92-1095 - Drug Stamp

BEFORE THE UTAH STATE TAX COMMISSION

__________________________________

XXXXX, )

:

Petitioner, ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

v. ) AND FINAL DECISION

:

COLLECTION DIVISION OF THE ) Appeal No. 92-1095

UTAH STATE TAX COMMISSION, :

) Account No. XXXXX

Respondent. :

) Tax Type: Drug Stamp

_______________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a formal hearing on XXXXX. Alan Hennebold, Presiding Officer, heard the matter for and on behalf of the Commission. XXXXX, attorney at law, represented the Petitioner. XXXXX, Assistant Utah Attorney General, represented the Respondent.

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

FINDINGS OF FACT

1. The tax in question is illegal drug stamp tax.

2. The period in question is XXXXX.

3. On XXXXX, Respondent assessed Petitioner with illegal drug stamp tax and penalty in the amount of $$$$$.

4. Petitioner filed an appeal of the foregoing assessment with the Utah State Tax Commission on XXXXX.

5. At a prehearing conference held on XXXXX, Petitioner's attorney conceded that the substance upon which the assessment is based was cocaine, that the cocaine weighed 2,500 grams, and that Petitioner had not purchased the required drug tax stamps with respect to such cocaine.

6. Petitioner was convicted in the Third Judicial District Court, Salt Lake County, Utah, of possession of cocaine with intent to distribute. Petitioner's criminal conviction was based upon the same cocaine as that upon which Respondent's assessment is based.

CONCLUSIONS OF LAW

The Utah Illegal Drug Stamp Tax Act imposes a tax of $200 per gram on certain controlled substances, including cocaine. (Utah Code Ann. 59-19-102(1).)

A dealer may not possess any controlled substance upon which a tax is imposed by Title 59, Chapter 19, Utah Code Ann., unless the tax has been paid on the controlled substance as evidenced by a stamp or other official indicia. (Utah Code Ann. 59-19-1004(2).)

"Dealer" means any person who, in violation of Utah law, manufactures, produces, ships, transports, or imports into Utah or in any manner acquires or possesses more than 42 1/2 grams of marijuana or seven or more grams of any controlled substance. (Utah Code Ann. 59-19-102(2).)

Any dealer violating the provisions of the Illegal Drug Stamp Tax Act is subject to a penalty of 100% of the tax, in addition to the tax itself. (Utah Code Ann. 59-19-106.)

DECISION AND ORDER

Petitioner's appeal of his drug stamp tax assessment comes before the Commission after the companion criminal case has been concluded. Petitioner has previously conceded that the substance in question is in fact cocaine weighing 2,500 grams and that he did not purchase or affix the required drug stamps to the cocaine. The only issue which Petitioner has not conceded is his possession of the cocaine. In the companion criminal case, Petitioner was convicted of having possessed the cocaine.

Under the principle of collateral estoppel, Petitioner's conviction n the criminal proceeding is binding upon him in this tax proceeding before the Commission. The Commission therefore concludes that Petitioner did possess the cocaine in question, and affirms Respondent's assessment of tax and penalty in this matter, as set forth in its assessment dated XXXXX. It is so ordered.

DATED this 22nd Day of April, 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