85-0131 - Sales



XXXXX                                                                                  )


            Petitioner,                                                         )

                                                                                    :           DECISION FROM

v.                                                                                 )           INFORMAL HEARING


AUDITING DIVISION OF THE                                )

UTAH STATE TAX COMMISSION,                        :           Appeal No. 85-0131


            Respondent.                                                     :



            This is an appeal from a decision of the Utah State Tax Commission denying a request for waiver of penalty and interest on the Petitioner's XXXXX fourth quarter sales tax liability.  The Utah State Tax Commission designated Roger O. Tew, Commissioner, as Hearing Officer for the Informal Hearing held on XXXXX.  Appearing on behalf of the Petitioner was XXXXX, accountant for the Petitioner, XXXXX.

            A review of the evidence presented at the hearing indicates the following:

            l. The Petitioner remitted his quarterly sales tax payment to the State of Utah with a check dated XXXXX.

            2. On XXXXX, a restraining order was placed on the Petitioner's account as part of a criminal investigation involving the Petitioner's business.

            3. Due to the imposition of the restraining order, the Petitioner's bank returned his tax payment check unpaid.  The bank's records clearly indicate the funds were available to cover the check had the restraining order not been in place.

            4. The restraining order was lifted XXXXX.  However, the Petitioner's accountant did not notice the discrepancy until XXXXX, when he was notified by the Tax Commission of the imposition of the penalty.

            5. The account in which the Petitioner's funds were held was a non-interest bearing business account.


            1. The Petitioner is responsible to remit sales tax obligations in a timely fashion and to ensure that adequate funds are available to cover tax payments.  Circumstances in this case are unusual, and indicate that the Petitioner was not totally responsible for non-payment.

            2. The Petitioner did not have the use of the sales tax money during the time in question since it was held by the restraining order in a non-interest bearing account.

            The decision of the Utah State Tax Commission denying the waiver of the penalty is hereby modified and waive the interest and reduce penalty to $$$$$.

            DATED this 20 day of January, 1986.


Mark K. Buchi                                                             Joe B. Pacheco *

Chairman                                                                      Commissioner

R. H. Hansen                                                                Roger O. Tew

Commissioner                                                               Commissioner

*Since the hearing on this case, Commissioner Gary  C. Cornia has been replaced by Commissioner Joe B. Pacheco.  Commissioner Pacheco has been duly advised of the facts and circumstances regarding this case and is qualified to sign this decision.