BEFORE THE UTAH STATE TAX
COMMISSION
_______________________________
XXXXX :
Petitioner : FINDINGS OF FACT,
: CONCLUSIONS
OF LAW,
v. : AND FINAL DECISION
:
COLLECTION
DIVISION OF THE : Appeal No. 91-0727
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. Alan Hennebold, Presiding
Officer, heard the matter for and on behalf of the Commission. Present and representing the Petitioner were
XXXXX and XXXXX, of XXXXX. Present and
representing the Respondent was XXXXX Assistant Utah Attorney General.
Based
upon the memoranda submitted and oral arguments of the parties, the Tax
Commission hereby makes its:
FINDINGS OF FACT
1. The tax in question is the illegal drug
stamp tax.
2. The date in question is XXXXX.
3. Pursuant to a search of the Petitioner's residence,
members of the XXXXX seized XXXXX grams of methamphetamine and XXXXX grams of
marijuana.
4. No drug stamps were affixed to the
controlled substances.
5. A tax deficiency in the amount of XXXXX and
a penalty in an equal amount were assessed for the failure to have the required
drug stamps affixed to the methamphetamine.
6. As a result of criminal charges arising out
of the possession of the controlled substances, Petitioner pled guilty to two
misdemeanors of attempted possession of methamphetamine and marijuana.
CONCLUSIONS OF LAW
A
tax of $200 per gram of methamphetamine is imposed pursuant to the Illegal Drug
Stamp Tax Act. (Utah Code
Ann.59-19-103.)
The
evidence of tax paid is a stamp affixed to the controlled substance. (Utah Code Ann.59-19-104.)
Failure
to affix the stamp shall result in the assessment of a tax plus a 100% civil
penalty. (Utah Code Ann.59-19-106.)
The
Tax Commission is not a judicial body established under the Constitution of the
State of Utah, nor is it empowered nor authorized to determine the legality or
constitutionality of legislative enactments.
(Shay v. Utah State Tax Commission, 120 P.2d 274 (Utah 1941): State
Tax Commission v. Wright, 596 P.2d 634 (Utah 1979); and Belco Petroleum
Corporation v. State Board of Equalization, 587 P.2d 204 (Wyoming 1978).
DECISION AND ORDER
Petitioner
raises only one issue in his challenge to Respondent's assessment of drug stamp
tax and penalty against him: that Respondent's imposition of the drug stamp tax
and penalty constitutes a second punishment within the meaning of the double
jeopardy clause of the Utah State Constitution and the Fifth Amendment to the
Unites States Constitution.
It
is well settled that the Tax Commission is not empowered to determine the
constitutionality of the legislative enactments which it administers. Instead, the Commission must presume that
the Utah Drug Stamp Tax Act is constitutional and that its tax and penalty
provisions do not violate those constitutional prohibitions against double
jeopardy cited in Petitioner's brief.
As
the Commission does not have jurisdiction to rule on Petitioner's
constitutional challenge to the tax and penalty assessment in this case, and as
Petitioner has raised no other defense to that assessment, the Commission affirms
Respondent's assessment of tax and penalty against Petitioner pursuant to the
Utah Illegal Drug Stamp Tax Act. It is
so ordered.
DATED
this 9th day of July, 1992.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
R. H. Hansen Roger
O. Tew
Chairman Commissioner
Joe B.
Pacheco S.
Blaine Willes
Commissioner Commissioner