BEFORE THE UTAH STATE TAX COMMISSION
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
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
Joe B. Pacheco S. Blaine Willes