86-0382 - Income

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX, )

:

Petitioner, )

: AMENDED INFORMAL

v. ) DECISION

:

COLLECTION DIVISION, STATE )

TAX COMMISSION OF UTAH, : Appeal No. 86 0382

) Acct. No. XXXXX

:

Respondent. )

_____________________________________

STATEMENT OF CASE

An Informal Hearing was held on XXXXX. James E. Harward and XXXXX, Hearing Officers, heard the matter for the Tax Commission. The Petitioners represented themselves, the Collection Division was not represented.

XXXXX, Petitioner, was married during the tax year ending XXXXX. After her marriage, she and her husband moved to California. XXXXX's accountant, filed tax returns in California and mistakenly included all of XXXXX's income on the California returns. Petitioners request a waiver of the penalties and interest, for failing to file Utah State Income Tax returns.

Utah Code Ann. 59-10-22 (3)(1953) provides that any person required to pay Utah sale, use, or withholding taxes, who willfully fails to collect the taxes, fails to truthfully account for or pay the taxes, or willfully attempts to evade or defeat the taxes will be liable for a penalty.

Utah Code Ann. 59-10-22 (5) (1953) provides that the Tax Commission shall assess a penalty when it determines that a person is liable for a penalty in accordance with subsection (3).

Utah Code Ann. 59-10-22 (7)(1953) allows a person against whom a penalty has been assessed to petition the State Tax Commission for a hearing. Subsection (9) provides that in any hearing the Tax Commission "shall consider any inference and evidence that a person has willfully failed to collect, truthfully account for, or pay over any sales, use, or withholding tax imposed by Utah Law." The Commission finds that although Petitioners are guilty of failing to file and pay Utah State Income Tax, their failure was not willful. Furthermore, they presented evidence that they tried to truthfully account for and pay the withholding tax imposed by law.

DECISION AND ORDER

Based on the facts, the written documentation provided, and the evidence presented at the hearing, it is the Decision of the Utah State Tax Commission that the penalty was properly assessed. The Commission declines to exercise its discretionary authority to reduce or waive that penalty.

DATED this 17 day of September, 1986.

BY ORDER OF THE STATE TAX COMMISSION OF UTAH.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco

Commissioner