88-2508

Property

Signed 6/21/89

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

XXXXX

Petitioner, ) FINDINGS OF FACT

v. ) CONCLUSIONS OF LAW

) FINAL DECISION

) Appeal No. 88-2508

AUDIT DIVISION OF THE )

STATE TAX COMMISSION OF UTAH, )

Respondent. )

_____________________________________

This matter came before the Utah State Tax Commission pursuant to the Rules of Administrative Procedure and the Administrative Procedures Act for 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 XXXXX. XXXXX was also present.

Evidence was taken, arguments were made and the matter submitted to the Presiding Officer for his recommendation. Based upon the recommendation of the Presiding Officer and the facts and evidence presented at the hearing, the Tax Commission makes its:

FINDINGS OF FACT

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

2. The period in question is XXXXX.

3. On said date the Petitioner was stopped by the XXXXX County Sheriff's office in a XXXXX truck license plate number XXXXX at a routine traffic stop in conjunction with a drivers license roadblock check.

4. The vehicle was owned by the Petitioner.

5. Subsequent to the stop and as a result of the search of the vehicle, the sheriff's office located XXXX behind the drivers side or the vehicle which contained approximately XXXXX tablets which were stipulated as being XXXXX.

6. No drug stamps were affixed to the XXXXX.

7. A brief case located in the Petitioner's vehicle contained money and was the property of the Petitioner.

8. At the routine traffic stop, the officers were suspicious of the vehicle. When approaching the drivers side, they smelled the odor of XXXXX. They then requested that the vehicle pull to the side of the road. At the side of the road, the Petitioner then handed over to the officer a baggie and a roach apparently containing XXXXX. Thereafter the vehicle was searched for any other contraband or illegal drugs. During the course of the search, the XXXXX were located.

9. The sheriff's office stopped all cars and vehicles at the roadblock.

10. The Respondent assessed a tax and penalty according to state statute of $$$$$ tax and $$$$$ penalty.

11. The tax was computed by taking the XXXXX G pills divided by XXXXX dosage units equals XXXXX times the statutory tax or $$$$$ equaling $$$$$ plus a 100% penalty. (Utah Code Ann. ' 59‑19‑103(c).

12. Under the terms of the statute, the term dosage unit is equivalent to one pill.

13. XXXXX such as these are sold as pills and not by weight.

14. The Petitioner's statement that the shave kit did not belong to him is selfserving and given little weight.

CONCLUSIONS OF LAW

1. The taxes imposed upon a controlled substance as set forth in Utah Code Ann. ' 59‑19‑103 et. seq. in the sum of $$$$$ for each XXXXX dosage units of a controlled substance that is not sold by weight.

2. A stamp must be purchased to evidence the payment of the tax imposed by the Utah Code. Failure to affix the stamp or to purchase the stamp results in an imposition of the tax plus a civil penalty of 100% of the tax. (Utah Code Ann. ' 59‑19‑106.)

3. The Tax Commission is bound to follow the state statutes. (State Tax Commission vs Wriqht 596 Pacific Second 634, 636 Utah 1979.) However, the Commission is not a judicial body established under the constitution of the State of Utah nor is it empowered or authorized to determine the legality or constitutionality of legislative enactments. (See Shea vs Utah State Tax Commission 120 Pacific Second 274, 275 Utah 1941; State Tax Commission vs Wriqht 596 Pacific Second 634, 636 (Utah 1979); and Belco Petroleum CorPoration vs State Board of Equalization 587 Pacific Second 204 (Wyoming, 1978).)

DECISION AND ORDER

The Petitioner has raised five issues in this matter. They are:

1. Whether or not the evidence should be suppressed due to an unconstitutional search and seizure.

2. Whether there is sufficient evidence that would indicate that the illegal drugs were in the possession of the petitioner.

3. Whether the statutory construction of Utah Code Ann. '59‑19‑101 et. seq. is vague and therefore unconstitutional.

4. Whether the Petitioner's equal protection rights have been violated.

5. Whether or not there has been a violation of the Petitioner's due process.

The Tax Commission, in reviewing the evidence and arguments at the hearing, shall divide the issues raised by the Petitioner into those of substantive and constitutional questions. The constitutional questions involve the suppression under an unconstitutional search and seizure, and the equal protection and due process arguments. The substantive issues are those relating to possession and statutory construction as it relates to definition of dose or dosage unit. However, the two issues overlap somewhat on the definition of dosage unit in that the Petitioner argues that the term is sufficiently vague as to render the application of the statute either discriminatory or void for vagueness.

As to the constitution issues, the Tax Commission is an administrative body established for the administration and the overseeing of the taxing statutes. As such, the Tax Commission has no authority to determine the constitutionality of a state statute. The state statute in all cases before the State Tax Commission is presumed to be constitutional and therefore correct. Therefore, the arguments as it relates to constitutionality cannot be determined by the Tax Commission and are therefore denied.

The argument that the stop and search was an unconstitutional search and seizure suffers from the same problem in that the Tax Commission has no authority to rule upon the constitutionality of such conduct. However, the Tax Commission notes that it appears that the search was not a discretionary search. Every vehicle was stopped. It also appears that there are standards and guidelines published by the XXXXX County Sheriff's office that govern such roadblock type searches.

The Tax Commission further finds that the arguments of the Petitioner relating to equal protection and due process also relate to a determination by the Commission as to whether or not the statute is unconstitutional or void for vagueness. These determinations cannot be made by the Tax Commission. However, the Tax Commission notes that the statute on its face is clear and does not leave the matter of determination open which would make the statute void.

The Tax Commission finds that the testimony was clear and convincing that a dosage unit under the terms of the statute is one pill.

The Tax Commission now turns to the substantive issues before it. Those substantive issues relate to the elements of tax offense or the need for a tax to be paid upon the illegal drugs. The statute requires that a tax be imposed upon an illegal controlled substance which is not sold by weight of $$$$$ for every XXXXX dosage units. To be responsible for the payment of that tax, a person must acquire or possess in any manner XXXXX or more grams of any controlled substance or XXXXX or more dosage units of any controlled substance which is not sold by weight. The Tax Commission finds that there is sufficient evidence before it to find that the Petitioner had acquired "in any manner" or possessed XXXXX or more dosage units of any controlled substance which is not sold by weight.

It was stipulated that the controlled substance did not have affixed to it the tax stamps which evidence payment of the taxes required by the Utah Code Ann. ' 59‑19‑101 et. seq.

The Petitioner argues that the controlled substance which is the subject of this matter really is in all actuality sold by weight and therefore the tax is substantially less on the controlled substances than that as imposed by the Respondent. The Petitioner finds that this argument fails. The evidence was clear that the controlled substance was in pill form. In pill form, it is sold by pill and not by weight.

Therefore, it is the decision of the Utah State Tax Commission, that the Petitioner's request be denied. Specifically, the search and seizure which resulted in the obtaining of the controlled substances was not unconstitutional. Further, there is sufficient evidence to indicate that the Petitioner did have in his possession or in some manner acquired the controlled substance. Finally, that the term dosage unit used in the statute means one pill. Finally, the Tax Commission finds that the Petitioner's arguments as it relates to equal protection and violation of due process are denied.

DATED this 21 day of June, 1989.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner

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