86-0315 - Sales

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX :

)

:

Petitioner, )

: FINDINGS OF FACT,

v. ) CONCLUSIONS OF LAW,

: AND FINAL DECISION

)

COLLECTION DIVISION OF THE : Appeal No. 86 0315

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

:

Respondent. )

_____________________________________

STATEMENT OF CASE

This is an appeal to Formal hearing following an Informal decision rendered by the Utah State Tax Commission on XXXXX, which decision affirmed a penalty based on actual sales and associated interest on sales and use tax account No. XXXXX for XXXXX. A Formal hearing was held on XXXXX in the offices of the Utah State Tax Commission. Commissioners Roger O. Tew and Joe B. Pacheco and Hearing Officer David J. Angerhofer heard the matter for the Utah State Tax Commission. XXXXX, attorney at law, and XXXXX, CPA, represented the Petitioner. The Respondent was not represented.

The Informal decision rendered on XXXXX concerned a failure to prepay sales and use taxes for the second quarter of XXXXX. Petitioner subsequently failed to make a prepayment of the sales and use taxes for the second quarter of XXXXX. At the Formal hearing, Petitioner requested that the Commission consolidate the appeals for XXXXX and XXXXX into one hearing. The motion was granted. This decision shall apply to both XXXXX and XXXXX.

FINDINGS OF FACT

Utah Code Ann. 59-12-108(1) (1953) (old section 59-15-5.1(1)) states that:

[a]ny person whose tax liability under this part and Part 2, was (a) $96,000 for the previous year, (b) $24,000 for the previous quarter, (c) whose estimated tax liability is $8,000 or more per month, as determined by the commission, shall prepay not less than 90% of the amount of state and local tax liability for April and May of each year. The commission shall establish by rule the procedures and guidelines in determining the tax liability under this section. Petitioner was required to prepay at least 90% of the sales tax liability for XXXXX and XXXXX. Petitioner did not make a prepayment for either XXXXX or XXXXX. Petitioner had made a prepayment for XXXXX after receiving a blank return from the Tax Commission. Petitioner's sales tax compliance clerk who filed the XXXXX prepayment retired on or about XXXXX.

For the XXXXX and XXXXX calendar years Petitioner had a form-driven tickler system with respect to the filing of sales tax returns. Petitioner assigned a new sales tax compliance clerk on or about XXXXX. This clerk has held the position continuously since then, but took maternity leave between XXXXX and XXXXX. The clerk had never filed a prepayment and went on maternity leave before the accelerated return form was received for XXXXX. Prior to going on maternity leave, the clerk instructed her replacement as to which returns needed to be filed during her absence as well as other duties which the replacement clerk was required to perform. The replacement clerk was unaware of the need to file the XXXXX accelerated payment because this was not one of the instructions.

For XXXXX the prepayment return was apparently not received by the Petitioner. The Tax Commission mailed Petitioner a

letter, dated XXXXX, stating that:

[a] review of the Tax Commission's Master Mailing List indicates that you may not have received your blank April-May Accelerated Sales Tax return. If you have filed the Accelerated Sales Tax return, please disregard this request. If you have not filed the accelerated sales tax return, please do so within 10 days of this mailing.

To avoid penalties or interest being applied for a late filing, use the special encoded envelope provided.

Exhibit 8. Petitioner stated that this letter was received on XXXXX and that payment was made to the Tax Commission on the very same day.

CONCLUSIONS OF LAW

For the tax year XXXXX, Respondent properly assessed penalty and interest pursuant to Utah Code Ann. 59-12-108(3) (1953). No evidence has been received which would indicate that the Utah Accelerated Return Form for XXXXX was not received by Petitioner prior to the filing deadline. The Petitioner indicates that the accelerated return form was received by the replacement sales tax compliance clerk subsequent to the regular clerk going on maternity leave on XXXXX. Because the form was not on hand until after the start of her maternity leave, the sales tax clerk did not set up the regular schedule for payment, and since the payment was not set up on the schedule of returns the replacement clerk was unaware the payment was due. See Exhibit 6 at 5. Petitioner was negligent in failing to adequately instruct the replacement clerk as to the prepayment procedures and was negligent in failing to file the Utah Accelerated Return Form when it was received.

Petitioner has met the burden of proof to establish that an Accelerated Sales Tax return was not received for XXXXX. Petitioner has complied with the conditions set forth and the letter of XXXXX (Exhibit 8) and is not subject to penalties or interest for the tax year XXXXX.

FINAL DECISION

Based on the foregoing, the Utah State Tax Commission hereby decides:

1. Penalty and interest were properly assessed on sales and use tax account No. XXXXX for failure to prepay sales and use taxes for XXXXX and the order of the informal decision is hereby affirmed.

2. Penalty and interest were improperly assessed for failure to prepay sales and use taxes for XXXXX and are hereby abated.

The Collection Division of the Utah State Tax Commission is ordered to adjust its records in accordance with this decision.

DATED this 30 day of November, 1987.

BY ORDER OF THE STATE TAX COMMISSION OF UTAH.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner