BEFORE THE UTAH STATE TAX COMMISSION
Petitioner : FINDINGS OF FACT,
: CONCLUSIONS OF LAW
v. : AND FINAL DECISION
COLLECTION DIVISION OF THE : Appeal No. 91-0094
UTAH STATE TAX COMMISSION :
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
Joe B. Pacheco S. Blaine Willes