87-0941 - Income





Petitioner, : FINDINGS OF FACT,

v.                                                                                                                                           CONCLUSIONS OF LAW

vi.                                                                                                                                         ) AND FINAL DECISION



Respondent. :


This matter came before the Utah State Tax Commission for a formal hearing on XXXXX. James E. Harward, Presiding Officer and Jerry Larrabee, Hearing Officer, heard the matter for and in behalf of the Tax Commission. Petitioner was represented by XXXXX. The Respondent was represented by XXXXX. Based upon the recommendation of the Hearing Officers and the facts and evidence presented at the hearing, the Tax Commission makes its


1. The taxes in question are XXXXX.

2. The tax in question is individual income tax.

3. Petitioner was contacted on or about the XXXXX and requested to file the necessary returns.

4. From the first contact numerous deadlines and extension were granted to the Petitioner for the purposes of filing the returns. Eventually writ of mandate proceedings were commenced against the Petitioner. Several Orders to Show Cause were issued. Returns were finally obtained from the Petitioner in XXXXX twenty one months after the original contact by the Respondent.

5. Petitioner cited the herculean effort to obtain and review records necessary for the compilation of the returns, the hiring and attempted review by several bookkeepers, and finally the confusion created by the language and the instruction booklets, tax forms, and the filing as excuses for nonfiling of the returns. The Petitioner further cites that he knew during this period in question that he did not have sufficient income to file returns. None were prepared and necessary bookkeeping was not done during the time.


Utah Code Ann. 59-14A-92 imposes a penalty of not more than $$$$$ for "any person who, with intent to evade any tax or any requirement of this chapter, or any lawful requirement of the State Tax Commission, fails to pay the tax or to make, render, sign, or verify a new return or to supply any information within the time required by or under this chapter, or . . . , with like intent makes, renders, signs, verifies any false or fraudulent return or statement, supplies any false or fraudulent information is liable for a civil penalty of not more than $$$$$ to be recovered by the Utah State Tax Commission in the same manner as provided in this chapter for the collection of delinquent taxes. . . ."


The Utah State Tax Commission in reviewing the evidence and arguments of the Petitioner, finds the use of hindsight to be interesting but not persuading. Petitioner claims that the tax laws are so confusing that he was unable to have requisite intent to avoid paying the tax or filing the return because of that confusion. However, the entire argument begs the question why the Petitioner did not adequately prepare his books in the first place in order to know what his income was for the years in question. It is clear from the conduct of the Petitioner that he had no intention of filing returns for the periods in question. The Petitioner did not even have proper bookwork available to know what his income and expenses were for that period of time. The nearly twenty one months of record reconstruction after the initial contact by the Respondent would indicate that the Petitioners records were not kept proper. In fact, the implication is clear that the Petitioner had no intention of filing returns or keeping the proper records to determine the income for the years in question. The testimony indicates that the Petitioner himself hired several bookkeepers and ultimately a tax consultant to help him in the endeavor of reconstructing the years in question and to determine the applicable income for those years. The Tax Commission is intrigued by the reference of the Petitioner that he needed to complete all those years in order to apply appropriate deprecation and to arrive at the proper numbers for the filing of the XXXXX income tax returns. This would indicate to the Commission that the Petitioner had no intention whatsoever during this period of time of filing his returns or preparing and keeping an adequate record of appropriate information in order to file returns.

Therefore, it is the conclusion of the Utah State Tax Commission that the Petitioner intended to avoid filing income tax returns for the tax years in question and intended not to maintain sufficient information for the purpose of rendering, signing or making an income tax return for the years in question. Based on this the Utah State Tax Commission affirms the civil penalty of $$$$$ per year. It is so ordered.

DATED this 22 day of March, 1989.


R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner