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