ARTICLE 1 - STATE USE TAX

 

39-16-101. Definitions.

 

(a) As used in this article:

 

(i) "Quarterly return" means a tax return for each of four (4) periods of three (3) consecutive months in a calendar year beginning with January, April, July or October;

 

(ii) "Retail sale" means the sale of tangible personal property to a person for storage, use or consumption and not for subsequent resale;

 

(iii) "Sale" means the transfer of possession of tangible personal property from a vendor for a consideration for storage, use or other consumption in Wyoming excluding the exchange or transfer of tangible personal property upon which the seller has directly or indirectly paid sales or use tax incidental to:

 

(A) A division of partnership assets among the partners according to their interests in the partnership. As used in this subparagraph, "partnership" includes a limited partnership;

 

(B) The formation of a corporation by the owners of a business and the transfer of their business assets to the corporation in exchange for all the corporation's outstanding stock, except qualifying shares, in proportion to assets contributed;

 

(C) The transfer of assets of shareholders in the formation or dissolution of professional corporations;

 

(D) The dissolution and the pro rata distribution of the corporation's assets to its stockholders;

 

(E) The transfer of assets from a parent corporation to a subsidiary corporation which is owned at least eighty percent (80%) by the parent corporation, which transfer is solely in exchange for stock or securities of the subsidiary corporation;

 

(F) The transfer of assets from a subsidiary corporation which is owned at least eighty percent (80%) by the parent corporation to a parent corporation or to another subsidiary which is owned at least eighty percent (80%) by the parent corporation, which transfer is solely in exchange for stock or securities of the parent corporation or the subsidiary which received the assets;

 

(G) A transfer of a partnership interest;

 

(H) The formation of a partnership by the transfer of assets to the partnership or transfers to a partnership in exchange for proportionate interests in the partnership;

 

(J) The repossession of personal property by a chattel mortgage holder or foreclosure by a lienholder;

 

(K) The transfer of assets between parent and closely held subsidiary corporations, or between subsidiary corporations closely held by the same parent corporation, or between affiliated companies, partnerships and corporations which are owned in similar percentages by the same persons. "Closely held subsidiary corporation" means a corporation in which the parent corporation owns stock possessing at least eighty percent (80%) of the total combined voting power of all classes of stock entitled to vote and owns at least eighty percent (80%) of the total number of shares of all other classes of stock;

 

(M) The sale of a business entity when sold to a purchaser of all or not less than eighty percent (80%) of the value of all of the assets which are located in this state of the business entity when the purchaser continues to use the tangible personal property in the operation of an ongoing business entity in this state. As used in this subparagraph, "business entity" means and includes an individual, partnership, corporation, corporate division, joint stock company or any other association or entity, public or private, or separate business unit thereof.

 

(iv) "Sales price" means the consideration paid by the purchaser of tangible personal property excluding the actual trade-in value allowed on tangible personal property and manufacturer rebates for motor vehicles exchanged at the time of the transaction;

 

(v) "Storage" means the keeping or retention in this state of tangible personal property purchased from a vendor for any purpose except for sale in the course of business or subsequent use outside the state;

 

(vi) "Tangible personal property" means all personal property that can be seen, weighed, measured, felt or touched, or that is in any other manner perceptible to the senses. "Tangible personal property" includes electricity, water, gas, steam and prewritten computer software and includes any controlled substance as defined by W.S. 35-7-1002(a)(iv) which is not sold pursuant to a written prescription of or through a licensed practitioner as defined by W.S. 35-7-1002(a)(xx);

 

(vii) "Taxpayer" means the purchaser of tangible personal property, admissions or services which are subject to taxation under this article;

 

(viii) "This article" means W.S. 39-16-101 through 39-16-111;

 

(ix) "Use" means the exercise of any right or power over tangible personal property incident to ownership or by any transaction where possession is given by lease or contract;

 

(x) "Vendor" means any person engaged in the business of selling at retail or wholesale tangible personal property, having or maintaining within this state, directly or by any subsidiary, an office, distribution house, sales house, warehouse or other place of business, or any agents operating or soliciting sales or advertising within this state under the authority of the vendor or its subsidiary, regardless of whether the place of business or agent is located in the state permanently or temporarily or whether the vendor or subsidiary is qualified to do business within this state. Agents acting under the authority of the vendor include but are not limited to truckers, peddlers, canvassers, salespersons, representatives, employees, supervisors, distributors, delivery persons or any other persons performing services in this state. "Vendor" also includes every person who engages in regular or systematic solicitation by three (3) or more separate transmittances of an advertisement or advertisements in any twelve (12) month period in a consumer market in this state by the distribution of catalogs, periodicals, advertising flyers, or other advertising, or by means of print, radio, television or other electronic media, by mail, telegraph, telephone, computer data base, cable, optic, microwave, satellite or other communication system for the purpose of effecting retail sales of tangible personal property;

 

(xi) "Tertiary production" means the crude oil recovered from a petroleum reservoir by means of a tertiary enhanced recovery project to which one (1) or more tertiary enhanced recovery techniques meeting the certification requirements of the Wyoming oil and gas conservation commission or the United States government are being applied;

 

(xii) "Purchase price" means "sales price" as defined under W.S. 39-15-101;

 

(xiii) "Directly and predominantly in manufacturing" means an item manufactured from inventoried raw or prepared material beginning at the point at which raw or prepared material is moved from plant inventory on a contiguous plant site and ending at a point at which manufacturing has altered the raw or prepared material to its completed form, including packaging, if required. Machinery used during the manufacturing process to move material from one direct production step to another in a continuous flow and machinery used in testing during the manufacturing process shall be deemed to be used directly and predominantly in manufacturing;

 

(xiv) "Machinery" means all tangible personal property eligible for a use tax exemption pursuant to W.S. 39-16-105(a)(viii)(D), used to produce an article of tangible personal property. The term includes both the basic unit and any adjunct or attachment necessary for the basic unit to accomplish its intended function, the materials for the construction or repair of machinery, and machine tools;

 

(xv) "Manufacturing" means the operation of producing a new product, article, substance or commodity different from and having a distinctive nature, character or use from the raw or prepared material;

 

(xvi) "NAICS" means the Northern American Industry Classification System manual of 2002 that organizes establishments into industries on the basis of the activity in which they are primarily engaged;

 

(xvii) Telecommunications definitions:

 

(A) "800 service" means a telecommunications service that allows a caller to dial a toll-free number without incurring a charge for the call. The service is typically marketed under the name "800", "855", "866", "877" and "888" toll-free calling, and any subsequent numbers designated by the Federal Communications Commission;

 

(B) "900 service" means an inbound toll telecommunications service purchased by a subscriber that allows the subscriber's customers to call in to the subscriber's prerecorded announcement or live service. 900 service shall not include the charge for collection services provided by the seller of the telecommunications services to the subscriber or service or product sold by the subscriber to the subscriber's customer. The service is typically marketed under the name "900" service, and any subsequent numbers designated by the Federal Communications Commission;

 

(C) "Ancillary services" means services that are associated with or incidental to the provision of telecommunications services, including but not limited to detailed telecommunications billing, directory assistance, vertical service and voice mail services;

 

(D) "Coin-operated telephone service" means a telecommunications service paid for by inserting money into a telephone accepting direct deposits of money to operate;

 

(E) "Conference bridging service" means an ancillary service that links two (2) or more participants of an audio or video conference call and may include the provision of a telephone number. Conference bridging service shall not include the telecommunications services used to reach the conference bridge;

 

(F) "Detailed telecommunications billing service" means an ancillary service of separately stating information pertaining to individual calls on a customer's billing statement;

 

(G) "Directory assistance" means an ancillary service of providing telephone number information or address information;

 

(H) "Fixed wireless service" means a telecommunications service that provides radio communication between fixed points;

 

(J) "International" means a telecommunications service that originates or terminates in the United States and terminates or originates outside the United States, respectively. United States includes the District of Columbia or a United States territory or possession;

 

(K) "Interstate" means a telecommunications service that originates in one (1) state of the United States or a United States territory or possession and terminates in a different state of the United States or a United States territory or possession;

 

(M) "Intrastate" means a telecommunications service that originates in one (1) state of the United States or a United States territory or possession and terminates in the same state of the United States or a United States territory or possession;

 

(N) "Mobile wireless service" means a telecommunications service that is transmitted, conveyed or routed regardless of the technology used, whereby the origination or termination points of the transmission, conveyance or routing are not fixed, including, by way of example only, telecommunications services that are provided by a commercial mobile radio service provider;

 

(O) "Paging service" means a telecommunications service that provides transmission of coded radio signals for the purpose of activating specific pagers which transmissions may include messages or sounds;

 

(P) "Pay telephone service" means a telecommunications service provided through any pay telephone;

 

(Q) "Prepaid calling service" means the right to access exclusively telecommunications services, which requires advance payment and which enables the origination of calls using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units or dollars of which the number declines with use in a known amount;

 

(R) "Prepaid wireless calling service" means a telecommunications service that provides the right to utilize mobile wireless service as well as other nontelecommunications services including the download of digital products delivered electronically, content and ancillary services, which require advance payment that is sold in predetermined units or dollars of which the number declines with use in a known amount;

 

(S) "Private communications service" means a telecommunications service that entitles the customer to exclusive or priority use of a communications channel or group of channels between or among termination points, regardless of the manner in which the channel or channels are connected, and includes switching capacity, extension lines, stations and any other associated services that are provided in connection with the use of the channel or channels;

 

(T) "Residential telecommunications service" means a telecommunications service or ancillary services provided to an individual for personal use at a residential address, including an individual dwelling unit such as an apartment. In the case of institutions where individuals reside such as schools or nursing homes, telecommunications service is considered residential if it is provided to and paid for by an individual resident rather than the institution;

 

(U) "Telecommunications service" means the electronic transmission, conveyance or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points. The term telecommunications service includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code or protocol of the content for purposes of transmission, conveyance or routing without regard to whether such service is referred to as voice over Internet protocol services or is classified by the Federal Communications Commission as enhanced or value added. Telecommunications service shall not include:

 

(I) Data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered by an electronic transmission to a purchaser where the purchaser's primary purpose for the underlying transaction is the processed data or information;

 

(II) Installation or maintenance of wiring or equipment on a customer's premises;

 

(III) Tangible personal property;

 

(IV) Advertising, including but not limited to directory advertising;

 

(V) Billing and collection services provided to third parties;

 

(VI) Internet access service;

 

(VII) Radio and television audio and video programming services, regardless of the medium, including the furnishing of transmission, conveyance and routing of the services by the programming service provider. Radio and television audio and video programming services shall include but not be limited to cable service as defined in 47 U.S.C. 522(6) and audio and video programming services delivered by commercial mobile radio service providers, as defined in 47 C.F.R. 20.3;

 

(VIII) Ancillary services; or

 

(IX) Digital products delivered electronically, including but not limited to software, music, video, reading materials or ring tones.

 

(W) "Value-added nonvoice data service" means a service that otherwise meets the definition of telecommunications services in which computer processing applications are used to act on the form, content, code or protocol of the information or data primarily for a purpose other than transmission, conveyance or routing;

 

(Y) "Vertical service" means an ancillary service that is offered in connection with one (1) or more telecommunications services, which offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services;

 

(Z) "Voice mail service" means an ancillary service that enables the customer to store, send or receive recorded messages. Voice mail service does not include any vertical services that the customer may be required to have in order to utilize the voice mail service.

 

(xviii) "Food for domestic home consumption" means substances whether in liquid, concentrated, solid, frozen, dried or dehydrated form that are sold for ingestion or chewing by humans and are consumed for their taste or nutritional value. "Food for domestic home consumption" does not include alcoholic beverages, tobacco or prepared foods;

 

(xix) "Prepared food":

 

(A) Includes:

 

(I) Food sold in a heated state or heated by the seller;

 

(II) Two (2) or more food ingredients mixed or combined by the seller for sale as a single item; or

 

(III) Food sold with eating utensils provided by the seller including plates, knives, forks, spoons, glasses, cups, napkins or straws. A container or package used to transport the food is not an eating utensil.

 

(B) Does not include:

 

(I) Food that is only cut, repackaged or pasteurized by the seller;

 

(II) Eggs, fish, meat, poultry or foods containing raw animal foods and which are required or recommended to be cooked by the consumer to prevent food borne illness;

 

(III) Food sold by a seller whose proper primary NAICS classification is manufacturing in sector 311, except subsector 3118 dealing with bakeries;

 

(IV) Food sold in an unheated state by weight or volume as a single item; or

 

(V) Bakery items including bread, rolls, buns, biscuits, bagels, croissants, pastries, donuts, danishes, cakes, tortes, pies, tarts, muffins, bars, cookies, tortillas and other bakery goods unless the item is sold as prepared food under subdivision (xlvi)(A)(III) of this subsection.

 

(b) Definitions under W.S. 39-15-101 shall apply to this article unless otherwise specified.

 

39-16-102. Administration; confidentiality.

 

(a) This article is known and may be cited as the "Use Tax Act of 1937".

 

(b) The administration of this article is vested in the department of revenue.

 

(c) No state employee or other person who by virtue of his employment has knowledge of the business affairs of any person filing or required to file any tax returns under this article shall make known their contents in any manner or permit any person to have access to any returns or information contained therein except as provided by law. The department may also allow the following:

 

(i) The delivery to the taxpayer or his legal representatives upon written request of a copy of any return or report in connection with his tax;

 

(ii) The publication of statistics so classified to prevent the identification of particular returns or reports;

 

(iii) The inspection by the attorney general of the state of the report or return of any person who brings an action against the state, or against whom an action is contemplated or has been instituted;

 

(iv) The introduction into evidence of any report or return or information therefrom in any administrative or court proceeding to which the person making the report or return is a party;

 

(v) The furnishing of any information to the United States government and its territories, the District of Columbia, any state allowing similar privileges to the department or to the multistate tax commission for relay to tax officials of cooperating states. Information furnished shall be only for tax purposes;

 

(vi) The inspection of tax returns and records by the office of the director of the state department of audit;

 

(vii) The sharing of information with local government entities and other state agencies, provided a written request is made to the department and the governmental entity or agency demonstrates sufficient reason to obtain the information for official business purposes.

 

(d) The state preempts the field of imposing tax upon sales and storage, use and consumption of tangible personal property as provided by this article. No county, city, town or other political subdivision may impose, levy or collect taxes upon sales or storage, use or consumption of tangible personal property except as provided in this section.

 

(e) Revenue collected pursuant to this section shall be administered in accordance with W.S. 39-16-202(c) and distributed in accordance with W.S. 39-16-211.

 

39-16-103. Imposition.

