Wyo. Code R. 011-0004-4
Effective Date: 10/06/2009 to 07/24/2014
Rule Type: Superceded Rules & Regulations
Reference Number: 011.0004.4.10062009
Section 1. Authority.
These rules are adopted pursuant to W.S. 39-11-102.
Section 2. Purpose of the Rules.
The express purpose of this chapter of the rules are as follows:
(a.) To provide for the administrative requirements regarding the issuance of a new cigarette/other tobacco tax license upon the sale, transfer, or change in location of a cigarette/other tobacco wholesaler's business; (b.) To provide rules applicable to the bonding of wholesalers for the purchase of stamps. (c.) To provide rules for the application of tax on the purchase of "other tobacco products" by wholesalers from manufactures. (d.) To provide rules setting forth the tax liability of Native Americans, Indian Tribes, and persons conducting business with Native Americans on or within Indian Reservations, and to codify the mandates set forth in Stagner v. Wyoming State Tax Commission 642 P.2d 1296 (1984).
Section 3. Definitions
(a.) "Certified funds" are used to purchase cigarette stamps and consists of either a wire transfer, ACH Credits or cash. (b.) "Cigarette" means (i.) any roll of tobacco wrapped in paper or in any substance not containing tobacco, and (ii.) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to or purchased by, consumers as a cigarette described in section "(i.)" above. (c.) "Cigarette stamp" is specially designed, numbered decal that is sold by the Department to licensed stamping wholesalers to affix to cigarette packages. (d.) "Cigar" means cured tobacco wrapped in leaf tobacco or in any substance containing tobacco (other than any roll of tobacco which is a cigarette within the meaning of paragraph "b" of the definition of cigarette). (e.) "Contraband" is any cigarette brand or product not authorized for sale in Wyoming. Contraband is subject to seizure upon discovery. Contraband includes: (i.) Unstamped cigarette packages, except those packages sold to Native American retailers on the Wind River Reservation who have signed an agreement with the Department; (ii.) Any cigarette product made by a manufacturer that is not complying with the terms of the Master Settlement Agreement;
(iii.) Any cigarette package with a stamp that is not identifiable as a Wyoming cigarette stamp; (iv.) Any cigarette package for sale in Wyoming with any other states' cigarette stamp. (v.) Any cigarette package for sale in Wyoming found with a counterfeit stamp. (vi.) Any cigarette for sale in Wyoming found to be counterfeit cigarettes (f.) "Master Settlement Agreement (MSA)" is an agreement, originally between the four largest US tobacco companies and the Attorneys General of 46 states, that provides for restrictions on practices by the companies and payments by them to the states to compensate for the cost of providing health care for persons with smoking-related illnesses. In exchange, the states settled existing litigation on these matters, and the companies are protected from most forms of future litigation regarding harm caused by tobacco use. (g.) "Moist snuff" means any moist finely cut ground or powdered tobacco intended to be placed in the oral cavity, other than dry snuff. Moist snuff tobacco includes a product referred to as "snus". (h.) "Other tobacco products" or OTP means any tobacco product intended for human ingestion, consumption or inhalation, other than cigarettes and moist snuff. OTP includes, but is not limited to: dry snuff, pipe tobacco, loose tobacco, plug tobacco, or twist tobacco; tobacco pressed into tablets, strips or sticks; and any other product manufactured from tobacco.
(a.) Affixing Stamps. (i.) Authorized cigarette stamps of the proper denomination are to be affixed to each individual package of cigarettes by the wholesaler in a manner to ensure the stamp is adhered to the package securely. The cigarette stamp must be complete and readable. (ii.) Cigarette stamps of the proper denomination are to be affixed only to the bottom end of each package of twenty (20) or more cigarettes. Cigarettes sold in packages containing more than twenty (20) cigarettes shall be stamped with a cigarette stamp and the additional tax due on these packages reported and paid with the wholesalers' next cigarette tax return. (b.) Calculation of tax on "moist snuff" and "other tobacco products." (i.) Moist snuff tobacco is taxed based on its unit weight in ounces with a minimum tax of sixty cents (.60) (ii.) Tax on other tobacco is based on the wholesale purchase price the wholesaler pays to the manufacturer for the product. (c.) Inspection of Retail Stores and Vending Machines. (i.) Inspections of Retail Stores: (A.) The department will conduct random inspections of all retail stores and vending machines selling cigarettes in this state to ensure all packages of cigarettes are properly stamped and authorized for sale in Wyoming.
(B.) If improperly stamped product or contraband brands are found the product will be confiscated. (C.) Any product confiscated will be conducted in the presence of a local law enforcement agent to witness the confiscation. (ii.) Inspections of Cigarette Vending Machines. (A.) The department will arrange with the owner of the vending machine to inspect the product in the machine. (B.) The department will also conduct an inspection of the vending machine owner's inventory. (C.) If improperly stamped product or contraband brands are found the product will be confiscated. (D.) Any product confiscated will be conducted in the presence of a local law enforcement agent to witness the confiscation. (d.) Payment of Stamp Orders. (i.) A cash or surety bond equal to the face value of the maximum purchase of stamps is required of the wholesaler purchasing cigarette stamps with payment other than cash i.e. certified funds. (ii.) Payment in certified funds must be received by the department before stamp order will be filled. Stamps will only be mailed if the wholesalers are current with their monthly tax returns. (e.) Cigarette tax stamps shall be disbursed in multiples of one roll (30,000 stamps).
(a.) Cigarette wholesalers, importers and manufacturers, and other tobacco wholesalers who sell or offer to sell cigarettes or other tobacco products in this state must have a license to do so, issued by the department. The license must be renewed each year on or before June 30th. Once approved, this license will allow the wholesaler to sell or offer to sell cigarettes and or other tobacco products. (i.) The Wyoming cigarette wholesaler's/other tobacco wholesaler license is transferable between locations by the licensee provided that consent of the Department of Revenue is obtained prior to any transfer. A change in ownership will require the issuance of a new license. Additional licenses must be obtained for each separate location. (ii.) The Wyoming cigarette wholesaler/other tobacco wholesaler license will not be granted, maintained or renewed if the wholesaler is in violation of any provision of Wyoming Statutes, Title 39 Chapter 18.
(a.) Reporting Frequency/due date, cigarette wholesalers. (i.) Cigarette wholesalers shall provide monthly reports to the department postmarked by the 20th day of each month following the month of the cigarette sales.
(ii.) Cigarette wholesalers shall file these reports on forms provided by the department or may choose to file electronically through the department's web based filing system. (iii.) The report shall include an itemized listing of the person's the wholesaler sold cigarettes to including the name and address of the purchaser and the number of packages of cigarettes sold. (iv.) Cigarette wholesalers shall submit the tax due on cigarette packs containing other than 20 cigarettes with the monthly cigarette wholesaler return. (b.) Reporting Frequency/due date, Other tobacco wholesalers. (i.) Other tobacco wholesalers shall provide quarterly reports to the department postmarked by the 20th day of the month following the quarter of the purchase/import of other tobacco products from the manufacturer. (ii.) Other tobacco wholesalers shall file these reports on forms provided by the department or may choose to file electronically through the department's web based filing system. (c.) Untimely reporting shall result in adverse action up to and including revocation of the wholesaler's license. Any tax returns postmarked after the 20th of the month when due are subject to a 5% penalty of the taxes due plus a 1 % penalty for each additional month or fraction thereof from the date of delinquency. (d.) The Department of revenue shall have the authority to examine and/or audit records etc., pertaining to the cigarette stamps at any time during normal business hours.
(a.) Refunds will only be processed upon the cancelation of a wholesaler's cigarette/other tobacco product license. All other instance of overpayment will be handled as a credit against future liabilities. Claims for refund shall be submitted to the department and shall be accompanied by Manufacturer's Statements or unusable stamps. (b.) The department shall refund or deny all refund claims within ninety (90) days of the date all required supporting documentation is received.
(a.) Definitions. (i.) The term Indian Reservation as used herein shall include all lands, notwithstanding the issuance of any patent within the exterior boundaries of the Wind River Reservation and meeting at least one of the following criteria: (A.) The land is owned by the United States in trust for the Shoshone and Arapaho Tribes; (B.) The land is owned by one or both of the Shoshone and Arapaho Tribes; (C.) The land is owned in full by enrolled members of the Shoshone or Arapaho Tribes; provided, however, that lands within the Riverton Reclamation withdrawal and the City of Riverton are not included within the term.
(ii.) The term "Indian Tribe" as used herein shall mean only the Shoshone Tribe and the Northern Arapaho Tribe of the Wind River Indian Reservation. (iii.) The term Native American" as used herein shall mean any enrolled member of the Shoshone Tribe or the Northern Arapaho Tribe of the Wind River Indian Reservation. (iv.) "Department" means the Department of Revenue or its authorized agent. (v.) "Native American or Tribal Vendor" means an Indian or Indian Tribe as defined herein, engaged in selling cigarettes. (vi.) "United States" means the government of the United States and all its departments and agencies. (b.) Sales of cigarettes made on the Wind River Indian Reservation to non-Indians are subject to the cigarette tax, since the tax is levied upon the non-Indian purchaser. All Indian, tribal vendors or non-Indian wholesalers shall keep complete and accurate records in this state of all cigarettes purchased and sold for three years. Such records will consist of purchase invoices, freight bills and sales invoices. (c.) The Native American or Tribal Vendor may purchase cigarettes without the Wyoming Tax stamp and remit the taxes due on sales to non-Indian customers in the following manner: (i.) The Department of Revenue may enter into an agreement annually with the tribal vendor which allows the tax to be paid on a percentage basis. The Native American vendor shall provide the Department with information which justifies a proposed percentage and upon acceptance by the Department said percentage shall represent a rebuttable presumption as to the volume of sales to non-Indians and nonexempt Native American. The Native American or Tribal vendor shall report total sales of cigarettes for each month less the exempt sales as defined by these rules, which will equal total cigarettes subject to the tax. The tax shall be remitted to the Department pursuant to the terms and conditions of the agreement. (d.) Sales of cigarettes to Native American outside of the Wind River Indian Reservation are subject to the tax and cigarette stamp indicating payment of tax must be affixed to each package sold. (e.) Sales of cigarettes made on the Wind River Indian Reservation to Native American customers are exempt from Wyoming cigarette tax.
