86-0476 - Income

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX, )

:

Petitioner, )

:

v. ) INFORMAL DECISION

:

)

AUDITING DIVISION OF THE STATE : Appeal No. 86 0476

TAX COMMISSION OF UTAH, ) Account No. XXXXX

:

Respondent. )

_____________________________________

STATEMENT OF CASE

This is an appeal to the Utah State Tax Commission from an audit deficiency prepared by the Auditing Division of the Utah State Tax Commission (Respondent) on individual income tax account No. XXXXX for the tax years XXXXX through XXXXX. An Informal Hearing in the above matter was held on XXXXX, in the offices of the Utah State Tax Commission. XXXXX, Tax Appeals Supervisor, and David J. Angerhofer, Hearing Officer, heard the matter for the Commission. XXXXX and XXXXX represented themselves. XXXXX, Compliance Auditor, represented the Respondent.

Respondent determined an additional tax due of $$$$$, a penalty of $$$$$, and interest of $$$$$(as of XXXXX) for a total amount due of $$$$$.

Petitioner does not object to the tax but does object to the penalty and interest. Petitioner asserted that his Fourth, Fifth and Fourteenth Amendment rights were violated because evidence as to his tax liability was obtained against his will. Petitioner stated that the Tax Commission cannot impose penalty and interest because Petitioner was under compulsion to provide the information.

FINDINGS

Because Petitioner had not filed individual income tax returns for the tax years XXXXX through XXXXX, Respondent sent a compliance A-4 letter on XXXXX. When Petitioner failed to respond to this letter, Respondent pursued writ of mandate actions against Petitioner. Petitioner consequently filed true returns but changes needed to be made to some of the computations. Respondent then prepared the audit deficiency. No tax, interest, or penalty has been paid as of the date of the hearing.

The preparation of a W-4 form by Petitioner and the subsequent mailing of W-2 forms to Respondent by Petitioner's employers did not constitute the filing of a return by Petitioner as required by Utah Code Ann. 59-14A-48 (1953). Respondent does not have the burden of preparing returns for Petitioner based on Petitioner's W-2 forms.

The fact that Petitioner filed true returns as a result of writ of mandate proceedings against him does not prevent Respondent from assessing penalty and interest. Respondent petitioned for a writ of mandate pursuant to Section 59-31-7 in order to compel the tax payer to file returns. This section states that "nothing in this section shall limit the remedies otherwise available to the state tax commission under Title 59 or other laws of this state" Section 59-31-7(2). The other remedies include the assessment of penalty and interest. See Sections 59-14A-87, 59-14A-89, and 59-14A-92.

During the hearing, Petitioner objected to the amount of the tax which Respondent determined for XXXXX and XXXXX. Petitioner did not raise this issue in his petition for redetermination, but merely requested the "complete and immediate nullification of all alleged 'deficiencies,' 'penalties,' and 'interest.'" Petitioner failed to preserve the issue of the amount of the tax deficiency for the years XXXXX and XXXXX. Therefore, the amount of tax deficiency has become a final assessment pursuant to Section 59-14A-71. The only remaining issue is that of the applicability of penalty and interest.

DECISION AND ORDER

It is the Decision and Order of the Utah State Tax Commission that the petition for redetermination be denied.

The audit deficiency, including tax, penalty and interest, for individual income tax account No. XXXXX for the tax years XXXXX through XXXXX is hereby affirmed.

DATED this 7 day of August, 1987.

BY ORDER OF THE STATE TAX COMMISSION OF UTAH.

ABSENT

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner