Ralph Child Construction Co. v. State Tax Commission , 12 Utah 2d 53 ( 1961 )

CROCKETT, Justice

(concurring).

I concur, except as to the statement that the evidence is not sufficient to justify a finding that Child represented that the poles were bought for resale. If the words “For Resale” appeared on all the invoices accepted by Child, it seems logical to conclude that the latter so represented to Southam to avoid payment of the sales tax. The Tax Commission’s auditor, Mr. Kunz, stated that at the time he made the audit he asked the taxpayer’s permission to remove one invoice, (Exhibit 1) which was granted. With respect to it he further testified :

“Q. Is State’s Exhibit No. 1 typical of all these exhibits?

“A. Right.”

It is appreciated that upon further examination he admitted that he “couldn’t say for sure” whether the other invoices had the words “For Resale” on them or not. However, those invoices were part of plaintiff Child’s business records. They were not produced in evidence. He indicated that they had been destroyed. The rule is well established that where one is in possession of evidence and fails to produce it, an inference may be drawn that it is against his interest. Therefore I have some doubt about the soundness of the conclusion that there is no substantial basis in the evidence to support a finding that Child made such representation. Accordingly, I prefer to reserve judgment on that matter. But I concur in sustaining the decision of the Commission that Child should be held responsible for the sales tax.