BEFORE THE STATE TAX
COMMISSION OF UTAH
_____________________________________
XXXXX
Petitioner, :
v. : INFORMAL DECISION
COLLECTION
DIVISION OF THE : Appeal No. 87-1112
STATE TAX COMMISSION OF
UTAH, ) 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 sales and use tax account No. XXXXX for the XXXXX. A telephone conference hearing on XXXXX in
the offices of the Utah State Tax Commission.
David J. Angerhofer, Hearing Officer, heard the matter for the
Commission. XXXXX represented the
Petitioner. Petitioner stated that he
made a mistake on the form for the XXXXX.
He had initially calculated the correct amount but scratched this out
and substituted a lesser figure because of a calculation error. Petitioner stated that there was no intent
to defraud and this was an honest mistake.
Petitioner stated that he was not aware of the new law assessing a $50
late filing penalty and that this law should not apply to minor addition
errors. Petitioner further noted that the amount charged was not in accordance
with the law, i.e., it is apparent that the smaller the error the greater
amount of penalty which was charged.
Petitioner noted that he paid the deficiency as soon as he got the
notice and requests a waiver of the penalty.
FINDINGS
The
tax due for the XXXXX was $$$$$. This
tax was due on or before XXXXX pursuant to Utah Code Ann.
§59-15-5(4)(1953). Tax Commission
records indicate that the tax was not fully paid until XXXXX. Utah Code Ann. §59-15-8 authorizes
Respondent to assess a penalty in the event of a deficiency:
If
any part of the deficiency is due to negligence or intentional disregard of
authorized rules and regulations with knowledge thereof, but without intent to
defraud, there shall be added the greater of $50 or ten per cent of the total
amount of the deficiency and interest at the rate prescribed in section
59-11-16 [one percent per month] to the amount of the deficiency from the time
the return was due. The greater of $50
or ten percent of the amount of the deficiency in Petitioner's case is
$50. On XXXXX Respondent assessed a $50
penalty and interest of $$$$$. The sum
of the tax, penalty and interest amount to $$$$$. Tax Commission records indicate a credit of $$$$$, leaving a balance
due of $$$$$ as of XXXXX. The indicated
credit is in excess of the tax due in the amount of $$$$$. The sum of the penalty and interest amounts
to $$$$$. This sum less the amount of
$$$$$ leaves a balance due of $$$$$ as of XXXXX. Interest has continued to accrue on the account since XXXXX. The Tax Commission has been authorized to
assess the greater of $50 or ten percent on a deficiency pursuant to the 1983
amendment to §59-15-8 by chapter 275.
It is the use tax which added the $50 penalty effective July 1, 1986. For administrative purposes, the Tax
Commission enforced the $50 penalty for both sales and use taxes effective July
1, 1986. Petitioner's return was not
due until XXXXX and therefore was subject to the $50 penalty since the due date
fell after July 1, 1986. If the
Petitioner only paid an additional $$$$$, the amount necessary to pay the tax
in full, then the Respondent apparently credited Petitioner for an additional
$$$$$, which amount reduced the penalty.
If there was an error it was in Petitioner's favor. The Tax Commission shall let the credit
stand. However, the Tax Commission
finds no basis on which to waive the remainder of the penalty.
DECISION AND ORDER
It
is the Decision and Order of the Utah State Tax Commission that Petitioner's
request for waiver of penalty and interest on sales and use tax account No.
XXXXX for the XXXXX be denied. The
assessment of penalty and interest by the Collection Division of the Utah State
Tax Commission is hereby affirmed.
DATED
this 11 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