01-0476

Income Tax

Signed 8/8/01

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

PETITIONER, )

) ORDER

Petitioner, )

) Appeal No. 01-0476

v. ) Account No. #####

)

TAXPAYER SERVICES DIVISION OF ) Tax Type: Income Tax

THE UTAH STATE TAX )

COMMISSION, ) Judge: Phan

)

Respondent. )

_____________________________________

Presiding:

Jane Phan, Administrative Law Judge

Appearances:

For Petitioner: PETITIONER

For Respondent: Laron Lind, Assistant Attorney General

Inez Thomas

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 July 2, 2001.

Petitioner is appealing Respondent's denial of a refund request for the periods 1993, 1995 and 1996. Respondent denied the refund request because it was made after the applicable statute of limitations.

Petitioner argues that he had hired a tax preparation firm to prepare his Utah individual income tax returns for the years 1993, 1995 and 1996. Each return indicated that he was owed a refund. Petitioner states that he "assumed both the federal and state returns were filed since they [tax preparer] provided me with copies of both returns." Petitioner did not receive the refunds but claimed that he assumed the refunds were taken by the Internal Revenue Service ("IRS") because of a federal tax lien. He argues that he in good faith thought they were properly filed so he should be allowed the refund.

Respondent points out that Petitioner did not file returns for 1993, 1995 and 1996 until February 14, 2001. Utah Code Ann. 59-10-529 requires that a claim for refund is filed within three years and six months. The 1995 and 1996 returns were not prepared by the tax preparer until April 1999, and then Petitioner held on to them for an additional time until February 2001 before they were filed. Petitioner did not file his federal returns with the IRS until May 14, 2001 for the 1995 and 1996 years.

APPLICABLE LAW

If a refund or credit is due because the amount of tax deducted and withheld from wages exceeds the actual tax due, a refund or credit may not be made or allowed unless the taxpayer or his legal representative files with he commission a tax return claiming the refund or credit: (I) within three years from the due date of the return, plus the period of any extensions of time for filing the return provided for in Subsection (7)(c); . . . (Utah Code Ann. Sec. 59-10-529 (7).)

DECISION AND ORDER

The statute of limitations is strictly construed and even assuming the situation was as represented by Petitioner, there is no basis for waiving the statute of limitations and allowing payment of the refund. It is Petitioner's responsibility to see that the income tax returns are filed and filed within the three year period in order to obtain a refund. The typical practice of tax preparers, unless it is electronically filed, is to prepare and sign the return and give it to the taxpayer for his or her signature. The taxpayer then mails the return to the state and IRS. In addition, if a refund is taken to be applied to another liability, written notice is mailed to the taxpayer. In this case, Petitioner did not make sure that his returns were filed, nor did he check on the status of the refund claims, either with the State Tax Commission, or the IRS whom he thought received the funds.

Based on the foregoing, Petitioner's claim for refund of income tax for the years 1993, 1995 and 1996 is hereby denied. 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 8^th day of August, 2001.

____________________________________

Jane Phan

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 8^th day of August, 2001.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner