BEFORE THE UTAH STATE TAX
COMMISSION
_________________________________
XXXXX, )
:
Petitioner, ) FINDINGS OF FACT,
: CONCLUSIONS
OF LAW
v. ) AND FINAL DECISION
:
COLLECTION
DIVISION OF THE ) Appeal No. 92-1627
UTAH STATE TAX
COMMISSION, :
) Tax Type:
Drug Stamp Respondent.
:
__________________________________
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
Petitioner. XXXXX, Assistant Utah
Attorney General, represented Respondent.
At
the beginning of the hearing, the parties stipulated that the relevant facts in
this matter were set forth in the police reports contained in the Commission's
file, augmented by certain oral statements of fact submitted by Petitioner's
attorney. Neither party presented any
additional evidence.
Based
upon the parties' stipulations, the Commission hereby makes its:
FINDINGS OF FACT
1. The tax in question is illegal drug stamp
tax.
2. The period in question is March XXXXX.
3. Petitioner concedes that the substances upon
which Respondent's amended assessment is based are, in fact, XXXXX grams of
marijuana and XXXXX dosage units of LSD.
Petitioner also concedes that he neither purchased nor affixed the
requisite drug stamps to such marijuana and LSD.
4. On XXXXX, Petitioner was driving his
automobile in XXXXX, Utah. A passenger,
XXXXX, was also in the car. Petitioner
was stopped by police officers for improper registration and other minor
infractions. However, once Petitioner
and XXXXX had been stopped, police discovered they were each subject to arrest
warrants. Petitioner and XXXXX were placed
in custody and Petitioner's car was searched.
The officers found the subject marijuana and LSD inside XXXXX's
backpack.
5. Petitioner pled guilty to the criminal
offense of possession of marijuana with intent to distribute. In entering his guilty plea, Petitioner
admitted he allowed XXXXX to smoke marijuana in his automobile, and therefore
knew XXXXX possessed some amount of marijuana.
Prosecuting authorities have dismissed all criminal charges relating to Petitioner's
alleged possession of LSD.
CONCLUSIONS OF LAW
The
Utah Illegal Drug Stamp Tax Act imposes a tax of $$$$$ per XXXXX dosage units
on certain controlled substances, including LSD. The Act imposes a tax of $$$$$ per gram on marijuana. (Utah Code Ann. §59-19-102(1).)
A
dealer may not possess any controlled substance upon which a tax is imposed by
the Illegal Drug Stamp Tax Act 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 XXXXX 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
concedes that the substances in question are marijuana and LSD, that he did not
purchase or affix the required drug stamps to such substances, and that the
quantity of such substances are correct as set forth in Respondent's amended
assessment. The only issue is whether
Petitioner is a "dealer" of marijuana and LSD within the meaning of
Utah's Illegal Drug Stamp Tax Act.
Section
59-19-102(2) of the Illegal Drug Stamp Tax Act defines "dealer" as
one 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 ten or more dosage units of any controlled substance that
is not sold by weight, such as LSD.
Petitioner
has pled guilty to possession of the marijuana in question. In entering his guilty
plea, Petitioner admitted that he knowingly used his car to transport XXXXX and
XXXXX's marijuana. Under principles of
collateral estoppel, Petitioner's admission in the criminal proceeding is
binding in this proceeding as well.
Petitioner's admission that he knowingly transported the marijuana is
sufficient to bring him under the Illegal Drug Stamp Tax Act's definition of
dealer with respect to the marijuana.
While
Petitioner's guilty plea constitutes an admission that he knowingly transported
the subject marijuana, there is no evidence that Petitioner knew of XXXXX's
LSD. Criminal charges against
Petitioner relating to the LSD have been dismissed. Based on the evidence available to it, the Commission concludes
that Petitioner did not knowingly transport the subject LSD in his car. Therefore, the Petitioner cannot be
considered a dealer of such LSD within the meaning of the Illegal Drug Stamp
Tax Act.
Based
on the foregoing, the Commission concludes that with respect to the marijuana
in question, Petitioner was a dealer within the meaning of the Illegal Drug
Stamp Tax Act. The Commission further
concludes that Petitioner was not a dealer within the meaning of the Act with
respect to the subject LSD.
Respondent
is instructed to amend its previous audit in conformity with this decision and
to provide a copy of the such amended audit to Petitioner. It is so ordered.
DATED
this 10th day of August, 1993.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
W. Val
Oveson* Roger
O. Tew
Chairman Commissioner
Joe B.
Pacheco Alice
Shearer*
Commissioner Commissioner