BEFORE THE UTAH STATE TAX
COMMISSION
____________________________________
XXXXX, )
:
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
Chairman Commissioner
Joe B.
Pacheco Alice
Shearer*
Commissioner Commissioner