85-0033 SALES

BEFORE THE UTAH STATE TAX COMMISSION

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In the Matter of:

: DECISION FROM SALES TAX

XXXXX ) REVOCATION HEARING

: Appeal No. 85-0033

Taxpayer. )

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This is a decision from hearing regarding the sales tax license revocation of XXXXX and XXXXX (hereinafter referred to as "Taxpayer"), requested by the Collection Section of the Operations Division of the Utah State Tax Commission (hereinafter referred to as "Claimant").

A sales tax revocation hearing was scheduled on XXXXX at the hour of 9:00 a.m. in the office of the Utah State Tax Commission. The taxpayer did not appear at the hearing.

After reviewing the evidence and the written documentation submitted, the Commission makes the following determinations:

1. Taxpayer was issued a sales tax license, No. XXXXX, for XXXXX and XXXXX on XXXXX. Such a license is valid until the vendor "ceases to do business, changes his business address, or until the license is revoked by the State Tax Commission." (Utah Code Ann. § 59-15-3 (1953, as amended).

2. Taxpayer was responsible for the collection of sales taxes on the sale of his goods and services, Utah Code Ann. § 59-15-5(1) (1953, as amended). Taxpayer was required to hold the sales taxes in "escrow" for the Utah State Tax Commission (although a separate account was not required), and was required to remit these taxes to the State Tax Commission. Utah Code Ann. § 59-15-5(4) (1953, as amended), The sales taxes collected were expressly not to be used for profits, operating expenses, or any other use pertaining to the business of Taxpayer. Taxpayer was "deemed to be a person charged with the receipt, safekeeping, and transfer of public monies. (Utah Code Ann. §59-15-5(1) (1953, as amended).

Sales taxes are an addition to the price of a good or service over and above the profit margin that a vendor has established. These taxes do alter the profits. If the Taxpayer had not included the sales tax collected in its profit margin, it would not have had any difficulty remitting the sales tax, regardless of how much or how little was sold during the quarter.

3. The sales tax collected is "due and payable to the State Tax Commission quarterly on or before the thirtieth day of the month next succeeding each calendar quarterly period . . .". (Utah Code Ann. § 59-5-5(4) (1953, as amended).

4. Taxpayer has failed to remit the sales taxes collected within the statutory limitations for certain tax periods since the issuance of Sales Tax License No. XXXXX on XXXXX.

5. The Taxpayer has failed to make full payment of the balance of the deficiency in the sales tax monies collected by Taxpayer to the Commission for the period at issue. The sales tax deficiency for this period is in the amount of $$$$$.

6. There exists from the above facts (particularly the substantial amount of the liability and the failure of the Taxpayer to file returns) a situation that substantially impairs the ability of Taxpayer to pay the present deficiency, and thus the Claimant has requested that the sales tax license, No. XXXXX be revoked.

7. The Utah State Tax Commission is vested with the authority to revoke the license of "any person violating any provision of this [Sales Tax] Act . . .". (Utah Code Ann. § 59-15-3 (1953, as amended). The only requirements are that the taxpayer must be given reasonable notice and a hearing prior to the revocation id. This has been done. In addition, Claimant has repeatedly mentioned the possibility and imminence of revocation to the Taxpayer if the taxes remained delinquent.

THEREFORE, IT IS HEREBY DECIDED:

1. That Taxpayer was required to collect and remit sales taxes to the Utah State Tax Commission during the period in which Taxpayer remained in business at his present location.

2. That Taxpayer collected, but failed to properly remit the sales taxes for certain tax periods since the issuance of the Sales Tax license, No. XXXXX, on XXXXX.

3. That Taxpayer has been given adequate and sufficient notice within which to comply with the Utah Sales Tax Act.

4. That Taxpayer's sales tax license, No. XXXXX, is hereby revoked for failure to comply with the provisions of the Utah Sales Tax Act, Utah Code Ann. § 59-15-3.

5. The revocation of Taxpayer's sales tax license is effective immediately, unless the Taxpayer requests in writing, within three working days from receipt of this decision, that the Commission stay the execution of this order for thirty (30) days, provided the Taxpayer is able to prove that the following conditions have been met:

a. A bond has been posted in the amount of the tax, penalty and interest that is currently delinquent and due. The bond must be in the form of a cashier's check, certificate of deposit, surety bond, or cash: and

b. An account has been opened in a local financial institution by the end of the first banking day following receipt of this decision. The account must name the Taxpayer's company and the Utah State Tax Commission as co-owners. In addition, the Taxpayer must make weekly deposits into the account in the amount of the current accruing sales tax liability.

6. That Taxpayer is ordered to close the doors of XXXXX and XXXXX to business and to deliver its sales tax license to the Utah State Tax Commission. Failure to comply with this order may result in criminal prosecution being taken against the Taxpayer.

DATED this 19 day of April, 1985.

BY ORDER OF THE UTAH STATE TAX COMMISSION

Mark K. Buchi Gary C. Cornia

Chairman Commissioner

G. Ellsworth Brunson Marthe F. Dyner

Commissioner Commissioner