BEFORE THE UTAH STATE TAX
COMMISSION
_____________________________
XXXXX )
Petitioner : FINDINGS OF FACT,
: CONCLUSIONS
OF LAW,
v. : AND FINAL DECISION
COLLECTIONS
DIVISION OF THE : Appeal No. 91-0468
UTAH STATE TAX COMMISSION : Tax
Type: Drug Stamp
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 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 date in question is XXXXX.
3. On the above mentioned date, and pursuant to
negotiations held between Sergeant XXXXX of the Salt Lake County Sheriff's
Office, who at that time was acting in an undercover capacity, and an
individual identified as XXXXX, an agreement was made for XXXXX to purchase
from Sergeant XXXXX, XXXXX kilos of cocaine.
4. The parties met in a room in a local
hotel. At that time XXXXX provided
XXXXX with XXXXX in cash. The $$$$$ was
payment for the first kilo of cocaine.
XXXXX took possession of XXXXX kilos of cocaine with the understanding
that he would pay for the remaining XXXXX kilos at a later date.
5. During the course of the negotiations XXXXX
had stated that XXXXX was the "money man".
6. After XXXXX took possession of the XXXXX
kilos of cocaine and left the hotel room he was arrested in the hallway by
other police officers.
7. The Petitioner was arrested approximately
forty (40) minutes later by police officers.
The Petitioner was driving the vehicle which XXXXX had been seen
arriving at the hotel in.
8. XXXXX had stated to police officers and
prosecutors that the Petitioner had provided all the money for the drug
transaction.
9. As a result of the incident, the Petitioner
was charged in Federal District Court with knowingly and intentionally
attempting to possess with the intent to distribute XXXXX of cocaine to which
he pled guilty.
The
Petitioner entered a plea of guilty to Attempted Possession of a Controlled
Substance with the Intent to Distribute.
10. The cocaine in question did not have the
required drug stamps affixed to it.
CONCLUSIONS OF LAW
A
dealer may not possess any marijuana or controlled substance upon which a tax
is imposed by Title 59, Ch. 19, of the Utah Code unless the tax has been paid
on the marijuana or controlled substance as evidenced by stamp or other
official indicia. (Utah Code Annotated
§59-19-104(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 42 1/2 grams of marijuana, or seven or more grams of any controlled
substance. (Utah Code Annotated
§59-19-102(2)).
DECISION AND ORDER
In
the present case, the issue to be decided by the Commission is whether or not a
person who is not in actual possession of a controlled substance in violation
of Drug Stamp Tax Act may otherwise be found in violation of that act as a
party to the offense.
The
requirement to purchase an affixed drug stamp is imposed only upon "dealers"
as that term is defined in the drug stamp tax act. Utah Code Ann. §59-19-102(2) defines dealer as "a person
who, in violation of Utah law, manufacturers, produces, ships, transports, or
imports into Utah or in any manner acquires or possesses more than . . . seven
or more grams of any controlled substance . . .". Thus, under the act,
mere possession of the controlled substance is not sufficient in and of itself
to be a violation of the act. The
possession must be one which is unlawful under Utah law. It must, therefore, be determined whether
the Petitioner's action in the present case be sufficient so as to find him in
violation of Utah law.
Section
58-37-2(27) of the Utah Controlled Substances Act states:
"possession" or "use"
means the joint or individual ownership, control, occupancy, holding,
retaining, belonging, maintaining, obtaining . . . of controlled substances and
includes individual, joint, or a group possession . . . . For a person to be a
possessor or a user of a controlled substance, it is not required that he be
shown to have individually possessed, used, or controlled the substance, but it
is sufficient if it is shown that he jointly participated with one or more
persons in the use, possession, or control of any substances with the knowledge
that the activity was occurring.
Section
76-2-202of the Utah Criminal Code provides that:
"every person, acting with mental state
required for commission of offense who directly commits the offense, who
solicits, request, commands, encourages, or intentionally aides another person
to engage in conduct which constitutes an offense shall be criminally liable as
a party for such conduct."
From
the two above cited statutory provisions, it is clear that a person not in
actual unlawful possession of a controlled substance maybe held criminally
liable as a party to the offense with another individual who is in actual
unlawful possession of a controlled substance.
In
the present case, although the evidence presented showing the Petitioner's
participation in the offense was slight, the corroboration of the evidence in
addition to the Petitioner's lack of evidence to the contrary, was sufficient
to sustain a finding that the Petitioner was in unlawful offense. The corroborating factors relied upon in
this decision include the fact that the Petitioner was seen with the party who
actually purchased the cocaine immediately prior to the transaction, and also
the fact the Petitioner entered a guilty plea to the charge of attempted
possession of a controlled substance as a result of this incident.
The
Petitioner, through his counsel, next argued that if the Petitioner were found
to be in violation of Utah Law with the respect to the possession of the
cocaine in question, the maximum amount of cocaine which he could be found to
possess would be one kilogram. It was
the Petitioner's position that he agreed to purchase XXXXX of cocaine instead
of all XXXXX kilos and therefore his liability should be limited to the XXXXX.
The
Commission is not persuaded by the Petitioner's argument that his liability
should be limited to XXXXX of cocaine in light of the complete lack of evidence
of any facts to substantiate that claim.
Based
upon the foregoing, the Tax Commission finds that Petitioner did unlawfully
possess the controlled substances in question as party to the offense and
therefore was subject to the requirements of the Illegal Drug Stamp Act and
affirms the determination of the Collection Division. It is so ordered.
DATED
this 20th day of November, 1991.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
R. H. Hansen Roger
O Tew
Chairman Commissioner
Joe B.
Pacheco S.
Blaine Willes
Commissioner Commissioner