92-1666 to 92-1667 - Sales & Use

 

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