86-0155 - Sales and Use

BEFORE THE STATE TAX COMMISSION OF UTAH

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XXXXX

:

Petitioner, )

:

v. ) INFORMAL DECISION

:

)

COLLECTION DIVISION OF THE : Appeal No. 86 0155

STATE TAX COMMISSION OF UTAH, ) Acct. No. XXXXX

:

Respondent. )

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STATEMENT OF CASE

An Informal Hearing was held on XXXXX. Mark K. Buchi, Chairman, and Roger O. Tew, and R. H. Hansen, Commissioners, heard the matter for the Utah State Tax Commission. XXXXX represented the Petitioner.

Petitioner is appealing the penalty assessed against the late filing of its second quarter, XXXXX, prepayment return. Petitioner testified that when the Utah Legislature enacted the special provisions for prepayment of sales, use, and resort community taxes during the second quarter of each year, the Tax Commission notified Petitioner that if Petitioner met certain conditions, it would be responsible for making the prepayment by June 15. In XXXXX, the first year the prepayment was required, Petitioner made its prepayment by June 15. The Tax Commission notice indicated that Petitioner would receive a prepayment return before the prepayment was due. In XXXXX, Petitioner did not receive a prepayment return from the Tax Commission. In XXXXX, Petitioner did not receive a prepayment return from the Tax Commission but it made its prepayment on time because it had become aware that the prepayment was due yearly. Petitioner asked Tax Commission representatives why it did not receive the prepayment forms and was told that there was a hold on Petitioner's account because there was a "tax situation pending," and forms would not be mailed in that circumstance.

Petitioner indicated that in XXXXX and in XXXXX it overpaid $$$$$ in each of the two years because it included the transient room tax. Petitioner said that it was not sure whether "resort community tax" included the transient room tax and when it asked Tax Commission representatives, the representatives were unclear or not sure.

Petitioner admitted that it did not keep a record of telephone calls with the Tax Commission, that it never sent a letter to the Tax Commission, and that it did not look at the statutes even though they were referenced in the notice to Petitioner. When asked whether the Petitioner's case was affected by the fact that 98% of the taxpayers required to file and prepay the tax did so, Petitioner's representative responded that he did not think that affected Petitioner's case because Petitioner filed its taxes timely in XXXXX but a large percentage of the taxpayers did not file correctly during the first year with the result that the correct process was indelibly printed on their minds in subsequent years. Petitioner requested a waiver of the penalty because it had no intention to defraud the Tax Commission. However, Petitioner conceded its liability for interest because Petitioner erred in not making its XXXXX prepayment timely.

FINDINGS

1. Utah Code Ann. 59-15-5.1 (1953) provides that taxpayers meeting certain requirements must prepay not less than 90% of the amount of state and local sales tax liability for April and May by June 15th of each year. The statute makes clear that the prepayment will be required every year and not just in XXXXX.

2. The Commission finds that although there may have been some confusion among Tax Commission staff in XXXXX regarding the exact nature of the tax involved in the prepayment, the Petitioner had an affirmative duty to apprise itself of the law. Petitioner knew exactly what statute was involved, but did not make an effort to determine the exact terms of the statute.

3. The Commission is sympathetic with the bureaucratic maze that the Petitioner has gone through to determine its prepayment responsibilities. However, Petitioner admits that the statute clearly sets forth the requirements for prepayment. Petitioner should have taken the responsibility to read the statute to determine what was required.

4. Petitioner had received notice of the prepayment requirement from the State Tax Commission, knew of the statutory requirement to prepay, did file and prepay the tax in XXXXX, but did not make the prepayment for XXXXX as required by law.

5. Notwithstanding that Petitioner allegedly did not receive a form, that is not a sufficient reason to fail to pay a tax that is known to be due.

DECISION AND ORDER

Based on the foregoing, it is the decision and order of the Utah State Tax Commission that the penalty and interest assessment be sustained.

DATED this 10 day of October, 1986.

BY ORDER OF THE UTAH STATE TAX COMMISSION OF UTAH.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis *

Commissioner Commissioner