BEFORE THE UTAH STATE TAX
COMMISSION
_____________________________________
XXXXX
Petitioner, :
: FINDINGS
OF FACT,
v. : CONCLUSIONS OF LAW
: AND FINAL
DECISION
AUDIT DIVISION
OF THE :
UTAH STATE TAX COMMISSION, : Appeal
No. 88-2859
Respondent. :
_____________________________________
STATEMENT OF CASE
This
matter came before the Utah State Tax Commission pursuant to the Utah Rules of
Administrative Procedure and the Administrative Procedures Act for formal
adjudicative proceedings on the XXXXX.
James E. Harward, Presiding Officer, heard the case for and in behalf of
the Tax Commission. XXXXX appeared
representing the Respondent. XXXXX
appeared representing the Petitioner.
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 FACTS
l. The tax in question is Illegal Drug Stamp
tax.
2. The period in question is XXXXX.
3.
On said date, the Petitioner was
stopped by the Utah Highway Patrol.
4. The vehicle operated by Petitioner was owned
by the Petitioner.
5. Subsequent to the stop and as a result of
the search of the vehicle, pursuant to a search warrant, XXXXX pounds of
marijuana were found.
6. No drug stamps were affixed to the
marijuana.
7. XXXXX marijuana cigarettes which were turned
over to the officer prior to the issuance of the search warrant, were
suppressed by the District Court.
8. An assessment has been made against the
Petitioner of $$$$$ in tax and $$$$$ as a penalty for the XXXXX pounds of
marijuana.
9. For the purpose of purchasing the stamp to
affix it to the illegal drugs, anyone purchasing the stamp is not required to
give his identity by way of name, social security number, or address when
purchasing the stamps.
10. There is no evidence that would indicate
that the Tax Commission provides information to the prosecuting authorities
regarding the purchase of drug stamps.
CONCLUSIONS OF LAW
l. Utah Code Ann. § 59-l9-103 imposes a tax
upon marijuana at $$$$$ for each gram.
2. The evidence of tax paid is a stamp affixed
to the marijuana, Utah Code Ann. §§ 59-l9-203 and 59-l9-104.
3. Failure to affix the stamp shall result in
the assessment of the tax plus a one hundred percent Civil penalty, Utah Code
Ann. § 59-l9-106.
4. The Tax Commission is bound to follow the
State Statutes, State Tax Commission vs Wriqht, 596 Pacific 2d 634, 636 (Utah
1979).
5. The Tax 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 Shay vs Utah State Tax
Commission, 120 Pacific 2d 274, 275 (Utah 1941); State Tax Commission vs
Wriqht, 596 Pacific 2nd 634, 636 (Utah 1979); and, Belco Petroleum Corporation
vs State Board of Equalization 587 Pacific 2d 204 (Wyoming 1978).)
DECISION AND ORDER
The
Utah State Tax Commission after reviewing the arguments of the Petitioner find
three issues: (1) whether or not the statute is constitutional; (2) whether or
not the Petitioner was denied due process in the imposition of the statute; and
(3) whether the actual imposition of the statute to the facts was proper.
The
Tax Commission's hands are tied as it relates to the determination of
constitutionality of a statute. The
Utah Supreme Court has spoken in that the Tax Commission is not organized under
the Constitution as a Judicial Court and, therefore, has no authority to
declare a statute unconstitutional. Therefore, the arguments of Petitioner as
it relates to the XXXXX case are denied.
The state statutes in all cases before the Tax Commission are presumed
to be constitutional and, therefore, correct.
Likewise,
the Commission finds Petitioner's argument as it relates to due process,
unpersuasive. The Petitioner is having
his due process, at the moment, in following the avenues of redetermination as
to whether or not the tax was properly imposed as it relates to the
Statute. The Tax Commission finds no
reason to justify the Petitioner's argument that due process is being denied.
Finally,
the Tax Commission reviews the imposition of the tax and the penalty. In reviewing the amount of controlled
substance which was seized by the Utah Highway Patrol and the application of
the Statute, the Tax Commission finds that the statute was properly applied and
that the tax was calculated appropriately.
In addition, the penalty was also properly calculated.
Sufficient
evidence was presented which would indicate that the controlled illegal
substance was in the possession of the Petitioner and that the drug stamps were
not affixed as required by law.
Therefore,
it is the decision of the Utah State Tax Commission that the Petitioner's
request be denied. Specifically, that
the constitutional issues raised by the Petitioner are denied and that
sufficient evidence has been presented to justify the imposition of the tax and
penalty. Further, the tax and penalty
were properly calculated in accordance with the Statute.
DATED
this 17 day of August, 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