S 672 Session 110 (1993-1994)
S 0672 General Bill, By Land
Similar(H 3908)
A Bill to amend Chapter 4, Title 12, Code of Laws of South Carolina, 1976,
relating to the South Carolina Tax Commission, by adding Article 9 so as to
authorize the Commission to seek a declaratory judgment to determine the
constitutionality or legality of a tax law or law providing for the
administration of taxes, to provide for the case to be heard in the Supreme
Court on an expedited basis, to provide for the application of tax law subject
to the action, and to provide taxpayer remedies.
04/13/93 Senate Introduced and read first time SJ-10
04/13/93 Senate Referred to Committee on Finance SJ-10
02/10/94 Senate Committee report: Favorable with amendment
Finance SJ-14
02/16/94 Senate Amended SJ-19
02/16/94 Senate Read second time SJ-22
02/17/94 Senate Read third time and sent to House SJ-9
02/22/94 House Introduced and read first time HJ-7
02/22/94 House Referred to Committee on Ways and Means HJ-7
Indicates Matter Stricken
Indicates New Matter
COMMITTEE AMENDMENT ADOPTED
February 16, 1994
S. 672
Introduced by SENATOR Land
S. Printed 2/16/94--S.
Read the first time April 13, 1993.
A BILL
TO AMEND CHAPTER 4, TITLE 12, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO THE SOUTH CAROLINA TAX
COMMISSION, BY ADDING ARTICLE 9 SO AS TO AUTHORIZE
THE COMMISSION TO SEEK A DECLARATORY JUDGMENT TO
DETERMINE THE CONSTITUTIONALITY OR LEGALITY OF A
TAX LAW OR LAW PROVIDING FOR THE ADMINISTRATION OF
TAXES, TO PROVIDE FOR THE CASE TO BE HEARD IN THE
SUPREME COURT ON AN EXPEDITED BASIS, TO PROVIDE FOR
THE APPLICATION OF TAX LAW SUBJECT TO THE ACTION,
AND TO PROVIDE TAXPAYER REMEDIES.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly finds that:
(1) On occasion, the South Carolina Department of Revenue and
Taxation is confronted with the administration and enforcement of a
state statute when there are material concerns about the statute's
constitutionality or legality. These concerns may arise from a statute of
another state having similar effect and force being declared
unconstitutional by the United States Supreme Court or by the highest
court of another state, or by the enactment of a federal statute
preempting state law.
(2) It is in the public's interest, and it is the intent of the General
Assembly that there be no continuation of the administration and
enforcement of an unconstitutional or illegal law.
(3) The purpose of this act is to provide a procedure to suspend
temporarily the administration and enforcement of the statute until the
courts can review the statute and determine whether or not it is invalid.
SECTION 2. Chapter 4, Title 12 of the 1976 Code is amended by
adding:
"Article 9
Declaratory Judgments
Section 12-4-910. If the department determines that there is material
doubt as to the constitutionality or legality of a tax statute or a statute
which affects its ability to administer and enforce the tax laws, the
department, after advising the State Budget and Control Board, may file
a declaratory judgment action with the Supreme Court petitioning the
court to review and determine the statute's constitutionality, legality, or
both. The Supreme Court, upon receipt of the petition, shall schedule
the matter for consideration at the earliest practicable date. Except as
otherwise provided in this article, this action must be conducted in
accordance with Chapter 53 of Title 15.
Section 12-4-920. A taxpayer whose duty to pay the tax and a
person whose duty to collect the tax may be affected by the declaratory
judgment action may intervene in the action.
Section 12-4-930. If an exemption, exclusion, deduction, or credit
is determined to be unconstitutional or illegal, then, unless the
imposition statute of the tax specifically provides otherwise, it is the
legislative intent of the General Assembly that the tax be upheld and the
exemption, exclusion, deduction, or credit be declared void.
Section 12-4-940. All statutes of limitations for assessment,
collection, and claims and suits for refund are suspended from the date
the action is filed until ninety days after the decision in the case becomes
final.
Section 12-4-950. (A) If the statute imposes a tax, taxpayers shall
continue to file returns showing the disputed tax during the pendency of
the action, but need not pay the tax. If the tax is upheld, failure to pay
penalties and interest are waived if the tax is paid within ninety days
after the decision becomes final.
(B) If the statute allows an exemption, exclusion, deduction, or
credit, taxpayers may continue to claim the exemption, exclusion,
deduction, or credit, and if the exemption, exclusion, deduction, or credit
is declared unconstitutional or illegal, failure to pay penalties and
interest are waived if the tax is paid within ninety days after the decision
becomes final.
Section 12-4-960. In addition to all other remedies, a taxpayer who
after the petition provided in Section 12-4-720 is filed pays a tax which
is declared to be unconstitutional or illegal under this article, may file a
claim for refund any time within one year and ninety days after the
decision becomes final. If, after administrative remedies are exhausted,
the claim for refund is denied by the department, the taxpayer may file
a suit for refund within thirty days from the date of the department's
denial."
SECTION 3. Section 12-47-440 of the 1976 Code is amended to read:
"Section 12-47-440. Notwithstanding any other provisions of
this Title law, whenever if it shall
appear appears to any a taxpayer
person that any license fee or tax or fee
administered by the department imposed under this Title has
been erroneously, improperly, or illegally assessed,
collected, or otherwise paid over to the Commission
department, the taxpayer person, by whom or
on whose behalf the license fee or tax or fee was paid,
may make application apply to the Commission
department to abate or refund in whole or in part such
the license fee or tax or fee. Should the
Commission department, after having given such
taxpayer the person a reasonable opportunity to be heard,
decline declines to make such the
abatement or refund, the taxpayer person may, within
thirty days of the date of receipt of notice of the Commission's
department's action declining the abatement or refund, bring an
action against the Commission department for recovery
of the license fee or tax or fee. The provisions of this
section shall apply whether or not the license fee or tax
or fee in question was paid under protest, but shall
are only be available where the application provided for
here is made in writing to the Commission department
within a period of three years from the date the license fee
or tax or fee was due to have been paid, without regard to
extensions of time for payment, or if a later date would result, within one
year of payment where an additional license fee or tax or
fee is assessed and paid. Such The action
shall must be brought in the court of common pleas for
Richland County except that a resident of this State may elect to bring
said the action in the court of common pleas for the
county of his residence. A taxpayer or licensee who brings an action
provided for in Sections 12-47-210 and 12-47-220 shall be
is considered as having elected his remedy and is denied the
benefits of this section."
SECTION 4. This act takes effect upon approval by the Governor
except that Section 3 of this act is effective with respect to tax years
beginning after December 31, 1989, and with respect to claims for
refunds for prior years which are under review by the Department of
Revenue and Taxation on the date the Governor approves this act.
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