94-0039

Impounded Vehicle

Signed 12/7/94

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

XXXXX )

:

Petitioner, ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

v. ) AND FINAL DECISION

:

MOTOR VEHICLE DIVISION OF THE ) Appeal No. 94-0039

UTAH STATE TAX COMMISSION, :

)

:

Respondent. ) Tax Type: Impounded Vehicle

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a Formal Hearing on XXXXX. At that time, Petitioner objected to the proceeding going forward because he had not received a copy of the response from Respondent. A copy of a response had apparently been filed on XXXXX, but it was not in the file on XXXXX. Therefore, to permit Petitioner to have an opportunity to review the response of Respondent, the matter was continued to XXXXX, XXXXX, wherein a formal hearing was then held. G. Blaine Davis, Administrative Law Judge, heard the matter for and on behalf of the Commission. Present and representing Petitioner was XXXXX, together with his XXXXX. Present and representing Respondent was XXXXX, Assistant Attorney General, together with XXXXX, XXXXX of XXXXX for the Motor Vehicle Division, together with XXXXX from the Department of Motor Vehicles.

Based upon the evidence and testimony presented at the hearing, the Tax Commission hereby makes its:

FINDINGS OF FACT

1. The Petitioner was the owner of a XXXXX, hereinafter referred to as XXXXX.

2. The XXXXX bore the vehicle identification number XXXXX, and a XXXXX.

3. On XXXXX, the XXXXX was impounded by the XXXXX Police Department because the XXXXX had an expired XXXXX registration, and because XXXXX was XXXXX.

4. The vehicle impound report prepared by the XXXXX XXXXX and sent to the state showed the vehicle owner as XXXXX XXXXX, the Petitioner herein, and did show his address as XXXXX XXXXX.

5. The vehicle impound report also showed that the vehicle was being taken to XXXXX.

6. The Motor Vehicle Division of the Utah State Tax Commission received a copy of the vehicle impound report on XXXXX XXXXX. The established operating procedures of Respondent were then followed, by verifying the accuracy of the information reported on the vehicle impound report with the information contained in the computer files of Respondent. Respondent has represented that a computer generated letter notifying Petitioner that the vehicle had been impounded and was going to be sold was mailed by way of first class United States mail to XXXXX at XXXXX XXXXX, the address which was shown on records of Respondent.

7. Respondent testified that they prepare a large number of these, and they do not have specific recollection of the mailing of the letter to Petitioner, and they do not retain a copy for the files. Instead, the letter is prepared and mailed by way of computer actions, and the computer then makes a notation that the letter has been prepared and mailed.

8. At the time the XXXXX was impounded, the registration of the vehicle had expired as of XXXXX, approximately XXXXX prior to the date the XXXXX was impounded.

9. The Petitioner was operating the XXXXX on the public highways of the state of Utah on XXXXX, when the XXXXX was impounded.

10. The Respondent does not have any notice of a change of address which has been filed by Petitioner, and Petitioner acknowledged that he had moved approximately XXXXX prior to the date the vehicle was impounded, but he had never notified Respondent of his change of address as is required by Section 41-1a-218, Utah Code Annotated, as amended.

11. The Petitioner was released from jail approximately XXXXX of impoundment, and he immediately checked into having his vehicle released. However, he was told that it could not be released until he obtained a current registration, which included obtaining a vehicle safety inspection sticker together with an emissions inspection certificate, which he testified he could not afford to do at the time.

12. The Respondent originally scheduled the sale of the XXXXX for XXXXX. However, upon Petitioner's contact to the impound lot, the scheduled sale was postponed and was scheduled for the next regularly scheduled public auction on XXXXX, XXXXX after the date the vehicle was impounded.

13. The Petitioner had actual notice of the location of his vehicle, and visited the impound yard and removed some personal property from the vehicle prior to the sale of the vehicle.

14. On XXXXX, the XXXXX was advertised for sale in the XXXXX, a newspaper of general circulation in the XXXXX area, and indicated that it would be sold to the highest bidder at public auction on XXXXX.

15. On XXXXX, the vehicle in question was offered for sale to the highest bidder at public auction as required by Section 41-1a-1103, Utah Code Annotated, as amended.

16. On the date the vehicle was scheduled to be sold at public auction, there were no bids entered for said vehicle, so the ownership of the XXXXX was transferred from Petitioner to XXXXX XXXXX for $$$$$ which was the amount for towing and storage fees which had accrued between the date of impound and the date of sale.

