89-0064 - Sales

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

XXXXX )

:

Petitioner )

: FINDINGS OF FACT,

v. ) CONCLUSIONS OF LAW,

: AND FINAL DECISION

)

COLLECTION DIVISION OF THE : Appeal No. 89-0064

UTAH STATE TAX COMMISSION )

: Account No. XXXXX

Respondent )

____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission pursuant to the Utah Administrative Procedures Act for a formal hearing on XXXXX, before XXXXX, Presiding Officer. XXXXX, President of the Petitioner's corporation, appeared representing Petitioner. Respondent was not represented at the hearing.

After reviewing the evidence and arguments of the parties in the record and the recommendation of the Presiding Officer, the Tax Commission hereby makes its:

FINDINGS OF FACT

1. The tax in question is sales and use tax.

2. The period in question is the fourth quarter of XXXXX.

3. By check dated XXXXX, Petitioner stated that it mailed to the Utah State Tax Commission payment in full for the taxes in question.

4. Petitioner alleges that this payment and the accompanying return were mailed to the Tax Commission in a timely manner on XXXXX, and that there would have been sufficient funds in the bank at the time to cover the amount of the check. A bank statement and revolving note of credit on Petitioner's account substantiate this latter assertion.

5. In late XXXXX, Petitioner was notified by the Tax Commission that they had not received payment. Mr. XXXXX informed the Tax Commission at that time that the payment had been made in a timely manner.

6. Petitioner next heard from the Tax Commission on XXXXX, when Petitioner was again informed that the tax had never been received. Mr. XXXXX then issued another check dated XXXXX, in replacement for the earlier check dated XXXXX.

7. Petitioner now requests that the penalties and interest be waived due to the fact that his timely payment was apparently lost in the mail. Petitioner has already paid the tax and interest amounts.

CONCLUSIONS OF LAW

1. Utah Code Ann. 59-1-401 and 59-1-402 provide that penalties and interest shall be assessed upon the untimely payment of taxes and the untimely filing of tax returns.

2. Utah Code Ann. 59-1-401(8) provides that the Tax Commission upon reasonable cause may waive or reduce penalties or interest assessed under the above statutes.

3. Such reasonable cause has been shown for waiver of the penalty in this case because the Petitioner did mail the return with the required payment to the Tax Commission in a timely manner. The fact that this return, and its accompanying payment, were lost in the mail is a circumstance beyond the Petitioner's control and due to no fault of the Petitioner. Interest, however is not waived since the state lost the use of the funds in question for a period of time and should be recompensed for that loss of use.

DECISION AND ORDER

Based on the foregoing, it is the decision and order of the Utah State Tax Commission that the request of the Petitioner for waiver of the penalty is granted.

DATED this 19th day of July, 1990.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner