dissenting:
I dissent. I would sustain the Tax Commission’s decision that Silver had an “intent to evade” the filing of income tax returns, which intent is a prerequisite to the imposition of the $1,000 penalty imposed in section 59-14A-92(5). As correctly pointed out in the majority opinion, an “intent to evade” requires a conscious desire to avoid a legal requirement with which the actor knows he or she is obligated to comply. Silver contends that he did not believe that he was required to file Utah income tax returns because his federal adjusted gross income was below the filing requirement. He also contends that he did not believe he owed any federal tax. However, the Commission found that Silver had
no intention of filing returns or keeping the proper records to determine the income for the years in question. The Petitioner did not even have proper bookwork available to know what his income and expenses were for that period of time.... In fact, the implication is clear that the Petitioner had no intention of filing returns or keeping the proper records to determine the income for the years in question.
I believe the Commission could lawfully draw the conclusion that Silver had an intent to evade the filing of returns, as defined in the majority opinion, based on his lack of record keeping. Whether this requisite “intent to evade” is or is not equivalent to a fraudulent intent, a question the majority treats, is irrelevant here.