[¶1] This is a case about whether a Wyoming dealer must pay sales tax on sales of recreational vehicles to out-of-state buyers. The Appellant, Maverick Motorsports Group, LLC (hereinafter "Maverick"), challenges a decision of the State Board of Equalization (hereinafter "SBOE") that certain sales by Maverick were subject to Wyoming sales tax. Maverick petitioned for judicial review, and the District Court affirmed the SBOE's decision. In this appeal, Maverick challenges the SBOE's decision which held that sales by Maverick were subject to Wyoming sales tax and that imposition of Wyoming sales tax did not violate Art. 1, § 8, of the United States Constitution (the Commerce Clause).
[¶2] We affirm the SBOE's decision.
ISSUES
[¶3] The following issues are presented on appeal:
I. Whether sales of recreational vehicles were taxable in Wyoming because possession was transferred in Wyoming.
II. Whether enforcement and collection of Wyoming sales taxes violate the Commerce Clause, Art. 1, § 8, of the United States Constitution.
FACTS
[¶4] Maverick was formed in 2005 to purchase the assets of an existing business. Justin Johnson (hereinafter "Johnson") is the company president. - Maverick operates stores in Cheyenne and Laramie, Wyoming. Both stores had sales tax licenses and both sold motorcycles, all-terrain vehicles (ATVs), snowmobiles, and various accessories. The parties agree that many of Maverick's customers lived in other states. Johnson had been informed by the previous owner that no Wyoming sales tax would be due for sales to nonresidents if the invoices were marked "delivered out of state"; so Maverick marked invoices in that manner and did not collect Wyoming sales tas. The Department of Revenue (hereinafter "Department") conducted audits of both stores for the period including June 2005 through September 2006. The Department concluded that sales tax was due from both stores. Maverick objected to both audits, and these objections were consolidated into one hearing before the SBOE. Maverick and the Department continued to work together up to the date of the hearing and came to an agreement on several issues. By the time of the hearing, the only issues were whether Wyoming could collect sales tax on sales of recreational vehicles to nonresidents; and, if so, did this tax violate the Commerce Clause.
[¶5] The vehicles were transferred in three ways: most were picked up by the purchaser at one of the stores, some were delivered by a common carrier selected by the purchaser, and some were delivered by Maverick. Maverick would mail any documents necessary to title or register the vehicle to the buyer a few weeks after the sale. *128 These documents were retained, in part, to ensure that the buyer's check would clear the bank. In some cases, the documents were mailed to the buyer's financier.
[¶6] The SBOE's primary concern about vehicles delivered by Maverick was a lack of documentation. The SBOE, although critical of Maverick's recordkeeping, agreed that Maverick had provided adequate proof and ruled that most of these sales were "destination sales" where transfer of title or possession took place outside Wyoming and no sales tax was due. The Department did not appeal this ruling. In addition, there were some instances where Maverick had no documentation to prove how the vehicle was delivered, and the SBOE affirmed the Department's finding. Maverick did not appeal from this part of the SBOE's decision.
[¶7] The majority of the sales involved customers who came to one of the stores, picked up the vehicle and then returned to their home state with the purchase. Maverick refers to these as "self-deliveries." May-erick asserted that the parties intended to transfer possession in the buyer's home state; the Department countered that the record did not support this assertion.
[¶8] In some sales, Johnson testified that Maverick would recommend a common carrier to the buyer, and then the buyer would contract directly with the carrier. The SBOE found that delivery to the carrier was the equivalent of delivery to the buyer and that there was no contract or other evidence that the parties intended that Maverick would be responsible for the goods until delivery was complete.
[¶9] Maverick and the Department entered into a stipulation that Maverick did not have to contact any of its customers to obtain documentation that the customer had paid sales or use tax in another state. The Department agreed to this because it asserted that its only contention was that the State of Wyoming was entitled to the tax.
