BEFORE THE UTAH STATE TAX COMMISSION
Petitioner, ) FINDINGS OF FACT,
: CONCLUSIONS OF LAW,
v. ) AND FINAL DECISION
COLLECTION DIVISION OF THE ) Appeal No. 92-1998
UTAH STATE TAX COMMISSION, :
) Account No. XXXXX
Respondent. ) Tax Type: Drug Stamp
STATEMENT OF CASE
This matter came before the Utah State Tax Commission for a prehearing conference on XXXXX. XXXXX, Presiding Officer, heard the matter for and on behalf of the Commission. The Petitioner participated by telephone on his own behalf. XXXXX, Assistant Utah Attorney General, represented the Respondent.
The assessment which is the subject of this appeal is based upon Petitioner's possession of marijuana and cocaine as follows:
Substance Tax Rate Quantity Tax Penalty Total
Marijuana $$$$$XXXXX gr. $$$$$$$$$$$$$$$
Cocaine $$$$$XXXXX gr. $$$$$$$$$$$$$$$
Total Due: $$$$$
During the prehearing conference, the parties agreed that the portion of the foregoing assessment which is based upon cocaine should be abated, on the grounds that possession of less than 7 grams of cocaine is not subject to tax under Utah's Illegal Drug Stamp Tax Act (Title 59, Chapter 19, Utah Code Ann.).
Also during the prehearing conference, Petitioner stated that he had pled guilty to criminal charges of possession of the same marijuana which is the subject matter of the remainder of the assessment in this proceeding. Petitioner further conceded that he had not purchased the tax stamps required by the Illegal Drug Stamp Tax Act.
In light of the foregoing, the Presiding Officer converted the prehearing conference to a proceeding for summary judgment. Based upon Petitioner's representations, the Commission finds there is no genuine issue as to the following material facts:
1. The tax in question is illegal drug stamp tax.
2. The period in question is XXXXX.
3. The cocaine in question weighed XXXXX grams.
4. The marijuana in question weighed XXXXX grams.
5. Petitioner was in possession of the marijuana and cocaine.
6. Petitioner did not purchase or affix drug stamps to such marijuana or cocaine.
CONCLUSIONS OF LAW
"Dealer" means any person who, in violation of Utah law, manufactures, produces, ships, transports, or imports into Utah or in any manner acquires or possesses more than 42-1/2 grams of marijuana or seven or more grams of any controlled substance. (Utah Code Ann. §59-19-102(2).)
The Utah Illegal Drug Stamp Tax Act imposes a tax on dealers in the amount of $$$$$ per gram of marijuana and $$$$$ per gram of cocaine. (Utah Code Ann. §59-19-102(1).)
A dealer may not possess any controlled substance upon which a tax is imposed by the Illegal Drug Stamp Tax Act unless the tax has been paid on the controlled substance as evidenced by a stamp or other official indicia. (Utah Code Ann. §59-19-1004(2).)
Any dealer violating the provisions of the Illegal Drug Stamp Tax Act is subject to a penalty of 100% of the tax, in addition to the tax itself. (Utah Code Ann. §59-19-106).
DECISION AND ORDER
That portion of the original assessment arising from Petitioner's possession of XXXXX grams of cocaine is hereby set aside.
With respect to the remainder of the assessment, which is based upon Petitioner's possession of marijuana, Petitioner has previously pled guilty to criminal charges of possession of the same marijuana which is the subject matter of this appeal. Under the principle of collateral estoppel, Petitioner's guilty plea conclusively establishes his possession of such marijuana for purposes of these proceeding as well. Petitioner also concedes that he did not purchase or affix the required drug stamps to such marijuana.
Based on the foregoing, Respondent is instructed to reduce its assessment in this matter by the amount of tax and penalty arising from Petitioner's possession of XXXXX grams of cocaine. The Commission affirms the remainder of Respondent's assessment of tax and penalty, based upon Petitioner's possession of marijuana. It is so ordered.
DATED this 10th day of August, 1993.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
W. Val Oveson* Roger O. Tew
Joe B. Pacheco Alice Shearer*