 

(a) Taxable event. The following shall apply:

 

(i) Persons making first use of taxable services or storing, using or consuming tangible personal property or specified digital products, except as otherwise provided in this paragraph, are liable for the tax imposed by this article. Specified digital products are only subject to the tax imposed by this article if the purchaser has permanent use of the specified digital product. A vendor who purchases specified digital products for further commercial broadcast, rebroadcast, transmission, retransmission, licensing, relicensing, distribution, redistribution or exhibition in whole or in part to another person shall be considered a wholesaler and not subject to the tax imposed by this article. Those services provided by a trade association as part of a member benefit are not subject to the tax imposed by this subparagraph. The liability is not extinguished until the tax has been paid to the state but a receipt given to the person by a registered vendor in accordance with paragraph (c)(i) of this section is sufficient to relieve the purchaser from further liability;

 

(ii) Specified digital products sold, services to repair, alter or improve tangible personal property sold and tangible personal property sold by any person for delivery in this state or where first use of the service occurs in this state is deemed sold for storage, use or consumption herein and is subject to the tax imposed by this article unless the person selling the property has received from the purchaser a signed certificate stating the property or service was purchased for resale and showing his name and address. Specified digital products are only subject to the tax imposed by this article as specified in paragraph (i) of this subsection;

 

(iii) Computer hardware, including the basic set of operating instructions called system software which is necessary to the basic operation of the computer hardware and hardware media used to transfer computer software programs are subject to the provisions of paragraphs (i) and (ii) of this subsection.

 

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

 

(i) Specified digital products sold, services to repair, alter or improve tangible personal property sold and tangible personal property sold by any person for delivery in this state or where first use of the service occurs in this state is deemed sold for storage, use or consumption herein and is subject to the tax imposed by this article unless the person selling the property has received from the purchaser a signed certificate stating the property or service was purchased for resale and showing his name and address. Specified digital products are only subject to the tax imposed by this article as specified in paragraph (a)(i) of this section;

 

(ii) For purposes of W.S. 39-16-107(b)(ii), the sales price of motor vehicles, house trailers, trailer coaches, trailers or semitrailers as defined by W.S. 31-1-101 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;

 

(iii) Except for those vehicles specified under W.S. 39-16-107(b)(iv), the use tax imposed by this article upon a motor vehicle, house trailer, trailer coach, trailer or semitrailer purchased outside the state of Wyoming as a gift shall be collected from the donee prior to the first registration based upon the fair market value of the gift at the time of the gift;

 

(iv) The tax imposed by this article upon the sale of a transportable home shall be collected upon the first sale of the transportable home. The tax shall be collected on seventy percent (70%) of the sales price of the transportable home. No tax shall be collected upon any subsequent sale of the home.

 

(c) Taxpayer. The following shall apply:

 

(i) Except as otherwise provided, there is levied and shall be paid by the purchaser an excise tax at the same rate applied under W.S. 39-15-104 upon sales in Wyoming. The vendor shall collect the tax and give the purchaser a receipt therefor displaying the tax paid separately;

 

(ii) Persons making first use of taxable services or storing, using or consuming tangible personal property or specified digital products are liable for the tax imposed by this article. Specified digital products are only subject to the tax imposed by this article as specified in paragraph (a)(i) of this section. The liability is not extinguished until the tax has been paid to the state but a receipt given to the person by a registered vendor in accordance with paragraph (i) of this subsection is sufficient to relieve the purchaser from further liability;

 

(iii) For purposes of W.S. 39-16-107(b)(ii), the sales price of motor vehicles, house trailers, trailer coaches, trailers or semitrailers as defined by W.S. 31-1-101 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;

 

(iv) Except for those vehicles specified under W.S. 39-16-107 (b)(iv), the use tax imposed by this article upon a motor vehicle, house trailer, trailer coach, trailer or semitrailer purchased outside the state of Wyoming as a gift shall be collected from the donee prior to the first registration based upon the fair market value of the gift at the time of the gift;

 

(v) Every vendor shall collect the tax imposed by this article and is liable for the entire amount of taxes imposed;

 

(vi) Every person making first use of taxable services or storing, using or consuming tangible personal property or specified digital products purchased from a vendor who does not maintain a place of business in this state is liable for the tax imposed by this article. Specified digital products are only subject to the tax imposed by this article as specified in paragraph (a)(i) of this section;

 

(vii) If any vendor discontinues his business or sells his stock of goods he shall make a final return and payment within thirty (30) days thereafter. His successor in business shall withhold from the purchase price an amount equal to any taxes, penalty or interest due until the time the former owner produces a receipt from the department showing that all amounts due have been paid or a certificate that no taxes are due. If the successor fails to withhold from the purchase price the amount due he is liable for same;

 

(viii) Any tax due under this article constitutes a debt to the state from the persons who are parties to the transaction and is a lien from the date due on all the property of those persons. The tax lien shall have preference over all liens except any valid mortgage or other liens of record filed or recorded prior to the date the tax became due. When the tax is collected by a retailer or his agent, the tax lien has the same status as sales tax liens under W.S. 39-15-108(d)(i).

 

39-16-104. Taxation rate.

 

(a) Except as otherwise provided, there is levied and shall be paid by the purchaser an excise tax at the same rate applied under W.S. 39-15-104 upon sales in Wyoming.

 

(b) Effective July 1, 1993, in addition to the use tax under subsection (a) of this section, there is imposed an additional use tax of one percent (1%) which shall be administered as if the use tax rates under subsection (a) of this section were increased from three percent (3%) to four percent (4%). The revenue from these increases shall be distributed in the same manner as other use tax revenue under that subsection.

 

(c) Repealed by Laws 2000, Ch. 26, 1.

 

(d) Repealed By Laws 2007, Ch. 140, 2.

 

(e) The tax rate imposed upon a transaction subject to this chapter shall be sourced as follows:

 

(i) The retail purchase, excluding lease or rental, of a product shall be sourced as follows:

 

(A) When the product is received by the purchaser at a business location of the seller, the purchase shall be sourced to that business location;

 

(B) When the product is not received by the purchaser at a business location of the seller, the purchase shall be sourced to the location where receipt by the purchaser, or the purchaser's agent designated as such by the purchaser, occurs, including the location indicated by instruction for delivery to the purchaser or donee, known to the seller;

 

(C) When subparagraphs (A) and (B) of this paragraph do not apply, the purchase shall be sourced to the location indicated by an address for the purchaser that is available from the business records of the seller that are maintained in the ordinary course of the seller's business when use of this address does not constitute bad faith;

 

(D) When subparagraphs (A) through (C) of this paragraph do not apply, the purchase shall be sourced to the location indicated by an address for the purchaser obtained during the consummation of the purchase, including the address of a purchaser's payment instrument, if no other address is available, when use of this address does not constitute bad faith;

 

(E) When none of the previous rules of subparagraphs (A) through (D) of this paragraph apply, including the circumstance in which the seller is without sufficient information to apply any of the previous rules, then the location shall be determined by the address from which tangible personal property was shipped, from which the digital good or the computer software delivered electronically was first available for transmission by the seller, or from which the service was provided, disregarding for these purposes any location that merely provided the digital transfer of the product purchased;

 

(F) For the purposes of this paragraph the terms "receive" and "receipt" mean taking possession of tangible personal property, making first use of services or taking possession or making first use of digital goods, whichever comes first. The terms "receive" and "receipt" do not include possession by a shipping company on behalf of the purchaser.

 

(ii) The lease or rental of tangible personal property, other than property identified in paragraph (iii) or (iv) of this subsection, shall be sourced as follows:

 

(A) For a lease or rental that requires recurring periodic payments, the first periodic payment shall be sourced the same as a retail purchase in accordance with the provisions of paragraph (i) of this subsection. Periodic payments made subsequently to the first payment shall be sourced to the primary property location for each period covered by the payment. The primary property location shall be as indicated by an address for the property provided by the lessee that is available to the lessor from its records maintained in the ordinary course of business, when use of this address does not constitute bad faith. The property location shall not be altered by intermittent use at different locations, such as use of the business property that accompanies employees on business trips and service calls;

 

(B) For a lease or rental that does not require recurring periodic payments, the payment shall be sourced the same as a retail purchase in accordance with the provisions of paragraph (i) of this subsection;

 

(C) This paragraph shall not affect the imposition or computation of sales or use tax on leases or rentals based on a lump sum or accelerated basis, or on the acquisition of property for lease.

