90-0107

Withholding

Signed 8/23/90

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

XXXXX

Petitioner, ) FINDINGS OF FACT,

) CONCLUSIONS OF LAW,

v. ) AND FINAL DECISION

) Appeal Nos. 90‑0107

COLLECTION DIVISION OF THE ) and 90‑0108

UTAH STATE TAX COMMISSION, )

Respondent. ) Account Nos.XXXXX

) and XXXXX

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a formal hearing on XXXXX. Joseph G. Linford, Presiding Officer, heard the matter for and on behalf of the Commission. Present and representing the Petitioner was XXXXX. Present and representing the Respondent was XXXXX.

Based upon the evidence and testimony presented at the hearing, the Tax Commission hereby makes its:

FINDINGS OF FACT

1. The taxes in question are sales, withholding, and special fuel taxes.

2. The periods in question are the third and fourth quarters of XXXXX, all four quarters of XXXXX, and the fourth quarter of XXXXX.

3. During the periods in question, XXXXX, the principal shareholder, was out of the state serving a mission for the XXXXX church. While he was away, he left the management of the business in the hands of others who failed to remit the taxes in time. When XXXXX returned from the mission, he discovered the state of affairs of the business and has since paid off the tax amounts for the periods in question.

4. Since Petitioner initially paid the withholding taxes on the basis of an estimate from the Tax Commission, the amount paid was actually in excess of the taxes owed as per the true filings.

5. During the hearing, Petitioner and Respondent represented that they had come to a recommended agreement as to this case, subject to the approval of the Tax Commission, which is as follows:

Petitioner is to be assessed a $$$$$ penalty on the sales and use tax account, a $$$$$ penalty on the withholding tax account, the full penalty amount on the fuel tax account, and the full amount of interest on all of the accounts. Since Petitioner has already paid all of the tax, penalty and interest, the agreement stipulated that the amounts paid beyond the stated amounts should be refunded to Petitioner, including the withholding taxes which exceeded amounts shown to be due on the actual filed returns. This agreement is based on Petitioner's good previous record of tax payment, Petitioner's willing compliance and efforts to rectify the problem, and the fact that the problems were beyond Mr. XXXXX's control while he was out of the state.

CONCLUSIONS OF LAW

1. Utah Code Ann. ''59‑1‑401 and 59‑1‑402 provide that penalties and interest shall be assessed for the late filing or payment of taxes.

2. Utah Code Ann. '59‑1‑401(8) provides that upon reasonable cause shown, the Commission may waive or reduce penalties and interest assessed under the above statutes.

3. Such reasonable cause has been shown for a waiver of a portion of the penalties assessed in this case as agreed to by the parties as indicated above.

DECISION AND ORDER

Based upon the foregoing, it is the decision and order of the Utah State Tax Commission that the penalty on the sales and use tax account be reduced to $$$$$, the penalty on the withholding tax account be reduced to $$$$$, that there be no waiver of penalty on the special fuel tax account, and that there be no waiver of interest on any of the accounts. Petitioner is to be refunded the excess withholding taxes which were paid over and above the true filings, as well as any penalty and interest which has been paid and which is now

waived. The interest amounts are to be recalculated to take into consideration the waiver of the penalties and the refund of the excess withholding taxes.

DATED this 23 day of August, 1990.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner

NOTICE: You have ten (10) days after the date of the final order to file a request for reconsideration or thirty (30) days after the date of final order to file in Supreme Court a petition for judicial review. Utah Code Ann. ''63‑46b‑13(1), 63‑46b‑14(2)(a).

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