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OAH 15-2700-19520-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF REVENUE
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In the Matter of the Revocation of the Sales and Use Tax Permit of Upton Health & Nutrition LLC |
FINDINGS OF FACT, CONCLUSIONS
AND RECOMMENDATION |
This matter was scheduled for hearing on June 5, 2008, before
Administrative Law Judge Beverly Jones Heydinger, at the Office of
Administrative Hearings. The hearing was
held pursuant to a Notice and Order for Hearing dated March 5, 2008, signed by Ronald
L. Schwagel. Wayne Sather, Attorney,
Mail Station 2220,
This Report
is a recommendation, not a final decision. The Commissioner of Revenue will make the
final decision after a review of the record and may adopt, reject or modify these
Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision
of the Commissioner shall not be made until this Report has been available to
the parties to the proceeding for at least ten days. An opportunity must be afforded to each party
adversely affected by this Report to file exceptions and present argument to
the Commissioner. Parties should contact
Ward Einess, Commissioner, Minnesota
Department of Revenue,
If the
Commissioner fails to issue a final decision within 90 days of the close of the
record, this report will constitute the final agency decision under Minn. Stat.
§ 14.62, subd. 2a. The record closes
upon the filing of exceptions to the report and the presentation of argument to
the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and
the Administrative Law Judge of the date on which the record closes.
Pursuant to Minn.
Stat. § 14.62, subd. 1, the Department is required to serve its final decision
upon each party and the Administrative Law Judge by first class mail.
2. Did Upton Health & Nutrition LLC pay all
sales and use tax due to the State of
Summary: The Administrative Law
Judge concludes that Upton Health & Nutrition LLC is in default, the allegations
in the Notice and Order for Hearing are accepted as true, and recommends that
the Commissioner revoke the sales tax permit issued to Upton Health &
Nutrition LLC, pursuant to Minn. Stat. § 270A.722.
1. Upton Health & Nutrition LLC (Upton Health) holds a Sales and Use Tax Permit, I.D. Number 7815430, issued by the Minnesota Department of Revenue.
2. On March 5, 2008, the Department of Revenue (Department) served a Notice and Order for Hearing on Upton Health, via first class mail to the address on file with Department, as appears from the Affidavit of Mailing to Last Known Address. [1]
3. On March 11, 2008, the Administrative Law Judge sent information to Upton Health restating the date of the hearing, April 9, 2008. The letter was not returned to the Office of Administrative Hearings as not deliverable.
4. On April 8, 2008, the Administrative Law Judge received a request by telephone from Stanley Cutts, proprietor of Upton Health, requesting that the hearing be continued to allow Upton Health an opportunity to work out a repayment plan with the Department. The request was granted.
5. On April 14, 2008, the Administrative Law Judge sent a letter to Upton Health rescheduling the hearing for June 5, 2008, and requesting that Mr. Cutts complete the Notice of Appearance if he intended to appear at the hearing. The letter was not returned to the Office of Administrative Hearings.
6. Upton Health failed to appear at the hearing, did not obtain the Administrative Law Judge’s prior approval to be absent from the hearing, did not file a Notice of Appearance, and did not request a continuance or any other relief.
7. The Notice and Order for Hearing contained the following informational warning:
The Respondent’s failure to appear at the hearing may result in a finding that the Respondent is in default, that the Department’s allegations contained in this Notice and Order may be accepted as true, and its proposed action may be upheld.
8.
The Department alleged that Upton Health had
failed to file the required sales and use tax returns and failed to pay all
sales and use tax due to the State of
9. Because Upton Health filed to appear, it is in default.
10. Pursuant to Minnesota Rules, part 1400.6000, the allegations contained in the Notice and Order for Hearing are taken as true and incorporated by reference into these Findings of Fact.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Commissioner of Revenue and the Administrative Law Judge have jurisdiction in this matter.[2]
2. The Department gave proper notice of this hearing and complied with all relevant procedural requirements.
3.
Under
4. Upton Health is in default herein as a result of its failure, without the Administrative Law Judge’s prior consent, to appear at the hearing.
5. By failing to file all sales and use tax returns required by law, Upton Health is in violation of Minn. Stat. § 289A.11.
6. By failing to pay required sales and use taxes, Upton Health is in violation of Minn. Stat. § 289A.20, subd. 4.
7.
Pursuant to
8. Any Findings of Fact that are more appropriately described as Conclusions are adopted as Conclusions.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED: that the Department’s decision to revoke the sales tax permit of Upton Health & Nutrition LLC should be AFFIRMED.
Dated this 9th day of June, 2008
s/Beverly Jones Heydinger
________________________
BEVERLY JONES HEYDINGER
Administrative Law Judge
Not Reported: Default.