90-0991 - 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 facts and had such facts available to it at the time of the proceeding.

3. 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.

4. 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.

5. The prehearing conference on this matter was held on XXXXX, some XXXXX 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.

6. The Petitioner's counsel also alleges that the Tax Commission erred in its determination that the statute of limitations did not apply.

7. After having considered the argument of the Petitioner, the Commission finds that the facts presented at the hearing establish a sufficient basis for its finding that, as a matter of law, the Petitioner's accounting manager did not act outside the scope of her authority and that the statute of limitations was not applicable in the present case.


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.