Wyoming Sales and Use Tax Protest

WYOMING SALES AND USE TAX PROTEST

TABLE OF CONTENTS

1. Caption
2. Preliminary Statement
3. Parties
4. Jurisdiction and Timeliness
5. Statement of Facts
6. Wayfair / Economic Nexus and 2024 HB 197 Update
7. Grounds for Protest
8. Refund Claim (Where Applicable)
9. Relief Requested
10. Reservation of Rights
11. Verification
12. Certificate of Service
13. Wyoming Practice Notes
14. Sources and References

1. CAPTION

BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

Docket No. [________________________________]

NOTICE OF APPEAL AND PETITION — SALES AND USE TAX

2. PRELIMINARY STATEMENT

Petitioner [TAXPAYER NAME], by and through undersigned counsel, hereby files this Notice of Appeal and Petition (the "Protest") from the final administrative determination of the Wyoming Department of Revenue ("DOR") dated [DATE OF FINAL DETERMINATION] (the "Final Determination") assessing additional [sales tax / use tax / both] in the amount of $[TAX], plus penalties of $[PENALTY] and interest of $[INTEREST], for the audit period [DATES] (the "Audit Period"). For the reasons set forth below, the Final Determination should be vacated or modified.

3. PARTIES

3.1. Petitioner [TAXPAYER NAME] is a [CORPORATION / LLC / SOLE PROPRIETORSHIP / OTHER] organized under the laws of [STATE], with its principal place of business at [ADDRESS], holding Wyoming Sales/Use Tax License No. [NUMBER] and Federal EIN [EIN].

3.2. Respondent Wyoming Department of Revenue, Excise Tax Division, administers and enforces Wyoming sales and use tax under Wyo. Stat. Title 39, Chapters 15 and 16.

4. JURISDICTION AND TIMELINESS

4.1. The Wyoming State Board of Equalization ("Board" or "SBOE") has jurisdiction over this Protest under Wyo. Stat. § 39-1-304(a), § 39-15-109(b)(iv) (sales tax remedies), and § 39-16-109(b)(iv) (use tax remedies).

4.2. The Final Determination was issued on [DATE] and received by Petitioner on [DATE].

4.3. This Protest is filed within thirty (30) days of the Final Determination and is therefore timely. See Wyo. Stat. § 39-15-109(b)(iv); SBOE Rules of Practice and Procedure, Ch. 2.

4.4. Petitioner has paid (or reserves the right to pay under protest) the undisputed portion of the assessment to limit interest accrual under Wyo. Stat. § 39-15-108(c).

5. STATEMENT OF FACTS

5.1. Petitioner is engaged in the business of [DESCRIBE BUSINESS — e.g., online retail of tangible personal property; SaaS; equipment leasing; restaurant; lodging].

5.2. During the Audit Period, Petitioner timely filed Wyoming sales and use tax returns and remitted all tax it believed to be due based on its good-faith application of Wyoming law and DOR guidance.

5.3. On [DATE], the Wyoming Department of Audit, Excise Tax Division, issued a Notice of Engagement initiating an audit of Petitioner's sales and use tax compliance. Wyo. Stat. § 39-15-108(c)(ii).

5.4. On [DATE], the auditor issued a draft audit report proposing additional tax of $[AMOUNT] based on the following adjustments:

• [Adjustment A — e.g., reclassification of SaaS revenue as taxable] — $[AMOUNT];
• [Adjustment B — e.g., disallowance of resale certificates] — $[AMOUNT];
• [Adjustment C — e.g., use tax on out-of-state equipment] — $[AMOUNT];
• [Adjustment D — e.g., remote-seller economic-nexus assertion] — $[AMOUNT].

5.5. Petitioner submitted a written response on [DATE] disputing the adjustments and requesting a closing conference.

5.6. On [DATE], DOR issued the Final Determination sustaining the assessment in whole or in part. Petitioner timely brings this Protest.

6. WAYFAIR / ECONOMIC NEXUS AND 2024 HB 197 UPDATE

6.1. Economic-nexus framework. Wyoming's economic-nexus statute, Wyo. Stat. § 39-15-501, was originally enacted in 2017 and amended in 2019 to align with South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018).

6.2. Pre-July 1, 2024 thresholds (historical). Prior to July 1, 2024, a remote seller was deemed to have economic nexus if either: (i) gross revenue from sales into Wyoming exceeded $100,000 in the current or immediately preceding calendar year, OR (ii) the seller made 200 or more separate transactions for delivery into Wyoming.

6.3. CRITICAL — 2024 amendment (HB 197). Wyoming House Bill 197 was signed into law on March 8, 2024, and became effective July 1, 2024. HB 197 REPEALED the 200-transaction prong of Wyo. Stat. § 39-15-501. Effective July 1, 2024, the sole trigger for remote-seller economic nexus is gross revenue from sales into Wyoming exceeding $100,000 in the current or immediately preceding calendar year.

6.4. Application to this audit. [Choose the applicable scenario.]

• ☐ Pre-7/1/2024 periods: The Audit Period includes reporting periods preceding July 1, 2024. The 200-transaction prong applied historically, but Petitioner did not exceed it because [FACTS].
• ☐ Post-7/1/2024 periods: The Audit Period includes reporting periods on or after July 1, 2024. Only the $100,000 gross-revenue threshold applies. Petitioner did not exceed it because [FACTS].
• ☐ Straddle audit: DOR has improperly applied the pre-amendment two-prong test to post-July 1, 2024 periods, in violation of HB 197.

6.5. Marketplace facilitator carve-out. Sales facilitated through a registered marketplace facilitator under Wyo. Stat. § 39-15-501.1 do not count toward Petitioner's individual $100,000 threshold and were properly excluded from Petitioner's nexus calculation.

6.6. Wayfair-permitted protections. Wyoming's economic-nexus regime, like South Dakota's regime upheld in Wayfair, requires: (i) a safe-harbor threshold for de minimis sellers; (ii) no retroactive application; and (iii) participation in the Streamlined Sales and Use Tax Agreement to reduce compliance burdens. Any DOR application contrary to these guardrails is unconstitutional under the dormant Commerce Clause.

7. GROUNDS FOR PROTEST

7.1. Ground One — Imposition Error. The transaction(s) at issue are not subject to Wyoming sales tax under Wyo. Stat. § 39-15-103 because [FACTS — e.g., the receipts derive from an exempt service rather than a retail sale of tangible personal property; the situs of the transaction is outside Wyoming].

7.2. Ground Two — Statutory Exemption. The transaction is exempt under one or more provisions of Wyo. Stat. § 39-15-105, including:

• ☐ § 39-15-105(a)(iii)(A) — sales for resale;
• ☐ § 39-15-105(a)(iii)(D) — manufacturing machinery;
• ☐ § 39-15-105(a)(iv) — agricultural production;
• ☐ § 39-15-105(a)(viii) — interstate commerce / sales in interstate commerce;
• ☐ § 39-15-105(a) — government, nonprofit, or other enumerated exemption: [SPECIFY].

7.3. Ground Three — Use Tax Credit for Tax Paid to Another State. Pursuant to Wyo. Stat. § 39-16-105(a)(viii), Petitioner is entitled to a credit for sales or use tax lawfully paid to another state, in the amount of $[AMOUNT].

7.4. Ground Four — Resale / Exemption Certificates Valid. Petitioner accepted resale and exemption certificates in good faith pursuant to Wyo. Stat. § 39-15-105(a)(iii) and Wyoming DOR Rules Ch. 2 § [__], satisfying the "good faith" defense to vendor liability.

7.5. Ground Five — Statute of Limitations. Adjustments for periods more than three (3) years prior to the engagement date are barred by Wyo. Stat. § 39-15-110, absent fraud or gross negligence.

7.6. Ground Six — One-Year Audit Completion. Pursuant to Wyo. Stat. § 39-15-108(c)(ii), an audit "shall be completed by the department of audit with final findings issued to the taxpayer or vendor within one (1) year of the date of the notice of engagement." DOR exceeded this limit by issuing findings on [DATE], more than one year after the [DATE] engagement notice.

