90-0018 - Income





Petitioner, :






) Account No. XXXXX

Respondent. :




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:


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.


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.)


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.



R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner