02-1046

Sales Tax

Signed 10/11/02

BEFORE THE UTAH STATE TAX COMMISSION

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PETITIONER, ) ORDER

)

Petitioner, ) Appeal No. 02-1046

)

v. ) Account No. #####

)

DIVISION OF ) Tax Type: Sales Tax

THE UTAH STATE TAX )

COMMISSION, ) Tax Year: 2002

)

Respondent. ) Judge: Davis

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Presiding:

G. Blaine Davis, Administrative Law Judge

Appearances:

For Petitioner: PETITIONER

For Respondent: Ms. Vickie Hymas, 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 September 19, 2002.

The sales tax electronic funds transfer for January 2002 was due on or before February 28, 2002.

Petitioner represented he tried numerous times from 8:00 a.m. until 3:00 p.m. to try to transfer the funds for payment of his return by way of the Internet. However, every time he tried he would get a response that the site was not available or could not be found. Thereafter, after 3:00 p.m. in the afternoon, because of his inability to make the transfer by way of the Internet, he attempted to make the transfer on the telephone. He was able to make the transfer, but received the response that it would take two days. The money was, in fact, credited to his account at the Tax Commission on March 1, 2002, one day after the due date.

Petitioner has several other delinquencies. The penalties for late payments in February 1998 and in 2000 were waived, for June 2000 there was a returned check and the penalty therefore was also waived. In November of 2000 there was another returned check and the penalty was not waived. For both June and July 2001, the return was late and the penalty was not waived. For November 2001, there was an electronic funds transfer that was late and the penalty was not waived, and for January 2002, the electronic funds transfer was also late, which is the period at issue in this proceeding. The representative of Petitioner stated that he was not the person responsible for the filing and payment prior to the January 2002 period.

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).

DISCUSSION

In this matter, there is a substantial pattern of delinquency in the filing of the sales tax return. Notwithstanding that pattern, if Petitioner was truly attempting to make the transfer on the Internet during the day when it was due and could not get through the website, the Commission finds that this would be reasonable cause. The prior delinquencies would preclude a waiver for a first time penalty. Nevertheless, there is reasonable cause if the Internet site was not available for transfer of funds.

DECISION AND ORDER

Based upon the foregoing, the Commission finds that sufficient cause has been shown to justify a waiver of the penalty associated with the January 2002 sales tax return. However, the interest is not waived and the vendor discount is not reinstated. 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 11^th day of October , 2002.

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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 11^th day of October , 2002.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner