86-0156 to 86-0157 - Sales

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX, :

XXXXX, )

:

Petitioner, ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

v. ) AND FINAL DECISION

:

)

COLLECTION DIVISION OF THE : Appeal Nos. 86 0156 to 86 0157

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

: Account No. XXXXX

Respondent. )

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a Formal Hearing on XXXXX. James E. Harward, Hearing Officer, and XXXXX, Appeals Supervisor, heard the matter for the Tax Commission. XXXXX appeared representing the Petitioners. At the outset of the hearing, it was determined that the record of the Informal Hearing should be made a part of the Formal Hearing.

Based upon the foregoing, the Commission makes its:

FINDINGS OF FACT

1. On or about XXXXX, Articles of Incorporation for XXXXX, were filed with the State of Utah.

2. In the Articles of Incorporation, XXXXX was an original director of XXXXX.

3. On XXXXX, XXXXX resigned from his position and duties with XXXXX.

4. The resignation and filing notice of the resignation was timely filed and paid with the state of Utah.

5. The corporation was run by XXXXX, a brother to the Petitioner.

6. Petitioner was not involved in the management of the business.

7. Petitioner was released from any liability from any claims, duties, debts, or responsibilities arising during the period the Petitioner was associated with the corporation by the president of XXXXX, XXXXX.

8. No payments have been made on the quarters in question either for the withholding or for the sales tax by the corporation or a representative of the corporation.

9. Petitioner had no notice of his brother's mismanagement or failure to pay the taxes.

CONCLUSIONS OF LAW

1. Utah Code Ann. 59-10-22(3) (Supp. 1986) provides:

Any person required to collect, truthfully account for, and pay over the Utah sales, use, or withholding tax imposed by Utah law who willfully attempts in any manner to evade or defeat any such tax or the payment thereof shall in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, not collected, not accounted for or not paid over.

2. Utah Code Ann. 59-10-22(4) (Supp. 1986) provides:

As used in this Section, "person" means officer, employee, or agent of a corporation, or a partnership, and, also, includes any other natural person, corporation, association, partnership, trust, or any other artificial entity, who is charged by Title 59, with the responsibility of accounting for, collecting, or paying over the Utah sales, use, or withholding tax.

3. Petitioner was not responsible for accounting, collecting, or paying over the sales and use, or withholding tax. This responsibility was his brother's who ran the business.

FINAL DECISION

Based on the foregoing, it is the Decision and Final Order of the Utah State Tax Commission that personal assessment against Petitioner, XXXXX be waived. The Collection Division of the Utah State Tax Commission is ordered to adjust its records in accordance with this decision.

DATED this 7 day of May, 1987.

BY ORDER OF THE STATE TAX COMMISSION OF UTAH.

ABSENT

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner