91-0533 - Corporation Franchise

 

BEFORE THE UTAH STATE TAX COMMISSION

_______________________________

In Re: )

: FINDINGS OF FACT,

XXXXX ) CONCLUSIONS OF LAW,

: AND FINAL DECISION

:

: Appeal No. 91-0533

: Account No. XXXXX

: Tax Type: Penalty/Int.

_____________________________

STATEMENT OF CASE

This matter came before the Utah Tax Commission for a formal hearing on XXXXX. Alan Hennebold, Presiding Officer, heard the matter for and in behalf of the Commission. Present and representing the Petitioner was XXXXX, Esq.

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 corporate franchise and income tax.

2. The periods in question are XXXXX through XXXXX.

3. Petitioner is a XXXXX. It has never maintained a place of business in Utah, nor had employees in Utah. The dispute which is the subject matter of this appeal arises from Petitioner's participation as a limited partner in "XXXXX", which limited partnership conducted certain real estate development activities in Utah.

4. The Petitioner's interest in the XXXXX was the subject of extensive litigation, ultimately resolved In Re: XXXXX, Case No. XXXXX, U.S. Bankruptcy Court for the XXXXX. The Petitioners' share of the limited partnership was determined as a result of that litigation. Until resolution of the litigation, the Petitioners' interest in the partnership distributions could not be determined.

5. Immediately following the resolution of its litigation, Petitioner filed Utah tax returns for the years in question, together with its request for waiver of penalties. In filing those returns, Petitioner calculated its tax liability as though all of its partnership income was derived from Utah, even though some of the income may have been derived from other states and therefore not subject to Utah tax. The Petitioner did so do to its inability to obtain more accurate information from XXXXX. Petitioners' tax returns were all filed during XXXXX.

6. The Collections Division of the Utah State Tax Commission has imposed late filing and late payment penalties totalling $$$$$ for each of the years in question, together with associated interest. Payments by Petitioner have been applied first to penalty and interest, leaving an unpaid tax balance which has continued to accumulate interest. As of XXXXX, that interest amounted to $$$$$.

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

As a preliminary note, the Petitioner contends it was not subject to the minimum corporate franchise tax of $$$$$ per year which was assessed against it for XXXXX and XXXXX. A review of the applicable statues indicates that the tax was properly levied against the Petitioner for those years.

The Petitioner has established that its entire relationship with Utah arises from its participation in a limited partnership devoted to real estate development. The Petitioner has further demonstrated that the partnership was embroiled in litigation practically from the time the Petitioner became involved and that the direct result of that litigation was that the Petitioner's share in the partnership, and consequently its profits from the partnership, were in dispute. It was not until resolution of the litigation that the Petitioner could determine its income and submit its tax returns for the years in question. It is noted that the Petitioner submitted its returns, and payment as soon as the foregoing litigation had been settled and the Petitioners' share of profits could be determined.

Under the foregoing circumstances, the Commission concludes the Petitioner had reasonable cause for its delay in filing and paying its corporate franchise and income tax liability for the years in question. The Commission therefore waives penalty assessed against Petitioner with respect to the tax years XXXXX through XXXXX. The Commission does not waive interest charges, but instructs Commission staff to redetermine interest charges after penalty assessments have been removed in accordance with this decision. It is so ordered.

DATED this 27th day of August, 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