BEFORE THE STATE TAX
COMMISSION OF UTAH
_____________________________________
XXXXX,
Petitioner, :
v. : INFORMAL DECISION
:
AUDITING DIVISION
OF THE : Appeal No. 86 1547
STATE TAX
COMMISSION OF UTAH, ) Account No. XXXXX
Respondent. :
_____________________________________
STATEMENT OF CASE
This
is an appeal to the Utah State Tax Commission from a Notice of Deficiency
prepared by the Auditing Division of the Utah State Tax Commission
(Respondent). This Notice of Deficiency
assessed a tax of $$$$$ (tax rate of 5.75%), a 100% penalty of $$$$$, and
interest of $$$$$ (1% per month from XXXXX to XXXXX) on a tax base of
$$$$$. The total deficiency amounts to
$$$$$.
An
Informal Hearing was held on XXXXX, in the offices of the Utah State Tax
Commission. David J. Angerhofer,
Hearing Officer, heard the matter for the Commission. XXXXX and XXXXX represented the Petitioner. XXXXX and XXXXX represented the Respondent.
Respondent
presented evidence of a nonresident affidavit signed by Petitioner on XXXXX,
which affidavit stated that Petitioner was a nonresident of Utah residing at
XXXXX, Alaska. The affidavit was
partially handwritten and partially typewritten. Respondent asserted that Petitioner's three months presence in
Alaska was only a temporary assignment and that Petitioner executed the
affidavit with intent of evading Utah sales tax, registration fees, and
personal property tax.
Petitioner
did not dispute that he was a resident of Utah prior to the purchase of the
vehicle but stated that he fully intended to permanently move to Alaska and
purchased the vehicle for the trip.
Petitioner interviewed for the job in XXXXX, purchased the vehicle on
XXXXX, worked his last day in Utah on approximately XXXXX, and left for Alaska
on or about XXXXX. Petitioner stated
that he only moved back to Utah because he could not lease his XXXXX home, and
because his wife wanted to stay in Utah.
Petitioner worked in Alaska from XXXXX to XXXXX, XXXXX, and subsequently
returned to Utah. Petitioner stated
that the typewritten portions of the nonresident affidavit were blank when he
signed the affidavit. Petitioner agrees
with the assessment of tax and interest but requests a waiver of the penalty.
FINDINGS
Petitioner
was a resident of Utah on XXXXX, the date the vehicle was purchased. See, motor vehicle registration Rule No.
A12-05-1, which defines a resident for the purpose of registration and operation
of motor vehicles. Petitioner did not
qualify for the exemption from sales tax on the sales of motor vehicles for
non-residents as set forth in Utah Code Ann.
§59-15-6(1) (1953) (new Section 59-12-104(9)).
Question
"6" of the nonresident affidavit asked "have you been a resident
of Utah or domiciled in Utah within the past 60 days?" The response
"NO" was typewritten on the blank.
Petitioner was a resident of Utah or domiciled in Utah within the past
sixty days immediately preceding the purchase of the vehicle.
The
Tax Commission finds that Petitioner fully intended to make Alaska his
permanent residence following the purchase of the vehicle; however, this was
not sufficient to qualify Petitioner for the nonresident exemption. The fact that Petitioner was a resident of
Utah at the time of the purchase subjects Petitioner to the Utah sales
tax. Respondent had the burden of proof
to establish fraud in this matter. Respondent
has met the burden of proof.
DECISION AND ORDER
It
is the Decision and Order of the Utah State Tax Commission that Petitioner's
request for waiver of penalty on the purchase of the XXXXX be denied. The assessment of tax, penalty, and interest
by the Auditing Division of the Utah State Tax Commission is hereby affirmed.
DATED
this 5 day of October, 1987.
BY ORDER OF THE STATE TAX COMMISSION OF UTAH.
R. H. Hansen Roger
O. Tew
Chairman Commissioner
Joe B.
Pacheco G.
Blaine Davis
Commissioner Commissioner