BEFORE THE UTAH STATE TAX COMMISSION
Petitioner : FINDINGS OF FACT,
: CONCLUSIONS OF LAW,
v. : AND FINAL DECISION
AUDITING DIVISION OF THE : Appeal No. 91-0588
UTAH STATE TAX COMMISSION : Account No. XXXXX
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, by telephone, and representing the Petitioner was XXXXX. 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 withholding tax.
2. The period in question is XXXXX through XXXXX.
3. A prehearing conference on this matter was held on XXXXX. At that time it was ordered that the parties submit a set of stipulated facts by XXXXX; the Petitioner's initial brief be filed on or before XXXXX; the Respondent's brief be filed on or before XXXXX; and any response by the Petitioner be taken by XXXXX.
4. Because of the Petitioner's failure to timely respond to the Respondent's request for discovery, a set of stipulated facts was not provided as ordered. The Petitioner did not file its brief as ordered, and as a result of that failure, the Respondent likewise did not file a brief as ordered.
5. For the audit period in question, the Auditing Division had determined that the Petitioner employed a number of individuals in its business however, failed to withhold income tax on those individuals as required.
6. The Auditing Division's determination that those individuals were employees and not independent contractors was based primarily upon an audit conducted by the Internal Revenue Service which arrived at that determination. The Internal Revenue Service's determination was based upon their having applied the 20 common-law factors to each individual to determine whether such individuals were employees or independent contractors.
7. The Petitioner's representative presented no evidence or witnesses to support its argument that the individuals in question were independent contractors. The Petitioner's representative merely argued that the individual's should be considered to be independent contractors based upon a signed agreement entered into by those individuals and the Petitioner that they be considered such.
8. As a result of the Petitioner's failure to withhold income taxes for the individuals in question, the Auditing Division assessed a deficiency of $$$$$ plus penalties and interest, less credit for tax paid by employees.
CONCLUSIONS OF LAW
Each employer making payment of wages shall deduct and withhold from wages an amount to be determined by a Commission rule which will, as closely as possible, pay the income tax imposed by Chapter 10 of Title 59 of the Utah Code Annotated. (Utah Code Ann. §59-10-402(1).)
Petitioning parties shall have the burden of proof to establish that his petition should be granted. (Utah State Tax Commission Administrative Rule R861-1A-7(lG).)
DECISION AND ORDER
In the present case, the Petitioner had failed to establish by a preponderance of the evidence that the Auditing Division's determination, which was reasonable based upon a prior determination of the Internal Revenue Service, was incorrect. Therefore, the determination of the Auditing Division is affirmed. It is so ordered.
DATED this 15th day of April, 1992.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
R. H. Hansen Roger O. Tew
Joe B. Pacheco S. Blaine Willes