BEFORE THE UTAH STATE TAX COMMISSION
: DECISION FROM
V. ) INFORMAL HEARING
DEPARTMENT OF MOTOR VEHICLES )
PRORATE DIVISION, : Appeal No. 85-0059
This is an appeal to the Utah State Tax Commission from a decision by the Department of Motor Vehicles (DMV) to assess penalties on checks issued for vehicle registrations which were returned for insufficient funds. XXXXX, and XXXXX (Petitioner) issued the checks.
The Informal Hearing was held on XXXXX, in the offices of the Utah State Tax Commission. Roger O. Tew, Commissioner, heard the matter for the Commission, XXXXX, Attorney at Law, represented the Petitioner. XXXXX, Assistant Attorney General, represented the DMV.
Based on the evidence and the recommendation of the Hearing Officer, the Commission makes the following determinations:
1. In XXXXX and XXXXX, the DMV allowed the Petitioners to exchange the returned checks for certified funds or other payment without assessing any penalties.
2 The DMV notified the Petitioner in XXXXX, that Petitioner's checks issued for vehicle registrations were returned for insufficient funds and that the Commission would assess $$$$$ in penalties to the Petitioners for having operated the vehicle or vehicles upon the public highways of Utah without having paid the registration fees. No other demand was made by the Commission prior to assessment of the penalty. In XXXXX, Petitioners offered to exchange the return checks for certified funds, but the DMV refused to accept the Petitioner's offer.
3. Petitioner asserts (a) that the DMV did not give reasonable notice before the assessment of penalties; (b) the DMV violates the constitutional guarantee to equal protection by permitting other persons to obtain a temporary permit to operate their vehicle upon the public highways for up to 60 days without payment of registration fees but assessing Petitioner penalties for operating vehicles on public highways without paying the registration fees "due to an alleged accounting misunderstanding"; (c) because of the DMV's prior practice, the DMV is estopped from assessing a penalty without giving the Petitioner the opportunity to correct.
4. No reasonable notice is required to assess penalties under Utah Code Ann. § 41-1-134. Reasonable notice and demand is required to suspend or revoke registration § 41-1-124(d), but is not required for the DMV to determine that the required fee has not been paid. An official suspension or revocation of registration is not required under § 41-1-134 in order for the DMV to assess a penalty. It is enough that the Petitioner not have his registration suspended or revoked under § 41-1-124 (d), but was assessed a penalty under § 41-1-134, no notice was required.
5. There is not violation of equal protection. "Equal protection protects against discrimination within a class." State Tax Commission vs. Department of Finance, 576 P2d 1297, 1298, Utah 1978. Petitioner, who is required to pay registration fees, is not in the same class with persons receiving temporary permits.
6. The DMV is not estopped from assessing a penalty without first giving the Petitioner an opportunity to correct. The courts are "most reluctant to find an estoppel where the state is acting in its taxing capacity and for the enforcement and collection of taxes...". Wasems Inc. vs. State of Washington, 385, P2d, 530, 531 (Washington 1963). The DMV was acting in its taxing capacity by assessing a penalty. A penalty insures the prompt collection of taxes. "The doctrine of equitable estoppel does so to operate in favor of one who has knowledge of the essential facts, or who has convenient and available means of obtaining such knowledge". Morgan vs. Board of State Lands, 549 P2d, 695, 697 (Utah 1976) Footnote 4 [Citing Wichita Federal Savings & Loan Assoc. vs. Jones 130 P2d 556 1942]. Even if Petitioner did not have actual knowledge of the possible penalties under § 41-1-134, knowledge to the statute was easily accessible to Petitioner.
Based on the determinations that no notice is required under § 41-1-134 for the assessment of a penalty, that there is no violation of equal protection, and that the DMV is not estopped from assessing a penalty, the Commission hereby decides that the penalties assessed to petitioners are valid. The Petition is denied.
DATED this 28 day of January, 1986.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
Mark K. Buchi Joe B. Pacheco *
R. H. Hansen Roger O. Tew