95-0728
Unbranded
Title
Signed 1/19/96
____________________________________
XXXXX, )
:
Petitioner, : ORDER
:
v. : Appeal No. 95-0728
:
MOTOR VEHICLES
DIVISION OF :
THE UTAH STATE TAX COMMISSION :
Respondent. : Type: Unbranded Title
_____________________________________
STATEMENT OF 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 XXXXX. Jane Phan, Administrative Law Judge, heard
the matter for and on behalf of the Commission. Present and representing Petitioner were XXXXX and XXXXX. Present and representing Respondent were
XXXXX, Assistant Attorney General, XXXXX and XXXXX of the Motor Vehicle
Enforcement Division.
Petitioner
is appealing Respondent's denial of the application for unbranded title for
Petitioner's XXXXX pick-up. Respondent
had denied the application because repairs were not completed according to
recognized ICAR and factory specifications as required by Utah law.
APPLICABLE LAW
The
legislature has set out the requirements for obtaining an unbranded title in
Utah Code Ann. §41-1a-1002 which in pertinent part are as follows:
(1) To obtain an unbranded title to a salvage vehicle: (a) the vehicle
must: . . .(iii) be inspected by certified vehicle inspector prior to any
repairs on the motor vehicle following any major damage; and (iv) have major
damage in no more than one major component part; (b) the major damage
identified by a certified vehicle inspector under Subsection (a) must be repaired
in accordance with standards established by the Motor Vehicle Enforcement
Division; © any interim inspection required by a certified vehicle inspector
must be completed in accordance with the instructions of the initial certified
vehicle inspector and to the satisfaction of the interim certified vehicle
inspector.
Following
the instruction of the Utah Legislature set out in Utah Code Ann. §41-1a1002
the Commission adopted Utah Admin. Rule 873-22M-26 as follows:
A. Each certified vehicle inspector shall independently determine: (1)
if one or more interim inspections are required; and (2) when any required
interim inspection shall be made.
B. A vehicle that is repaired beyond the point of a required interim
inspection prior to that interim inspection may not receive an unbranded title.
C. A vehicle is repaired in accordance with Motor Vehicle Enforcement
Division standards if it meets or exceeds the standards established by the
Inter-industry Conference on Auto Collision Repair ("ICAR").
DISCUSSION AND ANALYSIS
The
issue before the Commission in this appeal is whether Petitioner's XXXXX
pick-up can qualify for an "unbranded" title. Petitioner asserts that all the requirements
have been met to qualify for unbranded title.
Respondent asserts that the vehicle does not qualify because repairs
made did not meet the specifications required by law, a final inspection and
required interim inspection have not occurred and Petitioner is not the proper
party to bring this appeal.
In
XXXXX of XXXXX, at the request of XXXXX of XXXXX, Respondent performed the
prerepair inspection of the XXXXX pick-up and issued a Vehicle Damage
Disclosure Statement which listed the repairs and replacements necessary for
the vehicle to qualify for an unbranded title.
In determining which repairs and replacements should be made the
Respondent asserts that ICAR specifications were followed and ICAR is specific
as to whether repair is allowed or whether a part has to be replaced.
When
Respondent's representative went back for the interim inspection he immediately
determined that XXXXX had repaired, not replaced, parts including the floor and
door post which were required to be replaced.
Further, Respondent found incomplete welds. Because XXXXX had not followed the instructions in the Vehicle Damage Disclosure Statement
Respondent denied XXXXX's application for unbranded title. Respondent did not complete the interim
inspection and performed no further interim or final inspections. Instead of appealing the decision at that
time, the car was repaired and Petitioner did not file an appeal of the
decision until May of XXXXX.
In
support of his position that the vehicle should receive an unbranded title
Petitioner provided the following information at the hearing. Petitioner asserted that the vehicle was
repaired according to the ICAR standards.
XXXXX, who is ICAR qualified, stated that he repaired the vehicle and
that he repaired, not replaced, the floor because he did not think replacement
was necessary. He further stated that
even for small damage which would take one hour of labor the state requires the
part to be replaced while the industry would just have it repaired.
At the hearing, in support of its position
that the vehicle should not receive an unbranded title, Respondent's
representatives provided the following information. They asserted that Petitioner is not the proper party to file an
appeal in this matter because it was XXXXX of XXXXX who made the application
for unbranded title and who was denied.
Respondent cited no law or regulation in support of this assertion.
Respondent's
representatives stated that the Utah Legislature gave the authority to the
Respondent to determine the standards for repair and replacement prior to
issuance of an unbranded title and they had by rule adopted the ICAR standards.
They stated that the ICAR standards required replacement, not repair, of
certain parts in the subject vehicle and Petitioner had repaired parts that
should have been replaced. Respondent's
representatives state that even if they did a final inspection of the vehicle
at this point it would be impossible to tell whether the work met ICAR
standards because of the need for interim inspections.
DECISION AND ORDER
Petitioner
has the burden of proof in this matter.
The Respondent, following the instruction of the Utah Legislature has
adopted by rule the application of ICAR standards on repair of salvage vehicles
for the purposes of obtaining an unbranded title. Petitioner stated that the State of Utah required more stringent
guidelines for repair and replacement than the industry. However, the ICAR standards are the
appropriate standards and if they were applied correctly by Respondent the
denial of unbranded title was proper.
Petitioner
did not dispute that he repaired instead of replaced certain parts that
Respondent said should have been replaced.
Instead Petitioner disputed that ICAR required replacement rather than
repair of these parts. Because
Petitioner has the burden of proof, and this assertion is disputed by Respondent's
ICAR expert, Petitioner needs to do more than make the allegation that
Respondent is not correct. Perhaps
Petitioner could have provided copies of the applicable sections of the ICAR
standards for each repair or replacement at issue and explain specifically why
Respondent's requirements exceeded ICAR.
Further,
if Petitioner had appealed the decision at the time the application was denied
and if Petitioner had been successful in the appeal, Respondent would then have
completed necessary interim and final inspections. However, Petitioner waited over two years to file the appeal
during which time he had repairs made without the required inspections. This makes it difficult to determine whether
the vehicle was repaired pursuant to the ICAR standards. Respondent could not supply any law or rule
that would bar a late appeal so the appeal was heard and considered by the
Commission. However, the Commission
suggests to Respondent that Respondent should propose by rule or otherwise a
reasonable period of time after the denial of unbranded title for appeals to be
filed. The denial should be in writing
on the Vehicle Disclosure Statement and should include appeal instructions with
the deadline for filing an appeal.
Based
upon the information presented at the hearing, and the records of the Tax
Commission, the Commission denies Petitioner's appeal.
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 administrative action or
appeal rights in this matter.
DATED
this 19th day of January, 1996.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
W. Val
Oveson Roger
O. Tew
Chairman Commissioner
Joe B.
Pacheco Alice
Shearer
Commissioner Commissioner
^^