93-0137 SALES

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

In Re: )

:

xxxxxx, ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

) AND FINAL DECISION

:

) Appeal No. 93-0137

: Account No. xxxxxx

)

_____________________________________

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. Representing the Petitioner was xxxxxx xxxxxx, Petitioner's assistant controller.

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 first quarter xxxxxx.

3. Petitioner paid its first quarter xxxxxx sales and use tax in the amount of $$$$$$ on xxxxxx, nearly one and 1/2 months late. Petitioner filed the return for this quarter on xxxxxx. As a result, the Tax Commission assessed Petitioner two ten percent late penalties, one for late filing and the other for late payment, plus interest.

4. The Commission later reduced the penalty amount to a single ten percent penalty of $$$$$$. Interest was not waived.

5. Petitioner is requesting a waiver of the remaining penalty and a recalculation of the interest amount owing.

6. According to Petitioner's assistant controller, xxxxxx, and supporting documentation, Petitioner paid its first quarter xxxxxx sales and use tax $$$$$$ with its xxxxxx prepayment $$$$$$ for a total amount of $$$$$$ on xxxxxx. The Commission did not penalize Petitioner for remitting the prepayment four days late. (Also, for Petitioner's information, the second quarter sales and use tax return and payment were received on time and, therefore, no penalties were imposed.)

7. At issue, then, is whether or not the single ten percent penalty assessed on the first quarter xxxxxx late filing and payment is appropriate.

8. xxxxxx testified that it was an oversight, a clerical error, that caused Petitioner to miss the first quarter xxxxxx filing deadline. Petitioner contends that $$$$$$ is an excessive penalty under the circumstances. xxxxxx also feels that the interest appears to be calculated from the due date of xxxxxx to the filing date of xxxxxx instead of from xxxxxx to the payment date of xxxxxx.

9. Petitioner had an excellent account history prior to the quarter in question.

CONCLUSIONS OF LAW

The penalty for failure to pay any tax due ... is the greater of $50 or 10% of the tax due. (Utah Code Ann. §59-1-401(1).)

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 not been shown which would justify a waiver of the remaining ten percent penalty associated with the sales and use tax due on the first quarter of xxxxxx The interest, however, must be recalculated and assessed for the period of xxxxxx. It is so ordered.

DATED this 9TH day of OCTOBER, 1993.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

W. Val Oveson Roger O. Tew

Chairman Commissioner

Joe B. Pacheco Alice Shearer

Commissioner Commissioner