BEFORE THE STATE TAX
COMMISSION OF UTAH
_____________________________________
XXXXX
Petitioner, )
v. ) INFORMAL DECISION
COLLECTION
DIVISION OF THE ) Appeal No. 87-0223
UTAH STATE TAX
COMMISSION, ) Acct. No. XXXXX
Respondent. )
_____________________________________
STATEMENT OF CASE
This
matter came before the Utah State Tax Commission for an Informal Hearing on
XXXXX. James E. Harward, Hearing
Officer, heard the matter for the Tax Commission. XXXXX was present and XXXXX appeared representing the
Respondent. The Petitioner has been
assessed pursuant to Utah Code Ann. §59-2-1321(3) a penalty. The Petitioner contested the assessment of
said penalty on the grounds that at the time during the audit period the
corporation and the Petitioner were under the impression that the corporation
was a nonprofit corporation which was not obligated for the payment of sales
tax on items of personal property used or consumed by the tax exempt
corporation. The Petitioner did
indicate that he was the person responsible for signing and paying the sales
tax and returns and the day to day operation of the business.
DECISION AND ORDER
The
Tax Commission makes its decision based upon the following facts:
1.
Petitioner was charged with responsibility with the day to day operation of the
business.
2.
Petitioner was under the impression that no sales tax need be paid on the items
consumed or used by the Petitioner or by the nonprofit corporation.
3.
Not being aware that the sales tax needed to paid the Petitioner did not make a
conscious or intentional decision to prefer other creditors over the payment of
the sales tax.
4.
Petitioner's conduct or impression may be at best negligence, however, it does
not rise to the level of being reckless or intentional disregard of obvious or
known risks.
5.
After being told of the audit and the need to pay sales tax the Petitioner was
no longer in a position to investigate the problem in that the business was in
the process of being sold.
6.
The Petitioner may have used some funds from the operation of the business to
pay personal obligations; however, no evidence has been produced which would
indicate that those funds were tax money.
7.
Therefore, the Tax Commission declines to affirm
the penalty assessment under Utah Code Ann.
§59-2-1321(3).
DATED
this 2 day of February, 1988.
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