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

 

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