BEFORE THE UTAH STATE TAX
COMMISSION
___________________________
XXXXX
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
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, 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.
ABSENT
R. H. Hansen Roger
O. Tew
Chairman Commissioner
Joe B.
Pacheco S.
Blaine Willes
Commissioner Commissioner