BEFORE THE STATE TAX COMMISSION OF UTAH
v. ) INFORMAL DECISION
COLLECTION DIVISION OF THE : Appeal No. 86 0312
STATE TAX COMMISSION OF UTAH, )
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
Joe B. Pacheco G. Blaine Davis