90-0990 - Sales





Petitioner, :


v. :



Respondent. :



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.


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.


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.


R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner