BEFORE THE UTAH STATE TAX
COMMISSION
_____________________________________
XXXXX, )
Petitioner, : ORDER
v. :
COLLECTION
DIVISION OF THE : Appeal No. 91-1229
UTAH STATE TAX COMMISSION, : Account
No. XXXXX
Respondent. :
_____________________________________
This
matter came before the Utah State Tax Commission for a formal hearing on
XXXXX. Alan Hennebold, Presiding
Officer, heard the matter on behalf of the Commission. XXXXX appeared for Petitioner. XXXXX, Assistant Utah Attorney General, and
XXXXX of the Collection Division's staff appeared for Respondent.
This
appeal arises from Respondent's assessment of tax and penalty against
Petitioner pursuant to Utah's Illegal Drug Stamp Tax Act. (Utah Code Ann. §59-19-1 et seq.) Respondent
assessed tax and penalty of $$$$$ based upon Petitioner's alleged possession of
XXXXX grams of methamphetamine oil
Respondent also assessed tax and penalty of
$$$$$ based upon Petitioner's possession of XXXXX grams of marijuana.
In
criminal proceedings arising from Petitioner s alleged possession of the
foregoing illegal drugs, the federal district court found that the
methamphetamine oil had been seized in violation of the Fourth Amendment to the
United States Constitution. The court
therefore suppressed evidence of the methamphetamine oil pursuant to the
exlusionary rule. With respect to the
marijuana, the court ruled its seizure was proper and that evidence of
Petitioner's possession of the marijuana was admissible.
The
Utah Supreme Court has held that the exclusionary rule is applicable in
Commission proceedings under the Illegal Drug Stamp Tax Act. (Sims v.
Collection Division of the Utah State Tax Commission, No. 900324, filed
October 22, 1992.)
In
light of the Utah Supreme Court's decision in Sims, Respondent concedes that it
lacks an evidentiary basis to support assessment of tax on Petitioner's alleged
possession of methamphetamine oil. For
his part, Petitioner concedes liability under the Act for tax and penalty on
his possession of marijuana.
Based
upon the foregoing and pursuant to the provisions of Utah's Illegal Drug Stamp
Tax Act, the Commission affirms the assessment of tax and penalty against
Petitioner in the amount of $$$$$, based upon his possession of XXXXX grams of
marijuana. The Commission abates that
portion of the original assessment
which is based upon Petitioner s alleged possession of methamphetamine
oil. Respondent is instructed to modify
its assessment accordingly. It is so
ordered.
DATED
this 20 day of November, 1992.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
R. H. Hansen Roger
O. Tew
Chairman Commissioner
ABSENT
Joe B.
Pacheco S.
Blaine Willes
Commissioner Commissioner