86-0499 - Sales

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX, )

:

Petitioner, )

:

v. ) INFORMAL DECISION

:

)

COLLECTION DIVISION OF THE : Appeal No. 86 0499

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

:

Respondent. )

_____________________________________

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 penalty and interest on sales and use tax account No. XXXXX for the following periods: XXXXX; XXXXX; XXXXX; XXXXX; XXXXX; XXXXX; and XXXXX.

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.

Petitioner claimed that his business was under the control of a court appointed receiver from XXXXX to XXXXX, and that Petitioner had no control of the payments to be made from the business. Petitioner asserted that an agreement was reached with Respondent in which the immediate payment of $$$$$ would satisfy an outstanding balance of approximately $$$$$ in full. Petitioner stated that he paid the amount but that Respondent subsequently failed to live up to the agreement.

Respondent denied that an agreement was reached in which the remainder of the outstanding balance would be waived if a partial payment of $$$$$ was paid. Respondent assessed a penalty of $$$$$, and interest of $$$$$ as of XXXXX.

FINDINGS

Petitioner had the burden of proof to establish that an agreement was entered into. Although Petitioner testified that an agreement was entered into, Respondent testified that no such agreement was entered into. Absent any written documentation which would demonstrate the existence of an agreement, Petitioner has failed to meet this burden of proof. The statement by the C.P.A. who accompanied the Petitioner to the Utah State Tax Commission is insufficient.

XXXXX of Cedar City was appointed as receiver to manage the affairs of the business but XXXXX was discharged as a receiver in an Order and Judgment filed XXXXX in the Fifth Judicial Court of XXXXX County, State of Utah (Civil No. XXXXX).

Although it is apparent that the court-appointed receiver failed to pay the necessary taxes for the first of the tax periods in question, this does not explain the failure to timely pay the sales taxes for the six remaining periods in question. Furthermore, the penalty and interest were determined solely by the amount outstanding and the duration of the delinquency. It is irrelevant who had the responsibility for payment of taxes on account No. XXXXX. If the delinquency was due to negligence then a 10% penalty was properly assessed pursuant to Utah Code Ann. 59-15-8 (1953). No evidence has been received which would indicate that the delinquency was not due to negligence.

DECISION AND ORDER

It is the Decision and Order of the Utah State Tax Commission that Petitioner's request for waiver of penalty and interest for the fourth quarter of XXXXX, the third and fourth quarters of XXXXX, the third and fourth quarters of XXXXX, and the third and fourth quarters of XXXXX be denied.

The assessment of penalty and interest by the Collection Division of the Utah State Tax Commission is hereby affirmed.

DATED this 15 day of January, 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