89-0074 - Sales

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

XXXXX )

:

Petitioner ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW

v. ) AND FINAL DECISION

:

) Appeal No. 89-0074

AUDITING DIVISION OF THE : Account No. XXXXX

UTAH STATE TAX COMMISSION )

Respondent :

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission pursuant to the Administrative Procedures Act for a formal hearing on XXXXX, before XXXXX, Presiding Officer. Petitioner was represented by XXXXX, Senior Vice President of the Petitioner corporation. Respondent was represented by XXXXX, Assistant Attorney General, and XXXXX of the Auditing Division of the Utah State Tax Commission. This matter was set for a prehearing conference but was converted to a formal 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 tax.

2. The period in question is XXXXX through XXXXX.

3. Petitioner failed to timely pay a required prepayment of sales tax. This deficiency was discovered by Respondent as the result of an audit. Respondent assessed Petitioner for a state estimated payment, and then charged Petitioner with penalty and interest on the difference between the actual liability and the estimate. This is the first time that the Petitioner has met the conditions under the statute which require Petitioner to make such prepayments.

4. Petitioner states that the prepayment deadline was impossible to meet because its records could not be completed until after the filing deadline, because Petitioner s procedures were still operating with the regular payment deadlines in mind and the prepayment caught Petitioner by surprise. Payment of the tax amount was made by Petitioner in the usual manner as though the prepayment was not required.

5. Petitioner has had a good past history in payment of its taxes. Petitioner indicates that it has made adjustments in record keeping procedures to avoid future problems with the prepayment.

CONCLUSIONS OF LAW

1. Utah Code Annotated 59-12-108 and Utah Administrative Rule R865-19S-86 provide for prepayment of sales taxes for certain taxpayers and also provide that penalties shall be assessed for failure to meet the prepayment deadline.

2. Utah Code Annotated 59-1-401 and 59-1-402 provide that penalties and interest shall be assessed for late payment of taxes.

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

4. Such reasonable cause has been shown for waiver of the penalty assessed. This is the first time Petitioner has been required to make the prepayment. Petitioner's completed records were not available to meet the prepayment deadline, and provisions have been made to avoid this problem in the future. Such reasonable cause has not been shown for waiver of the interest assessed because the State has not had the use of these funds and should be compensated for that use.

DECISION AND ORDER

Based upon the foregoing, it is the decision and order of the Utah State Tax Commission that Petitioner's request for waiver of the penalty be granted and Petitioner's request for waiver of interest be denied. Any penalty amount relative to the prepayment in question previously paid by Petitioner is to be refunded.

DATED this 9th day of May, 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