92-1749 - Sales

BEFORE THE UTAH STATE TAX COMMISSION

__________________________________

In Re: )

:

XXXXX ) FINDINGS OF FACT,

& XXXXX, : CONCLUSIONS OF LAW,

) AND FINAL DECISION

:

) Appeal No. 92-1749

: Account No. XXXXX

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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, owner.

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 sales and use tax.

2. The periods in question are the second, third and fourth quarters of XXXXX; the third and fourth quarters of XXXXX; and the second and fourth quarters of XXXXX.

3. In, XXXXX, a mechanic, opened his own small auto repair shop named XXXXX XXXXX.

4. By XXXXX, XXXXX was doing a substantial amount of repair work for the XXXXX, increasing his business substantially.

5. XXXXX offered to finance XXXXX's move to a larger facility if XXXXX would contract to fix their trucks.

6. XXXXX agreed and XXXXX became a partner in the business, renaming the business XXXXX XXXXX and XXXXX.

7. XXXXX worked as shop manager and XXXXX handled the accounting.

8. Soon after the new partnership formed, XXXXX's secretary told him that XXXXX was not keeping up with tax filings. XXXXX contacted XXXXX on numerous occasions about his concerns over tax matters.

9. According to XXXXX, XXXXX responded that it would handle the situation.

10. By this time, XXXXX and XXXXX were not getting along as XXXXX wanted to control XXXXX.

11. In XXXXX, XXXXX bought XXXXX out of XXXXX.

12. XXXXX struggled to keep the business going despite heavy tax and vendor debt obligations that accrued while the partnership existed from XXXXX-XXXXX.

13. XXXXX continued to service XXXXX vehicles. XXXXX, in turn, bounced large checks payable to Petitioner.

14. In XXXXX, XXXXX had to go out of business.

15. In early XXXXX, XXXXX paid the back sales and use taxes. He applied for a waiver of penalties and interest in the spring of XXXXX.

16. Petitioner's waiver request was never processed until XXXXX when Petitioner came to the Tax Commission and spoke to the waivers unit personally. Prior to that time, Petitioner had worked with a field collector in XXXXX who told Petitioner that he thought the waiver was in process months ago. The field collector acknowledged that somehow two earlier waiver requests never went through the waivers unit for consideration.

17. At this time, XXXXX states he is financially strapped.

18. In looking at Petitioner's tax account, it is noted that Petitioner was charged two ten percent penalties for late filing and late payment for the third quarter of XXXXX for being one day late. Also, Petitioner was charged one ten percent late filing penalty for the fourth quarter of XXXXX for being one day late again.

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

Based upon the foregoing, the Tax Commission finds that sufficient cause exists to waive the penalty assessments for the third quarter of XXXXX and fourth quarter of XXXXX in that the filings and payments were only one day late. The interest is waived for the period of XXXXX through XXXXX only. The Collections Division is directed to recalculate Petitioner's account given this order. It is so ordered.

DATED this 25TH day of February, 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