BEFORE THE UTAH STATE TAX
COMMISSION
______________________________
XXXXX
Petitioner, :
v. : INFORMAL DECISION
: Appeal No.
90-0127
COLLECTION
DIVISION OF THE :
UTAH STATE TAX COMMISSION, : Account
No. XXXXX
Respondent. :
________________________________
STATEMENT OF CASE
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 in behalf of the Commission. Present and representing the Petitioner were
XXXXX, attorneys at law. Present and
representing the Respondent was XXXXX.
The Petitioner was not present.
Based
upon the evidence and testimony presented at the hearing, the Tax Commission
hereby makes its:
FINDINGS
OF FACT
1.
The tax in question is income tax.
2.
The periods in question are XXXXX. For
the income tax years XXXXX, the Petitioner failed to file his state income tax
returns in a timely manner. The Petitioner
later filed returns for those years in XXXXX after having been ordered to do so
by a Writ of Mandate issued by the District Court.
3.
Returns for XXXXX have not been filed.
4.
In approximately late XXXXX, a collection agent from the Tax Commission was
assigned to the account. That
individual spoke with the Petitioner personally on the telephone and notified
the Petitioner of the necessity for him to file his income tax returns for the
years in question. The Petitioner
responded that he did not believe he had to file his state returns and that the
filing of such returns were a waste of time.
5.
In communications sent to the Petitioner by mail which described the penalty to
be imposed, references were made to Utah Code Annotated §59-14A-92(4).
That
provision makes it a crime for any person to knowingly or intentionally make,
render, sign or verify any false or fraudulent return.
6.
The appropriate provision upon which the penalty is based would have been
§59-14A-92(5).
7.
The Petitioner was not prejudiced by the incorrect citation of the statutory
provision, nor was there any showing that Petitioner relied upon that error
when he chose not to file his returns.
8.
As a result of his failure to file his returns for the periods in question in
an appropriate manner, the Petitioner was assessed a penalty in the amount of
$$$$$ and interest applied at the statutorily prescribed rate.
CONCLUSIONS
OF LAW
The
Tax Commission is granted the authority to waive, reduce, or compromise
penalties and interest upon a showing of reasonable cause. (Utah Code Annotated §59-1-401(8).)
DECISION AND ORDER
In
the present case, the evidence is undisputed that the Petitioner was aware of
his obligation to file an income tax return for each of the years in question and
intentionally failed to do so.
Counsel
for the Petitioner suggests that the citation of the wrong statutory provision
somehow creates a fatal defect thus relieving the Petitioner from having to
comply with the requirements to file or in preventing the imposition of
penalties. No support for that
proposition is found in any of the appropriate statutes, nor has counsel for
the Petitioner cited any cases which would require such a result.
It
should be noted that there was absolutely no showing that the Petitioner was
prejudiced by the citing of the wrong statutory provision or that he relied
upon that in any way to justify his failure to file the returns in a timely
manner. Indeed, the Petitioner
intentionally elected not to be present at the hearing to so testify if that
was the case. Any conclusions that the
Petitioner may have relied upon the error to his detriment are purely
speculative and not worthy of consideration.
Counsel
for the Petitioner also indicated that the error caused them to prepare a
different defense to the allegations than might have been prepared had they
been aware of the correct statutory provision upon which the allegation was
based. If that were so, counsel for the
Petitioner could certainly have requested a continuance in order to adequately
prepare their case if they were unprepared, yet they elected not to do so. Given the evidence that was produced at the
hearing however, it is unlikely that a different result would have been reached
in any event.
Based
upon the foregoing, the Tax Commission finds that sufficient evidence has not
been shown which would justify a waiver or reduction of the penalties and
interest for the periods in question.
Therefore, the Petitioner's request to waive the penalties and interest
associated with the XXXXX income tax years is denied. It is so ordered.
DATED
this 26 day of June, 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