87-0883 - Income

 

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX

            Petitioner,                                                         :

v.                                                                                 :           INFORMAL DECISION

COLLECTION DIVISION OF THE                          :           Appeal No. 87-0883

            UTAH STATE TAX COMMISSION,            :           Acct. 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 penalty and interest on individual income tax account No. XXXXX for the tax year 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 Tax Commission.  XXXXX represented the Petitioner.  At the hearing Petitioner also requested that the tax years XXXXX be considered at this time.  Petitioner stated that the return was filed late but that reasonable cause existed for the late filing.  The taxpayer had relied on a representation made by an attorney holding himself out to be a tax attorney. Petitioner was under the impression that no return needed to be filed for the tax year XXXXX.  Petitioner requests a waiver of the penalty and interest.

FINDINGS

            The Petitioner has not received a denial of a request for waiver of penalty and interest from Respondent for the tax years XXXXX. Therefore, these years will not be addressed by the Tax Commission at this time.  Petitioner was an elderly lady with real estate holdings in XXXXX.  XXXXX, Petitioner deeded all of her real estate to XXXXX and XXXXX, her daughter and son.  The XXXXX tax notice shows Petitioner as the owner and the XXXXX tax notice shows XXXXX and XXXXX as tenants in common of the real estate.  A portion of the real estate was sold on XXXXX to the Utah Department of Transportation.  A letter to the Utah Department of Transportation dated XXXXX named XXXXX as the present property owners.  Proceeds of the sale were distributed to XXXXX.  A warranty deed to the Utah Department of Transportation, dated XXXXX was signed by XXXXX.  For the tax year XXXXX, the taxes due as a result of the sale of the portion of the real estate were reported, filed and paid by Petitioner's two children, XXXXX. Petitioner's accountant did not prepare an income tax return for Petitioner for the tax year XXXXX because Petitioner had no requirement to file according to the understanding of the Petitioner, Petitioner's two children, and Petitioner's accountant.  Petitioner died on XXXXX.  When Petitioner's accountant asked the tax attorney about the probate plans, the attorney told the accountant that the children had held the real estate only as trustees.  The attorney produced a document which was found to be a living trust.  Therefore, a probate was not needed.  On XXXXX, the attorney wrote a letter to the bank changing the ownership of the deposited funds to XXXXX as trustees.  XXXXX returns for XXXXX were then amended to get a refund of the tax paid on the sale of the real estate and the tax paid on the interest income.  The accountant then filed a return for the Petitioner.  The surfacing of the trust document created an obligation for a return to be filed on behalf of the Petitioner, which return reported the income from the sale of the real estate.  Based on the foregoing, the Utah State Tax Commission hereby waives the penalty on individual income tax account No. XXXXX for the tax year XXXXX. The Tax Commission also waives the interest in this matter since the Tax Commission was not denied the use of the money.  The children had previously reported, filed and paid the taxes on the sale of the real estate.  Subsequent to the hearing, XXXXX provided a receipt for payment of inheritance tax as evidence that the liability has been paid in full.  The matter under appeal in the present hearing concerns income tax.  The receipt does not apply.

DECISION AND ORDER

            Based on the foregoing, it is the Decision and Order of the Utah State Tax Commission that penalty and interest on individual income tax account No. XXXXX for the tax year XXXXX be waived.  The tax years XXXXX will not be considered at this time.  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 March, 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