01-1151

Miscellaneous Tax

Signed 3/12/02

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

) FINDINGS OF FACT, CONCLUSIONS

PETITIONER, ) OF LAW, AND FINAL DECISION

)

Petitioner, )

) Appeal No. 01-1151

v. )

)

MOTOR VEHICLE ENFORCEMENT )

DIVISION OF THE UTAH STATE ) Tax Type: Miscellaneous

TAX COMMISSION, )

) Judge: Phan

Respondent. )

_____________________________________

Presiding:

Jane Phan, Administrative Law Judge

Appearances:

For the Petitioner: PETITIONER

For the Respondent: Gale Francis, Assistant Attorney General

Kip Ingersol, Officer, Motor Vehicle Enforcement Division

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a Formal Hearing on February 25, 2002. Based upon the evidence and testimony presented at the hearing, the Tax Commission hereby makes its:

FINDINGS OF FACT

1. Petitioner is appealing a $$$$$ fine assessed for publishing an advertisement in violation of Utah Admin. Rule R877-23V-4 (3) (b).

2. This advertising violation was Petitioner’s first offense.

3. Petitioner’s radio advertisement ran for approximately three weeks. The Petitioner immediately stopped running the advertisement upon notice of the violation on May 17, 2001.

4. Respondent assessed the fine based on Petitioner’s advertisement that aired on COMPANY A radio station on April 23, 2001. According to both of the parties, the advertisement stated, “If you don’t need a car, bring someone who does. If they buy, you get $$$$$.”

5. Petitioner argued that prior to the airing of the advertisement, he consulted the dealership counsel. The Counsel told him that the advertisement was acceptable under Utah Code Ann. §41-3-201.5(1), which states that an unlicensed individual may not broker more than two new vehicles in any calendar year.

APPLICABLE LAW

A person holding a dealer’s license may not: (3) encourage or conspire with any person who has not obtained a salespersons’ license to: (a) act as a salesperson or agent; (2) solicit for prospective purchasers; or (c) negotiate or assist in any way in the negotiation of a sale of a motor vehicle for a salary, commission, or compensation of any kind. Utah Admin. Rule R877-23V-4.1.

CONCLUSIONS OF LAW

1. Utah Code Ann. §41-3-201.5 applies only to unlicensed individuals selling vehicles independently. Licensed car dealers are required to follow Utah Admin. Rune R877-23V-4(3)(b), which states that a person holding a dealer’s license, may not encourage an unlicensed salesperson to solicit for prospective buyers.

2. Petitioner violated the Rule and the fine was correctly assessed.

DECISION AND ORDER

Based upon the foregoing, the Tax Commission sustains the $$$$$ advertising penalty. It is so ordered.

DATED this ______________ day of ______________________, 2002.

__________________________

Jane Phan, Administrative Law Judge

BY ORDER OF THE UTAH STATE TAX COMMISSION:

The Commission has reviewed this case and the undersigned concur in this decision.

DATED this ___________________ day of _________________________, 2002.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner