89‑0386

Sales

Singed 9/1/89

 

                   BEFORE THE UTAH STATE TAX COMMISSION

                   _____________________________________

 

XXXXX

                                  :

          Petitioner              )    FINDINGS OF FACT,

                                  :    CONCLUSIONS OF LAW, and

v.                                )    FINAL DECISION

                                  :

                                  )    Appeal No. 89‑0386

COLLECTION DIVISION OF THE        :

STATE TAX COMMISSION OF UTAH      )

                                  :    Acct No. XXXXX

          Respondent              )

                   _____________________________________

 

                             STATEMENT OF CASE

          This matter came before the Utah State Tax Commission pursuant to Utah Rules of Administrative Procedure and the Administrative Procedures Act for formal adjudicative proceedings on XXXXX 2:00 p.m. Joseph G. Linford, Presiding Officer, was the Hearing Officer at the hearing.  The Petitioner was represented by XXXXX.  XXXXX of the Collections Division of the Utah State Tax Commission represented the Respondent.

          Based upon the recommendation of the Presiding Officer and upon the facts and evidence in the file and presented at the hearing, the Tax Commission hereby makes its:

                             FINDINGS OF FACT

          1.  The tax in question is sales tax.

          2.  The period in question is XXXXX.

          3.  During the years in question, the Petitioner incurred substantial business losses.  As a result of those losses, Petitioner retained sales tax which it had collected and which it owed to the state.

          4.  While no dishonesty was intended on the part of the Petitioner, their intent being simply to keep their business operating, yet the Petitioner did retain taxes which were due and payable to the state over that period of time.  The Petitioner knew that the tax was owing and yet it knowingly retained that tax and did not pay it to the state.

          5.  Petitioner requests a waiver of penalty and interest assessed on the tax in question.

                            CONCLUSIONS OF LAW

          1.  Utah Code Ann. ' 59‑1‑401, 59‑1‑402, 59‑12‑107(19) and 59‑12‑111 (1987 Replacement, 1989 Supp.) provide that penalties and interest shall be assessed on the late payment of sales taxes and on the late filing of tax returns.

          2.  Utah Code Ann. 59‑1‑401(8) (1987 Replacement, 1989 Supp.) provides that, upon reasonable cause shown, the Tax Commission may waive or reduce penalties and interest imposed under the above statutes.

          3.  Such reasonable cause has not been shown by Petitioner.  While it is apparent that Petitioner did not intend any dishonesty in retaining the taxes owed, it is apparent that Petitioner did know that those taxes were due and owing.  In disregard of that knowledge Petitioner knowingly failed to remit what was owed.  Petitioner's honest intent, while laudable, is not sufficient reasonable cause under the circumstances of this case to waive the penalties and interest assessed on the tax in question.

                            DECISION AND ORDER

          Though Petitioner's intent may have been honest in its own mind, yet it is apparent it also intended to keep from the state, albeit temporarily, taxes which were due and owing.  It is therefore the decision of the Utah State Tax Commission that the Petitioner's request for waiver of penalty and interest is hereby denied.  It is so ordered.

          DATED this 1st day of September, 1989.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen                      Roger O. Tew

Chairman                          Commissioner

 

                                  ABSENT

Joe B. Pacheco                    G. Blaine Davis

Commissioner                      Commissioner

 

NOTICE: You have ten (10) days after the date of the final order to file a request for reconsideration or thirty (30) days after the date of final order to file in Supreme Court a  petition for judicial review. Utah Code Ann. '' 63‑46b‑13(1), 46b‑14(2)(a).

 

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