17. The Respondent gave notice of the proceeding as required by Section 41-1a-114, Utah Code Annotated, as amended. However, Petitioner represents that he did not receive the required notice of such sale, and he represents that if it had been mailed to the address shown on the registration certificate, that he has XXXXX who still live at that address who would have forwarded such notice to him.

The Respondent does not retain a photocopy or any other actual copy of the notices sent pursuant to such statute.

XXXXX, XXXXX for Respondent, has prepared a certificate specifying the person to whom the notice was given and the time, place, and manner of giving the notice.

CONCLUSIONS OF LAW

Whenever any peace officer throughout the state seizes or takes possession of a vehicle, vessel, or outboard motor, it is required to be delivered to the Respondent herein. (UCA 41-1a-1101).

Once the Respondent has received a stored vehicle, vessel, or outboard motor, it is required to be placed in storage. (UCA 41-1a-1102).

If the owner or lienholder of a seized vehicle, vessel, or outboard motor does not recover the same within 30 days from the date of seizure, then the Respondent is required to sale the vehicle, vessel, or outboard motor at a public auction to the highest bidder after at least 5 days notice by way of publication. (UCA 41-1a-1103).

Persons who are owners of motor vehicles are required to notify the Respondent of any change of address they may have within 10 days after the date of moving.

The methodology of giving notice prior to the sale of any impounded vehicle is set forth by UCA 41-1a-114, as amended.

DECISION AND ORDER

At the conclusion of the proceeding, Petitioner was asked what relief he was asking the Commission to grant in this proceeding. He indicated that he wanted his XXXXX back, and that he wanted damages for lost business, loss of livelihood, inconvenience, legal costs, mental anguish, and any other remedy.

The relief requested by Petitioner is impossible for the Commission to grant in this proceeding, even if it believed that such relief was appropriate, which the Commission does not believe. The Commission does not have possession of the XXXXX, and has issued a valid title to another owner, and presumably that title has now been transferred to someone else who is also presumably a bona fide purchaser for value. Therefore, the Commission does not have power nor jurisdiction to give the Petitioner back his former XXXXX, even if the Respondent had performed some wrongful action, which the Commission believes has not been done by Respondent. Further, the Commission is without jurisdiction to award damages as requested by Petitioner.

However, the Commission further finds that the actions taken by Respondent were consistent with the actions they are required by law to take. The Respondent received the XXXXX as a result of a valid impound order by peace officer from XXXXX. The Respondent further gave the required notice that the XXXXX would be sold if it was not timely recovered. Upon receiving inquiry and an indication that Petitioner was interested in recovering the XXXXX, the Respondent postponed the sale for nearly XXXXX, whereas the statutes required a period of only 30 days before the sale of such a vehicle. The Respondent further mailed the appropriate notices to the Petitioner at the only address which it had for Petitioner. At the hearing, the Petitioner testified regarding at least XXXXX XXXXX, but the Respondent only had one address for Petitioner in its files, and the notice was mailed to that address. The statute further requires the Petitioner to file a change of address notice with the Respondent within 10 days after moving from the address which is on file with the Respondent, but instead, the Petitioner had not filed such a change of address even though it had been nearly XXXXX from the time he moved from the address which was on file with the Respondent until the time the vehicle was impounded. The Commission finds that if there is fault in this matter, the fault lies with Petitioner for failing to file the appropriate change of address information.

The Commission further finds that the Petitioner had full actual notice of where his vehicle was located, and what was necessary to recover the vehicle before any such sale of the vehicle, but for reasons not attributable to Respondent, Petitioner did not recover that vehicle.

Based upon the foregoing, the Tax Commission finds that it cannot grant the relief requested by the Petitioner, and the petition of Petitioner is therefore denied. It is so ordered.

Dated this 7th day of December, 1994.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

W. Val Oveson Roger O. Tew

Chairman Commissioner

Joe B. Pacheco Alice Shearer

Commissioner Commissioner

NOTICE: You have twenty (20) days after the date of a final order to file a Request for Reconsideration with the Commission. If you do not file a Request for Reconsideration with the Commission, you have thirty (30) days after the date of a final order to file a.) a Petition for Judicial Review in the Supreme Court, or b.) a Petition for Judicial Review by trial de novo in district court. (Utah Administrative Rule R861-1-5A(P) and Utah Code Ann. ''59-1-601(1), 63-46b-13(1), 63-46-14(3)(a).)

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