92-1782 - Sales

BEFORE THE UTAH STATE TAX COMMISSION

_________________________________

In Re: )

:

XXXXX, ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

) AND FINAL DECISION

:

) Appeal No. 92-1782

: 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 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 period in question is the second quarter XXXXX.

3. Petitioner filed its second quarter XXXXX sales and use tax return on time.

4. Petitioner maintains that it also sent in the tax amount due with the return.

5. In support thereof, Petitioner submitted a copy of his check register showing the check number sequence, check number and the amount payable to the Tax Commission.

6. XXXXX, the owner, testified that he knew the check hadn't cleared, but waited, thinking that it would clear in the next three to four months. XXXXX called the bank and told it to honor his check whenever it was presented.

7. He stated that this same thing happened to him in XXXXX and the Tax Commission at that time told him to wait three to four months because sometimes checks get misplaced. On the previous occasion, the check did eventually clear.

8. In XXXXX, Petitioner moved to a different location and apprised the Tax Commission of the new address. Petitioner stated that it received other mail from the Commission at the new address, but that sales and use tax correspondence was addressed to its old address.

9. Petitioner noticed in late XXXXX that the check in question still had not cleared.

10. XXXXX stated he called the Tax Commission about the matter and suggested that he stop payment and re-issue a new check.

11. He testified that a Commission employee told him to wait and that someone would get back to him.

12. Petitioner's Tax Commission records show that in XXXXX the Commission requested Petitioner to send a copy of the missing check.

13. Petitioner's new address was noted on its sales and use tax account in XXXXX.

14. XXXXX testified that he did not receive any correspondence about the status of the second quarter of XXXXX until XXXXX when he received a late notice.

15. Petitioner paid the sales tax in question in XXXXX after he stopped payment on the first check. (This check is still lost.)

16. Petitioner is requesting a waiver of the ten percent late payment penalty and the interest.

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 has not been shown which would justify a waiver of the penalty associated with the sales and use tax due on the second quarter XXXXX. Even assuming that Petitioner did not receive a late notice until XXXXX, Petitioner still did not pay the second quarter XXXXX sales and use tax until mid-XXXXX. It is so ordered.

DATED this 14th 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