BEFORE THE STATE TAX COMMISSION OF UTAH
v. ) INFORMAL DECISION
COLLECTION DIVISION OF THE : Appeal No. 86 0226
STATE TAX COMMISSION OF UTAH, ) Acct. No. XXXXX
STATEMENT OF CASE
This is an Appeal to the Utah State Tax Commission from a decision of the Collection Division of the Utah State Tax Commission (Respondent) to assess a penalty on Account No. XXXXX. An Informal Hearing was held on XXXXX, in the offices of the Utah State Tax Commission. James E. Harward, Hearing Officer, heard the matter for the Commission. XXXXX represented the Petitioner.
At the request of the Tax Commission, the Moab city police picked up 286 packages of cigarettes in Petitioner's store which did not have a Utah cigarette tax stamp affixed as required by Utah law. One week later, when the Tax Commission auditors checked the store again, an additional 23 packages of improperly stamped cigarettes were confiscated. Some confiscated packages had Idaho stamps and some were unstamped.
Respondent assessed a $$$$$ per package penalty in the amount of $$$$$. Utah Code Ann. § 59-18-5(1953) provides for a penalty of $$$$$ for each offense and each unstamped package is a separate offense. Petitioner stated that all cigarettes are purchased in cartons from XXXXX. A letter from XXXXX dated XXXXX, states that the cigarettes were not properly stamped due to human error and that this was the first incident which XXXXX had experienced.
FINDING OF FACTS
Petitioner has the duty to make certain that a stamp is properly affixed to each package of cigarette and cancelled before Petitioner offers the package for sale. Petitioner could have easily and quickly verified whether the 286 packages that were initially confiscated were properly stamped. Petitioner was negligent in not verifying that the packages were stamped.
Petitioner was put on notice, once the 286 packages were confiscated, that a problem with the stamping existed. Petitioner was negligent in allowing an additional 23 packages to be placed on the shelves one week later.
DECISION AND ORDER
It is the decision and order of the Utah State Tax Commission that the request for waiver of penalty on account No. XXXXX be denied.
The assessment of $$$$$ in penalty by the Collection Division of the Utah State Tax Commission is hereby affirmed.
DATED this 15 day of October, 1986.
BY ORDER OF THE STATE TAX COMMISSION OF UTAH.
R. H. Hansen Roger O. Tew
Joe B. Pacheco G. Blaine Davis *