86-1550 - Sales & Use

 

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX,

Petitioner, :

v. : INFORMAL DECISION

:

COLLECTION DIVISION OF THE : Appeal No. 86 1550

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 period XXXXX. 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 represented the Petitioner.

Respondent assessed a penalty of $$$$$ and interest of $$$$$ as of XXXXX, on a tax due of $$$$$ for the fourth quarter of XXXXX. Petitioner paid the $$$$$ tax liability to the Utah State Tax Commission on or about XXXXX. Petitioner requested a waiver of the penalty and interest, asserting that he was not notified until XXXXX that the original check issued for the fourth quarter of XXXXX had not cleared.

FINDINGS

Petitioner filed a return for the fourth quarter of XXXXX on XXXXX. Petitioner's check for the fourth quarter of XXXXX did not clear the bank.

The sales and use tax for which Petitioner was liable had the effect of a judgment against him. Utah Code Ann. 59-10-1 (1953). The statutory due date upon which a return for sales and use tax is due is the date on which entry of judgment occurs. In this case, since the period in question is the fourth quarter of XXXXX, the return was due on XXXXX.

A judgment is enforced by the issuance of a writ of execution within eight years after the entry of judgment pursuant to Utah R. Civ. P. 69(a). Respondent had eight years from this date in which to enforce the judgment. In addition, the time for enforcement of judgment is extended if the statute is tolled. The eight year period in the present case was tolled from XXXXX, until XXXXX, during which period Petitioner was in bankruptcy.

A warrant docketed with the clerk of the district court has the force and effect of an execution. Utah Code Ann. 59-15-11 (1953). Respondent timely issued a warrant in the amount of $$$$$ on XXXXX, for the period XXXXX.

A judgment may be renewed prior to the expiration of the eight year period by filing a new warrant within this period. However, Respondent did not file another warrant until XXXXX, well beyond the period which included the eight year statute of limitations and the time during which Petitioner was in bankruptcy. Therefore, Respondent may not collect the penalty and interest on this account for the fourth quarter of XXXXX.

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 on sales and use tax account No. XXXXX for the fourth quarter of XXXXX be granted.

The Collection Division of the Utah State Tax Commission is hereby ordered to adjust its records in accordance with this decision.

DATED this 11 day of March, 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