94-0011

Sales and Use

Signed 4/5/95

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

XXXXX, )

:

Petitioner, : ORDER

:

v. : Appeal No. 94-0011

:

AUDITING DIVISION OF THE : Account No. XXXXX

UTAH STATE TAX COMMISSION, :

:

Respondent. : Tax Type: Sales and Use

_____________________________________

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. Gail S. Reich, Administrative Law Judge, heard the matter for and on behalf of the Commission. Present and representing Petitioner was XXXXX. Present and representing Respondent was XXXXX, Assistant Attorney General.

The issue in this case is whether Petitioner was a Utah resident for purposes of paying Utah income tax for the calendar years XXXXX. Petitioner argued that the focal point in making this determination is mental intent and therefore ultimate reliance should be placed on Petitioner's statement that he was not a resident for the periods in issue. Petitioner is a XXXXX and indicated that his XXXXX allows him to reside outside of Utah and maintain XXXXX as his home base solely for purposes of his occupation. During part of the period in issue, Petitioner owned a home in XXXXX. During the other part of the period in issue, Petitioner owned a home in XXXXX. During these periods, Petitioner continued to maintain his home in XXXXX which he had purchased in XXXXX. Petitioner fully recognizes that he has significant contacts with the State of Utah, but submits that he need not eliminate those contacts to change his residence.

By Petitioner's own urging, the Commission is to focus on mental intent. However, objective factors must be relied on to support mental intent. The factor which the Commission finds to be pivotal in this case is Petitioner's application for, and receipt of, a resident Utah XXXXX during the period in issue. Having had an option to obtain a resident or a non-resident XXXXX, Petitioner provided an ideal objective factor to determine mental intent by applying for a resident XXXXX.

DECISION AND ORDER

Based upon the information presented at the conference, and the records of the Tax Commission, the Commission finds Petitioner was a resident for the period in issue and is subject to Utah income tax.

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 5th day of April, 1995.

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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