BEFORE THE STATE TAX
COMMISSION OF UTAH
_____________________________________
XXXXX
Petitioner, : INFORMAL DECISION
v. :
COLLECTION
DIVISION OF THE :
STATE TAX
COMMISSION OF UTAH, )
Respondent. : Appeal No. 87-0131
: Account
No. XXXXX
_____________________________________
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 a penalty
against Petitioner in the amount of the total of the sales taxes assessed
against XXXXX. for the XXXXX and the XXXXX.
A telephone conference 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, Attorney, and XXXXX represented the
Petitioner. XXXXX and XXXXX represented
the Respondent. Petitioner stated that
his duties included the filing of sales tax returns; for the XXXXX, the XXXXX,
and part of the XXXXX, he was the financial vice president of XXXXX. Returns for the XXXXX were signed by
Petitioner but returns for the XXXXX were signed by XXXXX. One prepayment of $$$$$ had been made for
the XXXXX, but there was no further payment. Petitioner stated that XXXXX, a
vice president of XXXXX, oversaw the accounts payable and that Petitioner had
no ability to pay the tax without the participation of others. There was no conscious decision on the part
of Petitioner to divert the funds from the payment of tax. There was no cash in the bank with which to
pay the tax. Petitioner had no personal
control over the fact that there was no cash.
Respondent stated that Petitioner had the ability and was directed to
pay the sales tax and was provided with the signed checks with which to do
so. Respondent stated that Petitioner
did not inform XXXXX that sales taxes had not been paid.
FINDINGS
The
Tax Commission finds that for the XXXXX and the XXXXX, Petitioner was a
"responsible person" who was "required to collect, truthfully
account for, and pay over the sales, use, or withholding tax imposed by law . .
." pursuant to Utah Code Ann.59-2-1321(3) (1953) (formerly Section
59-10-22(3)). Petitioner was not a
"responsible person" for the XXXXX.
Petitioner resigned on XXXXX, over a month before the sales and use tax
return was due for the XXXXX.
Respondent presented two letters from XXXXX, vice president of
XXXXX. One letter was XXXXX, and the
second letter was XXXXX. Respondent
also filed an affidavit of XXXXX dated XXXXX.
These materials contained statements against Petitioner's interest, but
XXXXX was not present at the hearing to be cross examined by Petitioner. The
Tax Commission finds that insufficient evidence has been presented to establish
that Petitioner willfully evaded or defeated the collection and payment of the
sales tax for the periods in question.
DECISION AND ORDER
Based
on the foregoing, it is the Decision and Order of the Utah State Tax Commission
to abate the personal penalty assessment against Petitioner in the amount of
the total of the sales taxes assessed against XXXXX. for the XXXXX, and the
XXXXX in the amount of $$$$$. The
Collection of the Utah State Tax Commission is hereby ordered to adjust its
records in accordance with this
DATED
this 21 day of December, 1987.
BY ORDER OF THE STATE TAX COMMISSION OF UTAH.
R. H. Hansen G.
Blaine Davis
Chairman Commission
Joe B.
Pacheco Roger
O. Tew
Commissioner Commissioner