Prince v. Collection Division of the State Tax Commission ( 1999 )

HOWE, Chief Justice,

dissenting:

¶7 I dissent. In accordance with my dissenting opinion in Harper Investments, Inc. v. Auditing Division, State Tax Commission, 868 P.2d 813 (Utah 1994), I would hold that the Tax Commission lost jurisdiction when it did not act on the motion for reconsideration within twenty days, and the motion was therefore “considered to be denied” as mandated by Utah Code Ann. § 63-46b-13(3)(b). In that dissenting opinion, I noted that if the statute does not mean what it clearly states, there is no time limit on when the Commission can grant a motion for reconsideration. Here, it was four months after the motion for reconsideration was considered to be denied that the Commission acted and breathed new life into the action, resurrecting it for further proceedings. The evil of this practice is apparent. The taxpayer who has prevailed in the Tax Commission and has gone about his life and business with that in mind could suddenly find himself back before the Commission four months later to again litigate his tax liability. A taxpayer is entitled to final agency action at some definite point and should not be forced to live in the shadow of the Commission’s authority to snatch back a favorable ruling at any time and force him to re-employ his attorney and relitigate the controversy. The legislature has wisely provided for that definite point by requiring the agency to act within twenty days or the motion for reconsideration is considered to be denied — meaning that it is effectively denied. The legislature was obviously trying to expedite the finalization of agency actions.

¶ 8 Justice RUSSON concurs in Chief Justice HOWE’s dissenting opinion.