
    
      Opinion issued January 19, 1976
    
    MID-MOUNTAIN MACK, INC. vs. DEPARTMENT OF MOTOR VEHICLES
    (No. D-962)
    
      Larry Whitt, Comptroller, represented the claimant.
    
      Henry C. Bias, Jr., Deputy Attorney General, for the respondent.
   JONES, JUDGE:

The claimant, Mid-Mountain Mack, Inc., sold a truck to Marcus Coal Company and took the company’s check for $2,334.27, including $2,088.02 for the State of West Virginia privilege tax. Thereupon the claimant mailed its own check in the amount of $2,334.27 to the respondent, Department of Motor Vehicles, in payment of the privilege tax and other charges. Marcus Coal Company then asserted that the truck was not what it had ordered and stopped payment on its check. The claimant contacted the respondent and was advised to return all documentation for cancellation. The license plate was returned unused and with the original package unopened, but the Certificate of Title, issued in the name of Marcus Coal Company, already had been sent to Mack Financial Corporation in Atlanta, Georgia, for financing purposes. Almost immediately, the truck was sold to Melvin Cox and the privilege tax again was required to be paid to the respondent in order to obtain a license in Mr. Cox’s name. Before the first title could be recovered, assigned by Marcus Coal Company and returned to the respondent, such a period of time had elapsed that there was nothing that could be done within the authority of the respondent to correct the anomalous procedure.

The respondent says that if all the transaction documents had been returned promptly, the Department could have “backed it out of the computer and out of the files”, and the claimant’s check would have been returned. The respondent recognizes and admits that there was only one completed transaction and that the State is only entitled to one tax. However, two licenses were applied for and, technically, two privilege taxes were required by law to be paid. The Court is satisfied that only one sale transaction actually was consummated, and believes that to permit the respondent to retain the duplicate tax payment would constitute unjust enrichment. Therefore, the Court is of opinion that the claimant, Mid-Mountain Mack, Inc., is entitled to reimbursement and does hereby make an award in its favor in the sum of $2,088.02.

Award of $2,088.02.  