95-1114

Income Tax

Signed 11/16/95

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

XXXXX, )

:

Petitioners, : ORDER

:

v. : Appeal No. 95-1114

:

AUDITING DIVISION OF THE : Account No. XXXXX

UTAH STATE TAX COMMISSION, :

:

Respondent. : Tax Type: Income Tax

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a Status Conference, but was therein converted, pursuant to stipulations of the parties, to an Initial Hearing pursuant the provisions of Utah Code Ann. §59-1-502.5, on XXXXX. XXXXX, Administrative Law Judge, heard the matter for and on behalf of the Commission. Present on the telephone and representing Petitioners were XXXXX, CPA, together with the Petitioner, XXXXX. Present and representing Respondent were XXXXX and XXXXX from the Auditing Division.

This problem originated when Petitioners failed to include one of their W-2 forms on their XXXXX individual income tax return. Thereafter, the Internal Revenue Service made an adjustment, and Petitioners paid the amount of the additional tax to the I.R.S. Petitioners did not file an amended return with the State of Utah, and indicated that they just presumed that they would wait until they received a notice from the Utah State Tax Commission. Nevertheless, the statute requires the filing of an amended return within 90 days after an adjustment by the Internal Revenue Service.

Because of the failure to file an amended return, the Respondent imposed a 10% negligence penalty, and later imposed another penalty for failure to pay the amount due on a timely basis after receiving notice of the additional amount due.

There is also a dispute regarding a refund check which Respondent says was paid to Petitioners on XXXXX by way of check number XXXXX in amount of $$$$$. Petitioners say they do not remember receiving the stated refund check. Following the hearing, Respondent provided a photocopy of the check which appears to bear the signatures of both Petitioners. The Commission finds that the check was received by Petitioners.

The State also stopped the XXXXX refund of Petitioners in an amount of approximately $$$$$, and applied it to the past due amount. At the time of the hearing, there was an amount due of approximately $$$$$. That represents all taxes, penalty, and interest, minus all payments and the refund check which was stopped.

The Petitioners did ultimately file an amended tax return, but they did not do so within the 90 days, and did not file the amended return until after they had received notice from the State Tax Commission that they had failed to file.

Accordingly, after discussion, it appears that the only dispute with the Petitioners is whether the refund in the amount of $$$$$ was paid and refunded to Petitioners. The Commission finds that the refund was paid to Petitioners.

DECISION AND ORDER

Based upon the information presented at the hearing, and the records of the Tax Commission, the Commission finds that the Petition for Redetermination of Petitioners should be, and is hereby denied. The assessment against Petitioners is affirmed.

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 16 day of November, 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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