BEFORE THE UTAH STATE TAX COMMISSION
XXXXX : FINDINGS OF FACT,
XXXXX ) CONCLUSIONS OF LAW,
Petitioners, : AND FINAL DECISION
v. : Appeal Nos. 92-2327
AUDITING DIVISION OF THE : to 92-2329
UTAH STATE TAX COMMISSION, :
STATEMENT OF CASE
A formal hearing was held in this matter on XXXXX before the Utah State Tax Commission. Lisa L. Olpin, Administrative Law Judge, heard the matter for and on behalf of the Commission. Petitioners were represented by XXXXX, an attorney. XXXXX, Assistant Utah Attorney General, 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 conducted a withholding tax audit on XXXXX for the tax year XXXXX and discovered that XXXXX reported loans to shareholders had significantly decreased in dollar amount from approximately $$$$$ to $$$$$.
4. A closer look at XXXXX bookkeeping indicated that three loans which had been previously reported on XXXXX books to the sole three directors and officers of the corporation, were now unaccounted for.
5. These three loan amounts (interest included) and the individuals who received them are:
a. $$$$$ to XXXXX, company President
b. $$$$$ to XXXXX, company Vice-President
c. $$$$$ to XXXXX, Vice-Pres. of Technology
6. The Auditing Division determined that these loan amounts were essentially taxable income to Petitioners and, therefore, amended each Petitioner's income tax return to reflect the change. Interest and a ten percent negligence penalty were also added.
7. Facts pertinent to determining whether or not these loans now deleted from corporate books are actually taxable income to the recipients are as follows:
8. Each of these unsecured loans was disbursed over at least a year's time in XXXXX to the recipients in varying cash amounts and at different intervals with the approval of the board of directors. (The board of directors consisting of Petitioners).
9. None of the loans were reduced to writing; therefore, no terms were agreed upon in regards to a payment plan, payment in full due date, interest rate, etc.
10. XXXXX, however, understood that the interest rate was whatever the market rate was.
11. XXXXX entered these loan amounts on its financial books. Petitioners felt that these entries were sufficient as far as recognition of the existence of these loans is concerned.
12. At no time since the disbursement of these loan amounts has XXXXX pursued Petitioners for re-payment. None of Petitioners have paid any amount owing on the loans.
13. XXXXX, brother of co-Petitioner XXXXX, is the company president and the president of the board of directors. He maintains that he has always acknowledged his loan amount as his personal debt to XXXXX.
14. He stated he was unaware that the loans were not reported on the XXXXX corporate records until the results of the Auditing Division's audit were made known.
15. He and the other two Petitioners stated that they had no idea how it was that these loans were missing from financial records as the board of directors did not act to remove the debt nor did they request a release of the debt obligations.
16. XXXXX explained that XXXXX, chief financial officer, was in charge of the company's books during the years XXXXX.
17. XXXXX, vice-president over computer systems, recognizes the loan amount he received as a debt to XXXXX.
18. He believed that there was sufficient documentation of the loan obligation given the fact that the loan had been reflected in financial statements at times and that the other two officers knew about it.
19. Like XXXXX, XXXXX stated that he saw the financial statements on a quarterly basis, but that he never closely scrutinized them. He said that he was unaware that these loans were not reported on company books in XXXXX.
20. XXXXX, vice-president of technology, added that these XXXXX loans were paid out sporadically as the company did not have the money to make lump sum payments at the time.
21. Like the other two Petitioners, XXXXX stated that he saw the financial statements, but was unaware that the loans were unaccounted for on the XXXXX company books.
22. While XXXXX recognizes the loan amount to him as a debt to XXXXX, he did not list this debt obligation on a car loan application in XXXXX.
23. Certified public accountant, XXXXX, the vice-president of finance at XXXXX since XXXXX, stated that these three loans are considered debts due the corporation. As a C.P.A., he would have expected loans such as these to have been drawn up in XXXXX as promissory notes.
24. XXXXX, Respondent's lead field auditor on this audit, testified that based on XXXXX documentation (or lack thereof in this case) he concluded that XXXXX had written off these loans in XXXXX and that is why they no longer appear on XXXXX financial books. Thus, Petitioners incurred a benefit with resulting tax liabilities.
25. Further, XXXXX testified that he spoke with XXXXX at the audit's closing conference about the loans in question and the fact that they were missing from corporate books. XXXXX told XXXXX, "It was part of XXXXX deal and was netted against another loan." XXXXX then told another employee to research the loans to shareholders to find out how these loans were netted out, that is, to give an accounting for how these three loan amounts were reconciled on the corporate books.
26. Petitioners never provided any information to XXXXX about the how the loans were accounted for so he concluded that the loans had, in fact, been written off and a forgiveness of debt had occurred.
27. Petitioners assert that their loan obligations were inadvertently omitted by clerical error from the corporate books in XXXXX as they had not taken any action as a board or independently to cause a change in their debt obligation status. As such, Petitioners request that the Tax Commission delete the loan amounts from the audit and allow Petitioners to formalize these debts by way of promissory notes.
28. The Auditing Division, on the other hand, contends that Petitioners received income based on the facts of this case.
CONCLUSIONS OF LAW
Under the Individual Income Tax Act, it is an objective of the State "to impose on each resident individual, estate, or trust for each taxable year a tax measured by the amount of his "taxable income" for such year, as determined for federal income tax purposes..." Utah Code Ann. §59-10-102(1).
"Federal taxable income" means taxable income as currently defined by the Internal Revenue Code. Utah Code Ann. §59-10-111.
"State taxable income" ...means federal taxable income with the modifications, subtractions, and adjustment provided in the Utah Code. Utah Code Ann. §59-10-112.
Dividends are fully includible in gross income. For income tax purposes, the term "dividend" means any distribution made by a corporation to its shareholders, whether in money or other property, out of its earnings and profits accumulated... or out of earnings and profits of the tax year. Internal Revenue Code Section 316.
The petitioning party shall have the burden of proof to establish that his petition should be granted. Utah Admin. Rule R861-1A-7(G).
DECISION AND ORDER
The evidence Petitioners have provided at this hearing is insufficient to warrant a ruling in their favor. Petitioners' testimonies are less persuasive as they together make up their company's board of directors. In the face of no documentation whatsoever or testimony of a non-party witness with personal knowledge of the corporation's bookkeeping, the Commission is unconvinced that the company committed a clerical error in dropping the three debt obligations from corporate books as Petitioners speculate.
These loans had never been formalized by way of promissory notes; there are no terms outlined or even agreed upon between the parties for interest charges or time schedules for repayment; no petitioner had paid back any amount over the four year period since these dollar amounts were paid out.
There is simply a lack of persuasive evidence in this case on the part of Petitioners.
Based upon the foregoing, the Tax Commission upholds the audit determinations in these cases, finding that Petitioners enjoyed additional income for the year XXXXX, thereby resulting in additional tax liabilities. The ten percent negligence penalties and interest amounts are not waived. It is so ordered.
DATED this 13th day of August, 1993.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
W. Val Oveson Roger O. Tew
Joe B. Pacheco Alice Shearer*