88-0632 - Income

 

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX

Petitioner, :

v. : INFORMAL DECISION

:

COLLECTION DIVISION OF THE : Appeal No. 88-0632

UTAH STATE TAX COMMISSION, : Acct. No. XXXXX

Respondent. :

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission on XXXXX as a claim for damages incurred by Petitioner in the process of appealing a request for a waiver of penalty and interest on individual income tax account No. XXXXX. G. Blaine Davis, Commissioner, and Joe B. Pacheco, Commissioner, heard the matter for the Tax Commission. XXXXX appeared representing the Petitioners.

The Petitioners filed their XXXXX Utah individual income tax return more than a year late on XXXXX. The balance of the tax due was $$$$$ and was paid on filing of the return which meant the return was filed late and the tax was paid late. The Tax Commission imposed a charge for penalty and interest for late filing and late payment of the tax due. The Tax Commission imposed $$$$$ for late filing and $$$$$ for late payment together with interest for a total of $$$$$. On XXXXX, the Tax Commission issued a Notice of Warrant and Demand for Payment. On XXXXX, the XXXXX paid $$$$$ on account for interest.

On XXXXX the Tax Commission issued a Warrant for the balance of $$$$$ of delinquent tax and penalties assessed against the Petitioners. Pursuant to the provisions of Title 59, Chapter 14A, Utah Code Ann., 1953 and, the warrant was docketed.

On XXXXX the Salt Lake County Clerk was instructed and authorized by the Tax Commission to remove the lien of said warrant from the records.

The Petitioners claim that during XXXXX, and prior to the above Commission action, a request for waiver of the penalty and interest had been filed and that XXXXX, an employee of the Tax Commission had told him that the waiver request had been approved. The Petitioners also claim that the request and subsequent correspondence have been misplaced from the file. The file does not contain any such request or correspondence nor any record that such a request was ever filed.

On XXXXX, Petitioners requested a waiver of the penalty and interest which was approved and the aforementioned withdrawal of warrant was issued to the XXXXX interest is not contained in the files of the Tax Commission.

Petitioner also did not have any documentation to support his claim of filing of the waiver request in XXXXX nor any correspondence from the Tax Commission to indicate the approval of the waiver request.

The Utah State Tax Commission has subsequently approved the waiver of the penalty and interest in XXXXX.

The Utah State Tax Commission is not the proper party to be served for the claim for damages as the Petitioners' claim against the State and the appeals process is not the proper forum for such a determination. Accordingly, Petitioners were informed to pursue their claim through the Utah State Attorney General's office as a claim against the state or its employees pursuart to the provisions of Utah Code Ann. 63-30-12 (1953).

CONCLUSIONS OF LAW

The assessment of penalty and interest and the docketing of the warrant were proper at the time those actions were taken. The Commission properly exercised its discretion in waiving the penalty and interest, but it was not required by law to grant such waivers.

The Petitioners also have the burden of proof to show that any actions of the Tax Commission or its employees was wrongful, and the Petitioners have not presented any evidence of any wrongful actions, and thereby they have not sustained their burden of proof.

The Tax Commission hereby dismisses this appeal with instruction to the Collection Division to assist Petitioners with the deletion of the warrant from the Credit Bureau records. The Petitioners are further notified that they have a right to proceed in accordance with Utah Code Ann. 63-30-12 with their claim for damages.

DATED this 20 day of April, 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 Commissioner