02-0279

Sales Tax

Signed 1/28/03

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

PETITIONER, )

) ORDER GRANTING MOTION

Petitioner, ) TO DISMISS

)

v. ) Appeal No. 02-0729

)

TAXPAYER SERVICES DIVISION, )

UTAH STATE TAX COMMISSION, ) Tax Type: Sales Tax

)

Respondent. ) Judge: Phan

)

_____________________________________

STATEMENT OF THE CASE

On December 16, 2002, Respondent filed a Motion to Dismiss the refund request of Petitioner on the basis that Petitioner lacked standing to seek refunds on behalf of the residents of COMPANY A. Respondent's position is well supported by the Utah Court of Appeals decision in Greater Park City Company v. Tax Comm'n, 954 P.2d 873 (1998). It is only the person who paid the tax who has standing to claim a refund.

Petitioner filed a response to that motion on December 23, 2002, in which Petitioner argued that because Respondent did not initially raise the issue of standing when Petitioner filed its refund request in October 2001, and in fact indicated that the refund would be issued in a single check, residents of COMPANY A did not file individual refund claims at that time. Petitioner is a tenant association for residents of the COMPANY A. COMPANY A is a HUD regulated housing complex for disabled and elderly persons. It was not until September 2002, that residents began to file individual refund requests after it became apparent that Respondent was challenging Petitioner's standing to claim the refunds. Due to the three year statute of limitations period, the tenants who appealed individually in September 2002 were denied refunds for the period of July 1998 to June 1999. Although Petitioner does not directly argue that it has standing to request the refunds on behalf of the tenants, Petitioner requests that the Tax Commission recognize the October 26, 2001 date as the date of refund application for all the COMPANY A residents and grant the refunds for sales tax paid during the period of July 1998 through June 1999.

ORDER

As Respondent has argued, Petitioner clearly does not have standing in this matter to request a refund on behalf of the individual residents of COMPANY A and this matter should be dismissed. The individual residents are the appropriate parties to request the refund of the overpayment of tax which each individual has paid. They also have to opportunity to initiate an administrative proceeding if they wish to contest Respondent's handling of their refund claim.

Based upon the Commission's review of the motion and consideration of the parties' positions, the Motion to Dismiss Petitioner's refund request is granted.

DATED this 28^th day of January , 2003.

__________________________________

Jane Phan

Administrative Law Judge

BY ORDER OF THE COMMISSION.

The undersigned have reviewed this motion and concur in this decision.

DATED this 28^th day of January , 2003.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner