90-0042 - Sales

 

BEFORE THE UTAH STATE TAX COMMISSION

_________________________________

XXXXX, )

:

Petitioner, )

: ORDER

v. )

:

AUDITING DIVISION OF THE ) Appeal No. 90-0042

UTAH STATE TAX COMMISSION, :

) Account No. XXXXX

Respondent. :

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission upon a Petition for Reconsideration, dated XXXXX, filed by the Respondent as a result of the Commissions final decision, dated XXXXX.

FINDINGS

1. Utah Administrative Rule R861-1A-5(P) provides that a Petition for Reconsideration "will allege as grounds for reconsideration either a mistake in law or fact, or the discovery of new evidence." Under this rule, the Tax Commission may exercise its discretion in granting or denying a Petition for Reconsideration.

2. Respondent contends that the final decision in this case is in error because the Commission imposed the burden of proof on the Respondent to show that there was a fraudulent intent on the part of Petitioner in failing to pay Utah sales tax. In actuality, the penalty imposed by Respondent was a XXXXX penalty for intent to evade the tax under Utah Code Ann. 59-1-401(3)(c), not a XXXXX penalty for fraud with intent to evade the tax under Utah Code Ann. 59-1-401(3)(d).

3. The Tax Commission finds that Respondent is correct in pointing out this error in the final decision. The burden of proof rests with Respondent only when Respondent has assessed a XXXXX fraud with intent to evade the tax. (Utah Code Ann. 59-1-401(3)(d),59-10-543(1).)

4. Even though the above is true, the Commission finds that the result in the former decision is correct. Petitioner did have the burden of proof to establish that he had no intent to evade the tax. Under the facts as outlined in the final decision, Petitioner did meet that burden which was not adequately rebutted by Respondent. Therefore, the XXXXX intent to evade penalty should still be reduced to a XXXXX negligence penalty.

5. Under these circumstances, the Commission finds that the Petition for Reconsideration should be denied noting, however, the correction as outlined above regarding the nature of the penalty imposed and the burden of proof.

DECISION AND ORDER

Based upon the foregoing, it is the decision and order of the Utah State Tax Commission that the Petition for Reconsideration is denied. It is so ordered.

DATED this 19th day of October, 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