BEFORE THE UTAH STATE TAX
COMMISSION
_____________________________________
XXXXX
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
Respondent. :
_____________________________________
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
Chairman Commissioner
Joe B.
Pacheco G.
Blaine Davis
Commissioner Commissioner