7.7. Ground Seven — Economic Nexus Not Established. As detailed in Section 6, Petitioner did not exceed the $100,000 gross-revenue threshold in Wyo. Stat. § 39-15-501 (and, for any pre-July 1, 2024 periods, did not exceed the now-repealed 200-transaction threshold).

7.8. Ground Eight — Penalty / Interest Abatement. Even if any tax is owed:

• The 10% delinquency penalty under Wyo. Stat. § 39-15-108 is subject to abatement for reasonable cause;
• Penalty and interest must be abated under Wyo. Stat. § 39-11-102 to the extent Petitioner relied on erroneous written DOR guidance, including [CITE];
• Interest must run only from the actual delinquency date and must be reduced by amounts paid under protest.

7.9. Ground Nine — Procedural Due Process. The Final Determination fails the plain-language and appeal-procedure notice requirements of Wyo. Stat. § 39-11-102(f), depriving Petitioner of procedural due process under the U.S. and Wyoming Constitutions.

7.10. Ground Ten — Constitutional Limits. Application of the assessment violates the Commerce Clause (post-Wayfair guardrails), the Due Process Clause, and the Uniformity Clause of Wyo. Const. art. 15, § 11.

8. REFUND CLAIM (WHERE APPLICABLE)

8.1. To the extent Petitioner has previously remitted any portion of the disputed tax, this Protest also serves as a written claim for refund or credit pursuant to Wyo. Stat. § 39-15-109(c).

8.2. Three-year limitations. No credit or refund shall be allowed after three (3) years from the date of overpayment. Wyo. Stat. § 39-15-109(c)(ii). Receipt of this claim by DOR tolls the limitations period.

8.3. Refund amount claimed: $[AMOUNT] in tax, plus statutory interest from the date of overpayment.

8.4. Documentation supporting refund: [ATTACH AS EXHIBITS — invoices, returns, exemption certificates, customer affidavits where required].

9. RELIEF REQUESTED

WHEREFORE, Petitioner respectfully requests that the Board:

• A. Accept this Protest as timely filed;
• B. Set the matter for contested-case hearing under Wyo. Stat. § 16-3-107;
• C. Issue findings of fact and conclusions of law reversing or modifying the Final Determination;
• D. Vacate the proposed assessment of additional sales/use tax in the amount of $[AMOUNT], together with all associated penalties and interest;
• E. Order any refund of amounts paid by Petitioner with statutory interest;
• F. Stay any DOR lien or collection action during the pendency of this appeal;
• G. Award Petitioner such other relief as is just and equitable.

10. RESERVATION OF RIGHTS

Petitioner reserves the right to: (i) amend this Protest; (ii) supplement the record with documentation produced in discovery; (iii) raise additional legal theories permitted under SBOE Rules; and (iv) seek further judicial review in the appropriate Wyoming District Court under Wyo. Stat. § 16-3-114 within thirty (30) days of any final SBOE order, with subsequent appeal to the Wyoming Supreme Court.

11. VERIFICATION

STATE OF [_______________]

COUNTY OF [_______________]

I, [NAME], being first duly sworn, depose and say that I am the [Petitioner / officer / authorized representative of Petitioner] in this matter; that I have read the foregoing Protest and know the contents thereof; and that the same is true to my own knowledge except as to those matters stated upon information and belief, and as to those I believe them to be true.

[________________________________]

[NAME], [TITLE]

Sworn to and subscribed before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public — My commission expires: [_______________]

12. CERTIFICATE OF SERVICE

I hereby certify that on this [____] day of [_______________], 20[____], the foregoing NOTICE OF APPEAL AND PETITION was filed with the Wyoming State Board of Equalization and served upon the following:

[________________________________]

[ATTORNEY NAME], Wyo. State Bar No. [####]

