S*285 Session 111 (1995-1996)
S*0285(Rat #0099, Act #0060 of 1995) General Bill, By Passailaigue, McConnell and
M.T. Rose
A Bill to amend Title 12, Code of Laws of South Carolina, 1976, relating to
taxation, by adding Chapter 60 enacting the South Carolina Revenue Procedures
Act so as to provide the procedures applicable for the appeal of tax matters
and appeals arising under matters arising out of determinations of the
Department of Revenue and Taxation in Division of Motor Vehicle
Matters.-amended short title
11/14/94 Senate Prefiled
11/14/94 Senate Referred to Committee on Finance
01/10/95 Senate Introduced and read first time SJ-122
01/10/95 Senate Referred to Committee on Finance SJ-122
02/22/95 Senate Committee report: Favorable Finance SJ-12
02/23/95 Senate Read second time SJ-7
02/28/95 Senate Read third time and sent to House SJ-19
03/01/95 House Introduced and read first time HJ-10
03/01/95 House Referred to Committee on Ways and Means HJ-10
05/09/95 House Committee report: Favorable with amendment Ways
and Means HJ-15
05/10/95 House Amended HJ-16
05/10/95 House Read second time HJ-56
05/11/95 House Read third time and returned to Senate with
amendments HJ-15
05/11/95 Senate Concurred in House amendment and enrolled SJ-25
06/06/95 Ratified R 99
06/12/95 Signed By Governor
06/12/95 Effective date 06/12/95-unless otherwise stated
in the Act
08/10/95 Copies available
08/10/95 Act No. 60
(A60, R99, S285)
AN ACT TO AMEND TITLE 12, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO TAXATION, BY ADDING
CHAPTER 60 ENACTING THE SOUTH CAROLINA REVENUE
PROCEDURES ACT SO AS TO PROVIDE THE PROCEDURES
APPLICABLE FOR THE APPEAL OF TAX MATTERS AND
APPEALS ARISING UNDER MATTERS ARISING OUT OF
DETERMINATIONS OF THE DEPARTMENT OF REVENUE AND
TAXATION IN DIVISION OF MOTOR VEHICLE MATTERS; TO
AMEND THE 1976 CODE BY ADDING SECTION 12-31-290 SO AS
TO PROVIDE PENALTIES FOR FAILING TO COMPLY WITH
REGISTRATION REQUIREMENTS FOR PURPOSES OF THE ROAD
TAX ON MOTOR CARRIERS; TO AMEND THE 1976 CODE BY
ADDING SECTIONS 12-54-25 AND 12-54-85 SO AS TO PROVIDE
THE MANNER OF DETERMINING INTEREST ON
UNDERPAYMENTS AND OVERPAYMENTS AND THE
APPLICABLE STATUTES OF LIMITATIONS ON ASSESSMENTS
AND CLAIMS FOR REFUND; TO AMEND SECTIONS 12-37-850,
12-45-180, AS AMENDED, 12-37-2680, AS AMENDED, AND
12-43-220, AS AMENDED, RELATING TO DUE DATES FOR
PROPERTY TAXES, LIMITATIONS ON LEGAL PROCESS
AFFECTING A COUNTY AUDITOR, AND ASSESSED VALUE OF
MOTOR VEHICLES FOR PURPOSES OF PROPERTY TAX, SO AS
TO CONFORM THESE SECTIONS TO THE PROVISIONS OF
CHAPTER 60; TO AMEND SECTION 12-7-20, AS AMENDED,
RELATING TO DEFINITIONS FOR PURPOSES OF THE STATE
INCOME TAX, SO AS TO UPDATE THE REFERENCE DATE
WHEREBY THIS STATE ADOPTS VARIOUS PROVISIONS OF THE
INTERNAL REVENUE CODE OF 1986; TO AMEND SECTION
12-7-1140, RELATING TO ALLOCATION OF INCOME FOR
PURPOSES OF THE STATE INCOME TAX ON MULTISTATE
BUSINESSES ENGAGED IN MANUFACTURING, OR ANY FORM
OF COLLECTING, BUYING, ASSEMBLING, OR PROCESSING
GOODS OR MATERIALS IN THIS STATE, OR SELLING,
DISTRIBUTING, OR DEALING IN TANGIBLE PERSONAL
PROPERTY IN THIS STATE, SO AS TO PROVIDE THE SALES
FACTOR MUST BE USED TWICE IN COMPUTING NET INCOME
SUBJECT TO INCOME TAX IN THIS STATE AND TO PROVIDE
FOR THE ALLOCATION FORMULA WHEN A FACTOR IS NOT
PRESENT; TO AMEND SECTIONS 12-2-20, AS AMENDED, AND
12-54-10, AS AMENDED, RELATING TO DEFINITIONS FOR
PURPOSES OF STATE TAX LAW AND ENFORCEMENT AND
COLLECTION, SO AS TO INCLUDE A LIMITED LIABILITY
COMPANY WITHIN THE DEFINITION OF "PERSON";
TO AMEND SECTION 12-7-1210, AS AMENDED, RELATING TO
WORKING SPOUSE INCOME TAX CREDIT, SO AS TO DELETE
THE PROHIBITION OF THE CREDIT ON A NONRESIDENT
RETURN; TO AMEND SECTION 12-54-227, RELATING TO
COLLECTION OF TAXES BY CONTRACT WITH COLLECTION
AGENCIES, SO AS TO DELETE THE RESTRICTION ON SUCH
COLLECTIONS TO NONRESIDENTS; TO AMEND SECTION
12-54-240, AS AMENDED, RELATING TO THE NONDISCLOSURE
REQUIREMENTS FOR TAX RECORDS HELD BY THE
DEPARTMENT OF REVENUE AND TAXATION, SO AS TO
ALLOW REPORTING OF CERTAIN INFORMATION WITH
RESPECT TO BANKRUPTCY PROCEEDINGS AND INSURANCE
FRAUD; TO AMEND SECTIONS 33-41-1160 AND 33-43-1002,
RELATING TO FOREIGN LIMITED LIABILITY PARTNERSHIPS
AND FOREIGN LIMITED LIABILITY COMPANIES, SO AS TO
PROVIDE THAT BY APPLYING FOR A CERTIFICATE OF
AUTHORITY TO BUSINESS, THE PARTNERSHIP OR COMPANY
AGREES TO THE JURISDICTION OF THE DEPARTMENT OF
REVENUE AND TAXATION AND THE COURTS OF THIS STATE
FOR THE DETERMINATION OF SOUTH CAROLINA TAX
LIABILITY; AND TO REPEAL SECTION 12-4-335, CHAPTER 5 OF
TITLE 12, SECTIONS 12-7-620, 12-7-630, 12-7-1650, 12-7-1670,
12-7-2000, 12-7-2210, 12-7-2220, 12-7-2240, 12-7-2300, 12-7-2310,
12-7-2440, 12-7-2510, 12-7-2710, 12-7-2720, 12-7-2730, 12-7-2740,
12-7-2750, 12-7-2760, 12-7-2780, 12-9-400, 12-9-810, 12-9-820,
12-9-830, 12-9-840, 12-9-850, 12-16-1130, 12-16-1310, 12-16-1320,
12-16-1330, 12-16-1340, 12-16-1350, 12-16-1360, 12-16-1920,
12-16-1930, 12-16-1940, 12-19-60, 12-19-160, 12-21-160, 12-21-470,
12-21-700, 12-21-710, 12-21-2080, 12-21-2480, 12-21-2560, 12-21-2570,
12-21-2840, 12-21-2850, 12-21-3020, 12-21-3030, 12-21-3040,
12-21-3050, 12-21-3060, 12-21-3090, 12-21-3100, 12-21-3110,
12-21-3120, 12-21-3130, 12-23-70, 12-23-80, 12-23-100, 12-23-110,
12-27-50, 12-27-310, 12-27-340, 12-27-580, 12-27-820, 12-29-140,
12-29-420, 12-29-430, ARTICLE 7 OF CHAPTER 29, 12-31-460,
12-31-470, 12-31-480, ARTICLE 7 OF CHAPTER 31, 12-37-2180,
12-37-2480, 12-39-65, 12-43-305, CHAPTER 47 OF TITLE 12,
12-49-70, ARTICLE 3 OF CHAPTER 53, SECTIONS 12-54-20,
12-54-30, AND 12-54-80, ALL OF THE 1976 CODE AND ALL
RELATING TO TAX PROCEDURES.
