92-1720 - Income

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________________

XXXXX, )

:

Petitioner, ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

v. ) AND FINAL DECISION

:

AUDITING DIVISION OF THE ) Appeal No. 92-1720

UTAH STATE TAX COMMISSION, :

) Account No. XXXXX

:

Respondent. )

_____________________________________

STATEMENT OF CASE

This matter was heard before the Utah State Tax Commission on XXXXX. XXXXX, administrative law judge, presided. Present on behalf of Petitioner was Petitioner's father, XXXXX. XXXXX, Assistant Utah Attorney General, was present and represented Respondent.

Based upon the evidence and testimony presented at the hearing, the Tax Commission makes its findings of fact:

FINDINGS OF FACT

1. The tax in question is individual income tax.

2. The years in question are XXXXX and XXXXX.

3. During the years at issue, Petitioner, born in XXXXX, received money from his deceased mother's federal retirement plan through a survivor annuity.

4. Upon the death of Petitioner's mother, her retirement plan continued to make annuity payments to Petitioner's father (the surviving spouse), Petitioner's brother and Petitioner.

5. Annuity payments were sent directly to Petitioner's father with instructions for him to pay out specific amounts to the two sons from the check. The father retained the balance.

6. In preparing Petitioner's XXXXX and XXXXX personal income tax returns, Petitioner's father relied upon Tax Commission instruction booklet L for guidance. He concluded that Petitioner qualified for the retirement income deduction for taxpayers under age 65, so he claimed an exemption for amounts under $$$$$ for each year in question.

7. The Auditing Division contends, however, that only a surviving spouse receiving funds from a retirement annuity qualifies for the exemption.

8. Petitioner's father expressed frustration over the lack of information he received from the Auditing Division when he questioned its reasoning for disallowing the exemption.

9. At the hearing, the Auditing Division agreed with Petitioner that Utah law and booklet 'L' do not address the problem presented in this case. The Auditing Division denied the exemption because Utah statute, specifically Utah Code Ann. 59-10-114(2)(d), does not expressly state that children who receive annuity payments from a deceased parent's qualifying retirement plan are entitled to the exemption.

CONCLUSIONS OF LAW

The Utah statute at issue is 59-10-114(2)(d) which states the following:

[a]mounts received by taxpayers under age 65 as "retirement income" which, for purposes of this section, means pensions and annuities, paid from an annuity contract purchased by an employer under a plan which meets the requirements of Section 404(a)(2) of the Internal Revenue Code, or purchased by an employee under a plan which meets the requirements of Section 408 of the Internal Revenue Code, or paid by the United States, a state, or political subdivision thereof, or the District of Columbia, to the employee involved or the surviving spouse.

DECISION AND ORDER

The code section referred to above does not specifically grant an exemption to children who receive annuity payments from a deceased parent's qualifying retirement plan.

A surviving spouse, on the other hand, is entitled to the exemption on income received if the deceased spouse had 1) retired and 2) had been receiving payments from his/her qualifying retirement plan prior to death. In contrast, a surviving spouse who receives payments paid out as a part of a survivorship annuity because the deceased spouse died prior to the actual taking of retirement does not qualify for the exemption as discussed above.

Based upon the foregoing, the Tax Commission disallows Petitioner, "a surviving child," the exemptions he deducted for the years XXXXX and XXXXX as the law lacks the requisite provision. The penalty assessment is waived; the interest is not waived. It is so ordered.

DATED this 7th day of May, 1993.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco S. Blaine Willes

Commissioner Commissioner