BEFORE THE UTAH STATE TAX
COMMISSION
______________________________
XXXXX
Petitioner, :
: ORDER
v. :
AUDITING
DIVISION OF THE : Appeal No. 90-0990
UTAH STATE TAX COMMISSION, :
Respondent. :
________________________________
STATEMENT OF CASE
This
matter came before the Utah State Tax Commission upon a Petition for Reconsideration,
dated XXXXX, filed by the Petitioner as a result of the Commission's 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.
In its request for reconsideration, the Petitioner raised a number of
additional facts which it claimed were not considered in the Commission's
decision. Those "additional
facts" were not considered by the Commission because they were not
presented by the Petitioner at its formal hearing, even though the Petitioner
was aware of the existence of those and had such facts available to it at the
time of the proceeding.
3.
The Petitioner's counsel also alleges that the Commission erred in not
accepting certain letters which were presented by the Petitioner at the hearing
as uncontradicted evidence in support of its position that a valid lease back
occurred. The Petitioner's counsel then
cites Utah State Tax Commission Administrative Rule R861-1A-7(0) as authority
for such a claim.
4.
Although Rule R861-1A-7(0) does indeed state that the Commission will accept
uncontradicted evidence as being true, the Petitioner's counsel failed to note
that the rule also goes on to state that where rebuttal of such evidence would
be impossible or extremely difficult for the adverse party to obtain, the
Commission may then give such evidence the weight deemed fair, just, and
proper.
5.
In the present case, the letters clearly were hearsay and, had the Utah Rules
of Evidence been strictly adhered to, such evidence would not have even been admissible. In an effort to obtain the full facts of the
case, however, the letters were admitted and after having been so admitted,
were given the weight deemed proper, fair and just.
6.
The Petitioner's counsel also alleges that the Administrative Law Judge hearing
the matter improperly excluded the XXXXX as hearsay.
7.
Petitioner's counsel is clearly in error as to this assertion. The XXXXX were admitted into evidence and
marked as "Exhibit 1." It should be noted that the XXXXX also
constituted hearsay, yet, nevertheless, were admitted even though they did not
fall within an exception to the hearsay rule.
8.
Lastly, the Petitioner's counsel argues that the Petitioner was deprived of a
fair opportunity to present its case.
In support of that, the Petitioner's counsel claimed, in essence, that
the Petitioner's representative at the hearing was incompetent to fully
understand the nature of the proceedings, and that insufficient notice was
provided concerning the nature of the hearings.
9.
There is absolutely no justification in the record for such a position. Prior to formal hearing on this case, the
matter was set for a prehearing conference which the Petitioner's
representative attended. At that time
the Petitioner's representative was apprised of the issues which would be
presented during the course of the hearing and a suitable briefing schedule was
set. At that prehearing conference, the
Petitioner's representative did not in any manner indicate that he was uncomfortable
with proceeding without legal counsel.
Further, the Petitioner's representative was a certified public
accountant who did not demonstrate any inability to adequately prepare and
present the Petitioner's case.
10.
The prehearing conference on this matter was held on XXXXX, some four months
prior to the date of the formal hearing.
During that time, the Petitioner's representative had ample time to
prepare its case, and after having done so, if he felt unsure or otherwise
unable to proceed, had ample opportunity to obtain legal counsel. That the Petitioner's representative
consciously decided not to do so is a risk to be borne by the Petitioner.
DECISION AND ORDER
Based
upon the foregoing, the Tax Commission finds that the assertions made by the
Petitioner in its Petition for Reconsideration are either unsubstantiated or so
insignificant that the granting of the Petition would not be proper. The Petitioner's Petition for
Reconsideration or, in the Alternative, Conversion to Informal Adjudicative
Proceeding, is denied. It is so ordered.
DATED
this 21 day of February, 1991.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
R. H. Hansen Roger
O. Tew
Chairman Commissioner
Joe B.
Pacheco G.
Blaine Davis
Commissioner Commissioner