BEFORE THE UTAH STATE TAX COMMISSION
TAXPAYER SERVICES DIVISION ) FINDINGS OF FACT,
OF THE UTAH STATE TAX ) CONCLUSIONS OF LAW,
COMMISSION, ) AND FINAL DECISION
Petitioner, ) Appeal No. 00-1411
v. ) Parcel No. #####
PETITIONER, ) Tax Type: Sales Tax
Respondent. ) Judge: Davis
G. Blaine Davis, Administrative Law Judge
Marc B. Johnson, Commissioner
For Petitioner: Mr. Clark Snelson, Assistant Attorney General
Mr. Ken LeFevre, Taxpayer Services Division
Ms. Janet Thomas, Taxpayer Services Division
For Respondent: TAXPAYER REP.
STATEMENT OF THE CASE
This matter came before the Utah State Tax Commission for a Formal Hearing on February 26, 2001. 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 sales and use tax.
2. The periods in question are the second quarter of 1997 through the fourth quarter of 2000, except for the returns due for the second quarter of 1997, the third quarter of 1999, and the fourth quarter of 2000.
3. This is a matter commenced by the Taxpayer Services Division for the purpose of revoking the sales tax license of the Respondent, no. #####.
4. Respondent opened for business in early 1997. Since that time, they have filed and paid timely the sales tax returns due for the second quarter of 1997, the third quarter of 1999, and the fourth quarter of 2000. All other sales tax returns have not been timely filed or paid.
5. As of the present time, there are 12 quarters, or 36 months for which Respondent has not timely filed his sales tax returns, nor has he paid the sales tax due thereon. Accordingly, penalties and interest have been added to the amounts due.
6. In addition, there are 13 quarters for which Respondent has not filed or paid the withholding tax which he has deducted from the paychecks of his employees.
7. Respondent has also not filed a personal income tax return for at least one or more years.
8. Through the end of the year 2000, Respondent owes a total estimated amount of $$$$$ for sales tax withholding tax, plus penalties and interest. This amount is due after the subtraction of two garnishments in an amount of slightly more than $$$$$, where money was taken from the till of Respondent.
9. Petitioner represented it had contacted TAXPAYER REP on several occasions, had set up a payment agreement, and TAXPAYER REP had also signed a personal penalty assessment. The payments have not been made at the times or in the amounts as agreed to by Respondent.
10. Respondent represented that he did desire to remain in business, and felt he could be successful. He proposed to pay an amount between $$$$$ and $$$$$ down which he claimed he could borrow from the equity in his house, and then pay $$$$$ per month on the delinquent taxes.
11. The Commission finds that by failing to timely file sales tax returns and pay the amount of tax which has been collected from customers, Respondent has violated provisions of Utah statutes and rules, and there is more than ample cause to revoke the sales tax license of Respondent.
Utah Code Ann. '59-12-106, states in relevant part, as follows:
It is unlawful for any person required by this chapter to collect sales or use tax, to engage in business within the state without first having obtained a license to do so. This license shall be granted and issued by the commission. The license is not assignable and is valid only for the person in whose name it is issued until that person ceases to do business or changes his business address, or until the license is revoked by the commission.
. . . .
The commission shall, on a reasonable notice and after a hearing, revoke the license of any person violating any provisions of this chapter and no license may be issued to such person until the taxpayer has complied with the requirements of this chapter. Any person required by this chapter to collect sales or use tax within this state without having secured a license to do so, is guilty of a criminal violation as provided in Section 59-1-401.
. . . .
DECISION AND ORDER
Based upon the foregoing, the Tax Commission finds there is reason to revoke the sales tax license of Respondent. However, the commission will delay making a final decision regarding the revocation so long as Respondent complies with the following requirements.
1. Respondent shall cooperate fully in any audits of his sales tax, withholding tax, personal income tax, or any other tax returns normally filed with the Utah State Tax Commission.
2. All sales and withholding tax returns which become due on or after the date of this Order must be filed and paid timely.
3. All personal income tax returns of TAXPAYER REP will be filed and current on or before April 15, 2001.
4. Respondent shall pay to Petitioner an amount of $$$$$ within 45 days from the date of this Order.
5. Respondent will pay the sum of $$$$$ to apply to the current balance of tax, penalty and interest due beginning on April 20, 2001, and $$$$$ to be due on the 20th day of each and every month thereafter until all past due amounts have been paid in full.
6. All payments made by Respondent shall be applied first to penalty, second to interest, and lastly to the amount of tax due.
7. All payments must be made in certified funds and shall be made payable to the Utah State Tax Commission, and sent to the attention to Mr. Ken LeFevre, Utah State Tax Commission, 2447 Lincoln Ave., Ogden, Utah 84401. These payments must be received by the Division on or before the above stated due dates and at the location stated above. Any payment not received in the manner and the time period stated herein shall constitute a breach of this Order.
8. In the event Respondent fails to comply with any term or condition of this Order, the Respondent's sales tax license no. ##### shall be automatically revoked by the Commission upon the filing of an Affidavit from Petitioner stating that the terms of this Order have been breached. A copy of any such Affidavit must be mailed by regular mail to Respondent. The revocation shall occur any time 10 days or more after the filing and mailing of such an Affidavit, but without further hearing. In the event such an Affidavit is filed, Respondent may, within 10 days after the filing of the notice, file a response to such Affidavit if he believes it to be inaccurate in any respect.
12. In the event Respondent does not comply with the terms of this Order, and an Affidavit is filed by Petitioner, then immediately after the execution of the Order of Revocation by the Commission, Petitioner may take any action it deems necessary to collect any amounts due at that time.
13. Upon completion of the terms of this Order, the Tax Commission shall issue an Order dismissing the action.
It is so ordered.
DATED this 4th day of April , 2001.
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 4th day of April , 2001.
Pam Hendrickson R. Bruce Johnson
Commission Chair Commissioner
Palmer DePaulis Marc B. Johnson