Be it enacted by the General Assembly of the State of South
Carolina:
Reference date
SECTION 1. Section 12-7-20(11) of the 1976 Code, as last amended by
Section 6A, Part II, Act 497 of 1994, is further amended to read:
"(11) `Internal Revenue Code' means the Internal Revenue
Code of 1986 as amended through December 31, 1994, and includes the
provisions of Section 162(l) thereof as amended by P.L.
104-7."
Miscellaneous tax changes
SECTION 2. A. Section 12-2-20 of the 1976 Code, as added by Act 50
of 1991, is amended to read:
"Section 12-2-20. As used in this title and unless otherwise
required by the context, the term `person' includes an individual, a trust,
estate, partnership, receiver, association, company, limited liability
company, corporation, or any other entity or group."
B. Section 12-7-1210 of the 1976 Code, as last amended by Act 516 of
1994, is further amended by deleting subsection (D) which reads:
"(D) Married individuals filing a nonresident return for the
applicable taxable year are not eligible for the credit allowed pursuant to
this section."
C. Section 12-54-10 of the 1976 Code, as last amended by Act 181 of
1993, is further amended to read:
"Section 12-54-10. The word `person' or `taxpayer', for the
purpose of this chapter, unless otherwise required by the text, includes
any individual, firm, partnership, limited liability company, association,
corporation, receiver, trustee, fiduciary, or any other group or
combination acting as a unit and the State or any agency or
instrumentality, authority, or political subdivision thereof, including
municipalities. `Commission' or `department' means the South Carolina
Department of Revenue and Taxation."
D. Section 12-54-227(A) of the 1976 Code, as added by Act 50 of
1991, is amended to read:
"(A) As provided by Section 12-4-340, the department, for the
purposes of collecting delinquent taxes due from a taxpayer, may contract
with a collection agency, within or without this State, for the collection
of the delinquent taxes, including penalties and interest. Delinquent tax
claims may be assigned to the collection agency, for the purpose of
litigation in the agency's name and at the agency's expense, as a means
of facilitating and expediting the collection process. For purposes of this
section, a delinquent tax claim is defined as a tax liability that is due and
owing for a period longer than six months and for which the taxpayer has
been given at least three notices requesting payment, one of which has
been sent by certified or registered mail. The notice sent by certified or
registered mail will include a statement that the matter of the taxpayer's
delinquency may be referred to a collection agency in the taxpayer's
home state."
E. Section 12-54-240(B) of the 1976 Code, as last amended by Act 516
of 1994, is further amended by adding two appropriately numbered items
at the end to read:
"( ) disclosure and presentation of any documents and other
information in a bankruptcy proceeding relating to a claim or potential
claim, including submission of the claim; disclosure of documents and
information to the Trustee and U. S. Trustee; and disclosure of
documents and information to the debtor in bankruptcy and the debtor's
attorney;
( ) disclosure of information in accordance with the provisions of
Article 5, Chapter 55 of Title 38, the `Omnibus Insurance Fraud and
Reporting Immunity Act'."
F. Section 33-41-1160 of the 1976 Code, as added by Act 448 of 1994,
is amended by adding:
"(E) By applying for a certificate of authority to transact
business in this State, the foreign limited liability partnership agrees to be
subject to the jurisdiction of the Department of Revenue and Taxation
and the South Carolina courts to determine its South Carolina tax
liability, including withholding and estimated taxes, together with any
related interest and penalties, if any. Registering is not an admission of
tax liability."
G. Section 33-43-1002 of the 1976 Code, as added by Act 448 of 1994,
is amended by adding:
"(D) By applying for a certificate of authority to transact
business in this State, the foreign limited liability company agrees to be
subject to the jurisdiction of the Department of Revenue and Taxation
and the South Carolina courts to determine its South Carolina tax
liability, including withholding and estimated taxes, together with any
related interest and penalties, if any. Registering is not an admission of
tax liability."
H. Subsection B of this section is effective for tax years beginning after
1994.
Allocation formula
SECTION 3. Section 12-7-1140 of the 1976 Code is amended to
read:
"Section 12-7-1140. A taxpayer whose principal business in this
State is (a) manufacturing or any form of collecting, buying, assembling,
or processing goods and materials within this State, or (b) selling,
distributing, or dealing in tangible personal property within this State,
shall make returns and pay annually an income tax which includes its
income apportioned to this State. Its income apportioned to this State is
determined by multiplying the net income remaining after allocation
under Sections 12-7-1120 and 12-7-1130 by a fraction, the numerator of
which is the property ratio, plus the payroll ratio, plus twice the sales
ratio, and the denominator of which is four. However, where the sales
ratio does not exist, the denominator of the fraction is the number of
existing ratios, and where the sales ratio exists but the payroll ratio or the
property ratio does not exist, the denominator of the fraction is the
number of existing ratios plus one. The property, payroll, and sales
ratios must be determined in accordance with Sections 12-7-1150,
12-7-1160, and 12-7-1170, respectively."
South Carolina Revenue Procedures Act enacted
SECTION 4. A. Title 12 of the 1976 Code is amended by adding:
"CHAPTER 60
The South Carolina
Revenue Procedures Act
Article 1
Section 12-60-10. This chapter may be cited as the South Carolina
Revenue Procedures Act.
Section 12-60-20. It is the intent of the General Assembly to provide
the people of this State with a straightforward procedure to determine any
disputed revenue liability. The South Carolina Revenue Procedures Act
must be interpreted and construed in accordance with, and in furtherance
of, that intent.
Section 12-60-30. As used in this chapter and in Chapter 54 of this
title except when the context clearly indicates a different meaning:
(1) `Administrative Law Judge Division' means the Administrative
Law Judge Division created by Section 1-23-500. The Administrative
Law Judge Division holds all of the contested case hearings except for
DMV matters.
(2) `Assessment' means the department's final determination of any
tax due.
(3) `Classification' means the various categories of property subject
to property tax to which specific property tax assessment ratios apply.
(4) `Contested case hearing' has the same meaning as it has in
Section 1-23-310. It is a hearing conducted pursuant to Article 3,
Chapter 23 of Title 1, the South Carolina Administrative Procedures Act,
and includes the hearings conducted by:
(a) The Administrative Law Judge Division to review county boards
of assessment appeals decisions, county auditor decisions, decisions on
claims for refund made by a majority of county auditor, county treasurer,
and county assessor, and department determinations other than DMV
matters;
(b) The DMV hearing officers to review department determinations
regarding DMV matters.
(5) `County assessor' or `assessor' means any county officer or
official who issues an official property tax assessment for real
property.
(6) `County auditor' or `auditor' means any county officer or
official who issues an official property tax assessment for personal
property.
(7) `County board of assessment appeals' or `county board' means
the board of assessment appeals which considers appeals pursuant to
Section 12-43-300.
(8) `Deficiency' means the amount by which a tax exceeds the
amount shown on any return or report filed by a taxpayer, if any, plus
the amounts previously assessed (or collected without assessment) as a
deficiency.
(9) `Department' means the South Carolina Department of Revenue
and Taxation.
(10) `Department determination' means the final determination within
the department from which an individual can request a contested case
hearing before the Administrative Law Judge Division, or the DMV
hearing officers.
(11) `Department representative' means the person appointed by the
department to prepare the department's determination and represent the
department at the contested case hearing.
(12) `Director' means the director of the department.
(13) `DMV hearing officers' means Department of Public Safety
hearing officers.
(14) `DMV matters' means matters related to driver licenses, motor
vehicle registrations, and motor vehicle titles.
(15) `Exhaustion of the taxpayer's administrative remedy' means that
the taxpayer has:
(a) exhausted his prehearing remedy; and
(b) had a hearing held pursuant to the Administrative Procedures
Act with the Administrative Law Judge Division, or the DMV hearing
officers, as appropriate.
(16) Exhaustion of the taxpayers prehearing remedy means that the
taxpayer:
(a) filed a written protest as required by this chapter;
(b) attended the conference with the county board of assessment
appeals for the purposes of Subarticle 9, Article 9 of this chapter, or met
with the auditor for purposes of Subarticle 13, Article 9 of this chapter;
and
(c) provided the facts, the law, and any other authority supporting
the taxpayer's position to:
(i) the county board of assessment appeals at its conference for
appeals made pursuant to Subarticle 9, Article 9 of this chapter;
(ii) the auditor in the taxpayer's protest or claim for refund for
appeals made pursuant to Subarticle 13, Article 9 of this chapter; or
(iii) the department representative in the protest for regulatory
violation matters, and within thirty days after filing the protest for other
matters, or such later date agreed to by the department representative. For
the purpose of this section regulatory violation matters are violations of a
statute or regulation which controls the conduct of alcoholic beverage
licensees, bingo licensees, or coin-operated device licensees. It includes
violations which may result in the suspension or revocation of a license
but it does not include taxes or interest on taxes or monetary penalties in
Chapter 54 of this title.
(17) `Mathematical or clerical error' means:
(a) an error in addition, subtraction, multiplication, or division
shown on a return;
(b) an incorrect use of any table provided by the department for use
with any return, if the incorrect use is apparent from the existence of
other information on the return;
(c) an omission of information which is required to be supplied on
the return to substantiate an entry on the return; or
(d) an entry of a deduction or credit item in an amount which
exceeds the statutory limit that is either:
(i) a specified monetary amount; or
(ii) a percentage, ratio, or fraction, if the items entering into the
application of that limit appear on the return.
(18) `Property tax' means all ad valorem taxes on real and personal
property.
(19) `Property tax assessment' means any valuation or determination
of property value for annual property tax purposes arrived at by
multiplying the fair market value or special use value of the property by
the appropriate assessment ratio for the taxable property's
classification.
(20) `Property tax assessment ratio' means the percentages established
for the property classification by Section 12-43-220.
(21) `Property tax assessor' means the county assessor, the county
auditor, the department, or any government official who issues a property
tax assessment.
(22) `Property taxpayer' means a person who is liable for, or whose
property or interest in property, is subject to, or liable for, any property
tax imposed by this title.
(23) `Proposed assessment' means the first written notice sent or
given to the taxpayer stating that a division within the department has
concluded that a tax is due. The term proposed assessment does not
include the auditor's work papers, draft audit reports, or any document
specifically stating that it is not a proposed assessment.
(24) `Protest' means a written appeal of a proposed assessment made
in accordance with this chapter.
(25) `Special use value' means property valued pursuant to Section
12-43-220(d).
(26) `State tax' means all taxes, licenses, permits, fees, or other
amounts, including interest and penalties, imposed by this title, or
assessed or collected by the department, except property taxes.
(27) `Tax' or `taxes' means all taxes, licenses, permits, fees, or other
amounts, including interest and penalties, imposed by this title, or subject
to assessment or collection by the department.
(28) `Tax notice' or `tax bill' means the demand for payment of
property taxes.
(29) `Taxpayer' means a person who is liable for a tax or who is
responsible for collecting and remitting a tax. `Taxpayer' includes any
licensee, and any applicant for a license, issued by or administered by the
department.
Section 12-60-40. (A) A taxpayer may waive his rights under this
chapter, providing the waiver is in writing and is signed by the taxpayer
or his representative. The department and a taxpayer may agree to
extend any time limitations or waive any requirements provided in
Article 5 or Article 9 of this chapter.
(B) Time limitations provided under this chapter and Chapter 54 are
suspended during a stay ordered by the Taxpayers' Rights Advocate.
Section 12-60-50. For purposes of this chapter, when the last day of
any specified time period is a Saturday, Sunday, or a legal holiday, the
end of the period is extended to the next business day. For purposes of
this chapter, a legal holiday is any day the department or the offices of
the United States Postal Service are closed and for Subarticles 9 and 13
of Article 9 any day the county office is closed.
Section 12-60-60. No action of a court, an Administrative Law Judge,
or a hearing officer can stay or prevent the department or any officer of
the State charged with a duty in the collection of taxes, from acting to
collect a tax, whether or not the tax is legally due.
Section 12-60-70. No writ of mandamus may be granted or issued
from a court, Administrative Law Judge, or hearing officer directing or
compelling the reception of any funds not authorized to be received by
law.
Section 12-60-80. There is no remedy other than those provided in
this chapter in any case involving the illegal or wrongful collection of
taxes, or attempt to collect taxes.
Section 12-60-90. (A) For the purposes of this section, the
administrative tax process includes all matters connected with
presentation to any state or local tax authority, or any of their officials or
employees, relating to a client's rights, privileges, or liabilities under
laws, regulations, or rules administered by state or local tax authorities.
These presentations include the preparation and filing of necessary
documents, correspondence with, and communications to, state and local
tax authorities, and the representation of a client at conferences and
meetings, including conferences with the county boards of assessment
appeals. It does not include contested case hearings held by the
Administrative Law Judge Division, DMV hearing officers, or the
courts.
(B) State and local government tax officials, and state and local
government employees, may represent their offices, agencies, or both,
during the administrative tax process.
(C) Taxpayers may be represented during the administrative tax
process by:
(1) the same individuals who can represent them in administrative
tax proceedings with the Internal Revenue Service pursuant to Section
10.3 (a), (b), and (c), Section 10.7 (a)(1) through (4) and (7), and
Section 10.7 (b) and (c) of United States Treasury Department Circular
No. 230; and
(2) a real estate appraiser who is registered, licensed, or certified
pursuant to Chapter 60 of Title 40 during the administrative tax process
in a matter limited to questions concerning the valuation of real
property.
(D) The department may suspend or disbar from practice in the
administrative tax process, any person authorized by these rules to
represent taxpayers, if the person is shown to be incompetent,
disreputable, or fails or refuses to comply with the rules in subsection
(E), or in any manner, with intent to defraud, wilfully and knowingly
deceives, misleads, or threatens any claimant or prospective claimant, by
word, circular, letter, or by advertisement. For the purposes of this
section, disreputable conduct is defined in Section 10.51 of United States
Treasury Department Circular No. 230.
(E) Representatives of taxpayers must comply with the duties and
restrictions contained in Sections 10.20 through 10.24 and 10.27 through
10.33 of United States Treasury Department Circular No. 230.
(F) For the purposes of this section:
(1) references to United States Treasury Department Circular No.
230 mean the United States Treasury Department Circular No. 230 as
revised through the date provided for in the definition of the Internal
Revenue Code in Section 12-7-20(11).
(2) references in United States Treasury Department Circular No.
230 to:
(a) the United States or federal are deemed to include references to
this State, any of its political subdivisions, or any two or more of
them;
(b) the Internal Revenue Service, the Department of Treasury,
Examination Division, or District Director are deemed to include
references to any state or local tax authority; and
(c) the Director of Practice is deemed to mean the director or his
designee.
Article 5
State Revenue Appeals Procedure
Subarticle 1
General Appeal Procedures
Section 12-60-410. The department shall assess all state taxes,
including interest, additions to taxes, and penalties. An assessment is
made by an employee of the department recording the liability of the
taxpayer in the office of the department in accordance with rules or
procedures prescribed by the department. Upon request of the taxpayer,
the department shall furnish a copy of the assessment. The department
may, at any time within the time period for assessment, make a
supplemental assessment when it is determined that an assessment is
imperfect or incomplete. The department may not assess taxes imposed
by the same article, or chapter if the chapter has no article, for any tax
period for which a final order has been issued by the Administrative Law
Judge Division or a court determining the taxpayer's liability for that tax
period, except in the case of fraud.
Section 12-60-420. If a division of the department determines there is
a deficiency in any state tax, it may send by first class mail or deliver a
proposed assessment to the taxpayer. The proposed assessment must
explain the basis for the proposed assessment and state that an assessment
will be made unless the taxpayer protests the proposed assessment as
provided in Section 12-60-450. The department shall make available
forms which taxpayers may use to protest proposed assessments. The
proposed assessment is effective if mailed to the taxpayer's last known
address even if the taxpayer refuses or fails to take delivery, is deceased,
or is under a legal disability, or, if a corporation, has terminated its
existence. For a joint tax return, one proposed assessment may be mailed
to both taxpayers unless the department has notice that the taxpayers have
separate addresses in which event a duplicate original of the joint
proposed assessment must be sent to each taxpayer at his last known
address.
Section 12-60-430. If a taxpayer fails or refuses to make any report or
to file a return required by the provisions of this title or required to be
filed with the department, the department may make an estimate of the
tax liability from the best information available, and issue a proposed
assessment for the taxes, including any penalties and interest.
Section 12-60-440. The department may not assess a deficiency until
thirty days after sending the proposed assessment as provided in Section
12-60-420, or, if the taxpayer files a timely written protest with the
department, until the taxpayer's appeal is finally decided. For purposes
of this section, the final decision of an appeal includes the decision of the
Administrative Law Judge Division, DMV hearing officers, or court, if
the matter was heard by the Administrative Law Judge Division or DMV
hearing officers, or appealed to a court as provided in this article. This
restriction on assessments does not apply to:
(1) mathematical or clerical errors;
(2) interest imposed by this title or subject to assessment or collection
by the department;
(3) amounts reported on a return or other document, or paid as tax; or
(4) assessments as provided in Section 12-60-910.
A taxpayer may request an abatement of any assessment due to a
mathematical or clerical error within thirty days of the date of the
assessment. Upon receipt of the request for abatement the department
shall abate the assessment. Any further assessment of the tax with
respect to which an abatement is made under this paragraph is subject to
the proposed assessment procedures described in this chapter. No levy or
collection proceeding may begin for a mathematical or clerical error
during the thirty-day period during which a taxpayer may request an
abatement.
Section 12-60-450. (A) A taxpayer can appeal a proposed assessment
by filing a written protest with the department within thirty days of the
date of the proposed assessment. The department may extend the time
for filing a protest at any time before the period has expired.
(B) The written protest must contain:
(1) the name, address, and telephone number of the taxpayer;
(2) the appropriate taxpayer identification number or numbers;
(3) the tax period or date for which the tax was proposed;
(4) the nature and kind of tax in dispute;
(5) a statement of facts supporting the taxpayer's position;
(6) a statement outlining the reasons for the appeal, including any
law or other authority upon which the taxpayer relies; and
(7) any other relevant information the department may reasonably
prescribe. The taxpayer does not need to provide legal or other
authority, as provided in item (6), if the total amount of the proposed
assessment is less than two thousand five hundred dollars, unless the
taxpayer is a partnership, an `S' corporation, an exempt organization, or
an employee plan and the proposed tax is imposed by Chapter 7, 11, or
13 of this title.
(C) The filing of an appeal of the proposed assessment as provided in
subsection (A) extends the time for assessment as provided in Section
12-54-85(G).
(D) After the protest is filed and the taxpayer has completed or
refused any other internal administrative appeals procedures provided by
the department, the taxpayer and department representative shall stipulate
the facts and issues upon which they can agree, and may attempt to settle
the case.
If the taxpayer fails to respond or participate in the process with the
department representative, the department may view the appeal as
abandoned and make a department determination using any information
provided in accordance with Section 12-60-30(16)(c)(iii).
(E)(1) The department will make a department determination using
the information provided by the taxpayer in accordance with Section
12-60-30(16)(c)(iii).
(2) A department determination adverse to the taxpayer must be in
writing and must:
(a) be sent by first class mail or delivered to the taxpayer;
(b) explain the basis for the department's determination;
(c) inform the taxpayer of his right to request a contested case
hearing; and
(d) explain that the taxes will be assessed in thirty days and
payment demanded unless the taxpayer requests a contested case
hearing.
Section 12-60-460. Upon exhaustion of his prehearing remedy, a
taxpayer may seek relief from the department's determination by
requesting a contested case hearing before the Administrative Law Judge
Division or the DMV hearing officers, as appropriate. This request must
be made within thirty days after the date the departments determination
was sent by first class mail or delivered to the taxpayer. Requests for a
hearing before the Administrative Law Judge Division must be made in
accordance with its rules. Requests for a hearing before the DMV
hearing officers must be made to the department representative.
Section 12-60-470. (A) A taxpayer may seek a refund of any state tax
by filing a written claim for refund with the department. A claim for
refund is timely filed if filed within the period specified in Section
12-54-85 even though the time for filing a protest under Section
12-60-450 has expired and no protest was filed.
(B) The refund claim must specify:
(1) the name, address, and telephone number of the taxpayer;
(2) the appropriate taxpayer identification number or numbers;
(3) the tax period or date for which the tax was paid;
(4) the nature and kind of tax paid;
(5) the amount which the taxpayer claims was erroneously paid;
(6) a statement of facts supporting the taxpayer's position;
(7) a statement outlining the reasons for the claim, including any
law or other authority upon which the taxpayer relies; and
(8) any other relevant information that the department may
reasonably require.
The department will make forms available which taxpayers may use to
file a claim for refund.
(C) A person who acts as a collector and remitter of state taxes may
claim a credit or refund of the tax collected only if the person establishes
that he has paid the tax in question to the State, and
(1) repaid the tax to the person from whom he collected it; or
(2) obtained the written consent of the person from whom he
collected the tax to the allowance of the credit or refund.
(D) The appropriate division of the department shall decide what
refund is due, if any, and give the taxpayer written notice of its decision
as soon as practicable after a claim has been filed.
(E) A taxpayer may appeal the division's decision by filing a written
protest with the department following the procedures provided in Section
12-60-450. For purposes of complying with the provisions of Section
12-60-450, the written denial of any part of a claim for refund is the
equivalent of a proposed assessment.
(F) Upon exhaustion of his prehearing remedy, a taxpayer may seek
relief from the departments determination by requesting a contested case
hearing before the Administrative Law Judge Division or the DMV
hearing officers, as appropriate. This request must be made within thirty
days after the date the department's determination was sent by first class
mail or delivered to the taxpayer. Requests for a hearing before the
Administrative Law Judge Division must be made in accordance with its
rules. Requests for a hearing before the DMV hearing officers must be
made to the department representative.
(G) Even if a taxpayer has not filed a claim for refund, if the
department determines that money has been erroneously or illegally
collected from a taxpayer or other person, the department, in its
discretion, may, upon making a record in writing of its reasons, grant a
refund to the taxpayer or other person.
(H) A claim for refund can be amended prior to, but not after, the
expiration of the time for filing the claim for refund under Section
12-54-85(F). The claim as amended must be treated as if it were first
filed when the amendment was filed, and the procedures and time periods
provided by this section must begin again.
(I) A taxpayer who requests a contested case hearing as provided in
Section 12-60-460 is considered to have elected his remedy and is denied
the benefits of this section.
Section 12-60-480. When a taxpayer prevails on the merits in a
lawsuit seeking a refund or abatement of a license fee or any tax based
upon an allegation that the tax or fee has been imposed wrongfully as a
matter of law, the department shall issue a refund to all similarly situated
taxpayers who properly applied for a refund pursuant to the requirements
of this chapter. A taxpayer is considered to have prevailed on the merits
in a lawsuit only when a tax or license fee is refunded or abated as a
result of a finding of law by a court of competent jurisdiction, and after
the exhaustion of, or expiration of, the time for making all relevant
appeals. A taxpayer must not be considered similarly situated if the
taxpayer did not file a claim for refund within the period provided in
Section 12-54-85.
Section 12-60-490. If a taxpayer is due a refund, the refund must be
applied first against any amount of that same tax that is assessed and is
currently due from the taxpayer. The remaining refund, if any, must then
be applied against any other state taxes that have been assessed against
the taxpayer and that are currently due, or offset as provided in Article 3,
Chapter 54 of this title. If any excess remains, the taxpayer must be
refunded the amount plus interest as determined in Section 12-54-25, or,
at the taxpayer's request, it may be credited to future tax liabilities.
Section 12-60-500. If it is determined that a refund is due of any tax
paid to, or collected by the State, the department shall issue its order to
the State Treasurer to refund the taxes. Refunds must be paid in
preference to other claims against the State Treasury. If the State
Treasurer does not have in his custody or possession enough funds to pay
a refund of taxes, he shall request that the General Assembly appropriate
the refund.
Section 12-60-510. Before a taxpayer may seek a determination of a
tax liability by an Administrative Law Judge or DMV hearing officer
under Section 12-60-460 or 12-60-470, he shall exhaust the prehearing
remedy. If a taxpayer requests a contested case hearing before the
Administrative Law Judge Division or DMV hearing officers without
exhausting his prehearing remedy because he failed to file a protest, the
Administrative Law Judge or DMV hearing officer shall dismiss the
action without prejudice. If the taxpayer failed to provide the department
with the facts, law, and other authority supporting his position, he shall
provide the department with the facts, law, and other authority he failed
to present to the department earlier. The Administrative Law Judge or
DMV hearing officer shall then remand the case to the department for
reconsideration in light of the new facts or issues unless the department
elects to forego the remand.
Upon remand the department has thirty days, or a longer period
ordered by the Administrative Law Judge or DMV hearing officer, to
consider the new facts and issues and amend its department
determination. The department shall issue its amended department
determination in the same manner as the original. The taxpayer has
thirty days after the date the department's amended determination was
sent by first class mail or delivered to the taxpayer to again request a
contested case hearing. Requests for a hearing before the Administrative
Law Judge Division must be made in accordance with its rules. Requests
for a hearing before the DMV hearing officers must be made to the
department representative. If the department fails to issue its amended
department determination within thirty days of the date of the remand, or
a longer period ordered by the Administrative Law Judge or DMV
hearing officer, the taxpayer can again request a contested case hearing.
At the new hearing the facts, law, and other authority presented at the
original hearing must be deemed to have been presented in a timely
manner for purposes of exhausting the taxpayer's prehearing remedy. The
statute of limitations remains suspended by Section 12-54-85(G) during
this process.
Section 12-60-520. A taxpayer who requests a contested case hearing
may elect to designate the action as a small claims case if no more than
ten thousand dollars of taxes, including penalties, but not including
interest, are in controversy at the time of filing the request for a
contested case hearing. The designation must be made at the time the
request for a contested case hearing is made and be included in the
request. The decision of the Administrative Law Judge or DMV hearing
officer in an action designated as a small claims case is final and
conclusive and may not be reviewed by any court. A case decided under
this section may not be cited by either the department or any taxpayer in
any future action and establishes no precedent except for the taxpayer
involved and the tax period or periods in controversy. This section does
not apply to actions that raise constitutional issues.
Subarticle 5
Jeopardy Assessment Appeals Procedures
Section 12-60-910. (A) If the department finds that the assessment or
the collection of a tax or a deficiency for any tax period is jeopardized in
whole or in part by delay, the department may terminate the taxpayer's
current tax period and immediately assess the tax for the current period
and prior periods not barred by the statute of limitations including all
interest, penalties, and other amounts provided by law. Any action by
the department made under this subsection is a `jeopardy assessment'.
(B) If a jeopardy assessment is made under subsection (A), notice of
the jeopardy assessment must be provided to the taxpayer by any of the
following means:
(1) personal delivery of the assessment to the taxpayer;
(2) mailing a copy of the assessment to the last known address of
the taxpayer by first class mail; or
(3) any other means reasonably designed to provide notice to the
taxpayer.
(C) A jeopardy assessment is immediately due and payable, and
proceedings for collection may begin as soon as the jeopardy assessment
is made.
(D) A taxpayer may obtain a stay of the collection for all or part of
the jeopardy assessment by:
(1) posting a bond with the department equal to the amount of the
assessment that will be stayed, including interest to the date of payment;
or
(2) providing security in any amount the department considers
necessary to secure all or part of the amount of the jeopardy assessment.
The security required by the department cannot exceed twice the assessed
amount for which the taxpayer seeks a stay.
(E) The department may stay collection at any time it finds that an
assessment or the collection of a tax in whole or in part is no longer in
jeopardy.
(F) The taxpayer may at any time waive any part or all of the stay of
collection.
(G) Where collection of any part or all of the jeopardy assessment is
stayed under this section, the period of limitation on any action to collect
the assessment is tolled during the time of the stay.
(H) The bond or security must be reduced if:
(1) the taxpayer pays any part of the tax covered by the bond or
security and the taxpayer requests the reduction. The reduction must be
proportionate to the amount paid.
(2) the department abates any portion of the jeopardy assessment.
The reduction in the bond or security must be proportionate to the
amount abated.
Section 12-60-920. (A) Within five days after the day on which a
jeopardy assessment is made, the department shall provide the taxpayer
with a written statement of the information the department relied on in
making the assessment.
(B) Within thirty days after the day on which the taxpayer is
furnished the written statement described in subsection (A), or within
thirty days after the last day of the period within which the statement is
required to be furnished, the taxpayer may request a contested case
hearing before the Administrative Law Judge Division. Requests for a
hearing before the Administrative Law Judge Division must be made in
accordance with its rules. The only issue for determination under this
subsection is whether the jeopardy assessment is reasonable and
appropriate.
(C) Within ten days after an action is commenced under subsection
(B), the department shall file its response with the Administrative Law
Judge Division. Within twenty days after the department's response or as
soon thereafter as practicable, an Administrative Law Judge shall
determine whether or not the making of the jeopardy assessment is
reasonable under the circumstances, and whether the amount so assessed
or demanded as a result of the action taken under Section 12-60-910 is
appropriate under the circumstances. The running of the ten-day and
twenty-day periods begins on the day on which service is made on the
department.
(D) If the Administrative Law Judge determines that the making of
the jeopardy assessment is unreasonable or that the amount assessed or
demanded is inappropriate, he may order the department to abate the
assessment, to redetermine, in whole or in part, the amount assessed or
demanded, or to take other action as the judge finds appropriate.
(E) The decision made by the Administrative Law Judge under this
section is final and conclusive and may not be reviewed by any court.
(F)(1) In an action under subsection (B) involving the issue of
whether the making of an assessment under Section 12-60-910 is
reasonable under the circumstances, the burden of proof in respect to the
issue is on the department.
(2) In an action under subsection (B) involving the issue of whether
an amount assessed or demanded as a result of action taken under Section
12-60-910 is appropriate under the circumstances, the department shall
provide a written statement containing any information on which its
determination of the amount assessed was based, but the burden of proof
in respect to the issue is on the taxpayer.
Subarticle 9
Applications for Licenses, and
Suspensions and Revocations of Licenses
Section 12-60-1310. (A) If a division of the department denies a
person any license that the department administers, or sends by first class
mail or delivers a notice to the license holder that the division of the
department shall suspend, cancel, or revoke a license administered by the
department, then the person can appeal the division decision by filing a
written protest with the department within thirty days of the denial, or
proposed suspension, cancellation, or revocation. The department may
extend the time for filing a protest at any time before the period has
expired.
(B) The written protest must contain:
(1) the name, address, and telephone number of the person;
(2) the appropriate taxpayer, driver, or vehicle identification number
or numbers, if any;
(3) the kind of license in dispute;
(4) a statement of facts supporting the person's position;
(5) a statement outlining the reasons for the appeal, including any
law or other authority upon which the person relies; and
(6) any other relevant information the department may reasonably
prescribe.
(C) After the protest is filed and the person has completed or refused
any other internal administrative appeals procedures provided by the
department, the person and department representative shall stipulate the
facts and issues upon which they can agree, and may attempt to settle the
case. If the person fails to respond or participate in the process with the
department representative, the department may view the appeal as
abandoned and make a department determination using any information
provided in accordance with Section 12-60-30(16)(c)(iii).
(D)(1) The department shall make a department determination using
the information provided by the person in accordance with Section
12-60-30(16)(c)(iii).
(2) A determination of the department adverse to the person must be
in writing and must:
(a) be sent by first class mail or delivered to the person;
(b) explain the basis for the department's determination;
(c) inform the person of his right to request a contested case
hearing; and
(d) explain that the license must not be issued, or the license must
be suspended or revoked in thirty days unless the person requests a
contested case hearing.
Section 12-60-1320. Upon exhaustion of his prehearing remedy, a
person may seek relief from the department's determination by requesting
a contested case hearing before the Administrative Law Judge Division or
the DMV hearing officers, as appropriate. This request must be made
within thirty days after the date the department's determination was sent
by first class mail or delivered to the person. Requests for a hearing
before the Administrative Law Judge Division must be made in
accordance with its rules. Requests for a hearing before the DMV
hearing officers must be made to the department representative.
Section 12-60-1330. Before a person may seek a determination by an
Administrative Law Judge or DMV hearing officer under Section
12-60-1320, he shall exhaust his prehearing remedy. If a person requests
a contested case hearing before the Administrative Law Judge Division or
DMV hearing officers without exhausting his prehearing remedy because
he failed to file a protest, the Administrative Law Judge or DMV hearing
officer shall dismiss the action without prejudice. If the person failed to
provide the department with the facts, law, and other authority supporting
his position, he shall provide the department with the facts, law, and
other authority he failed to present to the department earlier. The
Administrative Law Judge or DMV hearing officer shall then remand the
case to the department for reconsideration in light of the new facts or
issues unless the department elects to forego the remand. Upon remand
the department has thirty days, or a longer period ordered by the
Administrative Law Judge or DMV hearing officer, to consider the new
facts and issues and amend its department determination. The department
shall issue its amended department determination in the same manner as
the original. The person has thirty days after the date the department's
amended determination was sent by first class mail or delivered to the
person to again request a contested case hearing. Requests for a hearing
before the Administrative Law Judge Division must be made in
accordance with its rules. Requests for a hearing before the DMV hearing
officers must be made to the department representative. If the department
fails to issue its amended department determination within thirty days of
the date of the remand, or a longer period ordered by the Administrative
Law Judge or DMV hearing officer, the person can again request a
contested case hearing. At the new hearing the facts, law, and other
authority presented at the original hearing must be deemed to have been
presented in a timely manner for purposes of exhausting the person's
prehearing remedy. The statute of limitations remains suspended by
Section 12-54-85(G) during this process.
Section 12-60-1340. Anything else in this chapter notwithstanding, if
the department determines that public health, safety, or welfare requires
emergency action, it shall seek an emergency revocation order from the
Administrative Law Judge Division, or the DMV hearing officers, as
appropriate, pursuant to Section 1-23-370(c).
Section 12-60-1350. No provision in this chapter applies to, or has
any effect on, any license suspended or revoked (1) by the Department of
Public Safety, (2) by judicial decision or order, (3) where a statute
requires the department or the Department of Public Safety to suspend or
revoke a license, or (4) by other operation of law.
Article 9
Property Tax Protest, Appeal, and Refund
Procedures
Subarticle 1
Provisions Applicable to All Property Tax Protests,
Appeals, and Refunds
Section 12-60-1710. The procedures provided in this article for
appealing property tax assessments apply to all property tax assessments
made for real or personal property tax purposes.
Section 12-60-1720. The department shall prescribe rules, procedures,
forms, and instructions it considers appropriate and that are consistent
with this article. Property tax assessors, auditors, and taxpayers shall
comply with the department's regulations, rules, and procedures, and
shall use the forms the department prescribes.
Section 12-60-1730. A property taxpayer may appeal any property tax
assessment or denial of exemption if a written protest is filed in
accordance with this article. All property tax assessors shall notify
taxpayers of their right to appeal and of the applicable time limitations.
The department shall provide protest forms, and the property tax assessor
shall make the forms available to property taxpayers. A property
taxpayer's use of the department's protest forms is not mandatory.
Section 12-60-1740. If it is determined that any tax in excess of the
amount due was paid to or collected by a county, municipality, or other
political subdivision, the treasurer within thirty days of the final
determination shall refund the taxes and penalties, if any, so paid. The
refund must be paid in preference to other claims against the county,
municipality, or other political subdivision together with interest
determined in accordance with Section 12-54-25. The full faith and
credit of the county, municipality, or other political subdivision, as the
case may be, is pledged as security for the funds. A county treasurer
may refund the tax from current tax collections of the county,
municipality, or other political subdivision if the treasurer collected and
distributed the incorrectly collected tax for the county, municipality, or
other political subdivision. When the treasurer has no current taxes of
the county, municipality, or other political subdivision or when the
treasurer did not collect the tax, notice of the approved refund must be
transmitted to the entity or entities that received or collected the tax, and
that entity or entities shall provide for the refund from other sources. If
a treasurer does not have available the necessary funds, he shall report
the refund due to the governing body of the appropriate political
subdivision, and the governing body shall provide for the payment.
Section 12-60-1750. Notwithstanding any other provision of law, no
refund of property taxes must be given:
(1) for a property tax exemption requiring an application, unless the
application was timely filed; or
(2) for errors in valuation, unless the assessment was appealed in
accordance with Section 12-60-2110, 12-60-2510, or 12-60-2910, as
appropriate. For the purposes of this item, the taxation of exempt
property is not an error in valuation.
Section 12-60-1760. (A) The county shall pay the reasonable
attorney's fees, expenses, damages, and costs resulting from defending an
action brought against a county officer for performing or attempting to
perform a duty imposed on him by this title if the plaintiff prevails in the
action and it affects the interest of the county. The county auditor shall
ratably apportion the fees, expenses, damages, and costs among all
parties, except the State, interested in the revenue involved in the
action.
(B) If an action involves only a municipal levy, the municipality shall
pay the attorney's fees, expenses, damages, and costs which may be
awarded in the action. In such an action, a county auditor or treasurer
may cause a municipality interested in the revenue involved in an action
to be made a party to the action. The Administrative Law Judge or the
court in which the action is pending shall join the municipality as a
party.
Section 12-60-1770. A taxpayer who requests a contested case hearing
before the Administrative Law Judge Division pursuant to this article
may avail himself of the small claims case provisions of Section
12-60-520 if the case otherwise meets the requirements of that section.
In an action commenced by a county assessor or auditor, the taxpayer in
his response to the county assessor's or auditor's request, may designate
the case a small claims case if no more than ten thousand dollars of taxes
and penalties, not including interest, are in controversy at the time the
taxpayer's response is made.
