00-1470

Sales Tax

Signed 5/9/01

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

PETITIONER, )

) ORDER

Petitioner, )

) Appeal No. 00-1470

v. ) Account No. #####

)

TAXPAYER SERVICES DIVISION ) Tax Type: Sales Tax

OF THE UTAH STATE TAX )

COMMISSION, ) Judge: Davis

)

Respondent. )

_____________________________________

Presiding:

G. Blaine Davis, Administrative Law Judge

Appearances:

For Petitioner: PETITIONER REP

For Respondent: Ms. Vickie Christofferson, from the Taxpayer Services Division

STATEMENT OF THE CASE

This matter came before the Utah State Tax Commission for an Initial Hearing pursuant to the provisions of Utah Code Ann. '59-1-502.5, on April 16, 2001.

The electronic funds transfer for March 2000 sales taxes, which was due on May 1, 2000, was not cleared by Petitioner's bank. The delinquency was the fourth delinquency for sales taxes during a three-year period, plus a delinquency for resort tax which was waived because the taxes had been timely filed, and two delinquencies for withholding taxes. Penalties have been waived for five different returns during the three-year period.

Petitioner represented the delinquency was caused by bank error, because a deposit was made on May 1, 2000 but the bank did not get it credited to the account until May 2, 2000. Petitioner did present a letter from the bank which Petitioner represented substantiated that position. However, the letter indicates the deposit was made on May 2, and therefore does not substantiate that the failure of the check to clear the bank on May 1 was a bank error.

However, the primary problem in this matter is that the Taxpayer Services Division sent a letter to Petitioner on September 12, 2000 denying the waiver of his penalty, and gave him 30 days in which to file an appeal, which would have required such an appeal be filed on or before October 12, 2000. Petitioner did not file any response until November 24, 2000, after he had received a billing requesting payment of the amount due. Therefore, a Petition for Redetermination, or appeal, was not timely filed, and the Commission does not have jurisdiction to now review this appeal to waive the penalty. However, even if the Commission did have jurisdiction, in view of the number of delinquencies of Petitioner and the letter from the bank, which does not support the allegation that the penalty was caused by bank error, the waiver would not be granted.

APPLICABLE LAW

The Tax Commission is granted the authority to waive, reduce, or compromise penalties and interest upon a showing of reasonable cause. Utah Code Ann. §59-1-401(10).

DECISION AND ORDER

Based upon the foregoing, the Commission finds that sufficient cause has not been shown to justify a waiver of the penalty associated with the March 2000 return, and the Commission determines it did not have jurisdiction to grant the waiver because the appeal, or Petition for Redetermination, was not timely filed. Therefore, this matter is dismissed. It is so ordered.

This decision does not limit a party's right to a Formal Hearing. However, this Decision and Order will become the Final Decision and Order of the Commission unless any party to this case files a written request within thirty (30) days of the date of this decision to proceed to a Formal Hearing. Such a request shall be mailed to the address listed below and must include the Petitioner's name, address, and appeal number:

Utah State Tax Commission

Appeals Division

210 North 1950 West

Salt Lake City, Utah 84134

Failure to request a Formal Hearing will preclude any further appeal rights in this matter.

DATED this 9^th day of May, 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 9^th day of May, 2001.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner