95-1108

Federal Retiree

Signed 4/17/96

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

XXXXX,

Petitioners, : FINDINGS OF FACT,

) CONCLUSIONS OF LAW,

v. : AND FINAL DECISION

)

COLLECTION DIVISION OF THE : Appeal No. 95-1108

UTAH STATE TAX COMMISSION, )

Respondent. : Account No. XXXXX

) Tax Type: Federal Retiree

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a formal hearing on XXXXX, Gail S. Reich, Administrative Law Judge, heard the matter for and on behalf of the Commission. Present and representing the Petitioner was XXXXX and XXXXX. Present and representing the Respondent was XXXXX.

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 income tax.

2. The period in question is XXXXX to XXXXX.

3. As a federal retiree in the State of Utah, Petitiioner was required to pay state income taxes on federal retirement income, although state retirees did not pay income tax on their retirement income.

4. Respondent=s taxing of federal retirees but not state retirees was declared illegal in Davis v. Michigan Dept. of Treasury, 489 U.S. 803 (1989) and Brumley v. State Tax Commission, 868 P.2d 796 (Utah 1994).

5. In XXXXX, Respondent entered into a stipulated settlement with the class of federal retirees to refund state income taxes collected on federal retirement income for the years XXXXX and XXXXX.

6. On XXXXX, in the Joint Agreement and Refund Plan filed in Third Judicial District Court, attorneys for the federal retiree class, acting on behalf of Petitioners agreed to the following manner in which Petitioners and all other class members would be contacted:

Notice to Class Members of their Right to Receive Refunds. As soon as is reasonably possible after court approval of the Refund Plan, the Tax Commission shall:

(a) Notify by letter Class Members who have previously filed amended returns. If complete, they will receive a status letter, with the appropriate form, telling them how to proceed. . . .If their returns are incomplete, they will receive a claim form. . .and letter informing them they will need to file.

(b) Mail written Notice of Tax Refund. . .and Claim Forms in the form attached thereto to class members who can be identified from records available to the Tax Commission and who do not receive notice. . .and

7. According to the Joint Agreement, the Commission was to identify class members in the following way:

The Tax Commission utilizing best efforts, shall immediately proceed to identify all class members entitled to a refund and determine their current addresses. Class members and their current addresses shall be identified and determined from information and data obtained from payers of the retirement income, the Internal Revenue Service and such other information and data available from the Tax Commission=s records, including previously filed income tax returns, amended income tax returns and claims for refund, protective claims, and written and telephone communications to the Tax Commission and class representatives, and from such other reasonably obtainable lists, as well as information and data approved by the representatives of the parties.

8. The stipulation likewise provided that the following information would be provided to class counsel:

Information to Class Representatives. To enable class representatives to locate and assist class members in filing returns, the Tax Commission will regularly provide class representatives with a current list of all identifiable class members, their mailing addresses, status of refund claims including their name, address, and all offsets, including attorneys fees. . . . The Tax Commission shall notify class representatives of those initial notices returned as undeliverable.

9. The Tax Commission=s Operations Division and Technology Management Group identified class members using information from the U.S. Office of Personnel Management, Armed Forces Retirement Offices, and the Internal Revenue Service. These records were compared with Tax Commission records to verify class membership.

10. A list of the status of claims of persons verified a class members was routinely provided to class representatives, but because of the large number of potential class members and the potential for confusion in administering claims, it was only provided for class members as the agreement required.

11. On XXXXX, and XXXXX, the Commission mailed 27,820 booklets by third class mail to potential claimants whether or not they could be verified as class members. All Utah State Tax Booklets were regularly mailed by third class mail. Third class mail is not returned to the sender as undeliverable.

12. The Commission determined that it would mail claim form booklets to many individuals it could not verify were class members, but who potentially were class members.

13. In a pleading filed with the Third Judicial District Court on XXXXX, the federal retiree class alleged that the XXXXX, time deadline should be extended because inadequate notice had been given to claimants who had moved, claimants whose Tax Commission records were wrong or incomplete, or whose amended returns had been improperly processed.

14. These allegations relating to inadequate notice were subsequently resolved by stipulation between Class Counsel and Counsel for the Tax Commission on XXXXX, with additional mailings:

Plaintiffs, by and through class counsel, XXXXX, and defendants, by and through the XXXXX, hereby stipulate to a resolution of the issues stated in Plaintiffs= Memorandum in Support of motion to Require the Tax Commission to Provide Additional Notice to the Class, to Extend the Time to File Refund Claims and other Relief...

This stipulation required no further notice for any claimants.

15. In addition to the status letter and claim booklet mailings, the parties agreed to the following published notice: AThe published legal notices shall be advertisements appearing four (4) times in the newspapers listed. . .@

16. In addition to these published notices, the Tax Commission conducted five federal retiree claim seminars that were widely publicized in the media. Likewise, Class Representatives widely published notices of the opportunity to submit claim forms. The resolution of the federal retiree case was widely covered by the media.

17. The stipulation between the parties allowed Class Representatives the opportunity to verify whether the Commission was fully complying with it:

The Tax Commission shall work with the representatives for the class members and shall provide them with such access and information as shall be reasonably necessary to verify the Tax Commission=s compliance with the terms of this Refund Plan and to assist class members in obtaining their refunds.

18. By stipulation, the parties agreed to the following final date for claims and extensions:

All class members who desire refunds shall file a Claim Form or a Request for Extension by XXXXX. One extension of 3 months will be given until XXXXX, if requested in writing by XXXXX, and an additional extension shall be granted until XXXXX, if requested in writing by XXXXX. Requests for extensions must be authorized by individual class members.

19. Neither party disputes that Petitioner filed a claim after the final deadline for claims, in XXXXX.

20. Petitioner argued that XXXXX had contacted the Tax Commission several times concerning the status of the federal retiree and therefore should have been on notice of his potential status as a class member. Indeed, Respondent testified that the Petitioner was identified through the mechanism used in compliance with the stipulated agreement as a potential class member and was afforded all rights based on such identification. The Respondent testified that, having been identified as a potential class member,Petitioner was entitled to and was sent a Federal Retiree Claim Form at the end of April or beginning of May XXXXX. At that time, the Commission had Petitioner=s street address and zip code, which, as confirmed by the Postal Service, would have been properly delivered.

APPLICABLE LAW

Utah Code Annotated '49-10-201. Governor may negotiate settlement [Repealed effective July 1, 1997].

(1) The governor may:

(a) conduct settlement negotiations on behalf of the state to settle the lawsuit; and

(b) until XXXXX, enter into a written settlement agreement on behalf of the state that settles all claims asserted by federal retirees against the state in that lawsuit.

(2) The governor shall ensure that in exchange for any benefit received by a claimant under the settlement affirmatively releases the state from all claims arising of out of the subject matter of the lawsuit.

(3) Notwithstanding the provisions of Section 59-1-402, as amended by House Bill 7, 1993 Second Special Session of the Utah Legislature, the governor may authorize payment as part of the settlement agreement for 100% of all taxes owed retirees under the lawsuit plus interest through XXXXX in the amount of XXXXX per annum for a cash payment, and XXXXX per annum for deferred payment.

Utah Code Annotated '49-10-202. State Tax Commission to administer settlement-Refundable tax credit [Repealed effective July 1, 1997].

(1) The State Tax Commission shall:

(a) administer any settlement agreement signed by the governor under this part;

(b) make payments from the Federal Retirees Settlement Fund as required by the settlement agreement;

(d) develop printed documentation necessary to accomplish these requirements;

(e) obtain approval from the governor=s general counsel and the attorney general of the form and substance of all documentation.

(f) include, as part of the written documentation, language allowing the claimant to direct that any amount owing to the claimant under the settlement agreement be deposited into a checkoff rather than being paid to the claimant; and

(g) transfer monies from the Federal Retirees Settlement Fund to one or more of the checkoffs as directed by claimants.

(2)(a) The tax commission is authorized to make payments from the Federal Retirees Settlement Fund in the form of refundable tax credits for tax years XXXXX and XXXXX as required by the settlement agreement.

(b) For those federal retirees electing to receive their settlement in the form of a tax credit for tax years XXXXX and XXXXX, there is created a refundable tax credit for tax years XXXXX and XXXXX, in an amount equal to 1/3 of the federal retirees refund amount plus interest under the settlement agreement.

(c) The tax commission shall withhold from any settlement amount paid from the Federal Retirees Settlement Fund up to XXXXX of the settlement amount for class member attorney=s fees. The tax commission shall distribute the monies withheld for attorney=s fees, less any authorized administrative charges, in accordance with the district court order.

(3) The attorneys for the class members of the federal retirees lawsuit may review records or information in the custody of the commission in accordance with Section 59-1-403.

CONCLUSIONS OF LAW

Although Petitioner testified that he did not receive the claim form, the records that remain in existence indicate that Petitioner was properly identified as a potential class member, thus being in the group of individuals who were sent the claim form booklets. The records clearly show that the Commission had the proper street address and proper zip code which would have allowed the form to reach the Petitioner at his current address. The record fully supports the conclusion that the Respondent used best efforts in complying with the joint agreement and did identify Petitioner as a potential class member and included him in the group of individuals who were sent the claim form booklets in a timely fashion. The claim form was received after XXXXX, rendering it untimely under the terms of the joint agreement. Petitioner has identified no valid grounds for varying the terms of the agreement as it applies to the instant case.

DECISION AND ORDER

Based upon the foregoing, the Tax Commission finds in favor of Respondent. It is so ordered.

DATED this 17 day of April, 1996.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

W. Val Oveson Roger O. Tew

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.)