97-1410
____________________________________
COMPANY , )
:
Petitioner, : ORDER
:
v. : Appeal No. 97-1410
:
AUDITING
DIVISION OF THE : Account No.#####
UTAH STATE TAX COMMISSION, :
:
Respondent. : Tax Type: Corporate Franchise
_____________________________________
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 June 1, 1998. Jane Phan, Administrative Law Judge, heard
the matter for and on behalf of the Commission. Present and representing Petitioner was Mark Wainwright,
Assistant Attorney General. Present and
representing Respondent was John Brems, Esq.
Petitioner
asserts that it is entitled to a refund for the years 1995 and 1996 for the
off-highway agricultural gas credit which is set out in Utah Code Ann.
§59-13-202(1). For the 1995 tax year
Petitioner had been issued a refund.
However, following an audit Respondent has issued an assessment requiring
Petitioner to repay the 1995 refund.
For the 1996 tax year Respondent was denied the refund. Petitioner is appealing the audit assessment
for 1995 and the denial for 1996.
Petitioner
XXXXX or XXXXX XXXXX from the XXXXX.
Petitioner paid sales tax on the motor fuel purchased to operate the
XXXXX used in the gathering process. Petitioner
then cleans and process the XXXXX into a feed used for XXXXX and XXXXX. It is Petitioner's position that it is
entitled to a refund of the motor fuel which powers the XXXXX in the XXXXX
effort.
APPLICABLE LAW
(1) Any person who purchases and uses any motor fuel within the state
for the purposes of operating or propelling stationary farm engines and
self-propelled farm machinery used for nonhighway agricultural uses, and who
has paid the tax on the motor fuel as provided by this part, is entitled to a
refund of the tax subject to the conditions and limitations provided under this
part. (Utah Code Ann. §59-13-202.)
A. Every person who purchases motor fuel within this state for the
operation of farm engines, including self-propelled farm machinery, used solely
for nonhighway agricultural purposes, is entitled to a refund of the Utah Motor
Fuel Tax paid thereon.
1. Agricultural
purposes relate to the cultivation of the soil for the production of crops,
including: vegetables, sod crops, grains, feed crops, trees, fruits, nursery
floral and ornamental stock, and other such products of the soil. The term also includes raising livestock and
animals useful to man. (Utah Administrative
Code R865-13G-B.)
DECISION AND ORDER
After
reviewing the applicable statues the Commission finds that the XXXXX used in
the XXXXX of the XXXXX are not farm machinery and that XXXXX or XXXXX from the
XXXXX is not an agriculture use.
Based
on the foregoing Petitioner's request for a refund of taxes paid on motor fuel
and abatement of the audit assessment is denied.
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 appeal rights in this
matter.
DATED
this 14 day of October, 1998.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
_____________________
Jane Phan
Administrative Law
Judge
The
agency has reviewed this case and the undersigned concur in this decision.
DATED
this 14 day of October, 1998.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
W. Val
Oveson Richard
B. McKeown
Chairman Commissioner
Joe B.
Pacheco Pam
Hendrickson
Commissioner Commissioner
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