WSR 97-06-067

OFFICE OF THE GOVERNOR

[Filed February 28, 1997, 10:51 a.m.]

Executive Response to

Petition to Repeal or Amend a Rule

(Notification to the Code Reviser)


Enclosed herewith is a copy of my decision regarding the Petition to Repeal or Amend a Rule pursuant to RCW 34.05.330 (2)(3).

Name of Petitioner: Washington State Auto Dealer's Association.

Date Petition Received: January 16, 1997.

Agency: Department of Revenue.

Comments:

February 28, 1997

Re: Appeal of the December 24, 1996 denial by the Department of Revenue ("Department") of that certain Petition for Adoption, Amendment, or Repeal of a State Administrative Rule, dated November 6, 1996, filed by the Washington State Auto Dealers Association ("WSADA"), seeking amendment of WAC 458-20-192 (the "Petition")

Dear Ms. Ramble:

Pursuant to RCW 34.05.330(3), I have reviewed WSADA's appeal of the Petition and, after careful consideration, hereby deny the appeal. The Department denied the Petition based on a good-faith interpretation of Wofford v. Department of Revenue, 28 Wn. App. 68 (1980) and Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980). It is the purview of the courts to issue dispositive interpretations of case law, and that avenue of relief remains open to WSADA. The actions of the Department in denying the Petition do not rise to a level where intervention by the governor is appropriate.

WAC 458-20-192 ("Rule 192") provides that sales of tangible personal property to Indians or Indian tribes by off-reservation persons are subject to the retail sales tax except where the seller makes actual delivery of the property sold to a point within an Indian reservation. WSADA petitioned the Department for amendment or repeal of Rule 192, contending that pursuant to the Wofford and Colville cases, eligibility for the sales tax exemption should not be conditioned upon delivery, and that delivery is an improper and unnecessary burden on the public.

WSADA's position is not without merit. In its denial of the Petition, the Department did not state why the delivery provision of Rule 192 is necessary. It is worth noting, however, that a review of the statutes and regulations in the other states that impose a sales tax reveals that not all states allow exempt purchases to be made off-reservation, and of those that do all require delivery be made to the reservation. In its decision, the Department stated that it is working on a revision to the rule, and that it will thoroughly examine the delivery requirement. I strongly support the review and revision of administrative rules to make them simpler and less onerous. I encourage WSADA to participate fully in the Department's review process.

Sincerely,



Gary Locke

Governor

Distribution: Secretary of the Senate; Chief Clerk, House of Representatives; Agency; Citizen's Response Unit; Executive Policy Office; and Policy Counsel, Department of Revenue.

Legal Counsel:

Everett H. Billingslea

February 28, 1997

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