39-16-108. 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. 39-16-110 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) 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 W.S. 39-15-108(c)(xi), 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) 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;

(xviii) Notwithstanding W.S. 39-16-102(c), 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 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.