95-1888

Refund Request

Signed 4/15/96

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

XXXXX,

Petitioners, : ORDER

v. :

CUSTOMER SERVICE DIVISION OF : Appeal No. 95-1888

THE UTAH STATE TAX COMMISSION :

: Account No. XXXXX

Respondent. : Tax Type: Refund Request

_____________________________________

A Status Conference was held in the above-entitled matter on XXXXX, G. Blaine Davis, Administrative Law Judge, presiding. Present on the telephone and representing Petitioners was XXXXX. Present on the telephone and representing Respondent was XXXXX, Assistant Attorney General, appearing on behalf of XXXXX, Assistant Attorney General. XXXXX from the Customer Service Division was also present in the hearing room.

Based upon discussion among the parties, the decision was made, based upon stipulation of both parties, to convert the status conference to an Initial Hearing and submit the matter for a decision.

The issue in this case is the claim for refund of the Petitioner and whether it was filed beyond the statute of limitations.

Petitioner failed to file a XXXXX Individual Income Tax Return when it was due, and on XXXXX, Respondent sent a letter to Petitioner indicating that it had not received a return for XXXXX from Petitioner. Thereafter, Petitioner filed his XXXXX, XXXXX and XXXXX Utah Individual Income Tax Returns on XXXXX.

The returns of Petitioner indicated that he should receive a refund of $$$$$ for XXXXX, that he owed taxes of $$$$$ plus penalty and interest for XXXXX, and that he had a refund of $$$$$ coming for XXXXX. The XXXXX refund was applied by the state of Utah to the taxes owed for XXXXX. The refund which Petitioner showed being due for XXXXX was not refunded to him and was not applied to the XXXXX income tax return.

In this appeal, Petitioner has requested that he be refunded the amount of $$$$$ for his XXXXX income tax return, or that it be applied toward his XXXXX which he owed to the state of Utah. Respondent has denied that request because of the provisions of Section 59-10-529, Utah Code Annotated, as amended, which provides as follows:

(7)(a) if a refund or credit is due because the amount of tax withheld or deducted from wages exceeds the actual tax due, no refund or credit may be made or allowed unless the taxpayer, or his legal representative files with the Commission a tax return claiming the refund or credit:

i) within three (3) years from the due date of the return, plus the period of any extension of time for filing the return;

Accordingly, it is the position of Respondent that Petitioner did not timely file a tax return and that therefore a claim for refund or credit cannot be given.

The Commission finds that it is prohibited by state law (the above-referenced statute) from granting the request of Petitioner.

Petitioner further argued that if such a provision is part of state law, that the Commission should notify taxpayers if their time is expiring. However, the Commission finds that if Petitioner had timely filed his income tax return for XXXXX, as he clearly knew he was required to do, that he would have received credit for the amounts withheld. The Commission cannot know the circumstances of each taxpayer, and is not required to give them legal advice as to how they can best reduce their taxes. If Petitioner had asked a question of the Commission, then an answer would have been clearly provided for him, but the Commission cannot be placed in a position of sending notices to all taxpayers regarding dates that are about to expire. This is especially true when the taxpayer has not followed the law as he is required to do.

Based upon the foregoing, the Commission hereby determines that the Petition for Redetermination, and the claim for refund should be, and they are hereby denied.

This decision does not limit a parties 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 15 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