BEFORE THE UTAH STATE TAX
COMMISSION
______________________________
XXXXX
Petitioner, :
: ORDER
v. :
AUDITING DIVISION
OF THE : Appeal No. 90-0991
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 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.
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.