86-0423 - Withholding

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX, )

:

Petitioner, )

:

) INFORMAL DECISION

:

)

COLLECTION DIVISION OF THE : Appeal No. 86 0423

UTAH STATE TAX COMMISSION, ) Account No. XXXXX

:

Respondent, )

_____________________________________

STATEMENT OF CASE

This is an appeal to the Utah State Tax Commission from a withholding tax audit report prepared by the Audit Division of the Utah State Tax Commission (Respondent) on the withholding tax account of XXXXX (Petitioner). Petitioner waived its right to an oral hearing. Therefore, the Tax Commission decides this matter based on the pleadings before it.

Respondent computed an additional tax of $$$$$, a penalty of $$$$$, and interest of $$$$$ for a total amount due of $$$$$ for the period from XXXXX, to XXXXX. Respondent determined this audit deficiency because Petitioner had a Utah based employee and withheld Federal taxes on the employee but did not withhold or remit Utah employees' taxes in accordance with Utah Code Ann. 59-14A-40(a)(1953). Respondent assessed a penalty in accordance with Section 59-14A-89(a).

Petitioner asserted that the employee is a salesman, that Petitioner considers salesmen employees of Tennessee, and that Petitioner accordingly paid employees' payroll taxes to Tennessee. Petitioner further stated that the employee claimed exempt status on form W-4, Employees' Withholding Allowance Certificate. The IRS instructed the Petitioner to withhold taxes but no notification was received from Utah regarding the state taxes. Therefore, Petitioner should not be liable. Petitioner requests that all penalty and interest, totaling $$$$$, be waived and that Utah state withholding for XXXXX through XXXXX and one half of XXXXX, totaling $$$$$, be removed.

FINDING OF FACTS

Petitioner has erroneously considered that all its employees are Tennessee based employees. Petitioner is an employer and the employee in question is an employee for the purposes of the Utah Individual Income Tax Act of XXXXX. Utah Code Ann. 59-14A-39. Petitioner was required to deduct and withhold taxes from the employee for the tax period in question. Section 59-14A-40(a).

The Tax Commission was not required to notify Petitioner of the withholding requirement. It was the Petitioner's responsibility to learn of and comply with the tax filing requirements of the state of Utah.

Respondent properly assessed penalty and interest on remit Utah employees' taxes in accordance with Utah Code Ann. 59-14A-40(a)(1953) Respondent assessed a penalty in accordance with Section 59-14A-89(a).

Petitioner asserted that the employee is a salesman, that Petitioner considers salesmen employees of Tennessee, and that Petitioner accordingly paid employees' payroll taxes to Tennessee. Petitioner further stated that the employee claimed exempt status on form W-4, Employees' Withholding Allowance Certificate. The IRS instructed the Petitioner to withhold taxes but no notification was received from Utah regarding the state taxes. Therefore, Petitioner should not be liable. Petitioner requests that all penalty and interest, totaling $$$$$, be waived and that Utah state withholding for XXXXX through XXXXX and one half of XXXXX, totaling $$$$$, be removed.

FINDING OF FACTS

Petitioner has erroneously considered that all its employees are Tennessee based employees. Petitioner is an employer and the employee in question is an employee for the purposes of the Utah Individual Income Tax Act of XXXXX. Utah Code Ann. 59-14A-39. Petitioner was required to deduct and withhold taxes from the employee for the tax period in question. Section 59-14A-40(a).

The Tax Commission was not required to notify Petitioner of the withholding requirement. It was the Petitioner's responsibility to learn of and comply with the tax filing requirements of the state of Utah.

Respondent properly assessed penalty and interest on Petitioner's withholding tax account for the tax periods in question. Petitioner did not meet its burden of proof to show that the failure to deduct and withhold taxes from the employee's wages was due to reasonable cause and not due to willful neglect. Therefore, the 25 percent aggregate penalty of Section 59-14A-89(a) is applicable.

DECISION AND ORDER

It is the decision and order of the Utah State Tax Commission that the request for waiver of tax, penalty, and interest on withholding tax account No. XXXXX for the period XXXXX, through XXXXX, be denied.

The withholding tax audit report of the Audit Division of the Utah State Tax Commission is affirmed.

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