87-0485 - Sales

 

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