95-1852

Income

Signed 4/17/96

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

XXXXX,

Petitioners, : ORDER

:

v. :

:

AUDITING DIVISION OF THE : Appeal No. 95-1852

UTAH STATE TAX COMMISSION, :

: Account No. XXXXX

Respondent. : Tax Type: Income

_____________________________________

A Prehearing Conference was held in the above-entitled matter on XXXXX, G. Blaine Davis, Administrative Law Judge, presiding. Present and representing Petitioners was XXXXX, Certified Public Accountant. Present and representing Respondent were XXXXX and XXXXX from the Auditing Division.

Based upon discussion among the parties, it was agreed to convert the Status Conference to an Initial Hearing and to have the issues submitted to the Commission for decision.

Petitioners timely filed and paid their individual income tax return for the years XXXXX and XXXXX. Petitioners tax returns were thereafter audited by the Internal Revenue Service, and Petitioners entered into a settlement with the Internal Revenue Service in approximately September XXXXX and paid the amount of additional tax due. However, Petitioners did not file an amended return with the state of Utah.

On XXXXX, the Auditing Division issued an additional assessment noticed based upon information received from the Internal Revenue Service, imposing additional tax, penalty and interest upon Petitioner. Petitioner has asked that the penalty and interest be waived. The basis for such requested waiver is that the matter was turned over to a competent Certified Public Accountant who did not timely file the amended return. The CPA to whom the matter was given was not XXXXX, who is representing Petitioner in the hearing.

DECISION AND ORDER

Based upon the information presented at the Initial Hearing, and the records of the Tax Commission, the Commission finds sufficient cause has not been shown to waive either the penalty or the interest which have been imposed upon Petitioner. The prior CPA may not have done his job, but he did not give erroneous advice to the Petitioner. The standard of the Commission is that waivers will be granted for erroneous advice from tax advisors.

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

Attention: 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 17 day of April, 1996.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

W. Val Oveson, Chairman Roger O. Tew

Commissioner Commissioner

Joe B. Pacheco Alice Shearer

Commissioner Commissioner

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