91-0032

Sales

Signed 6/25/91

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________

In Re: ) FINDINGS OF FACT,

) CONCLUSIONS OF LAW,

XXXXX ) AND FINAL DECISION

) Appeal No. 91‑0032

) Account No. XXXXX

_______________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a formal telephone 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.

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 tax.

2. The periods in question are the second, third and fourth quarters of XXXXX.

3. Petitioner asserts that it did not receive tax forms from the Tax Commission to file its second quarter XXXXX sales taxes. Petitioner, therefore, contacted the Tax Commission and was told by a person named XXXXX that she would mail the tax forms to Petitioner.

4. Petitioner states it did not receive the new forms until after the filing date for the third quarter of XXXXX. Petitioner, therefore, filed that return late along with its return and payment for the second quarter XXXXX.

5. For the fourth quarter XXXXX, Petitioner states that the tax form was again received late from the Tax Commission and, therefore, filed late by the Petitioner.

6. The Petitioner business has now been dissolved and is no longer operating. Petitioner's representative at the hearing, XXXXX, as well as her husband, XXXXX, who wrote an undated letter to the Tax Commission outlining Petitioner's case, state that there was a falling out between the XXXXX and their partners in the business, XXXXX. Therefore, little communication occurred between these two parties after about the first month of operation of Petitioner's business.

7. The XXXXX assert that the XXXXX were solely responsible for filing and paying taxes since they had previous experience in doing so in another state. When the XXXXX asked the XXXXX about the taxes, the XXXXX indicated that they were taking care of everything.

8. The XXXXX did not know of any difficulty with Petitioners' tax matters until they attempted to sell their home in XXXXX and discovered the tax lien which had been attached to the home. The XXXXX paid this tax lien in order to sell the home.

9. It is the XXXXX position that the liability for the penalty and interest assessments, if not waived, should be shared equally between them and the XXXXX, and therefore, the XXXXX are only willing to pay half of the penalty and interest assessments, leaving the other half for the XXXXX to pay.

CONCLUSIONS OF LAW

The Tax Commission is granted the authority to waive, reduce, or compromise penalties and interest upon a showing of reasonable cause. (Utah Code Ann. '59‑1‑401(8).)

DECISION AND ORDER

Generally the non‑receipt of tax forms by a taxpayer is not sufficient excuse for the late filing and payment of taxes, because it is the taxpayer's responsibility to follow through and to ensure that taxes are paid in a timely manner. In this case, Petitioner could have avoided some of the problems by following through with the Commission at an earlier date, before the circumstances began to develop into troublesome conditions. This indicates that the penalty in this case should not be waived. Additionally, interest should not be waived because the state was deprived of the use of the tax funds in question for a period of time and should be compensated for that loss of use.

Regarding the liability for the penalty and interest assessments, while the XXXXX and the XXXXX may have both been liable for the debts of the business, the Commission finds that this matter is between them and is not something for the Tax Commission to arbitrate. The Commission's duty is to collect the tax, penalty, and interest assessed under the law, and the taxpayers should determine among themselves how they will divide that liability.

Based upon the foregoing, the Tax Commission finds that sufficient cause has not been shown which would justify a waiver of the penalty and interest associated with the second, third and fourth quarter XXXXX sales taxes. It is so ordered.

DATED this 25th day of June, 1991.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

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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