89-1312 - Illegal Drug Stamp

 

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