92-0127 - Sales

BEFORE THE UTAH STATE TAX COMMISSION

__________________________________

In Re: ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

XXXXX ) AND FINAL DECISION

:

) Appeal No. 92-0127

: Account No. XXXXX

_________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a formal hearing on XXXXX. Lisa L. Olpin, Presiding Officer, heard the matter for and on behalf of the Commission. Present and representing the Petitioner were XXXXX, XXXXX and XXXXX. Present and representing the Collection Division were XXXXX and XXXXX.

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

FINDINGS OF FACT

1. The tax in question is sales and use tax.

2. The quarters in question are the second quarter XXXXX, second quarter XXXXX, first quarter XXXXX, second quarter XXXXX, fourth quarter XXXXX, all quarters XXXXX, all quarters of XXXXX, all quarters of XXXXX and the first quarter of XXXXX.

3. The following lists the taxes, penalties, interest and necessary dates of the quarters in question:

Quarter Tax Penalty Int Filed Date Paid

XXXXX $$$$$$$$$$$$$$$On Time

XXXXX $$$$$$$$$$$$$$$On Time

XXXXX $$$$$$$$$$$$$$$On Time

XXXXX $$$$$$$$$$$$$$$On Time

XXXXX $$$$$$$$$$$$$$$On Time

XXXXX $$$$$$$$$$$$$$$On Time

XXXXX $$$$$$$$$$$$$$$on time XXXXX

XXXXX $$$$$$$$$$$$$$$on time XXXXX

XXXXX $$$$$$$$$$$$$$$on time XXXXX

XXXXX $$$$$$$$$$$$$$$on time XXXXX

XXXXX $$$$$$$$$$$$$$$on time XXXXX

XXXXX $$$$$$$$$$$$$$$on time XXXXX

XXXXX $$$$$$$$$$$$$$$on time XXXXX

XXXXX $$$$$$$$$$$$$$$XXXXX unpaid

XXXXX $$$$$$$$$$$$$$$XXXXX unpaid

XXXXX $$$$$$$$$$$$$$$on time unpaid

XXXXX $$$$$$$$$$$$$$$on time unpaid

XXXXX $$$$$$$$$$$$$$$on time unpaid

This restaurant has been a family-owned business since XXXXX. It was previously located at XXXXX XXXXX in XXXXX.

5. In XXXXX, the property was sold, forcing Petitioner to relocate to XXXXX, XXXXX.

6. This relocation caused Petitioner to suffer financial setbacks.

7. The owner, XXXXX, operated the business alone with two employees.

8. In XXXXX, XXXXX noticed that he wasn't feeling very well. He continued to work for the next two years despite his weakening condition.

9. In XXXXX, XXXXX was diagnosed and treated for colon cancer. He has not worked since.

10. In early XXXXX, XXXXX, XXXXX son, took over his father's business when it became clear that his father could no longer manage the business. XXXXX still continued to employ two employees.

11. Also in XXXXX, XXXXX of the Tax Commission was assigned to Petitioner's account. Petitioner began paying back taxes, penalties and interest on a monthly payment plan.

12. Then in late XXXXX, XXXXX burned his arm in hot grease and severed seven tendons on sheet metal while at work. He was unable to work for over a year.

13. XXXXX, XXXXX wife, ran the business while XXXXX recuperated.

14. The XXXXX used the sales and use taxes collected between XXXXX and XXXXX to help the business survive during a particularly difficult financial period.

15. Petitioner's account has been current since XXXXX.

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

While the Tax Commission understands the reasons Petitioner failed to pay the sales and use taxes it collected for the period in question, it cannot validate this action by waiving the penalties and interest assessed.

The sales and use taxes paid by Petitioner's patrons were never Petitioner's funds in the first place. The XXXXX decision to keep the funds may not have been their first choice; however, such a decision was made and assessments for the ensuing delinquencies are appropriate.

In looking at Petitioner's account, it appears that Petitioner was charged a $$$$$ late filing penalty and a $$$$$ legal fee for each of the first two quarters of XXXXX. These penalties are waived in light of Petitioner's past timely filing record and because the filings were only days late.

Based upon the foregoing, the Tax Commission finds that sufficient cause has not been shown to waive the penalties and interest in question except for those two quarters referred to in the preceding paragraph. It is so ordered.

DATED this 15th day of April, 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