00-0695

Miscellaneous Tax

Signed 5/15/01

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

PETITIONER, )

) ORDER

Petitioner, )

) Appeal No. 00-0695

v. ) Account No. #####

)

MOTOR VEHICLE ENFORCEMENT ) Tax Type: Miscellaneous Tax

DIVISION OF THE UTAH STATE TAX )

COMMISSION, ) Presiding: Davis

)

Respondent. )

_____________________________________

Presiding:

G. Blaine Davis, Administrative Law Judge

Appearances:

For Petitioner: PETITIONER REP

For Respondent: Mr. Gale Francis, Assistant Attorney General

Ms. Julie Thomas, from the Motor Vehicle Enforcement Division

Mr. Scott Duncan, from the Motor Vehicle Enforcement Division

Mr. Kent Jorgensen, from the Motor Vehicle Enforcement Division

STATEMENT OF THE CASE

This matter came before the Utah State Tax Commission for an Initial Hearing pursuant to the provisions of Utah Code Ann. '59-1-502.5, on October 24, 2000.

Respondent imposed fines upon ##### separate PETITIONER dealerships in a total amount of $$$$$. ##### of the penalties were in an amount of $$$$$ for a third or subsequent offense, ##### penalties were in an amount of $$$$$ for a second offense, and ##### of the penalties were $$$$$ penalties for a first offense.

A one-half page ad was published in the COMPANY A on Thursday, March 9, 2000, which is believed to have also been published in the COMPANY B for the same day. The ad simply stated "XXXXX" along with certain other information relating to the date and location of the sale. It indicated that ##### dealers would be under one roof, but it did not identify any of the dealers, and did not contain any statement indicating that it was the PETITIONER dealerships.

Each PETITIONER dealership is a separate corporation. It is also believed that the COMPANY C is still a different corporation. Further, the advertising for all PETITIONER companies, including his automobile dealerships, is carried on by COMPANY D, a separate corporation.

In this case, the representations were that the newspaper advertisement was placed by COMPANY D without consulting any of the individual dealers, and without any of the individual dealers reviewing or otherwise being involved in the placement of the ad.

There is no evidence presented by Respondent to establish that it was the PETITIONER dealers that would conduct the sale, although the representative from the COMPANY C did not deny that the sale which occurred at the indicated location was carried out by the PETITIONER dealerships for which the fines were proposed by Respondent.

APPLICABLE LAW

Utah Code Ann. '41-3-210, provides in relevant part as follows:

"(1) The holder of any license issued under this Chapter may not;

. . . .

(b) intentionally publish, display, or circulate any advertising without identifying the seller as the licensee by including in the advertisement the full name under which the licensee is licensed or the licensee's number assigned by the division;"

DISCUSSION

Section 41-3-210, supra, prevents the holder of a motor vehicle dealer license from intentionally publishing advertising without identiftying the seller as the licensee.

In this case, the advertisement in question did not identify any of the dealers who participated in the sale. Such identification of the dealers is required by Utah Code Ann. '41-3-210.

DECISION AND ORDER

Based upon the foregoing, it is the decision and order of the Commission that the fines imposed by Respondent are sustained. The Petition for Redetermination is denied. It is so ordered.

This decision does not limit a party's right to a Formal Hearing. However, this Decision and Order will become the Final Decision and Order of the Commission unless any party to this case files a written request within thirty (30) days of the date of this decision to proceed to a Formal Hearing. Such a request shall be mailed to the address listed below and must include the Petitioner's name, address, and appeal number:

Utah State Tax Commission

Appeals Division

210 North 1950 West

Salt Lake City, Utah 84134

Failure to request a Formal Hearing will preclude any further appeal rights in this matter.

DATED this 15^th day of May, 2000.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner