BEFORE THE STATE TAX
COMMISSION OF UTAH
_____________________________________
XXXXX
Petitioner, )
v. ) INFORMAL DECISION
COLLECTION
DIVISION OF THE ) Appeal No. 87-0485
STATE TAX
COMMISSION OF UTAH, ) Account 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 a penalty against Petitioner as an
individual in the amount of the total of the sales and use taxes assessed
against XXXXX for the 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, attorney at law,
represented the severance in XXXXX is not found. Respondent stated that Petitioner could have done more to make
sure that the taxes were paid, but he only walked away from the situation. Respondent asserted that this was
recklessness pursuant to Utah Code Ann. §59-2-1321(8)(b) (1953) (old Section
59-10-22(9)(b)).
FINDINGS
The
Tax Commission finds that Petitioner was a "responsible person" until
XXXXX. Petitioner's responsibilities to
this point in time satisfy the requirements of a person "required to
collect, truthfully account for, and pay over the Utah sales, use, or
withholding tax imposed by Utah law . . ." pursuant to Utah Code Ann.
§59-10-22(3) (1953). The Tax Commission
also finds that Petitioner was not a responsible person from XXXXX until the
time the company ceased operations. Tax
for the XXXXX was due on or before XXXXX.
Petitioner was not a responsible person pursuant to Section 59-10-22
because he left XXXXX before the statutory due date of any of the quarters in
question. Therefore, the Tax Commission
does not reach the issue of whether Petitioner willfully attempted to evade or
defeat the tax or the payment thereof pursuant to Section 59-10-22(3). Both elements are required to find Petitioner
liable. Even if, for the sake of argument,
Petitioner was a responsible person for the XXXXX, Petitioner did not
recklessly leave the company and fail to ensure that the tax would be filed and
paid. Testimony indicates that XXXXX
retained a XXXXX accounting firm to manage the taxes after Petitioner left.
DECISION AND ORDER
Based
on the foregoing, it is the Decision and Order of the Utah State Tax Commission
that Petitioner is not personally liable for sales and use taxes assessed
against XXXXX for the XXXXX. The
Collection Division of the Utah State Tax Commission is hereby ordered to
adjust its records in accordance with this decision.
DATED
this 10 day of December, 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