94-1421

WITHHOLDING

Signed 3/27/97

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

PETITIONER, )

Petitioner, : FINDINGS OF FACT,

) CONCLUSIONS OF LAW,

v. : AND FINAL DECISION

)

AUDITING DIVISION OF THE : Appeal No. 94-1421

UTAH STATE TAX COMMISSION, )

Respondent. : Account No. #####

) Tax Type: Withholding

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a formal hearing on January 22, 1997. Commissioner Richard B. McKeown, heard the matter for and on behalf of the Commission. Present and representing the Petitioner was PETITIONERS REP. of XXXXX. Petitioner, did not personally appear at the hearing. Present and representing the Respondent were Gale K. Francis, Attorney for Respondent, Assistant Attorney General, and Dan Engh, Walter Campbell and Frank Hales of the Auditing Division.

Based upon the evidence and testimony presented at the hearing, the Tax Commission hereby makes its:

FINDINGS OF FACT

1. The tax in question is withholding tax.

2. The period in question is January, 1990 through December, 1993.

3. The Petitioner did not personally appear at this hearing and Petitioner=s Representative, was unable to present evidence in support of Petitioner=s Petition For Redetermination.

4. Petitioner=s representative argued that certain items in the auditing division=s audit were inappropriately categorized as being subject to withholding tax. However, Petitioner=s representative was unable to provide testimony or evidence which proved by preponderance of the evidence the assertions made in the Petition and at the formal hearing by Petitioner=s representative. 5. The Respondent, by and through counsel, Gale Francis, asserted that it was not the intention of the Auditing Division to inappropriately categorize disbursements as being subject to withholding, but that no evidence had been propounded to support Petitioner=s contentions. In the absence of any evidence on behalf of Petitioner, Respondent called to the stand, XXXXX, who testified under oath as to the facts, circumstances, and conclusions of the audit conducted on Petitioner=s business.

6. The testimony of XXXXX served to reaffirm the conclusions of the Auditing Division.

7. Respondent performed an audit on the books and records of Petitioner for the audit period. As a result of the audit, an assessment was made for withholding taxes.

CONCLUSIONS OF LAW

1. Pursuant to Utah Code Annotated '59-10-402, employers making payment of wages are required to deduct and withhold from wages, an amount from which will pay the income tax imposed by Chapter 59 of the Utah Code Annotated.

2. Pursuant to Utah Code Annotated 59-10-501, all persons, including employers who are liable for any tax imposed under Chapter 59 are required to keep such records, render such statements, make such returns, and comply with such rules as are prescribed by the Utah State Tax Commission that are deemed sufficient to show whether or not that person is liable for the tax under Chapter 59 of the Utah Code Annotated.

3. To date, Petitioner has failed to demonstrate, despite numerous opportunities to do so, an ability to prove the allegations and assertions made in his Petition For Redetermination.

DECISION AND ORDER

Based upon the lack of any evidence which would support Petitioner=s contention that the withholding tax was inappropriately calculated, it is hereby ordered and decreed as follows:

1. Based upon the information presented at the hearing and the records of the Tax Commission, the Commission orders that the audit assessment made by Respondent against Petitioner should be sustained.

2. Petitioners Petition For Redetermination is hereby denied. Under these circumstances, Petitioner=s rights with regard to additional petition or rights of appeal will commence running with the entry of this Order.

3. That the Order issuing from this formal hearing will be entered with the court on or after March 24, 1997.

4. That on or before March 24, 1997, Petitioner may submit to the auditing division, information, documentation, or evidence which supports his contention that the withholding tax was inappropriately calculated. In the event that the parties to this action agree that an adjustment is necessary, such adjustment will be made to the tax, penalty and interest liability which Petitioner has incurred. It is so ordered.

DATED this 27 day of March, 1997.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

W. Val Oveson Richard B. McKeown

Chairman Commissioner

Joe B. Pacheco Alice Shearer

Commissioner Commissioner

NOTICE: You have twenty (20) days after the date of a final order to file a Request for Reconsideration with the Commission. If you do not file a Request for Reconsideration with the Commission, you have thirty (30) days after the date of a final order to file a.) a Petition for Judicial Review in the Supreme Court, or b.) a Petition for Judicial Review by trial de novo in district court. (Utah Administrative Rule R861-1A-5(P) and Utah Code Ann. ''59-1-601(1), 63-46b-13 et. seq.)

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