94-0608 and 94-1331

Sales Tax
Signed 5/5/95

 

 

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

XXXXX, )

:

Petitioner, : ORDER

:

v. : Appeal Nos. 94-0608

: and 94-1331

AUDITING AND COLLECTION ) Account No. XXXXX

DIVISIONS OF THE, :

UTAH STATE TAX COMMISSION, :

Respondent. : Tax Type: Sales Tax

_____________________________________

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. Alice Shearer, Commissioner, and G. Blaine Davis, Administrative Law Judge, heard the matter for and on behalf of the Commission. Present and representing Petitioner were XXXXX, together with XXXXX. Present and representing Respondent was XXXXX, Assistant Attorney General, together with XXXXX from the Collections Division.

This proceeding is a request by Petitioners to waive the penalty and interest which were imposed upon them for late filing and late payment of sales taxes for the XXXXX, and the XXXXX XXXXX. However, for the XXXXX, there is only a late filing penalty but no late payment penalty, and for the XXXXX, there is only a late payment penalty, but not a late filing penalty. There is no dispute that the returns were filed late and paid late for the periods for which the penalties have been imposed, and in most cases they were filed and paid XXXXX, rather than just being a XXXXX.

The Petitioner alleges that for XXXXX involved, the tax returns were timely prepared, and a check was written out and signed by XXXXX, but that employees of the Petitioner, together with the XXXXX for the Petitioner, were in collusion and set aside the returns and checks after they had been signed by the XXXXX. The money which was needed for payment of the returns had been XXXXX for payment of the XXXXX for which the XXXXX of the Petitioner were also the XXXXX of those corporations. Two of the employees involved in that matter were XXXXX Petitioner XXXXX. Petitioner alleges that when it found out what had transpired, that the XXXXX were all XXXXX Petitioner.

At the hearing, the request was made for Petitioner to provide substantiation that the returns had been prepared timely, and that checks had been written timely for payment of the amount. Petitioner agreed to provide any copies of returns and copies of numbered checks in the sequence for that time period, together with bank statements to show that checks around that point in time were the ones being written. Petitioner, after the hearing, has represented that it cannot locate copies of any such returns or checks. Accordingly, the Commission is willing to accept the representations of Petitioner that the funds were diverted to other uses, but without some tangible evidence, the Commission does not make a finding as to whether the returns and checks were in fact prepared on a timely basis. However, even if the Commission did make such a finding, where these returns were XXXXX and the funds to pay the taxes were XXXXX of Petitioner, and XXXXX other XXXXX and XXXXX who XXXXX, there is no showing of reasonable cause under the standards which the Commission has adopted. Therefore, the Commission finds that there is no reason to waive the penalties as requested by Petitioner based upon a reasonable cause basis.

Petitioner also alleges that in XXXXX when the XXXXX and XXXXX with the Collections Division of the Utah State Tax Commission, XXXXX met on XXXXX with XXXXX of the Collections Division. They entered into an installment payment agreement with the Collections Division, wherein they agreed to make substantial monthly payments in exchange for the Collections Division not XXXXX. Petitioner represented that XXXXX promised that if Petitioner would comply with the installment agreement, that the penalties and interest would be waived. There was no evidence of that allegation at the hearing, and Petitioner agreed to later provide a statement from XXXXX to confirm that representation. An XXXXX was filed in the XXXXX. XXXXX stated that he met with the XXXXX of Petitioner, and indicated that if the installment agreement was followed that he would recommend that the Commission abate the penalties, and he indicated that the Commission "XXXXX." Petitioner did thereafter timely comply with the agreement, and the full amount of taxes, penalty, and interest were paid pursuant to the installment agreement.

XXXXX is no longer an employee of the Utah State Tax Commission, but it is XXXXX that he did not XXXXX that the penalties would be abated if there was compliance with the installment agreement. Further, XXXXX did not have the authority to make such a commitment. That authority is reserved only to the Commissioners. Nothing was ever presented to the Commissioners, and there was no written or oral agreement to waive the penalties if Petitioner complied with the installment agreement.

Petitioner has requested that the Commission determine the representations of XXXXX to be reasonable cause, and waive the penalty. However, such representations clearly do not meet the guidelines for reasonable cause as established by the Commission. Although Petitioner has not established such reasonable cause, the Commission recognizes that Petitioner may have misinterpreted the authority of the XXXXX, and XXXXX may have believed that such penalties would be waived if there was compliance with the installment agreement, and Petitioner did comply with the terms of the installment agreement. However, if the Commission waives the full penalty, then, even though Petitioner failed to file its sales tax returns and pay the taxes thereon for XXXXX, Petitioner would have been treated equally with other taxpayers who fully complied with the law. Petitioner did not comply and, in fact, was a very XXXXX. Petitioner had very substantial amounts of money which it had collected from the public and its employees. These XXXXX rather than remited to the State Tax Commission. While the penalties were fully and properly imposed pursuant to the provisions of law, there is an indication that Petitioner believed that part or all of the penalties would be compromised. However, the person who lead the Petitioner to so believe that such a compromise might be made, did not have authority to make any commitments regarding a compromise. Nevertheless, the Commission determines that because of the possible belief of Petitioner that compliance with the installment agreement would result in waiver of the penalties, the Commission has determined that it is reasonable to compromise and abate the late filing penalty in the amount of $$$$$ which had been imposed against Petitioner. However, the Commission strongly believes that because of the Petitioner's total disregard of the legal requirements to timely file its returns and pay its taxes for a period of XXXXX, a substantial penalty should be imposed upon Petitioner. Therefore the Commission does not compromise or abate the late payment penalty in the amount of XXXXX.

DECISION AND ORDER

Based upon the information presented at the conference, and the records of the Tax Commission, as stated above, the Commission hereby abates the late filing penalty in the amount of $$$$$, the Commission does not abate the late payment penalty of $$$$$. Sufficient cause has not been shown to waive any of the interest assessed for the period stated above.

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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