87-1018 - Sales

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX

Petitioner, :

v. : INFORMAL DECISION

COLLECTION DIVISION OF THE : Appeal No. 87-1018

STATE TAX COMMISSION OF UTAH, ) Acct. No. XXXXX

Respondent. :

_____________________________________

STATEMENT OF CASE

An Informal Hearing was held on XXXXX. XXXXX, Hearing Officer, heard the matter for the Utah State Tax Commission. XXXXX appeared representing himself. XXXXX had an XXXXX distributorship and apparently paid sales tax on an annual basis. Therefore, for the XXXXX period, the sales tax return and payment were due by XXXXX. XXXXX filed the sales tax return prior to the XXXXX deadline, but inadvertently failed to include a check for the amount due of $$$$$. Respondent therefore assessed a $$$$$ penalty and interest. XXXXX requested a waiver of the penalty and interest because he had made an honest mistake in not including a check with his return. He testified that he had no fraudulent intent, that he was aware of the $$$$$ penalty, and that he simply overlooked making out and sending a check. He indicated that he returned his sales tax license with his return since he was no longer in business, and that this "paper shuffle" may have been the reason he overlooked sending a check. XXXXX also indicated that interest should be abated during the appeals process and that he was told he could request interest to be abated during that process. Therefore, Petitioner requested waiver of the $$$$$ penalty and interest.

DECISION AND ORDER

Utah Code Ann. 59-15-8 (Supp. 1986-provides that if any part of a deficiency in sales tax remitted in due to negligence there shall be added to the amount of tax due the greater of $$$$$ or %%%%% of the deficiency, and interest at the rate of %%%%%. The only provision in the Utah Code which would authorize interest to be abated during an appeals process, is the provision allowing the taxpayer to pay the total amount of tax, penalty, and interest that is due, and then sue for a refund. Petitioner in this case chose to file a Petition for Redetermination rather than pay the total amount due and sue for refund. Based on the foregoing, it is the Decision and Order of the Utah State Tax Commission to deny Petitioner's request for waiver of penalty and interest. Although the Commission agrees with Petitioner that his overlooking the check was an honest mistake and that he had absolutely no fraudulent intent, this mistake constitutes negligence and therefore the penalty was properly assessed. Moreover, Petitioner is not entitled to an abatement of accruing interest in the appeals process because he chose to pay only the tax due and request a waiver of the penalty and interest (the equivalent of a Petition for Redetermination), rather than pay the total amount due and sue for a refund.

DATED this 15 day of October, 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