BEFORE THE UTAH STATE TAX
COMMISSION
_____________________________________
XXXXX, )
Petitioner, :
: FINDINGS
OF FACT,
v. ) CONCLUSIONS OF LAW
: AND FINAL
DECISION
AUDITING
DIVISION OF THE )
UTAH STATE TAX
COMMISSION, : Appeal No. 90-0018
) Account
No. XXXXX
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 on behalf of the Commission. Present and representing the Petitioner was
XXXXX XXXXX. Present and represent the
Respondent were XXXXX, Assistant Attorney General, and XXXXX, Auditor.
Based
upon the evidence and testimony presented at the hearing, the Tax Commission
hereby makes its:
FINDINGS OF FACT
1.
The tax in question is income tax.
2.
The periods in question are XXXXX and XXXXX.
3.
The Petitioner's XXXXX income tax return was a joint return filed by Petitioner
and his then wife.
4.
The Petitioner testified that he filed that return in a timely manner on either
the third or fourth day of XXXXX. The
return was signed by the Petitioner on XXXXX; however, it was not signed by his
wife.
5.
The XXXXX income tax return indicated that the Petitioner was due a refund in
the amount of XXXXX.
6.
In XXXXX, the Petitioner was contacted by the Auditing Division by a letter
which informed him that his XXXXX income tax return had not been received. The Petitioner then contacted a
representative of the Tax Commission who instructed the Petitioner to obtain
copies of his return as well as any other necessary documents, and to submit
them to the Commission.
7.
The Petitioner thereafter was issued a refund for the XXXXX income tax year in
error.
8.
From XXXXX until XXXXX, the Petitioner made no inquiries to the Commission
regarding the refund to which he would have been entitled.
9.
The refund issued to the Petitioner was intercepted by the Office of Recovery
Services and applied to child support obligations which the Petitioner had not
paid.
10.
In XXXXX, the Petitioner received notification that his XXXXX tax return had
not been received. The Petitioner again
contacted the Commission and made attempts to obtain the refund to which he
would have been entitled which was in the amount of XXXXX.
11.
Petitioner testified that he filed the return in a timely manner within a few
days of the date that he signed it, which was XXXXX.
12.
Petitioner made no inquiry with the Commission from XXXXX to XXXXX, regarding
the refund to which he would have been entitled.
13.
The records of the Commission do not show that the Petitioner filed his XXXXX
or XXXXX income tax returns in a timely manner as the Petitioner testified.
14. The Auditing Division requested that the Petitioner
re-pay to the Commission the refund given him for XXXXX, and denied the
Petitioner's request for a refund for XXXXX.
CONCLUSIONS OF LAW
If
a refund or credit because the amount of tax deducted and withheld from wages
exceeds the actual tax due, no refund or credit may be made or allowed unless
the taxpayer or his legal representative files with the Commission a tax return
claiming the refund or credit within three years of the date of the return.
(Utah Code Ann. §59-10-529(7)(8)(i).)
The
petitioning party shall have the burden of proof to establish that his petition
should be granted. (Utah State Tax Commission Administrative Rule R861-1A-7.)
DECISION AND ORDER
In
the present case, the Petitioner was unable to provide any independent evidence
other than his testimony that he filed the returns in question in a timely
manner. Indeed, the evidence presented
at the hearing suggests that the Petitioner was mistaken in his belief that the
returns were timely filed.
With
respect to the XXXXX income tax return, that return was a joint return which
required the signatures of both taxpayers.
The return had only been signed by the Petitioner and not his spouse. If that tax return were filed as the
Petitioner suggests, it is highly likely that the return would not have been
accepted and would have been sent back to the Petitioner for the additional
signature. There was no indication or
testimony that such had occurred.
The
fact that the Petitioner did not make any inquiry as to the refund to which he
would have been due for a period of three and one-half years is also
inconsistent with the actions of someone who had filed a return and expected a
refund. The Petitioner's explanation for
that is that he was going through a divorce at the time and did not give much
thought to the refund issue. While such
may be possible and may have explained a brief period of emotional distress, it
does not explain the Petitioner's lack of inquiry regarding his entitlement to
XXXXX for over three years.
With
regard to the XXXXX income tax return, the same considerations exist with
respect to the Petitioner's action surrounding that refund. The Petitioner's action, or perhaps more
appropriately his inaction, in making inquiry as to the status of his refund
due in the amount of XXXXX is inconsistent with someone who had filed a timely
return. Again, the Petitioner explained
his actions on the fact that he was going through a divorce at the time. The Petitioner's divorce, however, was final
in XXXXX, over one year prior to the date the return for XXXXX was due, and
three years prior to the time he was contacted by the Commission regarding the
issue of his failing to file that return.
Based
upon the foregoing, the Tax Commission finds that Petitioner has failed to
establish by a preponderance of the evidence that the income tax returns for
XXXXX and XXXXX were filed in a timely manner.
Therefore, to the extent that it denied the Petitioner's request for a
refund for XXXXX, the Commission affirms that determination of the Auditing
Division. To the extent, however, that
it seeks repayment for the XXXXX refund, the Tax Commission reverses the
determination of the Auditing Division and finds that the Petitioner need not
repay that refund. It is so ordered.
Dated
this 6 day of September, 1990.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
ABSENT
R. H. Hansen Roger
O. Tew
Chairman Commissioner
Joe B.
Pacheco G.
Blaine Davis
Commissioner Commissioner