BEFORE THE UTAH STATE TAX
COMMISSION
____________________________
XXXXX )
Petitioner : FINDINGS OF FACT,
: CONCLUSIONS
OF LAW
v. : AND FINAL DECISION
:
COLLECTION
DIVISION OF THE : Appeal No. 91-0094
UTAH STATE TAX COMMISSION :
Respondent :
_______________________________
STATEMENT OF CASE
This
matter came before the Utah State Tax Commission for a formal hearing on
XXXXX. Alan Hennebold, 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 Utah Attorney General.
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 illegal drug stamp
tax.
2. The period in question is XXXXX.
3. Petitioner has lived in XXXXX, XXXXX, Utah
for approximately five years. His
residence is a mobile home with a living room, kitchen, bathroom and three
bedrooms.
4. On approximately XXXXX, six months prior to
the period in question, Petitioner began sharing his residence with a
co-worker, XXXXX. In return for payment
of rent, XXXXX was allowed to occupy the east bedroom and to share the common areas
of the residence. Petitioner occupied
the main bedroom. The west bedroom was
used as a den and occasionally as a bedroom for guests.
5. The door to XXXXX bedroom did not lock. Petitioner was therefore able to enter the
room, and did so on occasion.
6. Individuals who were friends of XXXXX stayed
at the residence a few days prior to XXXXX, occupying the guest bedroom during
their visit.
7. Petitioner gradually became dissatisfied
with XXXXX as a roommate. On
approximately XXXXX, Petitioner asked XXXXX to find other accommodations. As of the date in question, XXXXX had not
yet moved from the residence.
8. XXXXX, while Petitioner and neighbors XXXXX
were watching television, three police officers appeared at Petitioner's
residence with a warrant to search the residence for illegal drugs. Petitioner
allowed the officers into the residence.
9. In the course of their search of the
residence, the officers found a large bag containing XXXXX grams of marijuana
and a small plastic container with white powder in XXXXX bedroom. No drug stamps were affixed to the
marijuana. In the guest bedroom, the officers found a pouch containing rolling
papers, baggies, two vials, scales, and a marijuana pipe. In the living room and kitchen, the officers
found ashtrays with seeds and stems.
10. At the time of the foregoing search,
Petitioner told police that he was unaware XXXXX had marijuana in his
bedroom. Petitioner also denied
knowledge of the items found in the guest bedroom. Petitioner did, however, admit to using marijuana at the
residence a few days earlier.
11. Following the officers' search of the
residence, Petitioner was arrested and charged with possession of XXXXX grams
of marijuana with intent to distribute.
Petitioner was also charged with possession of drug paraphernalia and
failure to purchase drug stamps.
12. In addition to the foregoing criminal
charges, Respondent assessed Petitioner with drug stamp tax in the sum of $$$$$
plus a penalty in the same amount, for a total assessment of $$$$$.
13. Subsequently, as part of a negotiated plea
bargain with XXXXX County authorities, Petitioner pled guilty to attempted
possession of marijuana. All other
criminal charges against him were dismissed.
CONCLUSIONS OF LAW
A
dealer may not possess any marijuana or controlled substance upon which a tax
is imposed by Title 59, Chapter 19, of the Utah Code unless the tax has been
paid on the controlled substance as evidence by a stamp or other official
indicia. (Utah Code Ann.
§59-19-1004(2).)
"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 XXXXX grams of marijuana, or seven or more grams of any controlled
substance. (Utah Code Annotated
§59-19-102(2).)
DECISION AND ORDER
As
noted above, Utah's Illegal Drug Stamp Tax Act imposes a tax on marijuana and
other illegal substances. Dealers in
possession of such substances must pay the tax by purchasing and affixing drug
stamps to the substances. Failure to do
so renders the dealer liable for the amount of the tax plus a 100% penalty.
Petitioner
concedes that the substance found at his residence, in XXXXX bedroom, consisted
of XXXXX grams of marijuana. Petitioner
also concedes that no drug stamps had been purchased or affixed to the
marijuana. Petitioner's only defense in
this matter is his contention that he did not possess the marijuana.
Because
criminal statutes prohibit possession of illegal drugs, Utah's appellate courts
have established standards by which possession may be determined. Such possession may be either actual or
constructive. State v. Carlson,
635 P.2d 72, 74 (1981). Since
Petitioner was not in actual possession of the marijuana in question, the
assessment of tax and penalty can only be supported by a finding that
Petitioner constructively possessed the marijuana. In State v. Fox, 709 P.2d 316, 319 (1985), the Utah Court
of Appeals discussed constructive possession as follows:
To
find that a defendant had constructive possession of a drug or other
contraband, it is necessary to prove that there was a sufficient nexus between
the accused and the drug to permit an inference that the accused had both the
power and the intent to exercise dominion and control over the drug. (citations
omitted). Whether a sufficient nexus
between the accused and the drug exists depends upon the facts and
circumstances of each case. (citations
omitted) Ownership and/or occupancy of the premises upon which the drugs are
found, although important factors, are not alone sufficient to establish
constructive possession, especially when occupancy is not exclusive. Some other factors which might combine to
show a sufficient nexus between the accused and the drug are: incriminating
statements made by the accused..., presence of drugs in a specific area over
which the accused had control, such as a closet or drawer containing the
accused's personal effects..., presence of drug paraphernalia among the
accused's personal effects or in a place over which the accused has special
control....
In
the present case, the undisputed evidence establishes that Petitioner owned the
premises in which the marijuana was found; that he had used marijuana on those
premises a few days before his arrest; and that items of marijuana use such as
ashtrays were in his immediate presence at the time of his arrest. The Petitioner has also pled guilty to the
crime of attempted possession of marijuana.
This combination of factors is sufficient to establish both his power
and his intent to possess the marijuana on which the assessment is based.
Based
on the foregoing, the Commission finds that Petitioner was in constructive
possession of the marijuana upon which Respondent based its assessment of tax
and penalty. The Commission therefore
affirms Respondent's assessment of tax and penalty against Petitioner which was
made pursuant to Utah's Illegal Drug Stamp Act. It is so ordered.
DATED
this 10th day of February, 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