal property of those persons. The lien does
not apply to purchasers who paid the tax to the vendor. Notice
of the lien shall be filed with the county clerk of the county
in which the persons who are parties to the transaction reside
or in which the vendor conducts business. The lien does not have
preference over preexisting indebtedness but shall have priority
from and after the date of filing or recording. The department
shall cancel lien statements within sixty (60) days after taxes
due are paid or collected. No other action by the department is
required to perfect a lien under this paragraph regardless of
the type of property involved;
(ii) Except as provided by W.S. 39-15-107(b)(viii),
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. Upon a failure to pay the tax due upon any vehicle as
provided by paragraph (b)(ii) of this section, the county
treasurer shall notify the county clerk and the county clerk
shall notify the department. The department may file a lien
against the vehicle as provided by paragraph (i) of this
subsection and shall note the lien on the title of the vehicle.
After review by and approval of the board of county
commissioners, the county may also collect the tax due and any
interest, penalties or costs of collection through the use of a
collection agency or by the filing of a civil action.
(e) Tax sales. The following shall apply:
(i) The tax due together with interest, penalties and
costs may be collected by appropriate judicial proceedings or
the department, with board approval, or its representative, may
seize and sell at public auction so much of the person's
property as will pay all the tax, interest, penalties and costs.
Notice of the auction must be published for four (4) weeks in a
newspaper published in the resident county of the persons
involved.
(f) Automated sales suppression device. The following
shall apply:
(i) As used in this subsection:
(A) "Automated sales suppression device" or
"zapper" means a software program accessed by any means
whatsoever which falsifies the electronic records of an
electronic cash register or other point of sale system,
including but not limited to transaction data and transaction
reports;
(B) "Electronic cash register" means a device
which keeps a register or supporting documents through the means
of an electronic device or computer system designed to record
transaction data for the purpose of computing, compiling or
processing related sales transaction data;
(C) "Phantom-ware" means a hidden, preinstalled
or installed at a later time, programming option embedded in the
operating system of an electronic cash register or hardwired
into the electronic cash register which can be used to create a
virtual second till or may eliminate or manipulate transaction
records which may or may not be preserved in a digital format to
represent the true or manipulated record of transactions in the
electronic cash register;
(D) "Transaction data" means data associated
with items purchased by a customer, the price for each item, a
taxability determination for each item, a segregated tax amount
for each of the taxed items, the amount of cash or credit
tendered, the net amount returned to the customer in change, the
date and time of the purchase, the name, address and
identification number of the vendor, and the receipt or invoice
number of the transaction;
(E) "Transaction report" means a report
documenting data, including but not limited to data associated
with sales, taxes collected, media totals and discount voids at
an electronic cash register which is printed on cash register
tape at the end of a day or shift, or a report documenting every
transaction at an electronic cash register which is stored
electronically.
(ii) No person shall knowingly with the intent to
evade the imposition, collection, reporting or remittance of
sales tax sell, purchase, possess, install or transfer any
automated sales suppression device, zapper or phantom-ware;
(iii) A violation of paragraph (ii) of this
subsection shall be a felony punishable by a fine up to five
thousand dollars ($5,000.00), or imprisonment for not to exceed
three (3) years, or both;
(iv) The offense created by this subsection shall be
in addition to and considered a separate offense from any
offense related to the nonpayment of taxes owed to the state or
any political subdivision;
(v) Any automated sales suppression device, zapper or
phantom-ware or any device containing an automated sales
suppression device, zapper or phantom-ware shall be considered
contraband and shall be subject to seizure, confiscation and
forfeiture.