00-0955

Income Tax

Signed 3/27/02

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

PETITIONER, ) FINDINGS OF FACT,

) CONCLUSIONS OF LAW,

Petitioner, ) AND FINAL DECISION

)

v. ) Appeal No. 00-0955

) Account No. #####

AUDITING DIVISION OF )

THE UTAH STATE TAX ) Tax Type: Income Tax

COMMISSION, )

) Judge: Davis

Respondent. )

_____________________________________

Presiding:

G. Blaine Davis, Administrative Law Judge

Appearances:

For Petitioner: No one appeared (PETITIONER REP)

For Respondent: Mr. Tim Bodily, Assistant Attorney General

Ms. Becky McKenzie, from the Auditing Division

Mr. Brent Taylor, from the Auditing Division

Ms. Amy Gillette, from the Auditing Division

STATEMENT OF THE CASE

This matter came before the Utah State Tax Commission for a Formal Hearing on March 7, 2002. Based upon the evidence and testimony presented at the hearing, the Tax Commission hereby makes its:

FINDINGS OF FACT

1. The tax in question is income tax.

2. The period in question is 1997.

3. PETITIONER REP had filed a Motion and Affidavit to continue the Formal Hearing when it was set on October 11, 2001. The matter was continued to the date of March 7, 2002, but a notice was not sent to PETITIONER REP because he had not entered an appearance. Nevertheless, the Administrative Law Judge called PETITIONER REP to see if he was representing him. PETITIONER REP represented that he had been trying to reach PETITIONER since last August to confirm whether or not PETITIONER wanted PETITIONER REP to represent him at this proceeding, but he had not been able to make contract and had not received written authorization from PETITIONER to represent him. Accordingly, PETITIONER REP was not willing to state that he represented Petitioner. PETITIONER's prior representative, XXXXX, is presently incarcerated and unavailable to represent PETITIONER. Therefore, copies of this decision will be sent to both PETITIONER and PETITIONER REP. It is further noted that after contacting PETITIONER REP, a short recess was taken and PETITIONER REP represented he again attempted to contact PETITIONER, but received a message that the telephone number had been temporarily disconnected.

4. Petitioner did not file a timely 1997 income tax return. Respondent received information from the Internal Revenue Service that Petitioner had income which had not been reported to the State of Utah. That income included a 1099R which showed income of $$$$$, a W-2 form showing taxable wages of $$$$$, and a 1099-INT which showed Petitioner had $$$$$ of interest. None of that income was reported to the State of Utah.

5. Respondent imposed Utah State Income Taxes in an amount of $$$$$, plus a 10% late filing penalty and a 10% late payment penalty in an amount of $$$$$, and interest current to date of $$$$$. There have been no withholdings from any income, and no amounts have been paid to the Tax Commission by Petitioner.

Based upon the foregoing, the Commission finds that Petitioner failed to properly file a Utah State Individual Income Tax Return, and has further failed to pay the amount of taxes, penalty or interest assessed against him.

APPLICABLE LAW

The state of Utah imposes income tax on individuals who are residents of the state in Utah Code Ann. §59-10-104 as follows:

". . . a tax is imposed on the state taxable income, as defined in Section 59-10-112, of every resident individual . . ."

State taxable income is defined in Utah Code Ann. §59-10-112 as follows:

"State taxable income in the case of a resident individual means his federal taxable income (as defined by Section 59-10-111) . . ."

Federal taxable income is defined in Utah Code Ann. §59-10-111 as follows:

"Federal taxable income" means taxable income as currently defined in Section 63, Internal Revenue Code of 1986.

Taxable income is defined in the Internal Revenue Code at 23 USC 63 as:

"Except as provided in subsection (b), for purposes of this subtitle, the term "taxable income" means gross income minus the deductions allowed by this chapter (other than the standard deduction)."

Gross income is defined in the Internal Revenue Code at 23 USC 61(a) as:

"Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items:

(1) Compensation for services, including fees, commissions, fringe benefits, and similar items; . . ."

The requirement to file a federal income tax return is established by IRC.§6012.

Utah Code Ann. §59-10-502, provides in relevant part:

"An income tax return with respect to the tax imposed by this chapter shall be filed by:

(1) Every resident individual, estate, or trust required to file a federal income tax return for the taxable year; . . . ."

DECISION AND ORDER

Based upon the foregoing, the Commission determines Petitioner has failed to pay required taxes, and the audit assessment of Respondent is hereby affirmed. The Petition for Redetermination is hereby denied. It is so ordered.

DATED this 27^th day of March , 2002.

_______________________________

G. Blaine Davis

Administrative Law Judge

BY ORDER OF THE UTAH STATE TAX COMMISSION:

The Commission has reviewed this case and the undersigned concur in this decision.

DATED this 27^th day of March , 2002.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner