91-1440 - Corporation Franchise

 

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

XXXXX, )

Petitioner, : ORDER

v. :

AUDITING DIVISION OF THE : Appeal No. 91-1440

UTAH STATE TAX COMMISSION, : Account No. XXXXX

Respondent. :

_____________________________________

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 R861-1A-5(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. The Utah Administrative Procedures Act and the Commission's rules require that requests for reconsideration be filed within 20 days from the date of the Commission's initial decision. In this case, the Commission's decision of XXXXX was initially mailed to Petitioner at an incorrect address. The Decision was subsequently remailed to Petitioner at the correct address on XXXXX. Petitioner's request for reconsideration is therefore timely.

3. In its request for reconsideration, Petitioner argues that Respondent failed to make its assessment against Petitioner for the XXXXX tax year within the three-year period allowed by Utah Code Ann. 59-7-138. Petitioner filed its XXXXX return on XXXXX. Consequently, 59-7-138 required Respondent to make its assessment prior to XXXXX. The Commission has previously determined that Respondent made its assessment by mailing notice of assessment to Petitioner on XXXXX. However, Petitioner contends such assessment was ineffective because it was made by regular mail, and not by registered mail. In making the foregoing argument, Petitioner points to Utah Code Ann. 59-7-136(1)(a):

If the Commission determines that there is a deficiency in any tax imposed by this chapter, the Commission may send notice of the deficiency to the taxpayer by registered mail, postage prepaid . . . After consideration of the foregoing statute, the Commission concludes that the statute permits, but does not require, notice of assessment to be made by registered mail. Respondent's use of regular mail to issue its assessment in this case is therefore sufficient to toll 59-7-138's three year statute of limitations.

Petitioner also argues that Respondent's assessment constitutes a violation of Petitioner's rights to due process and equal protection. Petitioner cites no authority for this point, nor is the Commission aware of any basis for such an argument.

DECISION AND ORDER

Based upon the foregoing, it is the decision and order of the Utah State Tax Commission that the Petition for Reconsideration is denied. It is so ordered.

DATED this 3 day of February, 1993.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco S. Blaine Willes

Commissioner Commissioner