90-1418 to 90-1419 - Sales

 

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

In Re: )

: ORDER

XXXXX, ) Appeal Nos. 90-1418

: and 90-1419

_____________________________________

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. Utah Code Ann. 59-1-401(8) states "Upon making a record of its actions, and upon reasonable cause shown, the Commission may waive, reduce, or compromise any of the penalties or interest imposed under this part." [Emphasis added.]

The statute which allows for a waiver of penalties or interest is permissive rather than mandatory. That is, even upon a showing of reasonable cause, the Commission, in its discretion, may or may not find that the waiver of penalties or interest is appropriate in a given case. However, the Commission did not find reasonable cause in this case. The Petitioner had previously properly and timely filed the sales tax prepayment and must have been well aware of the due date of the return regardless of whether or not it received a return form. Therefore, if it really did not receive a form, Petitioner could have taken some action prior to XXXXX days later to either comply with the payment requirements or to request an extension of time in which a form could have been obtained. This constitutes an implicit finding that the Petitioner does not maintain good business procedures and practices with respect to its sales tax liabilities.

4. In the present case the Commission did not adopt an "extraordinary circumstances" standard in arriving at its decision. The standard utilized by the Commission was one of negligence versus reasonable cause. While the negligence was by employees of Petitioner, all acts of negligence by a company are performed by its employees or agents. The Commission finds that from the circumstances of the two cases, waiver of the penalties was not appropriate.

DECISION AND ORDER

Based upon the foregoing, it is the decision and order of the Utah State Tax Commission that the Petition for Reconsideration is denied. It is so ordered.

DATED this 20th day of February, 1991.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

ABSENT

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner