90-0089 to 90-0090 - Withholding

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

XXXXX, )

:

Petitioner, )

: FINDINGS OF FACT,

v. ) CONCLUSIONS OF LAW

: AND FINAL DECISION

) Appeal Nos. 90-0089

COLLECTION DIVISION OF THE : to 90-0090

UTAH STATE TAX COMMISSION, )

: Account Nos. XXXXX & 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 by XXXXX. 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 taxes in question are sales and withholding taxes.

2. The periods in question are the third and fourth quarters of XXXXX, the first and second quarters of XXXXX and the first and second quarters of XXXXX. All of these periods apply to the sales tax account, while only the fourth quarter of XXXXX and the second quarter of XXXXX apply to the withholding tax account.

3. Petitioner contends that penalty and interest amounts should be waived in this case because during the time periods in question Petitioner lost the services of a bookkeeper who had been working for the Petitioner for some time. This bookkeeper had written a custom designed computer program for Petitioner and when she left Petitioner's business she left no manual or any other indication of how to operate the software which she had designed. Petitioner subsequently had to go through three separate bookkeepers who all had to be dismissed because of their inability to operate the computer program designed by Petitioner's first bookkeeper. Petitioner alleges that many attempts were made to gain an understanding of this computer program but to no avail. Consequently, several records including records used for tax purposes were irretrievable. Finally, Petitioner had to replace the program designed by their first bookkeeper.

4. Petitioner also puts forward as causes for waiver, the loss of the lease on their original building and a forced move to a new location which cost considerable time and money and also caused a loss of business for a period of time. Petitioner also alleges the incompetency of their bookkeepers and the seizure of their bank account by federal tax authorities without warning which caused their State tax checks to be dishonored.

5. Based upon these facts, by letter dated XXXXX, the Tax Commission waived all penalties but not interest associated with the Petitioner's withholding tax account No. XXXXX which concerned the fourth quarter, XXXXX, and the second quarter, XXXXX. Petitioner, therefore, at the hearing did not contend for any further waiver of interest on the withholding tax account but requested only a waiver of penalties and interest on the sales tax account.

6. By letter dated XXXXX, the Commission denied the Petitioner's request for waiver of penalties and interest on sales tax account No. XXXXX which concerns all of the periods in question stated in paragraph number two above. The Commission had the same information before it in considering this request as was before the Commission in considering the waiver of the withholding tax penalties.

CONCLUSIONS OF LAW

1. Utah Code Ann. 59-1-401 and 59-1-402 provide that penalties and interest shall be imposed for the late payment and filing of taxes.

2. Utah Code Ann. 59-1-401(8) provides that the Tax Commission may, upon reasonable cause shown, waive or reduce penalty or interest assessments imposed under the above statutes.

Petitioner's request for waiver of interest is denied for all periods in question, but it is hereby ordered that interest shall be recomputed based upon the reduction in the penalties assessed.

DATED this 17 day of May, 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