BEFORE THE STATE TAX
COMMISSION OF UTAH
_____________________________________
XXXXX,
Petitioner, :
v. : INFORMAL DECISION
:
COLLECTION
DIVISION OF THE : Appeal No. 86 1553
UTAH STATE TAX COMMISSION, : Account
No. XXXXX
Respondent. :
_____________________________________
STATEMENT OF CASE
This
matter came before the Utah State Tax Commission on the XXXXX day of XXXXX,
XXXXX, for an Informal Hearing. James
E. Harward, Hearing Officer, heard the matter for and on behalf of the Tax
Commission. XXXXX and XXXXX appeared
representing the Petitioners. XXXXX and
XXXXX appeared representing the Respondent.
XXXXX
and XXXXX were president and secretary of the Petitioner. The Petitioner suffered severe financial
difficulties in XXXXX and subsequently went out of business. In approximately XXXXX it was determined
that the corporation was defunct and that a personal penalty assessment should
be made against the individual XXXXX and XXXXX for the amount of tax or
$$$$$. Thereafter, a personal penalty
assessment was made and a Petition taken therefrom.
The
Petitioners argued that the statute of limitations bars the assessment of the
penalty and further that even if the statute of limitations does not bar it the
Petitioners did not willfully fail to pay the withholding tax.
DISCUSSION
Where
no statute of limitations is provided for in the personal penalty assessment
provisions, Utah Code Ann. §59-14A-86A is controlling. That section provides for a three year
statute of limitations on the assessment of tax. The personal penalty assessment provisions 59-10-22 must
therefore be enacted within three years from the filing date of the XXXXX
income tax returns i.e. XXXXX.
Therefore the personal penalty assessment should have been made prior to
XXXXX. The respondent is barred from
assessing the tax due to the statute of limitations.
The
Commission finds however that if the assessment were not barred by the statute
of limitations it would have been properly done against XXXXX who was in
control of the money, signed checks, and made the determination of which bills
to pay and which bills not to pay.
DECISION AND ORDER
Based
upon the foregoing it is the decision of the Utah State Tax Commission that the
personal penalty assessment against XXXXX and XXXXX on behalf of XXXXX, is
barred by the statute of limitations.
The Respondent is hereby ordered to adjust its records to reflect 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