BEFORE THE UTAH STATE TAX
COMMISSION
________________________________
XXXXX, )
Petitioner, : FINDINGS OF FACT,
) CONCLUSIONS
OF LAW,
v. : AND FINAL DECISION
)
AUDITING
DIVISION OF THE : Appeal No. 92-1457
UTAH STATE TAX
COMMISSION, )
Respondent. : 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. Petitioner represented himself by
telephone. Present and representing
Respondent was XXXXX, Assistant Utah Attorney General.
Prior
to the start of testimony, Petitioner objected to the involvement of an
Administrative Law Judge who is employed by the State Tax Commission on grounds
of impartiality. His objection was
denied.
Petitioner
also objected to Respondent's packet of exhibits timely submitted to the Tax
Commission on XXXXX, because Petitioner did not receive his packet by mail
until XXXXX. The hearing notice
instructed the parties to submit any documents to be introduced into evidence
by XXXXX. Petitioner, however, did not
want to continue the case for any reason and did not claim an inability to
adequately prepare for the formal hearing now at hand due to the late arrival
of Respondent's documents. His
objection was denied.
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 date in question is XXXXX.
3. Petitioner purchased a XXXXX Chevrolet XXXXX
from XXXXX Chevrolet on XXXXX. In so
doing, Petitioner signed a non-resident affidavit, indicating he was a resident
of Florida. The back of the
non-resident affidavit listed the relevant Utah Administrative Rule
(R873-OlV-1) defining "resident" for sales and use tax purposes. Petitioner also signed this second page.
4. The Auditing Division later determined
Petitioner was a Utah resident pursuant to the rule and assessed Petitioner
sales tax, a 15% intentional disregard of a law or rule penalty plus interest.
5. Petitioner claims he was a XXXXX resident at
the time of the purchase.
6. Petitioner testified that in late XXXXX he
relocated his family to XXXXX from Utah.
His XXXXX state of Utah part-year resident income tax return shows he
reported he was a Utah resident from XXXXX through XXXXX. Petitioner filed a nonresident tax return in
XXXXX.
7.
On the date in question, Petitioner had
two trusts in Utah, one for property at XXXXX and a second for an office
building in XXXXX that houses XXXXX XXXXX XXXXX.
8. Petitioner testified that he had rental
incomes from the XXXXX building in XXXXX.
9. At a time prior to the date in question,
Petitioner had a XXXXX XXXXX at the XXXXX XXXXX XXXXX. As of the date in question and since that
time, Petitioner returns on rare occasion to the XXXXX practice on a consulting
basis if his help is requested by a friend or fellow XXXXX and Petitioner finds
the case appealing. Petitioner did not
maintain a XXXXX practice per se on the date in question.
10. As for the XXXXX properties, one of the lots
is vacant land and the other is a residence where Petitioner's son lives. His son is a beneficiary of the irrevocable
trust.
11. Petitioner maintains a Salt Lake phone
number and an employee who handles business affairs of the XXXXX practice
building and any messages for Petitioner.
12. At the time Petitioner purchased the XXXXX
at the XXXXX car dealership, he also purchased a Honda. He registered the XXXXX in Utah and paid
full taxes as the Honda is kept in Utah.
Petitioner did not do the same with the corvette as it was driven to
XXXXX the day after purchase and eventually taken to Florida where it was
registered.
13. Also, Petitioner owns a XXXXX vehicle which
is registered and stored in Utah. He
uses the vehicle whenever he vacations in the state.
14. Petitioner testified that the only reason he
bought the corvette in Utah was because of the good price he was offered by a
friend at the dealership.
15. Petitioner is a XXXXX who maintains a XXXXX
faculty appointment at the XXXXX XXXXX School.
He teaches at the school on rare occasion.
16. Petitioner teaches at universities across
the nation and performs contract work for the Department of XXXXX which takes
him out of the country on a frequent basis.
17. Petitioner does not recall if he read the
information provided on the back of the non-resident affidavit when he bought
the car. He further stated that he
would have had no reason to read the paragraphs as he understood himself to be
a Florida resident.
18. Petitioner has a Florida driver's license
issued in XXXXX.
CONCLUSIONS OF LAW
Relevant
Utah Law states:
For
the purposes of vehicle, registration, the term "resident" means, but
is not limited to, the following:
3. Any person, except a tourist temporarily
within this state, or a student, covered under rule R873-22M-4, who owns,
leases, or rents a residence or a place of business within this state, or
occupies or permits to be occupied a Utah residence or place of business;
4. Any person engaging in a trade, profession,
or occupation or accepting gainful employment in this state;
C. Any person qualifying as a resident under
the above definitions, does not qualify as a nonresident for purposes of the
exemption from sales tax under Utah Code Ann.
Section 59-12104. (Utah Admin. Code. R873-22l-M(2)(B)(C).) 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
The
Tax Commission determines that Petitioner qualifies as a Utah resident for sales
and use tax purposes as specified in the above-referenced code section.
The
15 percent penalty for intentional disregard of a law or rule is reduced to a
single 10 percent negligence penalty.
Interest is not waived. It is so
ordered.
DATED
this 7TH day of May, 1993.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
ABSENT
R. H. Hansen Roger
O. Tew
Chairman Commissioner
Joe B.
Pacheco S.
Blaine Willes
Commissioner Commissioner