 

(iii) The lease or rental of a motor vehicle, trailer, semi-trailer or aircraft that does not qualify as transportation equipment, as defined in paragraph (iv) of this subsection shall be sourced as follows:

 

(A) For a lease or rental that requires recurring periodic payment, each periodic payment shall be sourced to the primary property location. The primary property location shall be as indicated by an address for the property provided by the lessee that is available to the lessor from its records maintained in the ordinary course of business, when use of this address does not constitute bad faith. This location shall not be altered by intermittent use at different locations;

 

(B) For a lease or rental that does not require recurring periodic payments, the payment shall be sourced the same as a retail purchase in accordance with the provisions of paragraph (i) of this subsection;

 

(C) This paragraph shall not affect the imposition or computation of sales or use tax on a lease or rental based on a lump sum or accelerated basis, or on the acquisition of property for lease.

 

(iv) The retail purchase, including lease or rental of transportation equipment shall be sourced the same as a retail purchase in accordance with the provisions of paragraph (i) of this subsection. As used in this paragraph, "transportation equipment" means any of the following:

 

(A) Locomotives and railcars that are utilized for the carriage of persons or property in interstate commerce;

 

(B) Trucks and truck-tractors with a gross vehicle weight rating (GVWR) of greater than ten thousand (10,000) pounds, trailers, semi-trailers or passenger buses that are:

 

(I) Registered through the international registration plan; and

 

(II) Operated under authority of a carrier authorized and certified by the United States department of transportation or another federal or a foreign authority to engage in the carriage of personnel or property in interstate or foreign commerce.

 

(C) Aircraft that are operated by an air carrier authorized and certified by the United States department of transportation or another federal authority or a foreign authority to engage in the carriage of persons or property in interstate or foreign commerce;

 

(D) Containers designed for use on and component parts attached or secured on the items set forth in subparagraphs (A) through (C) of this paragraph.

 

(v) Except for the defined telecommunication services in paragraph (vii) of this subsection, the purchase of telecommunication service sold on a call-by-call basis shall be sourced to:

 

(A) Each level of taxing jurisdiction where the call originates and terminates in that jurisdiction; or

 

(B) Each level of taxing jurisdiction where the call either originates or terminates and in which the service address is also located.

 

(vi) Except for the defined telecommunication services in paragraph (vii) of this subsection, a purchase of telecommunication service sold on a basis other than a call-by-call basis and any ancillary service incidental to the sale, shall be sourced to the customer's place of primary use;

 

(vii) The purchase of the following telecommunication services shall be sourced to each level of taxing jurisdiction as follows:

 

(A) A purchase of mobile telecommunications services other than air-to-ground radio telephone service and prepaid calling service, shall be sourced to the customer's place of primary use as required by the Mobile Telecommunications Sourcing Act, P.L. 106-252;

 

(B) A purchase of post-paid calling service shall be sourced to the origination point of the telecommunications signal as first identified by either:

 

(I) The seller's telecommunications system; or

 

(II) Information received by the seller from its service provider, where the system used to transport such signals is not that of the seller.

 

(C) A purchase of prepaid calling service and prepaid wireless calling service shall be sourced in accordance with paragraph (i) of this subsection. Provided however, in the case of a purchase of a prepaid wireless calling service, the rule provided in subparagraph (i)(E) of this subsection shall include as an option the location associated with the mobile telephone number;

 

(D) A purchase of a private communication service shall be sourced as follows:

 

(I) Service for a separate charge related to a customer channel termination point shall be sourced to each level of jurisdiction in which the customer channel termination point is located;

 

(II) Service where all customer termination points are located entirely within one (1) jurisdiction or levels of jurisdiction shall be sourced in the jurisdiction in which the customer channel termination points are located;

 

(III) Service for segments of a channel between two (2) customer channel termination points located in different jurisdictions and which segments of a channel are separately charged shall be sourced fifty percent (50%) in each level of jurisdiction in which the customer channel termination points are located;

 

(IV) Service for segments of a channel located in more than one (1) jurisdiction or levels of jurisdiction and which segments are not separately billed shall be sourced in each jurisdiction based on the percentage determined by dividing the number of customer channel termination points in the jurisdiction by the total number of customer channel termination points.

 

(E) The definitions in W.S. 39-15-104(f)(xi)(E) shall apply to paragraphs (v) through (viii) of this subsection.

 

(f) Any vendor or certified service provider relying on an incorrect rate, boundary or jurisdictional information provided by the department in its tax rate database required under the streamlined sales and use tax agreement shall not be held liable for any under collection of tax caused by the department's error.

 

39-16-105. Exemptions.

 

(a) The following purchases or leases are exempt from the excise tax imposed by this article:

 

(i) For the purpose of exempting sales of services and tangible personal property which are protected by the United States constitution and the Wyoming constitution, the following are exempt:

 

(A) Purchases which the state of Wyoming is prohibited from taxing under the laws or constitutions of the United States or Wyoming.

 

(ii) For the purpose of exempting sales of services and tangible personal property protected by federal law, the following are exempt:

 

(A) Railroad rolling stock including locomotives purchased by interstate railroads, aircraft purchased by interstate air carriers which are holders of valid United States civil aeronautics board permits or authorities, and trucks, truck-tractors, trailers, semitrailers and passenger buses in excess of ten thousand (10,000) pounds gross vehicle weight which are purchased by common or contract interstate carriers or which are operating in interstate commerce under exemption clauses in federal law if they are to be used in interstate commerce;

 

(B) Purchases by Wyoming joint apprenticeship and training programs approved by the department of labor.

 

(iii) For the purpose of exempting sales of services and tangible personal property consumed in production, the following are exempt:

 

(A) Purchases of tangible personal property by a person engaged in the business of manufacturing, processing or compounding when the tangible personal property purchased becomes an ingredient or component of the tangible personal property manufactured, processed or compounded for sale or use and purchases of containers, labels or shipping cases used for the tangible personal property so manufactured, processed or compounded. This subparagraph shall apply to chemicals and catalysts used directly in manufacturing, processing or compounding which are consumed or destroyed during that process;

 

(B) Purchases of livestock, feeds for use in feeding livestock or poultry for marketing purposes and seeds, roots, bulbs, small plants and fertilizer planted or applied to land, the products of which are to be sold. This exemption applies to, but is not limited to, sales of seeds, roots, bulbs, small plants and fertilizer planted or applied to land subject to a state or federal crop set aside program;

 

(C) Sales of fuel for use as boiler fuel in the production of electricity.

 

(iv) For the purpose of exempting sales of services and tangible personal property sold to government, charitable and nonprofit organizations, irrigation districts and weed and pest control districts, the following are exempt:

 

(A) Purchases made by the state of Wyoming or its political subdivisions;

 

(B) Purchases made by religious or charitable organizations in the conduct of their regular religious or charitable functions;

 

(C) Purchases by a joint powers board organized under the Wyoming Joint Powers Act;

 

(D) Labor or service charges, including transportation and travel, for the repair, alteration or improvement of real property or tangible personal property owned by, or incorporated in projects under contract to the state of Wyoming or any of its political subdivisions, including an irrigation district created under W.S. 41-7-201 through 41-7-210, and a weed and pest control district created under W.S. 11-5-101 et seq.;

 

(E) Sales to an irrigation district created under W.S. 41-7-201 through 41-7-210;

 

(F) Sales to a weed and pest control district created under W.S. 11-5-101 et seq.

