91-0821

Sales

Signed 3/25/92

BEFORE THE UTAH STATE TAX COMMISSION

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In Re: ) ORDER

XXXXX ) Appeal No. 91‑0821

) Account No. XXXXX

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STATEMENT OF CASE

This matter came before the Utah State Tax Commission upon a Petition for Reconsideration, dated XXXXX filed by the Petitioner as a result of the Commission's final decision, dated XXXXX.

FINDINGS

1. Utah Administrative Rule R861‑1‑5A(P) provides that a Petition for Reconsideration "will allege as grounds for reconsideration either a mistake in law or fact, or the discovery of new evidence." Under this rule, the Tax Commission may exercise its discretion in granting or denying a Petition for Reconsideration.

2. In summary of Petitioner's arguments in favor of its Petition for Reconsideration, Petitioner contends that it properly filed and paid its sales tax prepayments through XXXXX. It failed to make its prepayment in XXXXX because an inexperienced employee was unaware of the prepayment requirement. However, according to Petitioner, a tax payment from another taxpayer was erroneously credited to Petitioner's account, making it appear as though Petitioner's prepayment had been made for XXXXX. Consequently, Petitioner was not informed of its error and Petitioner again failed to make its prepayment for XXXXX. With respect to the XXXXX prepayment, Petitioner alleges that payment of an unrelated audit deficiency was erroneously credited as a prepayment, again causing it to appear that Petitioner had made its prepayment for XXXXX, and again preventing notice to Petitioner of the prepayment requirement. Petitioner therefore failed to make its XXXXX prepayment on time.

3. In light of Petitioner's specific allegations, a careful review of the Commission's records has been undertaken. The record does not substantiate Petitioner's claim that its failure to make the necessary prepayments was hidden by misapplication of other funds to Petitioner's account. The record does establish that Petitioner was advised of its XXXXX prepayment liability several months before the XXXXX liability came due. The record also establishes that no penalty was imposed against Petitioner for its delay in making the XXXXX prepayment.

DECISION AND ORDER

In its original decision, the Commission concluded that Petitioner was aware of the prepayment requirement, as evidenced by its compliance with that requirement in XXXXX and before. Petitioner concedes that point, but argues it should be excused from any penalty in connection with the XXXXX and XXXXX prepayment on the grounds Commission staff failed to inform Petitioner of its errors. As recognized by Petitioner in its request for reconsideration: "Commission staff has no affirmative duty to provide notification of a problem with a return, and XXXXX personnel should make themselves aware of the relevant laws." Furthermore, Commission records establish that Petitioner was specifically notified of the prepayment requirement before its XXXXX prepayment came due. The Commission also notes that Petitioner has been excused from penalty and interest for XXXXX, the first year in which it failed to make the required prepayment.

Based on the foregoing, the Commission concludes Petitioner has not established reasonable cause for waiver of penalties associated with its sales tax prepayment liability for XXXXX and XXXXX. The Commission therefore declines to reconsider its previous decision, which remains in effect. It is so ordered.

DATED this 25 day of March, 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

NOTICE: You have thirty (30) days after the date of the order to file with the Supreme Court a petition for judicial review. Utah Code Ann. ''63‑46b‑13(1), 63‑46b‑14(2)(a).

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