BEFORE THE UTAH STATE TAX COMMISSION
Petitioner, : FINDINGS OF FACT,
: CONCLUSIONS OF LAW
v. : AND FINAL DECISION
: Appeal No. 89-2477
COLLECTION DIVISION OF THE :
UTAH STATE TAX COMMISSION, :
: Account No. XXXXX
STATEMENT OF CASE
This matter came before the Utah State Tax Commission pursuant to the Utah Administrative Procedures Act for a formal hearing on XXXXX, before Joseph G. Linford, Presiding Officer. The Petitioner was present at the hearing. No one representing the Respondent appeared at the 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 and use tax.
2. The period in question is XXXXX.
3. The Petitioner began attending XXXXX in XXXXX, having previously lived in Idaho. During the period in question, Petitioner was living and working in Idaho during his summer break from school. He purchased the automobile in question in Utah and then transported it back to Idaho and used it there until he came back to school in XXXXX when the school year began. At the time of the purchase, Petitioner signed a non-resident affidavit because he considered himself a resident of Idaho, particularly since he was living and working there at the time, although he attended school in Logan at other times of the year. Petitioner testified that he had not intended to defraud the State of any taxes due and honestly thought that he was to be considered a resident of Idaho and should pay Idaho taxes. Accordingly, he did pay taxes on the vehicle in question in Idaho.
4. Because of Petitioner's initial non-payment of the tax in question, a XXXXX fraud penalty was assessed as well as interest.
5. A notice dated XXXXX, was sent to the Petitioner from the Tax Commission notifying him of the Utah sales tax that was due. This letter was sent to Petitioner's former address in XXXXX and consequently he never received that notice. Page 3 of that notice contained the following language:
Unless you timely file a "Petition for Redetermination", as described above, or pay the assessment as detailed on Exhibit A by XXXXX, this Notice of Deficiency will constitute a final assessment and the State Tax Commission will refer your case to its Collection Division and bill you for the assessed tax, penalty and interest, with possible inclusion of additional penalties and interest.
6. Petitioner received his first notice of the taxes due on XXXXX, and within one month after receiving such notice paid the tax amount.
7. Petitioner now requests waiver of the penalty and interest assessed.
CONCLUSIONS OF LAW
1. Utah Code Ann. §§59-1-401 and59-1-402 provide that penalties and interest shall be imposed for the late payment and filing of taxes due.
2. Utah Code Ann. §59-1-401(8) provides that the Tax Commission may, upon reasonable cause shown, waive or reduce the penalties and interest imposed under the above statutes.
3. Such reasonable cause has been shown for a waiver of the penalty imposed in this case. A XXXXX fraud penalty is improper under the facts of this case inasmuch as the Collection Division has not met its burden of showing that any actual fraud existed and the Commission finds that it did not exist. Under the circumstances of this case, no penalty should be assessed. In addition, since the Petitioner did not receive the notice dated XXXXX, from the Tax Commission because the Tax Commission sent that notice to the wrong address, any interest imposed after that date shall also be waived.
DECISION AND ORDER
Based upon the foregoing, it is the decision and order of the Utah State Tax Commission that the penalty is waived and all interest incurred after the XXXXX, notice is waived. Interest shall also be recalculated to account for the waiver of the penalty and the partial waiver of interest.
DATED this 8th day of August, 1990.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
R. H. Hansen Roger O. Tew
Joe B. Pacheco G. Blaine Davis