 

(v) For the purpose of exempting sales of services and tangible personal property which are alternatively taxed, the following are exempt:

 

(A) Purchases which are taxable under the provisions of the Selective Sales Tax Act of 1937, and purchases for which a sales tax has been previously paid;

 

(B) Motor vehicle fuel which is subject to taxation under W.S. 39-17-101 through 39-17-111 or 39-17-201 through 39-17-211. The exemption provided by this subparagraph shall not apply to gasoline or gasohol taxed under W.S. 39-17-104(a)(iii) or to diesel fuel taxed under W.S. 39-17-204(a)(ii).

 

(vi) For the purpose of exempting sales of services and tangible personal property and services which are essential human goods and services, the following are exempt:

 

(A) Purchases of the following tangible personal property sold under a prescription: drugs for human relief excluding "over-the-counter-drugs", insulin for human relief and any syringe, needle or other device necessary for the administration thereof, oxygen for medical use, blood plasma, prosthetic devices, hearing aids, eyeglasses, contact lenses, mobility enhancing equipment, durable medical equipment and any assistive device. As used in this subparagraph, "assistive device" means any item, piece of equipment or product system, as defined by department rule, which is used to increase, maintain or improve the functional capabilities of an individual with a permanent disability, excluding any medical device, surgical device or organ implanted or transplanted into or attached directly to an individual.

 

(B) Tangible personal property sold by any person for delivery in this state is deemed sold for storage, use or consumption herein and is subject to the tax imposed by this article unless the person selling the property has received from the purchaser a signed certificate stating the property was purchased for resale and showing his name and address;

 

(C) Purchases of all noncapitalized equipment and disposable supplies which are used in the direct medical or dental care of a patient. The exemption in this subparagraph shall not include capitalized equipment or office supplies used in the normal course of business;

 

(D) Sales of water delivered by pipeline or truck;

 

(E) Purchases of food for domestic home consumption.

 

(vii) For the purpose of exempting sales of services provided primarily to businesses, exemptions shall be as specified by the legislature and as follows:

 

(A) A person regularly engaged in the business of making loans or a supervised financial institution, as defined in W.S. 40-14-140(a)(xix), that forecloses a lien or repossesses a motor vehicle on which it has filed a lien shall not be liable for payment of sales or use tax, penalties or interest due under W.S. 39-16-108(b) and (c) for that vehicle;

 

(B) The purchase of farm implements. For purposes of this subparagraph, "farm implements" means any tractor or other machinery designed or adapted and used exclusively for agricultural operations and specifically excludes any vehicle titled under chapter 2 of title 31, snowmobiles, lawn tractors, all-terrain vehicles and repair or replacement parts.

 

(viii) For the purpose of exempting sales of services and tangible personal property as an economic incentive, the following are exempt:

 

(A) Sales of carbon dioxide and other gases used in tertiary production;

 

(B) The purchase of aircraft repair, remodeling or maintenance services at a federal aviation administration certified repair station including, but not limited to, repair or replacement materials or parts;

 

(C) Sales of equipment used to generate electricity from renewable resources. As used in this subparagraph, "renewable resources" includes wind generation, solar, biomass, landfill gas, hydro, hydrogen and geothermal energy. The exemption provided by this subparagraph shall be limited to the acquisition of equipment used in a project to make it operational up to the point of interconnection with an existing transmission grid including wind turbines, generating equipment, control and monitoring systems, power lines, substation equipment, lighting, fencing, pipes and other equipment for locating power lines and poles. The exemption shall not apply to tools and other equipment used in construction of a new facility, contracted services required for construction and routine maintenance activities and equipment utilized or acquired after the project is operational. This subparagraph is applicable as follows:

 

(I) On and after January 1, 2010, the exemption shall apply to sales of equipment for projects where either the project developer is the landowner for the project prior to January 1, 2010, or where the project developer has, prior to January 1, 2010, entered into a written contract with a landowner that describes the project with specificity, including a description of equipment to be purchased and placed on the landowner's land and has made payment to the landowner under terms of the contract. To be eligible for the exemption, the project developer shall have received all required permits and approvals from all governmental agencies for the development and construction of the project. Evidence of compliance with this subparagraph shall be submitted to the department with the request for an exemption. Equipment eligible for the exemption shall be purchased and delivered within the state of Wyoming on or before December 31, 2011 for storage, use or consumption by the developer to qualify for the exemption. The exemption provided under this subdivision of this subparagraph is repealed effective December 31, 2011;

 

(II) On and after January 1, 2010, the exemption shall apply to sales of equipment used to generate electricity from renewable resources with a total net rating capacity of not more than twenty-five (25) kilowatts, or where the entire renewable energy system is to be for off-grid use. The exemption provided under this subdivision of this subparagraph is repealed effective June 30, 2012.

 

(D) Until December 31, 2017, the purchase or lease of machinery to be used in this state directly and predominantly in manufacturing tangible personal property, if the sale or lease:

 

(I) Is to a manufacturer classified by the department under the NAICS code manufacturing sector 31 - 33; and

 

(II) Does not include noncapitalized machinery except machinery expensed in accordance with section 179 of the Internal Revenue Code.

 

(III) Repealed By Laws 2010, Ch. 33, 2.

 

(E) The purchase or lease of any aircraft used in a federal aviation administration air carrier operation including the purchase of all:

 

(I) Tangible personal property permanently affixed or attached as a component part of the aircraft, including, but not limited to, repair or replacement materials or parts;

 

(II) Aircraft repair, remodeling and maintenance services performed on the aircraft, its engine or its component materials or parts.

 

(F) Purchases of tangible personal property or services performed for the repair, assembly, alteration or improvement of railroad rolling stock. This subparagraph is repealed effective July 1, 2015;

 

(G) The purchase of equipment used to construct a new coal gasification or coal liquefaction facility. The exemption provided by this subparagraph shall be limited to the acquisition of equipment used in a project to make it operational. The exemption shall not apply to tools and other equipment used in construction of a new facility, contracted services required for construction and routine maintenance activities nor to equipment utilized or acquired after the facility is operational;

 

(H) Subject to meeting the applicable provisions of this subparagraph, the following purchases by a data processing services center as defined in W.S. 39-15-101(a)(xliv):

 

(I) The sales price paid for the purchase or rental of qualifying prewritten and other computer software, computer equipment including computers, servers, monitors, keyboards, storage devices, containers used to transport and house such computer equipment, and other peripherals, racking systems, cabling and trays that are necessary for the operation of a data processing services center when the aggregate purchase of the qualifying computer equipment exceeds two million dollars ($2,000,000.00) in any calendar year;

 

(II) The sales price paid for the purchase or rental of qualifying uninterruptable power supplies, back-up power generators, specialized heating and air conditioning equipment and air quality control equipment used for controlling the computer environment necessary for the operation of a data processing services center when the aggregate purchase of the qualifying equipment exceeds two million dollars ($2,000,000.00) in any calendar year;

 

(III) For the purpose of claiming the exemptions in subdivisions (I) and (II) of this subparagraph, the purchaser shall demonstrate to the department that he:

 

(1) Has a physical location in this state where the qualifying equipment purchased shall be maintained and operated until the qualifying equipment is scheduled for replacement or until it has reached the end of its serviceable life;

 

(2) Shall make an initial total capital asset investment in a physical location in this state:

 

a. For the exemption in subdivision (I) of this subparagraph, of not less than five million dollars ($5,000,000.00) or has made a capital investment in a physical location in this state of not less than five million dollars ($5,000,000.00) in the five (5) years immediately preceding March 5, 2010;

 

b. For the exemption in subdivision (II) of this subparagraph, of not less than fifty million dollars ($50,000,000.00) or has made a capital investment in a physical location in this state of not less than fifty million dollars ($50,000,000.00) in the five (5) years immediately preceding April 1, 2011.

