BEFORE THE UTAH STATE TAX
COMMISSION
_______________________________
In Re: )
: ORDER
XXXXX )
: Appeal
Nos. 92-1666
Petitioner, : and 92-1667
: Account
No. XXXXX
: and XXXXX
__________________________________
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. Petitioner indirectly asserts that it would
have better presented its case if legal counsel had been present at the formal
hearing.
3. Petitioner further contends that the
findings of fact do not accurately reflect in sufficient detail the extent of
the employee/bookkeeper's actions in concealing information to Petitioner's
president, XXXXX. Petitioner also states that the findings of fact do not
adequately reflect why XXXXX trusted this employee as he did on the occasion in
question.
4. Petitioner tenders an affidavit of the
employee/bookkeeper who did not file and pay the sales and withholding taxes in
question. In so doing, Petitioner did
not explain why this employee was not available and a participant at the
hearing.
DECISION AND ORDER
Addressing
Petitioner's first statement regarding legal representation, Petitioner cannot
now complain about its choice to attend the formal hearing without
counsel. Even so, Petitioner does not
state how the lack of legal representation affected the outcome of the hearing.
Secondly,
the Commission will not accept Petitioner's employee's affidavit as there are
no grounds to do so. The employee's
statement is not new evidence that was undiscoverable prior to the formal
hearing. The appeal will not be
reopened in consideration thereof.
In
conclusion, Petitioner does not assert a mistake of law or fact or the
discovery of new evidence. In lieu,
Petitioner requests to further explore testimony already presented. Based upon the arguments Petitioner offers,
the conclusion remains unchanged as an employer is liable for the acts of its
employees.
This
is not a question of employee embezzlement as Petitioner has analogized.
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 22ND day of APRIL, 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