90-0992 - Sales

 

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________

XXXXX

Petitioner, : FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

v. : AND FINAL DECISION

COLLECTION DIVISION OF THE : Appeal No. 90-0992

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. Joseph G. Linford, Presiding Officer, heard the matter for and on behalf of the Commission. Present and representing the Petitioner was XXXXX. Present and representing the Respondent was XXXXX.

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 sales and use tax.

2. The periods in question are the XXXXX.

3. Petitioner acknowledges that the sales tax payments for the periods in question were late due to the incompetence of one of Petitioner's employees. Petitioner has since changed employees responsible for this task.

4. By letter dated XXXXX, the Tax Commission waived the penalty for the XXXXX. For this quarter Petitioner made the payment only one day after the deadline. Petitioner now requests waiver of the penalty for the XXXXX as well. The amount remaining due as of the XXXXX, letter was $$$$$.

5. By check dated XXXXX, Petitioner remitted to the Tax Commission $$$$$. On the back of this check is the following language: "endorsement hereon, accepts this payment as full satisfaction of all sums due on sales tax return for period XXXXX, including taxes, interest and penalties." Below this language is the stamp of the Tax Commission, and the check was subsequently deposited to the account of the Tax Commission. Petitioner asserts that this constitutes an accord and satisfaction of the entire amount owing and that Petitioner should, therefore, not be held liable for any further penalty or interest amounts.

6. During the hearing, Petitioner and Respondent agreed, subject to the approval of the Tax Commission, that if the Commission rules against Petitioner on the accord and satisfaction, the penalty amount for the XXXXX should be reduced to XXXXX, that is $$$$$, and, also, that no further interest would accrue on the account after the date of the hearing. This stipulation and agreement was based upon the fact that the filing for this quarter was only XXXXX days late and on the fact that the late payment was due to the incompetence of one of Petitioner's employees who has since been replaced, and Petitioner has taken steps to avoid this problem in the future. Also taken into consideration was Petitioner's good past history in the payment of sales taxes.

CONCLUSIONS OF LAW

1. Utah Code Ann. 59-1-401 and59-1-402 provide that penalties and interest shall be assessed for the late filing or payment of taxes.

2. Utah Code Ann. 59-1-401(8) provides that upon reasonable cause shown, the Commission may waive or reduce penalties and interest assessed under the above statutes.

3. The Commission finds that no accord and satisfaction occurred in this case. In support of its position, Petitioner cites Marton Remodeling vs. Jensen, 706 P.2d 607 (Utah 1985). On page 609 of its opinion, the Court states as follows:

However, when a bona fide dispute arises... and a check is tendered in full payment of an unliquidated claim as we have here, arising out of a "time and materials" contract, the creditor may not disregard the condition attached.

Beyond the fact that this case deals with a "time and materials" contract which is not anywhere at issue here, this case does not help Petitioner because an accord and satisfaction only applies where there is a bona fide dispute as to the amount of the debt owed. In this case there is no dispute as to the amount of the debt owed, the only dispute in the case is whether Petitioner should be granted a waiver of a portion of that amount, not whether or not that amount is correct. There is no assertion in this case that the amount charged to Petitioner was not correct. Therefore, there is no dispute here as to the correct amount of the debt.

4. Reasonable cause has been shown, however, for a waiver of the portion of the penalties assessed and for a discontinuance of the accrual of interest as of the hearing date as indicated above, per the agreement of the parties.

DECISION AND ORDER

Based upon the foregoing, it is the decision and order of the Utah State Tax Commission that the penalty be reduced to $$$$$ for the XXXXX and that if payment is made within ten days from the date of this order, interest will cease accruing on both the XXXXX as of the hearing date, XXXXX. Interest is also to be recalculated to take into consideration the waiver of the penalty.

DATED this 23 day of August, 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