88-1648 - Drug Stamp

 

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

XXXXX

Petitioner, :

: FINDINGS OF FACT,

v. : CONCLUSIONS OF LAW

: AND FINAL DECISION

COLLECTION DIVISION OF THE :

UTAH STATE TAX COMMISSION, : Appeal No. 88-1648

Respondent. :

_____________________________________

This matter came before the Utah State Tax Commission pursuant to the Rules of Administrative Procedure and the Administrative Procedures Act as it relates to a formal adjudicative proceedings on the XXXXX. James E. Harward, Presiding Officer, heard the matter for and in behalf of the Tax Commission. XXXXX appeared representing the Respondent. XXXXX appeared representing the Petitioner.

The Tax Commission after reviewing the evidence and arguments from the hearing and the recommendation of the presiding officer makes its:

FINDINGS OF FACT

1. The tax in question is illegal drug stamp tax act.

2. The period in question is XXXXX.

3. The Petitioner owns or rents a house located at XXXXX, Utah.

4. On or about XXXXX, the XXXXX City Police Department and others on execution of a search warrant, located XXXXX grams of XXXXX and XXXXX grams of XXXXX on the premises.

5. The XXXXX was located in canisters and mason jars in the bedroom of the Petitioner and in the kitchen of the Petitioner's residence.

6. The XXXXX was located in a 'Coleman' cooler in the garage of the residence of the Petitioner. Specifically the cooler was located in storage shelving at the back of the garage, behind a boat.

7. The Petitioner was prosecuted by XXXXX County for two felony counts of possession of XXXXX and of XXXXX.

8. Petitioner was convicted of the felony count of possession of XXXXX and acquitted on the felony count of possession of XXXXX.

9. Petitioner continued to maintain that the XXXXX and XXXXX did not belong to him and had no idea how it came to be in his residence.

10. Petitioner also admitted to ownership of the cooler, certain items of drug paraphernalia, and various other items of personal property.

CONCLUSIONS OF LAW

1. Tax is imposed on XXXXX and controlled substance as defined in Utah Code Ann. 59-19-103. Evidence of payment of that tax is by affixing and displaying official stamps upon which the tax is imposed. (Utah Code Ann. 59-19-104.)

2. The tax imposed is $$$$$ a gram for XXXXX and $$$$$ a gram for XXXXX. (Utah Code Ann. 59-19-103.)

3. Failure to comply with the requirements of the stamp act results in 100% penalty of the tax in addition to the tax imposed by Section 59-19-103. (Utah Code Ann. 59-19-106.)

4. The dealer is a person who in any manner acquires or possess more than XXXXX grams of XXXXX or XXXXX or more grams of XXXXX. (Utah Code Ann. 59-19-102(2).)

DECISION AND ORDER

The Tax Commission after reviewing the facts and evidence before it finds that there is sufficient evidence that the Petitioner was in possession of controlled substances which did not have the drug stamps affixed as required by law. Where the Petitioner had in his residence the drugs which do not carry the appropriate affixed stamps to evidence payment of the tax he is guilty of failure to pay the tax as required under Utah Code Ann. 59-19-101 et. seq. The Petitioner's argument that the drugs do not belong to him and he did not know of the presence on his property is a convenient and self serving argument at this point. The Tax Commission finds it unpersuasive. In addition, the Tax Commission notes that it is not bound by the same rules of proof as is the criminal court and need only find by preponderance of the evidence that the Petitioner had in his possession or acquired in some manner drugs which were not taxed as required by the statute. Therefore the Commission affirms the assessment in total and finds no reason to waive or abate that assessment.

DATED this 15 day of November, 1988.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner