92-1881 - 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. 92-1881

UTAH STATE TAX COMMISSION, :

) Tax Type: Individual Income

:

Respondent. )

_____________________________________

STATEMENT OF CASE

This matter was heard before the Utah State Tax Commission on XXXXX. Lisa L. Olpin, administrative law judge, heard the matter on behalf of the Commission. Petitioner was present and represented by XXXXX, a tax specialist. XXXXX, Assistant Utah Attorney General, was present and represented Respondent.

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

FINDINGS OF FACT

1. The tax in question is individual income tax.

2. The year in question is XXXXX.

3. The Auditing Division asserts that Petitioner did not file or pay his XXXXX state personal income taxes. As a result, Respondent assessed Petitioner the tax amount, penalty and interest.

4. Petitioner contends that he did timely file and pay his taxes to Utah for the year XXXXX.

5. Petitioner lived in XXXXX until XXXXX when he moved to Utah. According to Petitioner, he filed a part-year resident income tax return to Utah in XXXXX along with the payment.

6. Petitioner recalls that he paid by money order. He thinks he used a VISA money order from the XXXXX Bank; however, Petitioner did not provide any proof of this claim. He remembers that although he had three different bank accounts at the time he was required to pay Utah income taxes for XXXXX, he paid by money order because he was not yet comfortable with any one bank.

7. Petitioner testified that he doesn't use money orders very much, and with the passage of time, he has lost his money order receipt.

8. Petitioner provided a copy of his XXXXX Utah part-year return to the Auditing Division that he claims he timely filed. This return was prepared by XXXXX, a tax preparer, and was dated XXXXX.

9. Also, Petitioner provided copies of checks for payments made for XXXXX, XXXXX and XXXXX taxes to the I.R.S. and XXXXX to show he pays his taxes.

10. Petitioner has timely filed and paid taxes to Utah since XXXXX.

11. He feels that because the Tax Commission did not notify him of problems with his XXXXX return until XXXXX he is at a disadvantage in being able to better defend his position.

12. XXXXX of the Auditing Division testified that he has searched Tax Commission records and has not located any payment or filing on record for the tax year XXXXX.

13. Petitioner was assessed two $$$$$ late filing and late payment penalties, tax and interest.

CONCLUSIONS OF LAW

Pertinent to Petitioner's case are the following Utah statutes:

(1) Except as otherwise provided in this section, the amount of any tax imposed by this chapter shall be assessed within three years after the return was filed (whether or not such return was filed on or after the date prescribed), and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period.

. . .

(3) The tax may be assessed at any time if:

(a) no return is filed;

. . . (Utah Code Ann. 59-10-536(1) and (3)(a).)

And:

(8) Upon making a record of its actions, and upon reasonable cause shown, the commission may waive, reduce, or compromise any of the penalties or interest imposed under this part. (Utah Code Ann. 59-1-401(8).)

DECISION AND ORDER

At issue is whether or not Petitioner has provided sufficient information upon which the Tax Commission could find that Petitioner filed and paid his XXXXX personal income taxes when due.

Although Petitioner has provided oral testimony of what happened, he has not shown any documentation without which the Tax Commission cannot find in Petitioner's favor.

Based upon the foregoing, the Tax Commission finds that the Petitioner was properly assessed the income tax amount for the year XXXXX. The penalty is reduced to a single $$$$$ amount. The interest is not waived. Also, in order for the Auditing Division to accept Petitioner's tendered XXXXX income tax return, Petitioner needs to sign the return. He can do this by contacting XXXXX at (801) XXXXX. It is so ordered.

DATED this 12th 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