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