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