91-0817 & 91-0818 - Withholding Tax

 

BEFORE THE UTAH STATE TAX COMMISSION

_______________________________

In Re: ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

XXXXX ) AND FINAL DECISION

:

: Appeal Nos. 91-0817 and

: 91-0818

_________________________

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 and representing the Petitioner was XXXXX.

Based upon the evidence and testimony presented at the hearing, the Tax Commission hereby makes its:

FINDINGS OF FACT

1. The taxes in question are sales and withholding taxes.

2. The sales tax periods in question are the second and third quarters of XXXXX. The withholding tax periods in question are XXXXX and XXXXX.

3. In XXXXX, the controller responsible for filing and paying the Petitioner's taxes was replaced. Approximately two months later the replacement controller was killed in a plane accident.

4. After the death of the replacement controller, the tax preparation matters were temporarily given to a CPA firm until a third controller could be hired.

5. A third controller was hired in XXXXX, however, due to his inability to adequately handle the books of the Petitioner, he was replaced in XXXXX of that year.

6. In XXXXX, a consultant hired to assist the controller discovered that the withholding liabilities for XXXXX and XXXXX had not been paid, and that the second quarter sales tax return for XXXXX had not been paid. Upon that discovery, the returns were filed and paid, and an attempt to clear up the books of the Petitioner was undertaken.

7. The second and third quarter XXXXX sales tax returns were filed and paid on XXXXX. The withholding tax returns for XXXXX and XXXXX, were paid on XXXXX, and the withholding tax return for XXXXX, was filed and paid on XXXXX.

8. As a result of the late filing and payment of the sales tax returns, a penalty in the amount of $$$$$ was assessed for the two quarters in question. As a result of the late filing and payment of the withholding taxes in question, a penalty in the amount of $$$$$ was assessed for the three periods in question.

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

In the present case, although the untimely death of the controller in late XXXXX, was unfortunate, the Commission is not convinced that there exists a relationship between the time of that death and the periods in question. The first sales and withholding taxes that would have been due after the passing of the controller did not occur until XXXXX, which was approximately three months after her death. That fact, plus the fact that the taxes were not filed or paid until, at the earliest, XXXXX, leads the Commission to find that ample time existed to file and pay the necessary taxes in question, but that such was not accomplished.

Based upon the foregoing, the Tax Commission finds that sufficient cause has not been shown which would justify a waiver of the penalty associated with the second and third - quarter XXXXX sales tax, nor with the XXXXX and XXXXX, withholding tax. It is so ordered.

DATED this 15 day of August, 1991.

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