93-0659

Income

Signed 8/13/93

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

In Re: )

:

XXXXX, ) FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

) AND FINAL DECISION

:

) Appeal No. 93-0659

: Account No. XXXXX

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a formal hearing on XXXXX. Paul F. Iwasaki, Presiding Officer, heard the matter for and on behalf of the Commission. Present and representing the Petitioner was XXXXX.

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 income tax.

2. The period in question is XXXXX.

3. The Petitioner testified that he filed his XXXXX income tax return on XXXXX. The Petitioner testified that he enclosed a check in the amount due of $$$$$ with that return.

4. The return and check were never received by the Tax Commission.

5. In XXXXX, the Petitioner received a letter from the Tax Commission informing him that the return for XXXXX had not been received.

6. After providing the Commission with copies of his return, the check made in payment of the tax, and his check register, the Petitioner received a letter from the Commission dated XXXXX informing him that the Commission had confirmed that he has already filed or was not required to file an income tax return for the period in question.

7. The copy of the check register provided by the Petitioner revealed that sufficient funds did not exist to cover the check made out in the amount of $$$$$ issued on XXXXX, but that a subsequent deposit on XXXXX, would have established sufficient funds to cover the check.

8. By way of a notice dated XXXXX, the Petitioner was informed by the Commission that there was an outstanding tax liability for the XXXXX income tax year in the amount of $$$$$. That figure reflected a tax due in the amount of $$$$$ plus penalties and interest.

9. The Petitioner paid the amount of tax due on XXXXX and made a request for a waiver of the penalties and interest associated with that income tax year. The request was initially denied, however, the penalty portion of the assessment was waived by subsequent Commission action on XXXXX.

10. The fact that the original check issued by the Petitioner in payment of his XXXXX income tax never cleared the bank and had not been returned to the Petitioner went unnoticed by the Petitioner until he had been so notified by the Tax Commission.

11. The Petitioner requested a waiver of the interest imposed for the tax year in question.

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

In the present case, the Petitioner argued that the responsibility for discovering the fact that the return had not been filed nor paid rested with the Tax Commission and therefore, he should not be held responsible for any interest that may have accrued during the period of time the problem went undetected. This argument, in essence, would require the Tax Commission to be responsible for insuring that each individual who is required to file an income tax return did so, and further, to check the correctness of each return filed within a very short period of time.

Given the available resources, to place such a burden and responsibility upon the Commission is unreasonable and impossible to meet. Therefore, to a great degree, the burden for filing and paying a return, and to insure the correctness of that return, rests with the individual taxpayer.

Here, the Petitioner was in the best position to discover at an early date, that the return and accompanying check had not been received. This could easily have been accomplished by the Petitioner making such a discovery in the balancing of his checking account. When asked why he had not done so, the Petitioner replied that that was an "oversight" and "balancing error" on his part.

Based upon the foregoing, the Tax Commission finds that sufficient cause has not been shown which would justify a waiver of the interest associated with the XXXXX income tax return. The Tax Commission does find however that interest should be calculated from the date the return was due to XXXXX, which was the date of the letter from the Tax Commission to the Petitioner which could have led him to believe that the account had been satisfied. 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

Chairman Commissioner

Joe B. Pacheco Alice Shearer

Commissioner Commissioner

NOTICE: You have twenty (20) days after the date of the final order to file a request for reconsideration or thirty (30) days after the date of final order to file in Supreme Court a petition for judicial review. Utah Code Ann. ''63-46b-13(1), 63-46b-14(2)(a).

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