91-0011

Illegal Drug Stamp

Signed 10/28/92

BEFORE THE UTAH STATE TAX COMMISSION

_________________________________

XXXXX, )

: ORDER ON RESPONDENTS

Petitioner, ) MOTION FOR SUMMARY

: JUDGMENT

v. )

:

COLLECTION DIVISION OF THE ) Appeal No. 91‑0011

UTAH STATE TAX COMMISSION, :

Respondent. )

________________________________

STATEMENT OF CASE

On XXXXX, Respondent filed it's Motion For Summary Judgment in the above‑entitled matter. Through its motion, Respondent seeks dismissal of Petitioner's appeal, which appeal challenges the assessment of drug stamp tax and penalty totaling $$$$$ against Petitioner. The original assessment of $$$$$ has now been reduced to $$$$$, reflecting a more accurate weighing of the cocaine in question.

In support of its motion, Respondent has submitted affidavits which establish that the substance upon which it based its assessment was, in fact, cocaine and that such cocaine weighed XXXXX grams. Affidavits submitted by Respondent further establish that no drug stamps were affixed to the cocaine, nor had any such stamps been purchased with respect to the cocaine. Finally, Respondent has submitted the record of Petitioner's conviction in Utah's Third District Court of unlawful possession of cocaine with intent to distribute.

In response, Petitioner raises several arguments intended to show that he did not possess the cocaine in question. He also argues that because his criminal conviction of possession of cocaine is under appeal, it cannot be used to establish possession in this matter.

After consideration of the record in this matter and arguments of the parties, the Commission concludes that Petitioner's conviction for possession of the cocaine in question does, under the principle of equitable estoppel, establish his possession of such cocaine for purposes of these proceedings. That Petitioner has appealed his conviction does not prevent the application of collateral estoppel until and unless Petitioner's conviction is overturned. The Commission further concludes that pursuant to '63‑46b‑1(4) of the Utah Administrative Procedures Act, Rule 56 of the Utah Rules of Civil Procedure and Rule 4‑501 of the Utah Rules of Judicial Administration, there is no genuine issue as to the truth of the following material facts:

On XXXXX, XXXXX possessed XXXXX grams of cocaine without having purchasing the drug stamps required by Utah's Illegal Drug Stamp Tax Act, ('59‑19‑1 et seq.), and without affixing such stamps to the cocaine.

Based on the foregoing, the Commission concludes that the Collection Division properly assessed tax of $$$$$ and penalty of $$$$$ against XXXXX pursuant to the provisions of the Utah Illegal Drug Stamp Act. The Commission therefore grants Respondent's Motion For Summary Judgment, dismisses Petitioner's appeal and affirms the imposition of tax and penalty as set forth herein. It is so ordered.

DATED this 28th day of October, 1992.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco S. Blaine Willes

Commissioner Commissioner

NOTICE: You have twenty (20) days after the date of the final order to file a request for reconsideration or thirty (30) days after the date of final order to file in Supreme Court a petition for judicial review. Utah Code Ann. '63‑46b‑13(1), 63‑46b‑14(2)(a).

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