92-1888 - Sales

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

In Re: )

:

XXXXX, INC. ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

) AND FINAL DECISION

:

) Appeal No. 92-1888

:

) 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. XXXXX, Petitioner's certified public accountant, represented Petitioner.

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 fourth quarter of XXXXX.

3. Petitioner filed its fourth quarter XXXXX sales and use tax return on time. The accompanying check, however, bounced for insufficient funds. Petitioner, therefore, was assessed a ten percent late payment penalty plus interest.

4. Petitioner is requesting a waiver of the penalty assessment.

5. Initially, Petitioner was unaware of any problems with its payment check until the Tax Commission notified it in XXXXX.

6. The Tax Commission first told Petitioner that the fourth quarter XXXXX return had been received without a payment check.

7. Later, the Commission corrected this information and told Petitioner that a payment check had been received, but that it had been returned for insufficient funds.

8. According to Petitioner's out of house certified public accountant, XXXXX, Petitioner uses a certain XXXXX account for its quarterly payments. Mr. XXXXX explained that XXXXX routinely calls Petitioner when a transfer of funds is necessary to cover outstanding checks.

9. To Petitioner's knowledge, XXXXX failed to call Petitioner to transfer sufficient funds in this case.

10. By letter, XXXXX acknowledged that it is its practice to call accounts and inform them when there are insufficient funds in the system which will not clear unless a deposit is received. There is no indication in the letter whether or not XXXXX did/did not call in this case.

11. The reason Petitioner did not discover that its check to the Tax Commission had not cleared is because its financial books are not reconciled on a quarterly basis. At the time of the hearing, Petitioner still had not seen the bounced check.

12. Petitioner sent a second check to the Tax Commission as soon as it was made aware of the situation.

13. Petitioner has an excellent payment history with the Commission.

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 been shown which would justify a waiver of the penalty associated with the sales and use tax due on the fourth quarter of XXXXX. The interest is not waived. It is so ordered.

DATED this 22nd day of June, 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