93-2374

Withholding

Signed 8/11/94

 

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

XXXXX, )

:

Petitioner, : ORDER

:

v. : Appeal No. 93-2374

:

COLLECTION DIVISION OF THE : Filing Periods: XXXXX

UTAH STATE TAX COMMISSION, :

:

Respondent. : Tax Type: Withholding

_____________________________________

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. G. Blaine Davis, Administrative Law Judge, heard the matter for and on behalf of the Commission. Present and representing Petitioner was Mr. XXXXX, the CPA for the Petitioner. Present and representing Respondent was XXXXX, of the Collections Division.

The issue in this case is the withholding tax for the first quarter of XXXXX, which was not filed until XXXXX, after having received notice that the return had not been filed and that payment had not been made thereon. The Petitioner represents that the problem occurred because Petitioner was reorganizing its business and was unfamiliar with the filing requirements, and that it was going through an organizational change to a corporation. However, the articles of incorporation were not filed until XXXXX, approximately eight months after the delinquency in question.

The return for the fourth quarter of XXXXX was also delinquent, which would have been about the time of the business reorganization, but the penalty for that quarter is not at issue in this appeal.

The Petitioner also challenges the imposition of the second $$$$$ penalty for failure to pay, because he says section 59-1-41(2) only imposes the penalty for failure to pay if:

"For failure to pay any tax as reported on the return filed or within thirty (30) days of a notice of deficiency of tax required to be shown on a return, the penalty is the greater of fifty dollars or ten percent of the tax due."

The Petitioner says that the tax was paid within thirty days from the date he received a notice, and therefore the failure to pay penalty should not be imposed. However, the Petitioner received a notice of failure to file on XXXXX, which was due on XXXXX. Notices of deficiency are issued in audit cases and are not required to be issued in failure to file cases.

DECISION AND ORDER

Based upon the information presented at the conference, and the records of the Tax Commission, the Commission finds sufficient cause has not been shown to waive the penalties and interest assessed for the first quarter of XXXXX.

This decision does not limit a party's right to a formal hearing. However, this Decision and Order will become the Final Decision and Order of the Commission unless any party to this case files a written request within thirty (30) days of the date of this decision to proceed to a Formal Hearing. 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

210 North 1950 West

Salt Lake City, Utah 84134

Failure to request a Formal Hearing will preclude any further administrative action or appeal rights in this matter.

DATED this 11th day of August, 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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