87-3276 to 87-3277 - Sales

 

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX ) ORDER ON MOTION

Petitioner : TO INTERVENE AND

v. : REQUEST TO REVIEW

AUDITING DIVISION OF THE : CERTAIN DOCUMENTS & RECORDS

STATE TAX COMMISSION OF UTAH, ) Appeal No. 87-3276 &

Respondent. : 87-3277

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STATEMENT OF CASE

The above entitled case came on for a hearing before the Utah State Tax Commission on the Motion to Intervene filed by Salt Lake City and the Motion to Intervene filed by XXXXX County, together with the request by XXXXX County to review the sales tax audit of the Petitioner; to review the Petitioner's Petition for Redetermination, and to also review all correspondence between the Petitioner and Respondent. XXXXX appeared for and in behalf of the Petitioner, XXXXX appeared for and in behalf of the Respondent, XXXXX appeared for and in behalf of XXXXX County, and XXXXX appeared for and in behalf of XXXXX. Chairman R. H. Hansen and Commissioners Roger O. Tew, Joe B. Pacheco and G. Blaine Davis heard the matter for the Tax Commission.

The legal positions of the City and the County were nearly identical in that they argued they have a legal interest in the outcome of the current sales tax audit being conducted by the Auditing Division on XXXXX. It was also the position of the City and County that the Tax Commission may not compromise the local portion of any sales or use tax, and that the City and County have standing pursuant to a contract entered into between the Tax Commission and the City and County respectively.

The position of the Petitioner, XXXXX, is that Utah Code Ann. 59-12-204 gives the right to administer the local portion of the sales tax exclusively to the Tax Commission, and the City and County are not entitled to be a party to the proceeding. The Petitioner also takes the position that it would be administratively impossible to give notice to approximately 250 taxing agencies every time a sales tax audit is performed to permit them to participate in every sales tax audit which is performed by the Tax Commission.

Article XIII, Section 11, of the Constitution of Utah, provides in part:

"The State Tax Commission shall administer and supervise the tax laws of the State."

The law is clear that cities and counties have only such powers as are specifically granted to them by the legislature. American Fork City v. Robinson, 77 Utah 168, 292 Pac. 249 (1930); Stevenson v. Salt Lake City Corp., 7 U.2d 28, 317 P.2d 597 (1957); and Salt Lake City v. Revene, 101 Utah 504, 124 P. 2d 537 (1942). The only legislative authorization dealing with the administration of the local option sales tax is Utah Code Ann. 59-12-204, 1953, as amended, and specifically paragraph (5) thereof, which provides:

"Such tax ordinance shall include a provision that the county shall contract, prior to the effective date of the ordinance, with the Commission to perform all functions incident to the administration or operation of the ordinance." (Emphasis added.)

After reviewing the arguments of each of the parties, and the relevant documents and statutes related thereto, it is the opinion of the Commission as follows:

1. The present status of the case is that the Auditing Division of the Tax Commission is in the process of ascertaining the amount of sales and use tax which is due from the Petitioner, XXXXX. A portion of any tax determined to be due will be distributed to local governments throughout the State of Utah pursuant to the statutory distribution formula.

2. The determination of the amount of tax due is not just a routine auditing function. The telephone industry has been rapidly changing, and some of the issues in this case are matters of first impression, both in this state and the nation. The administrative function of determining the amount

of tax due will not be completed until the Auditing Division has completed its process and any necessary administrative quasi judicial hearings have been completed.

3. The statute, Utah Code Ann. 59-12-204, gives to the Commission the responsibility of administering the local portion of the sales tax, and the City and County are not appropriate parties and are not legally entitled to participate in the proceeding.

4. The confidentiality of sales tax returns is governed by Utah Code Ann. 59-1-403, 1953, as amended, which makes sales tax returns confidential and places restrictions on the right of anyone outside of the Tax Commission to see those returns.

5. The contractual provisions which permit the City and County to have access to Tax Commission and taxpayer records must be harmonized with Section 59-1-403, Supra, and it is our opinion that those contractual provisions were intended to permit the cities and counties to review the records of the Commission and taxpayers to determine that sales tax revenues have been appropriately allocated and distributed to the respective cities and counties. Those contractual provisions were not intended to permit cities and counties to have access to confidential taxpayer information nor to permit them to participate in the internal operations of the Tax Commission or Auditing Division, specifically as it relates to the determination of amount of taxes due.

6. There is no reason to believe that the Auditing Division, together with its legal counsel from the Utah Attorney General's office, will not adequately pursue taxpayers and protect the revenues of cities and counties, because the State of Utah receives a larger portion of all such revenues, and the cities and counties receive their required portion of all the sales tax revenues received by the Tax Commission. Therefore, in protecting the revenues of the State of Utah, equal protection will be given to the revenues of cities, counties, and other taxing districts.

7. Utah Code Ann. 59-12-205, (1953), as amended, provides for the distribution of local sales tax revenues based on both the point of sale and the population. Since part of every local sales tax dollar is distributed based on population, every taxing district imposing local option sales tax is as entitled to participate in any proceedings as are XXXXX and XXXXX County. There are approximately 250 such taxing districts.

8. If the City and County had a legal right to participate in this hearing, then notice would have to be given to every taxing district in the state every time a sales tax audit was being reviewed by the Tax Commission, and this would require notifying approximately 250 separate taxing entities and giving them a right to be heard before any sales tax audit could be closed. Such a process would create an administrative nightmare, would greatly increase the cost of administering the system, would clog the entire system including the appeal and hearing system, would unduly complicate all sales tax proceedings, and would substantially delay the receipt of the revenues to be derived by the City, County and State through that system.

Therefore, the Commission hereby denies the Motion to Intervene filed by XXXXX and the Motion to Intervene filed by XXXXX County, and further denies the request to review the above stated documents filed by XXXXX County.

DATED this 26 day of May, 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 Commission

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