WSR 97-06-067
OFFICE OF THE GOVERNOR
[Filed February 28, 1997, 10:51 a.m.]
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