BEFORE THE UTAH STATE TAX
COMMISSION
____________________________________
XXXXX,
Petitioner, : FINDINGS OF FACT,
: CONCLUSIONS
OF LAW,
v. : AND FINAL DECISION
:
COLLECTION
DIVISION OF THE : Appeal No. 90-1595
UTAH STATE TAX COMMISSION, :
:
Respondent. :
______________________________________
STATEMENT OF CASE
This
matter came before the Utah State Tax Commission for a formal hearing on
XXXXX. Paul F. Iwasaki, Presiding
Officer, heard the matter for and on behalf of the Commission. Present and representing the Petitioner was
XXXXX, Attorney at Law. Present and
representing the Respondent was XXXXX, Assistant Attorney General.
Based
upon the testimony and evidence presented at the hearing, the Tax Commission
hereby makes its:
FINDINGS OF FACT
1. The tax in question is the illegal drug
stamp tax.
2. The date in question is XXXXX.
3. On the above mentioned date, the Petitioner
and two other individuals went to the XXXXX in XXXXX, Utah, to purchase
marijuana from two other individuals.
Unbeknownst to the trio, the two individuals from whom the marijuana was
being purchased were undercover police officers.
4. Prior to their arrival at the hotel, the
Petitioner gave $$$$$ to one of his colleagues. That individual was to go up into the hotel room and consummate
the purchase. A short time later the
Petitioner joined the others in the hotel room.
5. The agreement made with the undercover
officers was that the Petitioner and his friends were to purchase XXXXX pounds
of marijuana for $$$$$. The undercover officers were given the money and while
they counted out the money, the Petitioner stood by the suitcase of marijuana
and at one point picked up one of the bags of marijuana to examine it.
6. Prior to the transaction being consummated,
one of the Petitioner's friends left the hotel to get yet another party who was
to purchase another XXXXX pounds of marijuana for $$$$$. The arrangement was that the Petitioner was
to leave with the marijuana after the transaction had been finalized.
7. Prior to the actual finalization and
transfer of the marijuana, the Petitioner was placed under arrest by the
undercover officers and removed from the scene.
8. Approximately one half of an hour later, the
Petitioner's friend returned and purchased what he believed to be a separate
XXXXX pounds of marijuana for $$$$$.
Unbeknownst to the Petitioner or his friends, the undercover officers
only had XXXXX pounds of marijuana total.
Thus, the marijuana which was "sold" to the Petitioner was the
same marijuana which was "sold" to his friend at the later time.
9. No drug stamps were affixed to the
marijuana.
10. A tax deficiency in the amount of $$$$$ and a
penalty in an equal amount were assessed against the Petitioner for having
failed to affix the required drug stamps to the marijuana.
11. The Petitioner's friend was also assessed a
tax deficiency in the amount of $$$$$ total for the failure to affix the
required drug stamps to the marijuana.
That individual settled the tax deficiency with the Collection Division
in the amount of $$$$$.
12. As a result of the transaction of XXXXX, the
Petitioner entered a plea of guilty to Possession of a Controlled Substance, a
Class A Misdemeanor, in the Second Judicial Circuit Court.
CONCLUSIONS OF LAW
A
tax of $$$$$ per gram of XXXXX is imposed pursuant to the Illegal Drug Stamp
Tax Act. (Utah Code Ann. §59-19-103.)
The
evidence of tax paid is a stamp affixed to the controlled substance. (Utah Code Ann. §59-19-104.)
Failure
to affix a stamp shall result in the assessment of a tax plus a 100% civil
penalty. (Utah Code Ann. §59-19-106.)
A
dealer may not possess any marijuana or controlled substance upon which a tax
is imposed unless a tax has been paid on the marijuana or other controlled
substance as evidenced by stamp or other official indicia. (Utah Code Ann. §59-19-104.)
"Dealer"
means a person who, in violation of Utah law, manufactures, produces, ships,
transports, or imports into Utah or in any manner acquires or possesses more
than 42 1/2 grams of marijuana. (Utah
Code Ann. §59-19-102.)
DECISION AND ORDER
In
the present case, the two issues to be decided by the Commission are: (1) under
the facts of this case, was the Petitioner a "dealer" within the
meaning of the Illegal Drug Stamp Tax Act; and (2) was the drug stamp tax
deficiency properly assessed against the Petitioner after having already been
assessed against another party?
Taking
the issues in reverse order, the Tax Commission finds that a drug stamp tax
deficiency may be assessed against any individual who unlawfully comes into
possession of marijuana or other controlled substance regardless of how many
others may have also been similarly assessed so long as the tax remains
unpaid. Thus, in the present case, the
fact that a party other than the Petitioner who also came into possession of
the same marijuana which was sold to the Petitioner was assessed and paid a
drug stamp tax deficiency does not bar assessment against the Petitioner.
Turning
next to the first issue, the Tax Commission finds that under the facts of the
present case, the Petitioner was a "dealer" within the meaning of the
Illegal Drug Stamp Tax Act in that he unlawfully possessed more than XXXXX
grams of marijuana.
Critical
to the finding that the Petitioner unlawfully possessed the marijuana is the
fact that the Petitioner entered a plea of XXXXX to the charge of Unlawful
Possession of a Controlled Substance, a Class A Misdemeanor. By doing so, the Petitioner admitted each
and every element of the offense, one of which was the fact that he possessed
the controlled substance in question.
The
Petitioner argued that his plea of XXXXX to the Unlawful Possession of a
Controlled Substance charge was entered not because he was actually guilty of
the offense, but that he entered the plea to avoid the risk of being prosecuted
and convicted for a greater offense.
Therefore, the Petitioner argued, the guilty plea should not be used against
him as an admission for purposes of this Administrative proceeding.
The
record of the proceeding before the Second Circuit Court wherein the Petitioner
entered his plea of XXXXX does not support the Petitioner's claim. The tape recording made of that proceeding
shows that no mention was made of the Petitioner's desire to maintain his XXXXX
while pleading XXXXX to avoid a possible conviction on a greater offense.
Therefore,
the Petitioner's plea must be considered as having been made knowingly and voluntarily
with full knowledge of the possible consequences that would flow therefrom.
Based
upon the foregoing, the Tax Commission affirms the determination of the
Collection Division's assessment against the Petitioner for tax and penalties
as applied pursuant to the Illegal Drug Stamp Tax Act. It is so ordered.
DATED
this 13 day of March, 1991.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
R. H. Hansen Roger
O. Tew
Chairman Commissioner
ABSENT
Joe B.
Pacheco G.
Blaine Davis
Commissioner Commissioner