(a.) Federal law requires cigarette vendors who sell and ship cigarettes into another state to anyone other than a licensed wholesaler to report to each state where shipments are made (1) the name and address of the purchaser, (2) the brands of cigarettes shipped and, (3) the quantities of cigarettes shipped. (Jenkins Act 15 U.S.C. 375-378). The department will assess tax due on these purchases based on the information received. (i.) Cigarette Tax and Use Tax: Transactions subject to use tax: The purchase of cigarettes from outside the state for use, storage or consumption within the state shall be subject to use tax under W.S. 39-16-103(a)(i) and cigarette tax under W.S. 39-18-103(a)(ii).
(ii.) Use tax is calculated based on the purchase price multiplied by the current tax rate in effect in the county where the taxpayer takes receipt of the product for storage and consumption.
(iii.) Cigarette tax is calculated based on the number of packages (20 sticks per package) multiplied by the current cigarette tax rate as stated in W.S. 39-18-104.
(a.) Commencement of Action. Upon an appropriate showing of violation of W.S. 39-18-101 through W.S. 39-18-111 or the Rules and Regulations of the Department, the Department may commence proceedings to revoke the license of the wholesaler.
(b.) The Department shall notify the wholesaler of the intent to revoke their license in a petition for revocation. The petition shall include:
(i.) The legal authority and jurisdiction under which the hearing is to be held;
(ii.) The particular sections of the statutes and rules involved; and
(iii.) A short and plain statement of the violations alleged.
(c.) No answer is required, and at the hearing, the wholesaler may appear and show why his license should not be revoked.
(d.) Hearing Officer. A hearing officer assigned by the Office of Administrative Hearings (OAH) shall conduct the hearing.
(i.) The wholesaler may move to disqualify a hearing officer by filing written motion and supporting affidavits of personal bias with the director of OAH. After careful consideration of the evidence presented, the director of OAH or hearing officer assigned by the Office of Administrative Hearings shall rule upon the motion.
(ii.) The hearing officer may withdraw whenever he deems himself disqualified because of personal bias or other substantial reasons.
(e.) Time and Place of Hearing. The hearing officer will issue a scheduling conference order to set the date, time and place of hearing. The hearing may be held no less than thirty (30) days after service of the petition to Show Cause upon the licensee, so that he may have adequate time for preparation. Upon motion and for good cause, the hearing may be postponed by the hearing officer until a later date.
(f.) Hearings shall be conducted in Cheyenne, Wyoming, unless upon motion and for good cause shown the hearing officer determines another location is preferable.
(g.) Service. The petition to Show Cause shall be served personally or by mail, return receipt requested, addressed to the place of business of the wholesaler, or to the wholesaler's most recent residence address on record with the Department of Revenue.
(h.) Authority of Hearing Officers. Hearing officers have the authority in accordance with W.S. 16-3-112 to:
(i.) Inspection of File. Each party, or his authorized representative, shall be permitted to inspect and copy, at his own expense at the offices of the Department, all documents filed in the license suspension or revocation proceedings, and all documents regarding the subject of the hearing contained in the Department's files permitted by law to be inspected and copied.
(j.) Record of Proceedings. The hearing shall be reported verbatim, stenographically or by any other appropriate means determined by the Department or hearing officer. If one or more parties desires the hearing transcribed by a certified court reporter, he shall make the necessary arrangements and bear the cost.
(k.) Order of Procedure at Hearing. Hearings shall be conducted in accordance with rules of the Office of Administrative Hearings.
(l.) Decision of Department.
(i.) Within twenty (20) days after completion, the hearing officer shall prepare proposed findings of fact and conclusions of law for submittal, along with the entire record as defined in W.S. 16-3-107(o), and the proposed findings of fact and conclusions of law from both parties, if any, to the Director of the Department of Revenue.
(ii.) After receipt of the record, the Department of Revenue shall within twenty (20) days enter a decision and final order containing findings of fact and conclusions of law, signed by the Director or other administrator of the Department.
(iii.) The wholesaler shall be promptly notified by mail of the final order.
(iv.) Appeals to State Board of Equalization. Any wholesaler aggrieved or adversely affected by a final decision of the Department after a hearing is
entitled to appeal the decision to the State Board of Equalization pursuant to rules of the Board.
Nothing in these contested case rules shall be construed in any way to limit the right of the Department to other lawful remedies to which it may be entitled.