[¶10] The SBOE found that possession of the vehicles was transferred to the buyer in Wyoming; therefore, Wyoming sales tax was due. In general terms, the question before the Court is whether the SBOE's decision is supported by substantial evidence and not arbitrary or capricious, or otherwise contrary to law.
STANDARD OF REVIEW
[¶11] Our standard of review is well-established. We give "no special deference to the district court's decision" in considering appeals from district court reviews of administrative actions, but instead review the case as if it had come directly from the administrative agency. Dale v. 8 & S Builders, LLC,
@) Compel agency action unlawfully withheld or unreasonably delayed; and
i) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B) Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.
Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009).
[¶12] Questions of law are reviewed de novo, and " '[elonclusions of law made by an administrative agency are affirmed only if they are in accord with the law. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law."" Bowen v. State, Dep't of Tramsp.,
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[¶13] We give "considerable deference" to the agency's findings of fact and do not disturb them unless they are "contrary to the overwhelming weight of the evidence." EOG Resources, Inc. v. Wyo. Dept of Revenue,
[¶14] The seope of our review is controlled by Wyo. Stat. Ann. $ 39-11-109 and § 16-3-115. Section 39-11-109(b) 1 provides:
(i) Any person aggrieved by any final administrative decision of the department may appeal to the board. Appeals shall be made in a timely manner as provided by rules and regulations of the board by filing with the board a notice of appeal specifying the grounds therefor. The department shall, within a timely manner as specified by board rules and regulations, transmit to the board the complete record of the action from which the appeal is taken;
(ii) Any person including the state of Wyoming aggrieved by any order issued by the board, or any county board of equalization whose decision has been reversed or modified by the state board of equalization, may appeal the decision of the board to the district court of the county in which the property or some part thereof is situated[.]
Section 16-3-115 provides for Supreme Court review of the district court:
An aggrieved party may obtain a review of any final judgment of the district court under this act by appeal to the supreme court. The appeal shall be taken as in other civil cases.
DISCUSSION
1. Was sales tax due in Wyoming?
[¶15] There are two types of sales at issue. The first includes sales in which out-of-state buyers would pick up a vehicle from Maverick at either the Cheyenne or Laramie store and return with the vehicle to their home state. The second includes sales in which a common carrier, acting on behalf of the out-of-state buyer, would pick up the vehicle from Maverick and deliver it out of state. - Maverick contends that these sales were "non-taxable destination" sales and not subject to Wyoming sales tax. The Department responds that the buyers took possession in Wyoming; therefore, sales tax is due. The SBOE agreed with the Department, and the record supports the SBOE's decision.
[¶16] Prior to January 1, 2008, and during the time at issue here, "sale" was defined as "any transfer of title or possession in this state for consideration...." Wyo. Stat. Ann. § 39-15-101(a)(vii) (LexisNexis 2005). After January 1, 2008, "sale" was defined as "any transfer of possession in this state for a consideration...." 2006 Wyo. Sess. Laws, Chap. 10, § 1. The issue in this case is whether transfer of possession or title took place in Wyoming or outside the state. Sales tax is imposed on "[the sales price of every retail sale of tangible personal property within the state" Wyo. Stat. Ann. § 89-15 103(a)(D)(A). Sellers are required to collect and remit to the state the taxes imposed on sales of motorcycles and off-road vehicles. Wyo. Stat. Ann. §$ 839-15-107(@¥)G) and (b)(viii).
[¶17] The Wyoming Sales and Use Tax Regulations in effect at the relevant time, provided as follows:
(q) Interstate Sales.
(i) The point at which title or possession of tangible personal property passes to the purchaser shall determine the location of the sale. - Tangible personal property shipped by the vendor at the time of sale and not used in Wyoming, to an out of state location may be considered a destination sale and not subject to the sales tax.
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(if) Contracts of sale, sales invoices, bills of lading or other documentary evidence of the passage of title or delivery of tangible personal property to the purchaser inside or outside this state shall be *130 retained by the vendor to establish the nature of the sale. If no such evidence is present, it shall be presumed that the sale occurred within the state and the vendor shall be liable for the sales tax thereon.
Wyoming Sales and Use Tax Regulations, Ch. 2, See. 15 (2004).
[¶18] Maverick argues that these were nontaxable destination sales because neither title nor possession was transferred in Wyoming. Maverick contends that the sale documents show that the parties intended for change of possession to happen in the buyer's home state and the buyer had only constructive possession until the vehicle actually arrived at the buyer's residence either because delivery was made by a third party, a common carrier, or because the customer was acting as his/her own delivery agent. Maverick's point is that because the parties intended this transfer would take place outside of Wyoming, the transfer of "actual possession" did not happen in Wyoming, and the transfer of the title to the vehicles also occurred outside Wyoming when the mailed title documents were received by the buyer.
[¶19] The first assertion Maverick makes is that the invoices reflect the intent of both parties and they intended for transfer to occur in the buyer's home state. Maverick relies on Hercules Powder Co. v. State Bd. of Equalization,
[¶20] The principles enunciated in Hercules are reflected in the Wyoming Uniform Commercial Code, Wyo. Stat. Ann. § 34.1-2-401. The SBOE relied upon the U.C.C. to determine that title passed to the buyer when the vehicle was physically delivered to the buyer or the buyer's agent. Wyo. Stat. Ann. § 34.1-2-401 provides in pertinent part:
(a) Each provision of this article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Insofar as situations are not covered by the other provisions of this article and matters concerning title become material the following rules apply:
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(i) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading:
(A) If the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but
(B) If the contract requires delivery at destination, title passes on tender there.
*131 [¶21] Maverick first argues that it was improper for the SBOE to rely on the Wyoming TU.C.C. statute because the comment to this section precludes reliance on the U.C.C. for regulatory purposes. Maverick then argues that if this statute is considered, it supports Maverick's argument because there was an explicit agreement that title would pass upon tender at the final destination. The comment to this section of the U.C.C. provides:
1. This Article deals with the issues between seller and buyer in terms of step by step performance or non-performance under the contract for sale and not in terms of whether or not "title" to the goods has passed. That the rules of this section in no way alter the rights of either the buyer, seller or third parties declared elsewhere in the Article is made clear by the preamble of this section. This section, however, in no way intends to indicate which line of interpretation should be followed in cases where the applicability of "public" regulation depends upon a "sale" or upon location of "title" without further definition. The basic policy of this Article that known purpose and reason should govern interpretation cannot extend beyond the seope of its own provisions. It is therefore necessary to state what a "sale" is and when title passes under this Article in case the courts deem any public regulation to incorporate the defined term of the "private" law.
[¶22] The question of whether it is appropriate to consider the U.C.C. when determining questions of tax regulation has not been directly addressed in Wyoming. We now find that it was appropriate for the SBOE to rely on the U.C.C. as an objective test to determine when title passed. As noted by the district court, there is some historical basis for this. The opinion in Hercules relied, in part, on provisions of the Uniform Sales Act, which was the predecessor to the U.C.C. Hercules,
While we have some doubts whether the regulations make reference to the Code as that body of contract law which should apply when applicable, we can perceive no reason why, when a question arises under the regulations as to contract interpretation, we should not employ the Code as our frame of reference. In doing so, we adhere to the current realities of the marketplace and will, therefore, be better able to gauge the parties' intent in those instances where intent is decisive under the regulations.
Rice Machinery, Inc. v. Norberg, 120 RI. 542,
[¶23] Other jurisdictions applying the U.C.C. to resolve tax issues include: O'Brien v. Isaacs,
[¶24] Maverick then asserts that even if the SBOE could use the U.C.C., the SBOE decision was still wrong because the parties had an express agreement that title would pass when the vehicle reached the buyer's home state. The SBOE found that *132 the sale documents did not determine the point of transfer. We agree. The statement on the invoices, "delivered out of state," is not sufficient to overcome the fact that actual possession was transferred in Wyoming at the time of pick-up. The parties could have but did not use other language in the invoice to suggest that the transfer of possession would occur in another location, such as clauses dealing with risk of loss or responsibility for selection of carriers; this wording was missing from the invoices. In addition, the reverse side of the invoices contained the following paragraph:
We are not liable for failure to deliver or delay in delivery of the purchased vehicle. If the failure or delay is due, in whole or part, to any cause beyond our control or without our fault or negligence, we are not liable to you for any consequential damages, damages to property, damage or loss of use, loss of time, loss of profits or income, or any other incidental damages arising out of the sale or use of the purchased vehicle.
An objective analysis indicates that transfer of possession cccurred in Wyoming. The record supports the SBOE's findings.
[¶25] Maverick contends that title was transferred to the buyer when the certificate of title or the manufacturer's statement of origin (MSO) was mailed to the buyer or the buyer's lender some weeks after the sale. Maverick uses the term "title" to mean the written documents that prove ownership. Wyoming has long recognized that "title" has a broader definition. Brown v. Wintermute,
[¶26] A majority of the transactions at issue involved out-of-state buyers who would come to either the Cheyenne or Laramie store, pick up the vehicle, and return to their home state. Maverick argues that those customers who picked up their vehicles were acting as their own agent and only had constructive possession for delivery purposes; therefore, possession did not transfer from the seller to the buyer until the buyer arrived home. Maverick relies almost entirely on State ex rel. Wyo. Dep't of Revenue v. Union Pacific R.R. Co.,
[¶27] Union Pacific involved a case where the Department assessed tax on ballast used by the Union Pacific (UP). Some of the ballast was used by the UP in Wyoming and some was used in other states, but it was delivered to the UP for transportation to the out-of-state construction sites. The ballast used out of state was subject to inspection in the state to which it was delivered. The SBOE found that tax was due on the ballast used in Wyoming (the "maintenance ballast") but not on the ballast used outside the state (the "construction ballast"). We affirmed, finding that the UP obtained complete control of the maintenance ballast because it was accepted without reservation. However, the construction ballast was transferred as a non-taxable destination sale because the purchaser retained the right to reject it, in which case, the ballast was returned at the seller's expense. Union Pacific, ¶¶14-15,
[¶28] The contention that a person can act as his own agent presents several
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practical problems and is contrary to established law. A relationship of agency is established when two parties agree that one, the agent, shall act on behalf of and subject to the control of the other, the principal. The first section of the Restatement of Agency Law explains that an agent and a principal are different persons. Restatement (Third) of Agency Law § 1.01 (2006) states that "'Agency' is the fiduciary relationship that arises when one person (a 'principal') manifests assent to another person (an 'agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act." This contemplates different entities for agent and principal. Franks v. Independent Prod. Co., Inc.,
[¶29] Furthermore, there is no logic to the assertion that a person in actual control of an object has only "constructive possession." This term has often been used in the context of criminal cases and has a well-defined meaning: "A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person, is in constructive possession of it." Dettloff v. State,
[¶30] The remaining transactions are those where delivery was made by a third-party carrier. The evidence was that Maverick might recommend a carrier; however, the customer ultimately chooses the carrier, and the contract is between the carrier and the customer. Under these facts, the carrier would be the agent of the buyer; and when possession was transferred to the carrier in Wyoming, sales tax was due. 2 Hellerstein & Hellerstein ¶18.01(2)(b), 18-9 (2010).
[¶31] A review of the record indicates that substantial evidence supports the SBOE's finding that transfer of possession and title of these vehicles occurred in Wyoming, and the levy of a sales tax on these transactions is appropriate.
2. Was collection of sales tax by Wyoming unconstitutional?
[¶832] Maverick argues that collection of a sales tax on these vehicle transactions violates the Commerce Clause, Art. 1, § 8, of the United States Constitution. First, Maverick asserts that a Wyoming tax discriminates against or unduly burdens interstate commerce; and, second, unless May-erick is allowed a credit for sales or use taxes paid in other states, there is an unconstitutional multiple taxation of a single transaction.
[¶33] The Commerce Clause gives Congress the power to regulate commerce among the several states. The framers of the Constitution intended to encourage free trade among the several states, to minimize restriction of the flow of commerce among the states, to protect commercial interactions from odious restraint, and to preclude interference through inconsistent or hostile state laws. Oregon Waste Systems, Inc. v. Dep't of Envtl. Quality of State of Or.,
[¶34] "The modern law of what has come to be called the dormant Commerce Clause is driven by concern about 'economic protectionism-that is, regulatory measures designed to benefit in-state eco
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nomic interests by burdening out-of-state competitors."" Dep't of Revenue of Kentucky v. Davis,
[¶85] In Complete Auto Transit, Inc. v. Brady,
These decisions have considered not the formal language of the tax statute but rather its practical effect, and have sustained a tax against Commerce Clause challenge when the tax [1] is applied to an activity with a substantial nexus with the taxing State, [2] is fairly apportioned, [3] does not discriminate against interstate commerce, and [4] is fairly related to the services provided by the State.
Id.
[¶36] In Okla. Tax Comm'n v. Jefferson Lines, Inc.,
[¶37] When the Complete Auto analysis is applied to this case, the tax imposed on Maverick sales meets constitutional requirements. The sale in Wyoming is a discrete event; and under Jefferson, the sales tax is appropriate regardless of any subsequent out-of-state use. Since it is a sales tax imposed on a single discrete transaction, apportionment is not required. There is no discrimination; the tax is imposed equally on resident and nonresident buyers. Finally, the relationship between the tax and governmental services, as noted, does not require a detailed comparison of the tax relative to the public services provided. It is sufficient that the event is taxable and, therefore, the taxes may be used for services even if they are not related to the taxable event.
[¶38] Maverick argues that if Maverick is not given a credit for use taxes paid in other states, then multiple taxes are imposed on a single transaction, contrary to constitutional principles. The parties stipulated, pri- or to the hearing before the SBOE, that Maverick was not required to prove that its customers had paid a sales or use tax in their home states because the Department was not contesting the payment of this tax. The Department indicated that it had entered into this stipulation because the only issue was whether the tax was due in Wyoming; therefore, payment of taxes in other states was not relevant. Maverick asserts that Wyoming should recognize that sales or use taxes may have been paid in the purchaser's home state, and that collection of the tax by Wyoming violates the holding of Jefferson.
[¶39] Maverick falls short with its argument that it is entitled to a credit for taxes paid in other states. Maverick fails to recognize that this is not an issue of an imposition of a tax; rather, the issue is a question of whether a sales tax, properly imposed, may be enforced and collected. Maverick had the obligation to collect the tax at the time of the sale. It did not do so, relying solely on statements from the previous owner that were contrary to law. Maverick officials conceded that they did no independent investigation or otherwise attempt to determine their tax obligations. As a result, the sales taxes were not collected because Maverick incorrectly believed that they were not due. This is not a basis for allowing Maverick any tax credit for taxes subsequently paid in other states.
[¶40] The District of Columbia and 44 of the 45 states that levy sales and use taxes allow a credit or exemption for similar taxes paid other states. Jefferson,
[¶41] We affirm the actions of the SBOE in determining that the purchase of the various recreational vehicles at issue in this case constitutes a taxable event in Wyoming. We also agree with the SBOE that collection of sales taxes on these vehicles does not violate the U.S. Constitution, Art. 1, § 8, (the Commerce Clause).
Notes
. Amended, in other parts, by 2011 Wyo. Laws, Ch. 127