Leavitt v. Tax Commn, Aud.Div.

----ooOoo----

Gary Leavitt,
Petitioner,

v.

Tax Commission,
Auditing Division,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010494-CA

F I L E D
November 16, 2001 2001 UT App 351 -----

Original Proceeding in this Court

Attorneys:
Gary L. Leavitt, Salt Lake City, for Petitioner
Mark L. Shurtleff and Timothy A. Bodily, Salt Lake City, for Respondent -----

Before Judges Greenwood, Jackson, and Davis.

PER CURIAM:

Petitioner Gary L. Leavitt seeks judicial review of the Utah State Tax Commission's order granting summary judgment, sustaining the assessment of tax liability, and denying Leavitt's request for redetermination.

The Commission contends that this court lacks jurisdiction over the petition for review because petitioner has not posted a bond or deposited the full amount of the assessed taxes, penalties, and interest, as required by Utah Code Ann. § 59-1-505 (2000). The cases cited by the Commission stand for the proposition that this section may be constitutionally applied where a taxpayer is found to be "financially able to pay the deficiency and would not be denied reasonable access to judicial review." Maryboy v. Utah State Tax Comm'n, 904 P.2d 662, 671 (Utah 1995); but seeJensen v. Utah State Tax Comm'n, 835 P.2d 965, 969 (Utah 1992) (holding section unconstitutional as applied to taxpayer found unable to pay deficiency). Accordingly, the mere failure to make the deposit, standing alone, does not deprive this court of jurisdiction. Because we lack adequate information in the agency record from which to determine whether application of the statute would be constitutional, we decline to dismiss the petition.

Contrary to Leavitt's claim, there is no genuine dispute as to the material facts. He did not oppose the motion for summary judgment in the agency; therefore, he raised no factual dispute before the agency. In this court, he claims that disputed facts exist to preclude summary judgment. We disagree. The only dispute concerned the Commission's application of law.

It is undisputed that Leavitt was a Utah resident during the tax years of 1996 and 1997. It is also undisputed that he received gross income of $210,995.00 in 1996, and $611,055.00 in 1997, as reported to the Internal Revenue Service. Leavitt did not file income tax returns for these years. His contention that his Legal Notice of No Tax Liability constituted a tax return is untenable and not subject to reasonable dispute. Leavitt does not dispute the State's authority to tax or that he received compensation that is subject to taxation. He asserts, however, that his income is wholly excluded from taxation based upon his interpretation of law.

Leavitt's various arguments that his income is excluded from taxation by operation of law are without merit. The Commission's conclusions of law are correct, and its application of law to the determination of Leavitt's income and the assessment of taxes, penalties, and interest was within the bounds of reasonableness and rationality. See Semeco Indus. v. State Tax Comm'n, 849 P.2d 1167, 1174-75 (Utah 1993).

We affirm the Commission's judgment and dismiss the petition for judicial review.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
James Z. Davis, Judge