86-1547 - Sales

 

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