88-2859 - Illegal Drug Stamp

 

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