89-0864 - Withholding

 

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

XXXXX

:

Petitioner : FINDINGS OF FACT,

:

: CONCLUSIONS OF LAW

v. :

: AND FINAL DECISION

:

: Appeal No. 89-0864

COLLECTION DIVISION OF THE :

UTAH STATE TAX COMMISSION :

: Acct No. XXXXX

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 before Joseph G. Linford, Presiding Officer. Petitioner was represented by XXXXX. No one representing the Respondent appeared at the hearing.

After reviewing the evidence and arguments of the parties and the Recommendation of the Presiding Officer, the Tax Commission hereby makes its

FINDINGS OF FACT

1. The tax in question is withholding tax.

2. The period in question is the XXXXX.

3. Petitioner asserts that it mailed its return and a check for the amount of taxes on time for the period in question.

4. Tax Commission records show that the return was received by the Tax Commission on XXXXX, the due date being XXXXX. This tax return was stamped by the Tax Commission. The stamp reads, "no money", indicating that no money was sent with the return.

5. After Petitioner discovered that the check which the Petitioner thought was mailed with the tax return was never canceled and returned to the Petitioner after being cashed, Petitioner canceled that check and sent another one for the amount of taxes with a letter requesting a waiver of penalty and interest charges.

6. It is apparent that the check which Petitioner allegedly sent with the return was lost either by Petitioner or by the Tax Commission since the return was marked "no money" by the Tax Commission presumably at the time the return was received. It appears that no check was included in the envelope with the tax return, and more likely than not, the check was probably not included in the envelope by Petitioner with the tax return although Petitioner may have thought the check was so included, and the check was most likely misplaced by Petitioner. In any case, this is a factual determination that is impossible to make with any certainty based upon. the evidence now before the Commission.

7. By letter dated XXXXX, the Tax Commission waived all penalties due in this case.

8. Petitioner now requests that all interest amounts also be waived.

CONCLUSIONS OF LAW

Utah Code Ann. 59-1-402 (1987 Rep., 1989 Supp.) provides that interest in the amount of 12% per annum shall be charged upon all tax amounts which are not timely paid or which have returns which are not timely filed. Utah Code Ann. 59-1-401(8) (l987 Rep., 1989 Supp.) provides that upon reasonable cause shown the Tax Commission may waive or reduce interest assessed under the above statute. Such reasonable cause has not been shown in this case in that it cannot be determined with any degree of certainty what actually occurred respecting the first check allegedly sent by the Petitioner and it appears that there was no such check in the envelope with the return that was sent by the Petitioner, which return was received by the Tax Commission on XXXXX.

DECISION AND ORDER

Based on the foregoing, it is the decision and order of the Utah State Tax Commission that Petitioner's request for waiver of interest be denied.

DATED this 1st day of December, 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