W.R.A.P. 12.09(b) Certification from the District Court of
Teton County The Honorable Timothy C. Day, Judge.
Representing Appellant: Matthew Kim-Miller, Holland &
Hart LLP, Jackson, Wyoming. Argument by Mr. Kim-Miller.
Representing Appellee: Bridget Hill, Attorney General; Brandi
Monger, Deputy Attorney General; Karl Anderson, Senior
Assistant Attorney General; Andrew Kuhlmann, Senior Assistant
Attorney General. Argument by Mr. Anderson.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Delcon Partners, LLC (Delcon) purchased 28% of Delcon,
Inc.'s  (Seller's) tangible and intangible
assets. The Department of Revenue (Department) determined the
transaction was not exempt from sales tax because Delcon did
not purchase at least 80% of the total value of Seller's
assets, which included cash and accounts receivable. Delcon
appealed to the Wyoming Board of Equalization (Board),
arguing that it made no sense to transfer cash and accounts
receivable in a business purchase. The Board affirmed the
Department's determination, and the district court
certified the case to this Court. We affirm.
Is Delcon's purchase of less than 80% of Seller's
assets excluded from the definition of "sale" under
Wyo. Stat. Ann. § 39-15-101(a)(vii)(N) and, thus, exempt
from sales tax?
Delcon purchased assets valued at $1, 150, 000 from Seller,
an HVAC services business. Delcon did not purchase any of
Seller's cash, checking and savings accounts, accounts
receivable, promissory notes, "or other amounts owing to
Seller" for work done prior to the closing. The total
value of cash and accounts receivable excluded from the sale
was $3, 010, 602. The parties agreed that Delcon purchased
28% of Seller's "assets" and "intangible
Delcon requested that the Department review the transaction
to determine whether Wyo. Stat. Ann. §
39-15-101(a)(vii)(N) excluded it from the definition of sale,
exempting it from sales tax. The section excludes from the
definition of "sale":
(a)(vii) . . . an exchange or transfer of tangible personal
property upon which the seller . . . has directly or
indirectly paid sales or use tax incidental to:
(N) The sale of a business entity when sold to a purchaser of
all or not less than eighty percent (80%) of the value of all
of the assets which are located in this state of the business
entity when the purchaser continues to use the tangible
personal property in the operation of an ongoing business
entity in this state. . . .
Wyo. Stat. Ann. § 39-15-101(a)(vii)(N) (LexisNexis
2019). The Department determined Wyo. Stat. Ann. §
39-15-101(a)(vii)(N) only applies where at least 80% "of
the value of all of the assets [of the business entity] which
are located in this state" are purchased. Because Delcon
had only purchased 28% of Seller's assets, the ...