93-2256

Income

Signed 4/13/94

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

XXXXX, )

Petitioner, : ORDER

)

v. :

)

COLLECTIONS DIVISION OF THE : Appeal No. 93-2256

UTAH STATE TAX COMMISSION, )

Respondent. : Account No. XXXXX

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a Settlement Conference pursuant to the provisions of Utah Code Ann. '59-1-502.5, on XXXXX. Lisa L. Olpin, Administrative Law Judge, heard the matter for and on behalf of the Commission. Representing Petitioner by telephone was XXXXX, Petitioner's certified public accountant.

According to Tax Commission records, Petitioner filed and paid his XXXXX individual income taxes on XXXXX. As a result thereof, the Commission penalized Petitioner two 10% penalties ($$$$$ each) for the late filing and the late payment. Interest in the amount of $$$$$ was also assessed.

The Commission later waived a single ten percent penalty.

Petitioner contends that the Commission should waive the remaining penalty and interest amounts in that he personally delivered the envelope with the return and payment therein to the post office on XXXXX. He mailed his federal return at the same time.

He stated that the Internal Revenue Service timely received the return and cashed his payment.

Petitioner's check register shows how check number XXXXX was written to the I.R.S., check number XXXXX to the accountant, and check number XXXXX to the State Tax Commission.

At a point in time after depositing the state return and payment with the post office, Petitioner realized that check number XXXXX had not cleared. He contacted his accountant and waited for the check to post. When this did not happen, Petitioner stopped payment on the check and sent another check along with a copy of the return.

Petitioner feels that he did everything he could do to file and pay timely. Any penalty or interest assessment would be unfair in his opinion.

Petitioner has been penalized on one other occasion in XXXXX for either late payment or underpayment of individual income taxes after an audit. All other filings and payments have been timely.

DECISION AND ORDER

Based upon the information presented at the conference, and the records of the Tax Commission, the Commission finds sufficient cause has been shown to waive the remaining 10% penalty assessed on the individual income taxes due on the year XXXXX.

The remaining interest amount, however, is not waived. Petitioner has not shown that the envelope was lost/misplaced at the post office or at the Tax Commission. Given the time value of money, the interest remains.

This Decision and Order will become the Final Decision and Order of the Commission unless any party to this case files a written request for a Formal Hearing within ten (10) days of the date of this decision. Such a request shall be mailed to the address listed below and must include the Petitioner's name, address, and appeal number:

Utah State Tax Commission

Appeals Division

160 East 300 South

Salt Lake City, Utah 84134

It is so ordered.

DATED this 13th day of April, 1994.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

W. Val Oveson Roger O. Tew

Chairman Commissioner

Joe B. Pacheco Alice Shearer

Commissioner Commissioner

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