 

(3) Has retained adequate documentation to demonstrate that the total qualifying purchases exceed the applicable annual threshold for each exemption claimed under this subparagraph;

 

(4) Has received certification from the Wyoming business council that the purchaser has created or will create a number of jobs in Wyoming that is appropriate to the size and stage of development of the data processing services center as determined by the Wyoming business council;

 

(5) Will accrue the excise tax on otherwise qualifying purchases where the applicable annual threshold was not met. The tax shall be remitted to the department not later than the end of January immediately following the end of the calendar year where the threshold was not met to avoid the assessment of penalty and interest on any amount of tax due;

 

(6) Shall keep adequate written records and documentation in accordance with department rule and regulation to show compliance with the requirements of this subparagraph. If the purchaser does not meet all the requirements of this subparagraph, any tax owed shall be remitted to the department not later than the end of January immediately following the end of the calendar year in which the requirements were not met.

 

(IV) For the purpose of claiming the exemptions in subdivisions (I) and (II) of this subparagraph, for data centers where one (1) or more entities occupies the facility, the purchaser shall demonstrate that all the requirements of subdivision (III) are met in the aggregate by the entities occupying the facility regardless of multiple ownerships of equipment and buildings.

 

(J) Purchase of and retail commissions on lottery tickets or shares and equipment necessary to operate a lottery under W.S. 9-17-101 through 9-17-128.

 

(ix) W.S. 39-15-108(b)(ii) and 39-15-107(b)(iv) apply to use taxes under this article;

 

(x) For the purpose of avoiding application of the use tax more than once on the same article of tangible property for the same taxpayer:

 

(A) The trade-in value of tangible personal property shall be excluded from the sales price of new tangible personal property when trade-in and purchase occur in one (1) transaction; and

 

purchase. The purchaser shall declare under penalty of perjury on a form prescribed by the department that he is not a resident of Wyoming.

 

(b) The Wyoming business council and the department of revenue shall jointly report to the joint revenue interim committee on or before December 1 of each year that the exemption provided by subparagraph (a)(viii)(D), (G) or (H) of this section is in effect. If requested by the department of revenue, any person utilizing the exemption under subparagraph (a)(viii)(D) of this section shall report to the department the amount of use tax exempted, and the number of jobs created or impacted by the utilization of the exemption. The report shall evaluate the cumulative effects of each exemption that is in effect from initiation of the exemption and shall include:

 

(i) A history of employment in terms of numbers of employees, full-time and part-time employees and rates of turnover classified by the 2007 edition, as amended, of the North American Industry Classification System (NAICS) code manufacturing section 31 33 from information collected by the department of workforce services;

 

(ii) A history of wages and benefits disaggregated by gender for each job category; and

 

(iii) A comprehensive history of taxes paid to the state of Wyoming.

 

39-16-106. Licenses; permits.

 

(a) Every vendor shall register with the department of revenue, giving the name and address of all agents operating in the state and the location of all places of business together with other information as required by the department. Effective July 1, 1997, a license fee of sixty dollars ($60.00) shall be required from each new vendor, except for any remote vendor who has no requirement to register in this state, or who is using one (1) of the technology models pursuant to the streamlined sales and use tax agreement. Failure of a vendor to timely file any return may result in forfeiture of the license granted under this section. The department shall charge sixty dollars ($60.00) for reinstatement of any forfeited license. Any out-of-state vendor not otherwise subject to this article may voluntarily register with the department and if registered, shall collect and remit the state use tax imposed by W.S. 39-16-104.

 

(b) Notwithstanding subsection (a) of this section, and pursuant to department rules and regulations, a vendor who purchases wholesale goods for use in manufacturing, processing or compounding as provided by W.S. 39-16-105(a)(viii), and who does not engage in any retail sale of those goods, shall not be required to obtain a use tax registration.

 

39-16-107. Compliance; collection procedures.

 

(a) Returns, reports and preservation of records. The following shall apply:

 

(i) Every vendor shall collect the tax imposed by this article and is liable for the entire amount of taxes imposed. The taxes are due and payable on the last day of the month following the month in which they were collected or as required by the department and each vendor shall on or before the last day of each month file a return showing the total sales of tangible personal property subject to the tax imposed by this article sold during the preceding month and remit all taxes due to the department. The returns shall contain such information required by the department. Any vendor shall report whether the vendor sells cigarettes, cigars, snuff or other tobacco products in this state to the department in the form and manner required by the department. The department may reject any report required under this paragraph of any vendor who does not comply with the tobacco sales reporting requirements. If the total tax to be remitted by a vendor is less than one hundred fifty dollars ($150.00) a quarterly or annual return as authorized by the department, and remittance in lieu of the monthly return may be made on or before the last day of the month following the end of the quarter or year for which the tax is collected. Returns shall be signed by the vendor or his agent;

 

(ii) Every person storing, using or consuming tangible personal property purchased from a vendor who does not maintain a place of business in this state is liable for the tax imposed by this article and shall on or before the last day of each month file a return showing the total sales price of tangible personal property purchased subject to the tax imposed by this article during the preceding month and remit all taxes due to the department. If the total tax to be remitted by the person during any month is less than one hundred fifty dollars ($150.00), a quarterly or annual return as authorized by the department, and remittance in lieu of the monthly return may be made on or before the last day of the month following the end of the quarter or year for which the tax is collected. The return shall contain such information as requested by the department. Returns shall be signed by the person liable for the tax or his agent;

 

(iii) The department may allow for extensions for filing returns, but no extension may be for more than ninety (90) days;

 

(iv) If the department believes any return and the taxes paid are incorrect it shall recompute the return and the tax based upon the best information available;

 

(v) Taxes collected under paragraphs (b)(ii) and (iii) of this section shall be remitted in full by the county treasurer to the department monthly or as required by the department together with reports as required by the department;

 

(vi) Any out-of-state vendor not otherwise subject to this article may voluntarily register with the department and if registered, shall collect and remit the state use tax imposed by W.S. 39-16-104(a).

 

(b) Payment. The following shall apply:

 

(i) Except as otherwise provided, there is levied and shall be paid by the purchaser an excise tax at the same rate applied under W.S. 39-15-104 upon sales in Wyoming. The vendor shall collect the tax and give the purchaser a receipt therefor displaying the tax paid separately;

 

(ii) Except as provided by paragraph (iv) of this subsection, no vendor shall collect the taxes imposed by this article upon the sale of motor vehicles, house trailers, trailer coaches, trailers or semitrailers as defined by W.S. 31-1-101. 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 owner. The county treasurer shall collect and remit to the department the tax in effect in the county of the owner's principal residence. The tax shall not be collected if previously registered by the same nonresident owner in another state. The county treasurer 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;

 

(iii) Except for those vehicles specified under paragraph (iv) of this subsection, the use tax imposed by this article upon a motor vehicle, house trailer, trailer coach, trailer or semitrailer purchased outside the state of Wyoming as a gift shall be collected from the donee prior to the first registration based upon the fair market value of the gift at the time of the gift;

 

(iv) Notwithstanding paragraph (ii) of this subsection, the tax imposed under this article upon the sale of mopeds and motorcycles as defined in W.S. 31-5-102(a) or off-road recreational vehicles defined by W.S. 31-1-101(a)(xv) shall be collected by the vendor in the manner prescribed by W.S. 39-16-107(a);

 

(v) If any vendor discontinues his business or sells his stock of goods he shall make a final return and payment within thirty (30) days thereafter. His successor in business shall withhold from the purchase price an amount equal to any taxes, penalty or interest due until the time the former owner produces a receipt from the department showing that all amounts due have been paid or a certificate that no taxes are due. If the successor fails to withhold from the purchase price the amount due he is liable for same;

 

(vi) No vendor shall advertise or state directly to the public that the taxes imposed by this article shall be assumed by the vendor or that it will not be added to the selling price or if added, will be refunded;

 

(vii) The department may provide for the issuance, affixing and payment of revenue stamps or the issuance of tokens or other devices to more efficiently secure the payment, collection and accounting for taxes imposed by this article;

 

(viii) If a vendor or direct payer pays taxes due and payable under this chapter on or before the fifteenth day of the month that the taxes are due under paragraph (a)(i) of this section, a credit shall be allowed against the taxes imposed by this chapter for expenses incurred by a vendor or direct payer for the accounting and reporting of taxes. For the first six thousand two hundred fifty dollars ($6,250.00) of tax due, the credit is equal to one and ninety-five hundredths percent (1.95%) of the amount of tax due. For any tax due in excess of six thousand two hundred fifty dollars ($6,250.00), the credit for that additional amount shall be one percent (1%) of that amount, provided that the total credit under this paragraph and W.S. 39-15-107(b)(xi) shall not exceed five hundred dollars ($500.00) in any month. The vendor or direct payer shall deduct the credit for each tax period on forms prescribed and furnished by the department. The credit shall be deducted only from the share of the tax that is distributed to the general fund under W.S. 39-16-111(b)(i).

