94-1342

Motor Fuel Tax

Signed 5/5/95

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

XXXXX, )

Petitioner, : ORDER

v. : Appeal No. 94-1342

COLLECTION DIVISION OF THE : Account No. XXXXX

UTAH STATE TAX COMMISSION, :

Respondent. : Tax Type: Motor Fuel 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. Jane Phan, Administrative Law Judge, heard the matter for and on behalf of the Commission. Present and representing Petitioner were XXXXX, XXXXX. Present and representing Respondent was XXXXX. The Settlement Conference was continued until XXXXX to allow the parties time to include other representatives and present further documents. On XXXXX, XXXXX XXXXX joined the original representatives for Petitioner and XXXXX XXXXX joined the original representative for Respondent.

Penalties of $$$$$ for the XXXXX filing period, $$$$$ for the XXXXX filing period, $$$$$ for the XXXXX filing period, $$$$$ for the XXXXX filing period and $$$$$ for the XXXXX filing period were assessed against Petitioner relating to motor fuel tax. Interest was also assessed for the periods in question but Petitioner has paid and is not appealing the assessment of interest.

At the conference Petitioner's representatives stated that they had relied on the advice of employees of the Tax Commission, in making the decision not to skip one whole months payment of the motor fuel tax but instead to make partial or late payments for the periods in question. Petitioner asserts that had they skipped one monthly payment in its entirety those funds would have been sufficient to pay the remainder of all the other months in question so that those payments could be made timely. Petitioner asserts that the result would have been a penalty for one month instead of the penalty for all of the months at issue.

Petitioners stated that they had met with a Tax Commission employee, XXXXX, and from the ensuing conversation were under the impression that if they would pay as much as they could toward the tax owed as soon as possible when they became current with the tax liability any penalties and interest would be waived. For a period in XXXXX Petitioners had entered into a payment agreement where the penalties and interest were waived when they became current so Petitioner's representatives stated that was their understanding of how the payments would work for the periods in question.

Petitioner's representatives also stated that the XXXXX, XXXXX filing and payment was made on time and in full, so Petitioner should not be charged the penalty of $$$$$ for this period. Respondent stated that Tax Commission records indicated that the payment was made XXXXX late. Respondent stated that if Petitioner could provide a check register indicating when the check was written and a bank statement indicating that at the time the XXXXX filing was due there were sufficient funds to cover the check, then Respondent would recommend waiving the penalty for the XXXXX period. Petitioner provided a copy of its check register but did not provide the bank statement.

Petitioner stated that for the XXXXX filing period the return had been filed with a partial payment of $$$$$ timely. Only the balance of $$$$$ was paid late. Respondent stated that if Petitioner could provide the check register and bank statement which supported this statement Respondent would then recommend waiving the penalty of $$$$$ resulting from the Tax Commission's listing the partial payment as being late. Petitioner did provide these documents to the satisfaction of Respondent and Respondent recommended waiving the $$$$$ assessed for the late filing of the partial payment for the XXXXX period.

For the XXXXX period it was determined that a XXXXX penalty for late filing and a XXXXX penalty for late payment had been assessed against Petitioner. Petitioner stated that although the payment may have been late the return for this period was filed timely. Respondent said that the account history indicated that the return which was due on XXXXX was not posted as received until XXXXX. Petitioner produced a copy of the return which was dated timely. Because of this document and the account history Respondent recommended waiving the XXXXX late filing penalty for the XXXXX filing period.

At the conference Respondent testified that penalties and interest that had been waived for tax periods from XXXXX were waived because of a letter issued in error by a Tax Commission employee. Respondent denied Petitioner's allegation that a Tax Commission employee told Petitioner the penalties and interest would be waived. Respondent's representatives stated that XXXXX XXXXX did not agree to waive the penalties or interest for the periods in question. Respondent was not able to bring XXXXX to the conference to testify or answer questions. XXXXX did provide a written statement saying that he did meet with Petitioners in XXXXX XXXXX concerning amounts that were past due for XXXXX, that he did not agree "to waive or do anything with the interest or penalty," but that he did agree to allow Petitioner to make payments on the liability. XXXXX further stated that he collected the payments on the new agreement until XXXXX when the account was turned over to another agent.

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 reduce, by waiving the late filing penalty, the penalties assessed relating to motor fuel tax from $$$$$ to $$$$$ for the XXXXX period. Sufficient cause has been shown to reduce the penalty relating to motor fuel tax from $$$$$ to $$$$$ for the XXXXX period. Sufficient cause has not been shown to waive or reduce the penalties assessed relating to motor fuel tax for the XXXXX periods. Petitioner did not appeal the assessment of the interest.

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