98-1123
BEFORE THE UTAH STATE TAX COMMISSION
____________________________________
PETITIONER :
: ORDER
Petitioner, :
: Appeal No.
98-1123
v. : Account No. Multiple-2
:
COLLECTION
DIVISION OF : Tax Type: Sales Tax
THE UTAH STATE
TAX )
COMMISSION, : Judge: Davis
:
Respondent. :
_____________________________________
Presiding:
G. Blaine Davis, Administrative Law Judge
Appearances:
For
Petitioner:
For
Respondent: Mr.
Clark Snelson, Assistant Attorney General
Ms. Jan Harward, from the Collections Divisions
STATEMENT OF THE 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 February 11, 1999.
Respondent
made a personal penalty assessment against PETITIONER for sales taxes collected
by COMPANY which were not remitted to
the Utah State Tax Commission.
The
position of Petitioner is that PETITIONER is not a responsible party against
whom such an assessment may be made.
They acknowledged that FATHER, the father of PETITIONER, is personally
responsible for those taxes, but allege that PETITIONER, the son, is not
personally responsible.
FATHER
was the President of the Company, and PETITIONER was the Vice President and a
director of the company. The company
has now been involuntarily dissolved by the Utah Division of Corporations for
failure to file an annual report.
All
of the representations were made on behalf of PETITIONER by his Attorney,
ATTORNEY, so there was no direct testimony on this matter. ATTORNEY represented that PETITIONER was not
in charge of matters, but he alleges everything was being conducted by his
father who was in charge, and that PETITIONER could not make the decisions and
could not have remitted the tax without the approval of his father.
Respondent
submitted documentation which showed that PETITIONER was the individual who was
signing all of the checks which were received by the Utah State Tax Commission
during that time period. Further,
Petitioner, PETITIONER, continued to receive a reasonable salary from the
company. Respondent made
representations that they had discussed the matter with the former bookkeeper
for the company, who represented that PETITIONER was the General Manager who
would assign jobs, direct payments, sign checks, order materials, hire and fire employees, bid out the jobs
and in general ran the office at the company.
Petitioner's attorney represented that such representations by the
former bookkeeper were not reliable
because his leaving was not on friendly terms. However, there is no direct testimony that such representations
were not accurate.
The
Commission determines that PETITIONER has not presented sufficient evidence to
set aside the personal penalty assessment made against him by Respondent.
APPLICABLE LAW
Utah
Code Ann. §59-1-302(2) provides:
Any person required to
collect, truthfully account for, and pay over any tax listed in subsection (1)
who willfully fails to collect a tax, fails to truthfully account for and pay
over the tax, or attempts in any manner to evade or defeat any tax or the
payment of any tax, shall be liable for a penalty equal to the total amount of
the tax evaded, not accounted for, or not paid over. . . .
DECISION AND ORDER
Based
upon the foregoing, the Commission determines that the personal penalty
assessment against Mr. Howard Johansen is hereby sustained, and the Petition
for Redetermination 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 20TH day of April, 1999.
____________________________________
G. Blaine Davis
Administrative Law
Judge
BY ORDER OF THE UTAH STATE TAX COMMISSION.
The
Commission has reviewed this case and the undersigned concur in this decision.
DATED
this 20th day of April, 1999.
Richard B.
McKeown Pam
Hendrickson
Chairman Commissioner
R. Bruce
Johnson
Commissioner
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