BEFORE THE STATE TAX
COMMISSION OF UTAH
_____________________________________
XXXXX
v. :
AUDITING
DIVISION OF THE :
UTAH STATE TAX COMMISSION, : INFORMAL
DECISION
Respondent. : Appeal No. 87-0055
_____________________________________
STATEMENT OF CASE
This
is an appeal to the Utah State Tax Commission from an audit deficiency
determined by Respondent on the XXXXX purchase of a XXXXX by Petitioner. 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 Tax
Commission. XXXXX represented
themselves. XXXXX, Field Audit
Supervisor, represented the Respondent.
Petitioner stated that he purchased the subject vehicle for his wife and
delivered the vehicle to XXXXX, the state of residence for his wife. The vehicle was financed and registered in
the state of XXXXX. Petitioner stated
that he was going through a divorce with his wife at the time and that he put
the vehicle in both their names for the right of survivorship. Petitioner remained in Utah after the
purchase of the vehicle. Respondent
presented evidence of the nonresident affidavit; the XXXXX XXXXX telephone
directory listing Petitioner at an address in XXXXX; a part-year resident
individual income tax return for the state of Utah listing Petitioner with a
XXXXX address; a W-2 form for Petitioner listing Petitioner with a Utah
address; a federal income tax form for XXXXX for Petitioner, which return
claimed a moving expense; and evidence of the same moving expense adjustment
for Petitioner's Utah return for XXXXX.
FINDINGS
The
imposition of the fraud penalty is the only issue in this case. There is no
dispute as to the assessment of tax and interest. Respondent had the burden of proof to establish fraud in this
matter. Respondent has presented clear
and convincing evidence of fraud.
Petitioner's testimony at the hearing contradicts Petitioner's position
in the petition for redetermination with respect to the nature of Petitioner's
stay in Utah. The petition states:
"I do temporarily reside in Utah as my assignment at XXXXX is a temporary
assignment, but my wife has chosen to stay and maintain our property in
XXXXX." Petitioner's actions in
claiming a moving expense to Utah and in purchasing a home in Utah indicate an
intent to establish residency in the state of Utah. Furthermore, Petitioner presented no evidence of his separation
or divorce from his wife. The
nonresident affidavit states that Petitioner was employed by XXXXX in XXXXX,
yet Petitioner stated that he came to Utah in XXXXX--over a year prior to the
date of purchase of the vehicle.
Petitioner also stated in question six that he was not a resident of
Utah and had not been domiciled in Utah within the past 60 days (prior to
XXXXX).
DECISION AND ORDER
Based
on the foregoing, the Utah State Tax Commission hereby denies Petitioner's
petition for redetermination. The
assessment of tax, penalty, and interest as determined by the Auditing Division
of the Utah State Tax Commission (including the fraud penalty) is hereby
affirmed.
DATED
this 3 day of August, 1988.