Counsel for Petitioner

13. WYOMING PRACTICE NOTES

• No state income tax. Wyoming has no state personal or corporate income tax. Sales, use, and severance taxes are the principal state-level revenue sources for businesses.
• HB 197 (2024) — economic-nexus simplification. Effective July 1, 2024, Wyo. Stat. § 39-15-501 was amended by House Bill 197 to eliminate the 200-transaction prong of remote-seller economic nexus. Only the $100,000 gross-revenue threshold remains. Confirm whether the audit period straddles this date and brief accordingly.
• Marketplace sales excluded. Marketplace facilitator sales (Wyo. Stat. § 39-15-501.1) do not count toward an individual seller's $100,000 threshold. Marketplace facilitators register and remit on the seller's behalf.
• 30-day appeal deadline — strict. Wyo. Stat. § 39-15-109(b)(iv) and § 39-16-109(b)(iv) impose a non-extendable 30-day deadline to appeal a final DOR determination to the SBOE. A late notice deprives the SBOE of jurisdiction.
• Three-year audit / refund window. Both the audit look-back (Wyo. Stat. § 39-15-110) and the refund-claim window (Wyo. Stat. § 39-15-109(c)(ii)) are three (3) years. Track both clocks.
• One-year audit completion. Audits must be completed within one year of the engagement notice. Document delays for use as a defense.
• Streamlined Sales Tax member. Wyoming is a full member of the Streamlined Sales and Use Tax Agreement (SSUTA). The SSUTA exemption certificate is valid in Wyoming, and SSUTA-certified service providers receive limited liability protection.
• State + local rate. Wyoming's state sales tax rate is 4%, with optional local-option taxes (up to 2% county; lodging tax up to 2%). Verify the correct combined rate per situs.
• Pay-and-protest. Wyoming permits payment under protest; coordinate any partial payment with a written reservation citing this Protest.
• Judicial review. Aggrieved parties may seek review in the Wyoming District Court under Wyo. Stat. § 16-3-114 within 30 days of the SBOE final order; standard is "arbitrary, capricious, or unsupported by substantial evidence." Further appeal lies to the Wyoming Supreme Court.
• Confidentiality. Audit work papers and returns are confidential under Wyo. Stat. § 39-15-107(b)(viii). Move for a protective order if comparables or third-party data are referenced.

14. SOURCES AND REFERENCES

• Wyoming Legislature — Title 39, Ch. 15 (Sales Tax) — https://wyoleg.gov/statutes/compress/title39.pdf
• Wyoming Legislature — Title 39, Ch. 16 (Use Tax) — https://wyoleg.gov/statutes/compress/title39.pdf
• Wyoming HB 197 (2024) — https://www.wyoleg.gov/Legislation/2024/HB0197
• Wyo. Stat. § 39-15-501 (Sales from Remote Sellers) — https://law.justia.com/codes/wyoming/title-39/chapter-15/article-5/section-39-15-501/
• Wyo. Stat. § 39-15-110 (Statute of Limitations) — https://law.justia.com/codes/wyoming/title-39/chapter-15/article-1/section-39-15-110/
• Wyo. Stat. § 39-15-108 (Enforcement) — https://law.justia.com/codes/wyoming/title-39/chapter-15/article-1/section-39-15-108/
• Wyo. Stat. § 39-16-109 (Use tax — remedies) — https://codes.findlaw.com/wy/title-39-taxation-and-revenue/wy-st-sect-39-16-109/
• Wyoming Department of Revenue — Excise Tax Division — https://revenue.wyo.gov/
• Wyoming Department of Audit — Excise Tax — https://audit.wyo.gov/excise-tax
• Wyoming Taxpayer Bill of Rights — https://audit.wyo.gov/excise-tax/taxpayer-bill-of-rights
• Wyoming State Board of Equalization — http://taxappeals.state.wy.us/
• Streamlined Sales Tax Governing Board — https://www.streamlinedsalestax.org/
• South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018)
• Sales Tax Institute — Wyoming Removes 200-Transaction Threshold — https://www.salestaxinstitute.com/resources/wyoming-removes-200-transaction-threshold-from-economic-nexus-rules

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. A Wyoming-licensed attorney must review and customize this document before filing. Wyoming sales and use tax statutes (and economic-nexus thresholds) change; verify all authorities at https://wyoleg.gov/, https://revenue.wyo.gov/, and http://taxappeals.state.wy.us/ before use. Note in particular that HB 197 (2024) repealed the 200-transaction prong of the economic-nexus test effective July 1, 2024.