39-15-108. Enforcement.

(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.

(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.