85-0004 SALES

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX,

:

Petitioner, ) AMENDED

: FINDINGS OF FACT,

v. ) CONCLUSIONS OF LAW

: AND FINAL DECISION

AUDITING DIVISION OF THE )

UTAH STATE TAX COMMISSION, : Appeal No 85-0004

Respondent. )

_____________________________________

STATEMENT OF CASE

An Informal Decision was rendered on this matter on XXXXX. Thereafter, a Petition for Formal Hearing was made raising two issues from that Informal Decision, i.e., the material transfers and the penalty. A Formal Hearing was held on XXXXX. XXXXX, Hearing Officer, heard the matter for and in behalf of the Utah State Tax Commission. XXXXX, Commission was also present and participated in the Hearing. XXXXX and XXXXX appeared representing the Petitioner. The Auditing Division of the Utah State Tax Commission was represented by XXXXX, Assistant Attorney General, XXXXX and XXXXX.

At the outset of the Hearing the party stipulated to the admission of Exhibits 1 through 4, and the inclusion in the record for Formal Hearing proceedings of the Decision of Informal Hearing dated XXXXX; a partial stipulation entered into between the parties on or about the XXXXX, the Memorandum of Points and Authorities of XXXXX dated XXXXX; and the Memorandum of Points and Authorities for the Respondent, Auditing Division of the Utah State Tax Commission dated XXXXX.

FINDINGS OF FACT

Based upon the foregoing and the evidence presented at the Hearing, the Commission makes the following Findings of Fact:

1. The tax period in question is from XXXXX through XXXXX.

2. The tax liability as assessed by the Respondent is $$$$$.

3. The material transfers which is the subject of this appeal consists of personal property which is transferred into the state of Utah for use in various well drilling operations within the state. The materials which were not used in the state of Utah were stored here until transferred to another job site for purpose of use or consumption there. Even though the materials are not used or consumed in the state of Utah, they are stored in the state of Utah.

4. The Petitioner claims taxes paid in other jurisdiction is a credit against taxes owing to the state of Utah. The Petitioner, however, was unable to substantiate that claim by references to any local taxes which have not already been credited by the Tax Commission in completing their audit.

5. No dispute exists between the parties as it relates to Exhibit 2, Column 1 and Column 4. The Petitioner claims that Column 2, would be adjusted upward because of credits not considered for local taxes paid. As a result, Column 3 would be reduced and/or eliminated which would directly affect Column.

6. Evidence was presented which would show what additions would be made to Column 2 which would affect the conclusion reached in Columns 3 and 5.

CONCLUSIONS OF LAW

1. Utah Code Ann. § 59-16-3a, requires that an excise tax be levied and imposed on "storage, use or other consumption in this state of tangible personal property purchased for storage, use or other consumption in this state . . ."

2. The proponent of any claim, rule or order shall have the burden of establishing the same. Tax Commission Regulation A12-01-7(7).

DECISION AND ORDER

It is the conclusion of the Utah State Tax Commission that the Petitioner has failed in its burden of proof to establish that the material transfers are not subject to excise tax. The Petitioner has established that there are additional credits to the tax.

IT IS THEREFORE ORDERED THAT:

1. The material transfer assessment of the Respondent be sustained.

2. Tax, penalty, and interest is as follows: tax $$$$$, penalty $$$$$, and interest as of XXXXX, $$$$$.

DATED THIS 20th day of March, 1987.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner