95-1156
Withholding
Signed 2/15/96
BEFORE
THE UTAH STATE TAX COMMISSION
____________________________________
XXXXX, )
:
Petitioner, ) ORDER
:
v. ) Appeal No. 95-1156
:
COMPLIANCE AUDIT UNIT, ) Account No. XXXXX
COLLECTION DIVISION OF THE, :
UTAH STATE TAX COMMISSION, )
:
Respondent. ) Tax Type: Personal Penalty
_____________________________________
STATEMENT
OF CASE
This matter came before the Utah State Tax
Commission for an Initial Hearing 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, Esq. of XXXXX,
and XXXXX. Present and representing
Respondent was XXXXX of the Collection Division.
Petitioner is appealing a personal penalty
assessment relating to the unpaid withholding tax of XXXXX, for the second,
third and fourth quarters of XXXXX. The
personal penalty was assessed by Notice issued XXXXX. The amounts of the assessment were XXXXX for the second quarter
of XXXXX, $$$$$ for the third quarter of XXXXX and $$$$$ for the fourth quarter
of XXXXX.
At the hearing both Petitioner's and
Respondent's representatives explained that they agreed Petitioner was not the
party responsible for collecting and turning over to the State of Utah, XXXXX's
withholding tax payments for the second or third quarters of XXXXX. The representative for Respondent, however,
wanted some type of contingency that if contrary information was discovered in
another proceeding against a second officer of XXXXX the assessment could be
later reinstated. Although as of the
time of the hearing, Respondent's representative stated that Respondent had no
information that would support the assessment against Petitioner for the second
or third quarters. Petitioner provided
some information as to why the assessment was invalid for the second and third
quarters of XXXXX.
Petitioner did not provide sufficient
information to justify waiver of the penalty for the fourth quarter of
XXXXX.
APPLICABLE LAW
The Utah Legislature has required that a
penalty be assessed against officers, directors, or other responsible persons,
for certain types of delinquent tax liability.
In pertinent part this provision states that any person required to
collect, truthfully account for, and pay over sales and withholding tax, who
willfully fails to collect or fails to truthfully account for and turn over the
tax, shall be liable for a penalty equal to the total amount of the tax not paid
over. (Utah Code Ann. '59-1-302.)
DECISION AND ORDER
Based upon the information presented at the
hearing, and the records of the Tax Commission, the Commission dismisses the
personal penalty assessment against Petitioner, as set out in the XXXXX,
Notice, as it pertains to the second and third quarters of XXXXX. The Commission upholds the assessment, as
set out in the XXXXX, Notice, for the fourth quarter of XXXXX.
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 15th day of February, 1996.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
W. Val Oveson Roger
O. Tew
Chairman Commissioner
Joe B. Pacheco Alice Shearer
Commissioner Commissioner
^^