BEFORE THE UTAH STATE TAX
COMMISSION
_____________________________________
XXXXX
:
Petitioners, :
: FINDINGS
OF FACT,
v. : CONCLUSIONS OF LAW
: AND FINAL
DECISION
COLLECTION
DIVISION OF THE :
UTAH STATE TAX COMMISSION : Appeal
No. 89-1312
:
Respondent. :
_____________________________________
STATEMENT OF CASE
This
matter came before the Utah State Tax Commission for a formal hearing on
XXXXX. Paul F. Iwasaki, Presiding
Officer, heard the matter for and in behalf of the Commission. Present and representing the Petitioner was
XXXXX, Attorney at Law. Present and
representing the Respondent was XXXXX, Assistant Attorney General.
Based
upon the memoranda submitted and oral arguments of the parties, the Tax
Commission hereby makes its:
FINDINGS OF FACT
1. The tax in question is illegal drug stamp
tax.
2. The date in question is XXXXX.
3. Pursuant to a search of the Petitioners'
residence, members of the XXXXX seized XXXXX grams of marijuana, XXXXX grams of
cocaine and XXXXX gram of amphetamines.
4. No drug stamps were affixed to the
controlled substances.
5. A tax deficiency in the amount of $$$$$ and
a penalty in an equal amount were assessed for the failure to have the required
drug stamps affixed to the substances.
6. The individuals who purchased the drug
stamps are not required to identify themselves by name, social security number
nor address when purchasing the stamps.
7. No evidence was presented which would
indicate that information obtained from individuals purchasing the drug stamps
is provided to law enforcement agencies.
CONCLUSIONS OF LAW
1. A tax of $$$$$ per gram of marijuana, a tax
of $$$$$ per gram of cocaine and a tax of $$$$$ per gram of amphetamines is
imposed under the Illegal Drug Stamp Tax Act.
(Utah Code Annotated §59-19-103.)
2. The evidence of tax paid is a stamp affixed
to the controlled substances. (Utah
Code Annotated §59-19-104.)
3. Failure to affix the stamp shall result in
the assessment of the tax plus a 100% civil penalty. (Utah Code Annotated §59-19-106.)
4. A 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. (Shay v. Utah Tax
Commission, 120 P.2d 274, (Utah 1941); State Tax Commission v. Wriqht, 596 P.2d
634, (Utah 1979); Belco Petroleum Corporation v. State Board of Equalization,
587 P.2d 204 (Wyoming 1978).)
DECISION AND ORDER
The
Petitioners have presented three issues to be decided by the Commission:
1.
Does the Illegal Drug Stamp Tax Act violate the Petitioners' right
against self-incrimination?
2.
Does the assessment of taxes under the Act violate the Petitioners'
right to procedural due process under the Fourteenth Amendment of the United
States Constitution and Article I, Section 7 of the Utah Constitution?
3. Is
the Act void because it is impermissibly vague under the due process clause of
the Fourteenth Amendment of the United States Constitution and Article I,
Section 7 of the Utah Constitution?
Taking
the above listed issues in reverse order, the Tax Commission finds that with
respect to issue numbers 2 and 3, the Tax Commission is not a court of law
empowered to determine the constitutionality of a statute. Therefore, the Tax
Commission must presume the constitutional validity of the Illegal Drug Stamp
Tax Act.
With
respect to the first issue, the Utah Court of Appeals in the case of State of
Utah v. Davis, (Case Number 89-0009-CA, Court of Appeals, February 17, 1990)
directly addressed the issue of whether the Act violated a persons right
against self-incrimination and held that it did not. The Court found that by construing the Act to prohibit the use of
any information gained as a result of a purchaser's compliance with the Act to
establish a link in the chain of evidence in a subsequent drug prosecution
provides the same protection provided by the Fifth Amendment, thus upholding
the Act's constitutionality.
In
the present case, there was no showing that any information obtained by the Tax
Commission regarding the purchase of the drug stamps was provided to law
enforcement agencies or became a link in the chain of evidence in subsequent
criminal proceedings.
Based
upon the foregoing, the Tax Commission affirms the determination of the
Collection Division in its assessment of $$$$$ in tax and penalty per the
Illegal Drug Stamp Tax Act. It is so
ordered.
DATED
this 20th day of June, 1990.
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