BEFORE THE UTAH STATE TAX
COMMISSION
_____________________________________
XXXXX
Petitioner, : FINDINGS OF FACT,
: CONCLUSIONS
OF LAW
v. : AND FINAL DECISION
:
: Appeal No.
89-2610
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 represented at the hearing by XXXXX and XXXXX, Certified Public
Accountant. 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 withholding tax.
2.
The period in question is the fourth quarter of XXXXX.
3.
The Petitioner testified that his withholding report and payment were mailed
for the period in question on XXXXX.
These were mailed along with Petitioner's federal taxes on the same
date. The federal tax returns and payments
were received by the federal government and processed without any difficulty.
4.
On XXXXX, Petitioner received a letter from the Utah State Tax Commission
informing Petitioner that his fourth quarter tax return and payment were
delinquent. Upon investigating this,
Petitioner discovered that the check mailed on XXXXX, was still outstanding and
had not been presented at the bank for payment. On XXXXX, Petitioner mailed a copy of the fourth quarter
withholding tax return and also a replacement check to the Tax Commission with
a letter explaining these difficulties.
5.
Petitioner has presented bank statements showing that there were sufficient
funds in Petitioner's bank account at the time the initial check was mailed on
XXXXX, cover the amount of that check.
Petitioner submitted canceled checks and check stubs to show that
although a check was written out to the State Tax Commission on XXXXX, it has
never been returned.
6.
Based on these facts, Petitioner now requests a waiver of the penalty and interest
assessed upon the late filing and payment on the taxes in question.
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 waiver of the penalty in this
case. Petitioner has demonstrated that
he did have sufficient funds to pay the tax amounts in question and that a
check and return were mailed timely to the Tax Commission but never
arrived. Interest, however, should not
be waived. The state was deprived of the use of the tax funds in question for a
period of time and should be compensated for that loss of use, while Petitioner
did have use of these funds until they were paid.
DECISION AND ORDER
Based
upon the foregoing, it is the decision and order of the Utah State Tax Commission
that Petitioner's request for a waiver of penalty is granted. Petitioner's request for waiver of interest
is denied, but interest shall be recalculated to account for the penalty
waiver.
DATED
this 9th 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