92-1669 - Withholding

BEFORE THE UTAH STATE TAX COMMISSION

_________________________________

XXXXX, )

: FINDINGS OF FACT,

Petitioner, ) CONCLUSIONS OF LAW,

: AND FINAL DECISION

v. )

AUDITING DIVISION OF THE :

UTAH STATE TAX COMMISSION, ) Appeal No. 92-1669

:

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. Present and representing the Petitioner was XXXXX, president. Present and representing the Respondent was XXXXX.

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 withholding tax.

2. The period in question covers the years XXXXX, XXXXX, XXXXX and XXXXX.

3. Petitioner went into business in XXXXX. By XXXXX, the company acquired more help and the payroll increased.

4. At that time, the owner, XXXXX, hired his wife as the business manager to do the bookkeeping, accounting and payroll for the company. His wife had graduated from the XXXXX with an M.B.A. degree the summer of XXXXX.

5. Mrs. XXXXX was also secretary/treasurer of the corporation.

6. With confidence in his wife's abilities, Mr. XXXXX handled the other aspects of running the business.

7. Mr. XXXXX would sign checks his wife would bring to him. These checks included withholding payments to the Tax Commission.

8. Although Mr. XXXXX was aware that his company was at times tight on money, he believed that the withholding taxes were being paid.

9. Also, during the years in question, particularly XXXXX through XXXXX, Mrs. XXXXX would submit documentation to Petitioner's accountant. Mrs. XXXXX never indicated to the accountant that there were tax delinquencies accumulating.

10. In February XXXXX, Mr. XXXXX learned through a customer that Petitioner had a reputation for bouncing checks. This customer wanted to know if Petitioner's cash flow problem was at an end.

11. Unaware of the bounced checks, Mr. XXXXX went to his wife for an explanation. Mrs. XXXXX then told her husband that she had not filed withholding tax returns nor had she sent in the checks to the Tax Commission that had been signed.

12. Mrs. XXXXX had also not entered the withholding checks' numbers on the check register. Further, she had falsified information requested by Petitioner's accountant.

13. Mr. XXXXX explained that his wife was attempting to alleviate the cash flow problem by using withholding tax money to pay vendors.

14. Upon learning of his wife's actions, Mr. XXXXX released his wife of her duties as business manager. He discovered the unmailed withholding checks in her office along with a court summons in his name that his wife had signed for and not given him.

15. Mr. XXXXX acknowledged that perhaps his management style had fostered the lack of communication at his business.

16. Petitioner was assessed several ten percent penalties for failing to file and to pay timely in addition to two $$$$$ penalties for failing to provide an information return or a complete supporting schedule at the end of XXXXX and XXXXX.

CONCLUSIONS OF LAW

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

Mr. and Mrs. XXXXX worked together in their business pursuits. Had the two of them communicated about the financial status of the corporation as two responsible corporate officers do, Petitioner would not find itself in the present situation. The delinquency continued for the better part of 3 years and at least one officer was aware of this at the time.

Based upon the foregoing, the Tax Commission finds that sufficient cause has not been shown which would justify a waiver of the penalties assessed on withholding tax on the periods in question. Interest is not waived. It is so ordered.

DATED this 8th day of December, 1992.

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