BEFORE THE STATE TAX
COMMISSION OF UTAH
_____________________________________
XXXXX, )
:
Petitioner, )
:
v. ) INFORMAL DECISION
:
)
COLLECTION
DIVISION OF THE : Appeal No. 86 0312
STATE TAX
COMMISSION OF UTAH, )
:
Respondent. )
_____________________________________
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 $$$$$
penalty on XXXXX (Petitioner) for selling twenty packages of unstamped
cigarettes.
An
Informal Hearing was held on XXXXX in the offices of the Utah State Tax
Commission. James E. Harward, Hearing
Officer, heard the matter for the Commission.
XXXXX represented the Petitioner. Respondent did not appear.
Respondent
confiscated twenty packages of cigarettes and assessed a penalty of $$$$$ per
package pursuant to Utah Code Ann. § 59-18-5 (1953). Documentation submitted by
Respondent states that ten of the cigarette packages seized were XXXXX (dark
packages) and ten packages were XXXXX (lighter color packages). Respondent was not present at the hearing to
introduce the packages into evidence.
Petitioner
stated that all of the packages seized were XXXXX. Petitioner stated that the stamps were roll stamped on each
package using a letter roll. Petitioner
stated that since the cigarette packages and the Utah stamp are black, the
stamp is difficult to see against the black background. Petitioner introduced packages of XXXXX's
cigarettes which Petitioner asserted came out of the same carton as the packages
which were confiscated.
The
packages which Petitioner introduced into evidence had been roll stamped but
the stamp was barely visible. The
packages had to be held up to the light to see the stamp. However, the stamp was present.
Petitioner
had the burden of proof to demonstrate that Respondent assessed the penalty in
error. Petitioner met the burden of
proof and shifted the burden to the Respondent to demonstrate that the penalty
was correctly assessed. Since
Respondent did not appear, and since the confiscated packages were not available,
Respondent did not meet this burden of proof.
DECISION AND ORDER
It
is the Decision and Order of the Utah State Tax Commission that the $$$$$
penalty assessed against XXXXX be waived.
The
Collection Division of the Utah State Tax Commission is hereby ordered to
adjust its records in accordance with this decision.
DATED
this 7 day of October, 1986.
BY ORDER OF THE STATE TAX COMMISSION OF UTAH.
R. H. Hansen Roger
O. Tew
Chairman Commissioner
ABSENT
Joe B.
Pacheco G.
Blaine Davis
Commissioner Commissioner