85-0014 SALES

 

 

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX

:

Petitioner, )

:

v. ) DECISION FROM FORMAL HEARING

:

AUDIT DIVISION OF THE ) Appeal No. 85-0014

STATE TAX COMMISSION OF UTAH, :

)

Respondent. :

_____________________________________

STATEMENT OF CASE

This is an appeal to the Utah State Tax Commission from a decision of the Auditing Division of the Utah State Tax Commission (Respondent) which was held on XXXXX. The matter was heard before G. Blaine Davis and Joe B. Pacheco, Commissioners for the Utah State Tax Commission. The Respondent was represented by XXXXX, Assistant Attorney General for the state of Utah. The Petitioner was represented by XXXXX.

A determination was made by the Auditing Division of the Utah State Tax Commission that the purchase of one XXXXX Winnebago Motor Home from XXXXX in XXXXX was subject to sales tax as a sale within the state of Utah to a resident of the state of Utah.

The Petitioners did not appear in person and did not present any witnesses. The Petitioners' attorney did present exhibits which the Commission received. The Respondent presented documentary evidence and three separate witnesses to testify relating to the matters. Based upon the evidence and arguments, the Commission now makes and enters its:

FINDINGS OF FACT

1. The Petitioners, XXXXX and XXXXX, purchased a motor home on or about XXXXX.

2. Said motor vehicle was purchased from XXXXX who does business at XXXXX, for a purchase price of $$$$$.

3. In connection with said purchase of the vehicle, the Petitioner, XXXXX, signed a non-resident affidavit in which he stated that he was a non-resident of the state of Utah and was currently residing at XXXXX, XXXXX, and further stated that he had not been a resident of the state of Utah within the past 60 days.

4. Based upon the non-resident affidavit, XXXXX filed a report with the Utah State Tax Commission indicating that the vehicle was purchased by a resident of the state of XXXXX.

5. As a result of all of the documents filed by the Petitioner and XXXXX, no sales or use tax was collected or paid on said vehicle within the state of Utah.

6. The Petitioner is, in fact, a resident of the state of Utah and has filed Utah Resident Individual Income Tax returns for several years, on which the address of the Petitioner and his wife was shown as XXXXX.

7. The Petitioner has shown a pattern of registering his vehicles in XXXXX, and has had as many as three other vehicles at his home for a continuous period which all bore XXXXX license plates.

8. The Tax Commission sent several letters to the Petitioners' home in XXXXX, and said letters were never returned to the Tax Commission as undeliverable.

9. The motor vehicle in question was financed with XXXXX Bank in XXXXX in the name of XXXXX and not in the name of any corporation.

Based upon the foregoing findings of fact, the Commission now makes and enters its,

CONCLUSIONS OF LAW

1. Utah Code Ann. 59-15-4 (1953), as amended, together with the statutes imposing a local sales tax do, in fact, impose a sales tax upon sales of the type made to the Petitioners.

2. Utah Code Ann. 59-15-8 (1953), provides in part:

"If any part of the deficiency is due to fraud with the intent to evade, there shall be added the greater of $100.00 or 100% of the total amount of the deficiency and interest at the rate prescribed in Section 59-11-16 to the amount of the deficiency from the date the return was due."

3. The Petitioner has the burden of proving that the purchase of the vehicle within the state of Utah was exempt from sales tax. Petitioner has not met that burden of proof.

4. The Respondent has the burden of proving that such purchase was made with fraud with the intent to evade, and the Respondent has met that burden of proof by showing the intentional nature of the act and by further showing that the pattern which Petitioners followed was to register all of their vehicles outside of the state of Utah regardless of whether they were being driven within the state of Utah or not.

The Commission having made and enters its Finding of Fact and Conclusions of Law, makes and enters the following,

DECISION AND ORDER

1. The audit of the Auditing Division of the Utah State Tax Commission is hereby affirmed in the amount of $$$$$ for sales tax, plus a 100% penalty of $$$$$, together with all interest accruing at the statutory rate from and after XXXXX, until the time said amounts are paid.

DATED this 9th day of January, 1987.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

ABSENT

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner