88-0206

Sales

Signed 9/8/92

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

XXXXX,

Petitioner, ) ORDER

)

v. )

AUDITING DIVISION OF THE ) Appeal No. 88‑0206

UTAH STATE TAX COMMISSION, )

) Account No. XXXXX

Respondent. ) Tax Type: Sales & Use

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a hearing on the Respondent's Motion for Summary Judgment on XXXXX. XXXXX, Presiding Officer, heard the matter for and on behalf of the Commission. Present and representing the Petitioner was XXXXX, Esq. Present and representing the Respondent was XXXXX, Assistant Utah Attorney General.

Based upon the arguments of counsel for the respective parties, and the memoranda submitted in support of those arguments, the Tax Commission hereby makes its:

FINDINGS OF FACT

1. The tax in question is sales tax.

2. The audit period in question is XXXXX through XXXXX.

3. The deficiencies assessed against the Petitioner arose out of sales made by the Petitioner to XXXXX. No sales tax was collected on those sales by the Petitioner from XXXXX because XXXXX claimed to be an instrument of the United States Government.

4. On XXXXX, the Commissioner issued its Findings of Fact, Conclusions of Law and Final Decision in XXXXX. It was the decision of the Commission in that case that XXXXX was not an instrument of the United States Government and therefore was not a tax exempt entity.

5. The Petitioner in the present case did not challenge the Findings of Fact made in XXXXX, however, the Petitioner did argue that the legal conclusion drawn from those facts was incorrect. The Petitioner argued that those facts should be viewed in light of certain other Federal Court decisions which were rendered subsequent to the United States Supreme Court decision upon which the Commission based its decision in the XXXXX case.

CONCLUSIONS OF LAW

1. In the present case there exists no genuine issue as to any material facts which were considered by the Commission in having previously determined the taxable status of XXXXX.

2. A different legal conclusion to be drawn from those facts is not warranted by the cases cited by the Petitioner in its memorandum and oral argument.

3. There being no genuine issue as to any material fact, the Respondent is entitled to judgment as a matter of law.

DECISION AND ORDER

Based upon the foregoing, the Tax Commission hereby grants the Respondent's Motion for Summary Judgment and affirms the determination of the Auditing Division. It is so ordered.

DATED this 8 day of September, 1992.

BY ORDER OF THE UTAH STATE TAX COMMISSION

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner

NOTICE: You have twenty (20) days after the date of the final order to file a request for reconsideration or thirty (30) days after the date of final order to file in Supreme Court a petition for judicial review. Utah Code Ann. ''63‑4 6b-13(1), 63‑46b‑14(2)(a).

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