 

(c) Timelines. There are no specific applicable provisions for timelines for this article.

 

39-16-108. Enforcement.

 

(a) Audits. The following shall apply:

 

(i) If the department believes any return and the taxes paid are incorrect it shall recompute the return and the tax based upon the best information available.

 

(b) Interest. The following shall apply:

 

(i) Interest on amounts due under W.S. 39-16-107 shall be at one percent (1%) per month or fraction thereof from the date the return was due until paid. 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) 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 this article or rules and regulations, a penalty of ten percent (10%) of the deficiency shall be added in addition to interest. If any part of the deficiency is due to fraud or an intent to evade this article or authorized rules and regulations, a penalty of twenty-five percent (25%) of the deficiency shall be added in addition to interest;

 

(ii) If any person liable for the tax imposed by this article neglects or fails to file a return the department shall make an estimate of the total taxable sales and taxes due from the best information available, adding a penalty of ten percent (10%) and interest as provided by paragraph (i) of this subsection from the date the taxes were due until paid. If the neglect or refusal is due to fraud or an intent to evade the provisions of this article a penalty of twenty-five percent (25%) shall be added in addition to interest;

 

(iii) If any person neglects or refuses to pay the tax imposed by this article the department shall compute the amount due based on the best information available, adding a penalty of ten percent (10%) and interest as provided by paragraph (i) of this subsection from the date the taxes were due until paid. Payment of the tax, penalty and interest imposed by this paragraph relieves the vendor from payment;

 

(iv) When the department has reason to believe the tax imposed by this article will be jeopardized by delay it shall immediately levy a jeopardy assessment which is immediately due and payable. If the jeopardy assessment is not paid within ten (10) days following notice thereof a delinquency penalty and interest as imposed by paragraph (ii) of this subsection shall be added;

 

(v) If the taxes, penalty and interest due under this section are unpaid within ten (10) days following service of notice an additional penalty of ten percent (10%) and interest as provided by paragraph (i) of this subsection shall be added by the department;

 

(vi) The department shall promptly give written notice of all taxes, penalty and interest due under this section by personal service or mail to the address as shown in the department records;

 

(vii) The department may bring an action to recover any delinquent taxes, penalty or interest in any appropriate court within three (3) years following the delinquency. In the case of an assessment created by an audit, the delinquency period is deemed to start thirty (30) days after the date the assessment letter is sent. Any Tax penalty and interest related to the audit assessment shall be calculated from the filing period during which the deficiency occurred. In such action a certificate by the department is prima facie evidence of the amount due;

 

(viii) Any person who violates W.S. 39-16-107(b)(i) or (vi) is guilty of a misdemeanor;

 

(ix) Any person who violates W.S. 39-16-102(c) is guilty of a misdemeanor;

 

(x) Any person who fails to file any return required by this article, refuses to provide any information requested by the department or violates any other provision of this article for which there is no specific penalty is guilty of a misdemeanor;

 

(xi) Any person who violates W.S. 39-16-106(a) is guilty of a misdemeanor;

 

(xii) Any person who files a false or fraudulent return is subject to the provisions of W.S. 6-5-303;

 

(xiii) 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;

 

(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.

 

(xiv) W.S. 39-15-108(b)(ii), (c)(iv) and 39-15-107(b)(iv) apply to use taxes under this article;

 

(xv) 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. 39-16-107(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;

 

(xvi) 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;

 

(xvii) The department may credit or waive penalties imposed by this subsection as part of a settlement or for any other good cause.

 

(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 and is a lien from the date due on all the property of those persons. The tax lien shall have preference over all liens except any valid mortgage or other liens of record filed or recorded prior to the date the tax became due. When the tax is collected by a retailer or his agent, the tax lien has the same status as sales tax liens under W.S. 39-15-108(d)(i);

 

(ii) If any person is delinquent in the payment of taxes, penalty or interest imposed by this article, the department may give notice of the amount of the delinquency to any person having in their possession or control credits or personal property belonging to the delinquent taxpayer or owing debts to him at the time of the notice. No person so notified shall transfer or make any disposition of the credits, personal property or debts unless the department approves of the disposition or until sixty (60) days has elapsed from the receipt of the notice. Each person receiving a notice under this paragraph shall advise the department within five (5) days after receiving the notice of all credits or personal property in their possession or under their control which belong to the delinquent taxpayer or of debts owed him;

 

(iii) Upon a failure to pay the tax due upon any vehicle as provided by this section, the county treasurer shall notify the department which may file a lien against the vehicle as provided by this subsection and shall note the lien on the title of the vehicle.

 

(e) Tax sales. At any time following a delinquency the department with board approval may seize and sell at public auction any property owned by the delinquent taxpayer to pay all taxes, penalty and interest due plus the cost involved in seizing and selling the property. Notice of the sale showing its time and place shall be mailed to the delinquent taxpayer at least ten (10) days prior to the sale. The notice shall also be printed in a newspaper of general circulation published in the county wherein the seized property is to be sold at least ten (10) days prior to the sale. If no newspaper is published in the county the notice shall be posted in three (3) public places ten (10) days prior to the sale. The notice shall contain a description of the property to be sold, a statement of the entire amount due, the name of the delinquent taxpayer and a statement that unless the amount due is paid on or before the time of sale, the property or so much thereof as necessary shall be sold. The department, with board approval, shall give the purchaser a bill of sale for personal property or a deed for real property purchased at the sale. Any unsold property seized may be left at the sale at the risk of the delinquent taxpayer. If the monies received at the sale are in excess of the amount due the excess shall be given to the delinquent taxpayer upon his receipt therefor. If a receipt by the delinquent taxpayer is not given the department shall deposit the excess with the state treasurer as trustee for the delinquent taxpayer.

 

39-16-109. Taxpayer remedies.

 

(a) Interpretation requests. There are no specific applicable provisions for interpretation requests for this article.

 

(b) Appeals. Except as provided by this subsection, no person who feels aggrieved by the payment of the taxes, penalty and interest imposed by this article may appeal a decision of the board until all taxes, penalty and interest have been paid. For good cause shown, the court to which the decision of the board is appealed may stay enforcement of the board's order assessing and levying the tax during the pendency of the appeal. The court's stay of enforcement shall not affect the accruing of interest upon any assessment and levy.

 

(c) Refunds. The following shall apply:

 

(i) Any tax, penalty or interest which has been erroneously paid, collected or computed shall on department approval be credited against any subsequent tax liability from the payee or may be refunded. No credit or refund shall be allowed after three (3) years from the date of overpayment. The receipt of a claim for a refund by the department shall toll the statute of limitations. All refund requests received by the department shall be approved or denied within ninety (90) days of receipt. Any refund or credit erroneously made or allowed may be recovered in an action brought by the attorney general in a court of competent jurisdiction in Laramie county, Wyoming.

 

(d) Credits. The following shall apply:

 

(i) Any tax, penalty or interest which has been erroneously paid, collected or computed shall on department approval be credited against any subsequent liability from the payee or may be refunded. Any refund or credit erroneously made or allowed may be recovered in an action brought by the attorney general in a court of competent jurisdiction in Laramie county, Wyoming;

 

(ii) The taxpayer is entitled to receive an offsetting credit for any overpaid excise tax identified by an audit that is within the scope of the audit period, without regard to the limitation period for requesting refunds;

 

(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.

 

(e) Redemption. There are no specific applicable provisions for redemption for this article.

 

(f) Escrow. There are no specific applicable provisions for escrow for this article.

 

39-16-110. Statute of limitations.

 

(a) Every vendor and person storing, using or consuming tangible personal property in this state shall preserve within this state for three (3) years suitable records and books as may be necessary to determine the amount of tax for which he is liable under the provisions of this article, together with invoices and books showing all merchandise purchased. All records, books and invoices shall be available for examination by the department during regular business hours except as arranged by mutual consent.

 

(b) No credit or refund shall be allowed after three (3) years from the date of overpayment. The receipt of a claim for a refund by the department shall toll the statute of limitations. All refund requests received by the department shall be approved or denied within ninety (90) days of receipt.

 

39-16-111. Distribution.

 

(a) License fees and interest collected by the department pursuant to this article shall be transferred to the state treasurer who shall credit them to the general fund. All penalties collected by the department under this article shall be paid to the state treasurer and credited as provided in W.S. 8-1-109, except the total sum of penalties collected by the department and paid to the state treasurer shall be allocated based upon the ratio of each county's population to the population of the state.

 

(b) Revenues earned under this article during each fiscal year shall be recognized as revenue during that fiscal year for accounting purposes. Revenue collected by the department from the taxes imposed by this article shall be transferred to the state treasurer who shall:

 

(i) Credit sixty-nine percent (69%) to the general fund except as provided by subsections (d) and (e) of this section and less any credit allowed pursuant to W.S. 39-16-107(b)(viii);

 

(ii) Deduct from the remaining share, one percent (1%) to cover all administrative expenses and costs attributable to the remaining share and credit the general fund for that amount;

 

(iii) From the remaining share, until June 30, 2004, deduct an amount equivalent to one-half percent (0.5%) and thereafter deduct an amount equivalent to one percent (1%) of the tax collected under W.S. 39-16-104. From this amount, the state treasurer shall distribute until June 30, 2004, five thousand dollars ($5,000.00) and thereafter ten thousand dollars ($10,000.00) annually to each county in equal monthly installments and then distribute the remainder to each county in the proportion that the total population of the county bears to the total population of the state. The remainder shall then be paid monthly to the treasurers of the counties, cities and towns for payment into their respective general funds. The percentage of the remainder that will be distributed to each county and its cities and towns will be determined by computing the percentage that net use taxes collected attributable to vendors in each county including its cities and towns bear to total net use taxes collected of vendors in all counties including their cities and towns. The distribution shall be as follows:

 

(A) To each county in the proportion that the population of the county situated outside the corporate limits of its cities and towns bears to the total population of the county including cities and towns;

 

(B) To each city and town within the county in the proportion the population of the city or town bears to the population of the county.

 

(c) In addition to the distribution in subsection (b) of this section, until June 30, 2004, twenty-nine and one-half percent (29.5%) and thereafter thirty-one percent (31%) of use taxes accruing from out-of-state vendors shall be distributed to counties, cities and towns in the same percentage as determined in paragraph (b)(iii) of this section.

 

(d) If any person commences after the effective date of this act to construct an industrial facility, as that term is defined in W.S. 35-12-102, under a permit issued pursuant to W.S. 35-12-106, or if the federal or state government commences to construct any project within this state with an estimated construction cost as specified in the definition of industrial facility in W.S. 35-12-102 the state treasurer shall thereafter pay to the county treasurer and the county treasurer will distribute to the county, cities and towns of that county in which the industrial facility or project is located, impact assistance payments from the monies available under paragraph (b)(i) of this section. Each payment to the county treasurer shall be equal to the excess of each monthly payment made under paragraph (b)(iii) of this section during the period of construction over the base period amount and shall continue during the period of construction except that in the case of an industrial facility or a federal or state government project which is expected to continue in phases for an indefinite period of time, the state treasurer shall discontinue payments under this section and establish a new base period when construction of any phase has ceased or been substantially completed for twelve (12) consecutive months. The impact assistance payments shall be distributed to the county treasurer and the county treasurer will distribute to the county and to the cities and towns therein based on a ratio established by the industrial siting council during a public hearing held in accordance with W.S. 35-12-110. The impact assistance payment shall be in addition to all other distributions under this section, but no impact assistance payment shall be made for any period in which the county or counties are not imposing at least a one percent (1%) tax authorized by W.S. 39-15-204(a)(i) and 39-16-204(a)(i) or at least a total of a two percent (2%) sales tax authorized under W.S. 39-15-204(a)(i), (iii) and (vi) and at least a total of a two percent (2%) use tax authorized under W.S. 39-16-204(a)(i), (ii) and (v). For purposes of this subsection, the industrial facility or federal or state government project will be deemed to be located in the county in which a majority of the construction costs will be expended, provided that upon a request from the county commissioners of an adjoining county to the industrial siting council, the council may determine that the social and economic impacts from construction of the industrial facility or federal or state government project upon the adjoining county are significant and establish the ratio of impacts between the counties and certify that ratio to the state treasurer who will thereafter distribute the impact assistance payment to the counties pursuant to that ratio.

 

(e) As used in subsection (d) of this section:

 

(i) "Period of construction" begins at the commencement of construction and ends when the physical components of the industrial facility or federal or state government project are ninety percent (90%) complete, and provided, if payments are already being made under this act, commencement of construction of another industrial facility or federal or state government project will not be considered for purposes of establishing a new base period or determining when payments will commence under this act, but will only be considered for determining when the period of construction ends;

 

(ii) "Base period amount" is the average monthly distribution under paragraph (b)(iii) of this section for the twelve (12) month period immediately prior to the commencement of construction, provided that on each anniversary date of commencement of construction the state treasurer shall establish a new base period amount by multiplying the base period amount by a factor representing the annual rate of inflation in this state for the preceding twelve (12) month period as calculated by the department of administration and information.

 

(f) Vendors shall annually provide the department information indicating the amount of tax under this article collected from purchases of propane, butane, liquefied gas and compressed natural gas. Upon verification by the department, the state treasurer shall annually transfer from the revenues deposited pursuant to paragraph (b)(i) of this section to the state highway fund ten percent (10%) of the amount collected under this article on purchases of propane, butane, liquefied gas and compressed natural gas. This transfer of revenue replaces highway revenues existing prior to the enactment of this act.

 

(g) Repealed By Laws 2007, Ch. 140, 2.

 

(h) Taxes collected under subsections W.S. 39-16-107(b)(ii) and (iii) of this section shall be remitted in full by the county treasurer to the department monthly or as required by the department together with reports as required by the department. County treasurers shall be reimbursed monthly in an amount equal to five percent (5%) of the amount remitted to the department in the preceding month for deposit into the county general fund.

 

(j) Repealed By Laws 1999, ch. 54, 2.

 

(k) Repealed By Laws 1999, ch. 54, 2.

 

(m) Repealed By Laws 1999, ch. 54, 2.

 

(n) Repealed By Laws 1999, ch. 54, 2.

 

(o) Repealed By Laws 1999, ch. 54, 2.