Subarticle 5
Protests, Appeals, and Refunds for Property Valued
by the Department Exemption Determinations
Section 12-60-2110. In the case of property tax assessments made by
a division of the department, protests must be filed within thirty days
after the date of the property tax assessment notice. If the division does
not send a taxpayer a property tax assessment notice, a protest must be
filed within thirty days after the tax notice is mailed to the taxpayer. If a
division of the department denies a property tax exemption, a protest
must be filed within thirty days after the date the notice of denial is
mailed to the taxpayer.
Section 12-60-2120. (A) A property taxpayer may appeal a property
tax assessment proposed by a division of the department by filing a
written protest with the department.
(B) A property taxpayer may protest any denial of a tax exemption by
the department for property he believes is exempt from property tax by
filing a written protest with the department.
(C) The protest of property taxes under this section must be mailed or
delivered to either the director, or his designee, within the time limits
provided in Section 12-60-2110, and the protest must include the
information required in Section 12-60-450(B) and also the fair market
value, special use value, if applicable, and property classification of the
property the taxpayer believes is correct. If the protest claims the
property is exempt, the protest must state the basis on which exemption
is claimed.
(D) All appeals must be conducted as provided in Section
12-60-450(C) through (E).
Section 12-60-2130. A property taxpayer or the county assessor who
disagrees with the department determination may request a contested case
hearing before the Administrative Law Judge Division if he files an
action within thirty days of the date of the department's determination.
Requests for a hearing before the Administrative Law Judge Division
must be made in accordance with its rules. If a taxpayer requests a
contested case hearing before the Administrative Law Judge Division
without exhausting his prehearing remedy because he failed to file a
protest, the Administrative Law Judge shall dismiss the action without
prejudice. If the taxpayer failed to provide the department with the facts,
law, and other authority supporting his position, he shall provide the
department with the facts, law, and other authority he failed to present to
the department earlier. The Administrative Law Judge shall then remand
the case to the department for reconsideration in light of the new facts or
issues unless the department elects to forego the remand.
Upon remand the department will have thirty days, or a longer period
ordered by the Administrative Law Judge, to consider the new facts and
issues and amend its department determination. The department shall
issue its amended department determination in the same manner as the
original. The taxpayer has thirty days after the date the department's
amended determination was sent by first class mail or delivered to the
taxpayer to again request a contested case hearing. Requests for a
hearing before the Administrative Law Judge Division must be made in
accordance with its rules. If the department fails to issue its amended
department determination within thirty days of the date of the remand, or
a longer period ordered by the Administrative Law Judge, the taxpayer
can again request a contested case hearing. At the new hearing the facts,
law, and other authority presented at the original hearing must be deemed
to have been presented in a timely manner for purposes of exhausting the
taxpayer's prehearing remedy. The statute of limitations remains
suspended by Section 12-54-85(G) during this process.
Section 12-60-2140. (A) If it is reasonably expected that the appeal
will not be resolved by December thirty-first of the tax year, the
department shall notify the auditor of the county where the property is
located to adjust the property tax assessment of property under protest to
eighty percent of the protested property tax assessment, or any valuation
greater than eighty percent agreed to in writing by the taxpayer, and enter
the adjusted property tax assessment on the tax duplicate. The tax must
be paid as in other cases.
(B) After a final determination, if the property tax assessment is
greater than the adjusted property tax assessment, a corrected property tax
assessment must be made and entered. Interest determined in accordance
with Section 12-54-25 must be collected in the same manner as the
tax.
(C) After a final determination, if the property tax assessment is less
than the adjusted property tax assessment, a corrected property tax
assessment must be made and entered. The overpayment of tax must be
refunded together with interest determined in accordance with Section
12-54-25 on the overpayment.
(D) For purposes of this section, the `final determination' includes the
decision of the Administrative Law Judge Division or court if the
property tax assessment was heard by the Administrative Law Judge
Division or appealed to a court as provided in this subarticle.
Section 12-60-2150. (A) Subject to the limitations in Section
12-60-1750, and within the time limitation of Section 12-54-85(F), a
property taxpayer may seek a refund of property taxes paid and assessed
by the department by filing a claim for refund with the department if it
originally assessed the property or the taxpayer believes the property is
exempt, other than from the homestead exemption, from property
taxes.
(B) The department shall notify the counties affected by the claim for
refund. A county auditor, upon notification, shall notify any affected
municipalities or other political subdivisions.
(C) The claim for refund under this section must be mailed or
delivered to the department, and must include the information required in
Section 12-60-450(B), the fair market value, special use value, if
applicable, and property classification of the property the taxpayer
believes correct. If the protest claims the property is exempt, the protest
must state the basis on which exemption is claimed.
(D) The appropriate division of the department shall determine what
refund is due, if any, and give the taxpayer written notice of its
determination as soon as practicable after a claim has been filed.
(E) A taxpayer may appeal the division's decision by filing a written
protest with the department following the procedures provided in Section
12-60-2110. For purposes of complying with the provisions of Section
12-60-2110, the written denial of any part of a claim for refund is the
equivalent of a property tax assessment notice.
(F) The department shall consider the claim, determine the correct
property tax assessment, and issue any necessary orders. All appeals
before the department must be conducted as provided in Section
12-60-450(C) through (E).
(G) Even if a taxpayer has not filed a claim for refund, where no
question of fact or law is involved, and it appears from the record that
money has been erroneously or illegally collected from a taxpayer or
other person under a mistake of fact or law, the department may, subject
to the limitations in Section 12-60-1750, within the period specified in
Section 12-54-85 and upon making a record in writing of its reasons,
order a refund to the taxpayer or other person.
(H) A property taxpayer or the county assessor who disagrees with the
department determination may request a contested case hearing before the
Administrative Law Judge Division if he files a request in accordance
with the Administrative Law Judge Division rules within thirty days of
the date of the department determination.
If a taxpayer requests a contested case hearing before the
Administrative Law Judge Division without exhausting his prehearing
remedy because he failed to file a protest, the Administrative Law Judge
shall dismiss the action without prejudice. If the taxpayer failed to
provide the department with the facts, law, and other authority supporting
his position, he shall provide the department with the facts, law, and
other authority he failed to present to the department earlier. The
Administrative Law Judge shall then remand the case to the department
for reconsideration in light of the new facts or issues unless the
department elects to forego the remand.
Upon remand the department has thirty days, or a longer period
ordered by the Administrative Law Judge, to consider the new facts and
issues and amend its department determination. The department shall
issue its amended department determination in the same manner as the
original. The taxpayer has thirty days after the date the department
amended determination was sent by first class mail or delivered to the
taxpayer to again request a contested case hearing. Requests for a
hearing before the Administrative Law Judge Division must be made in
accordance with its rules. If the department fails to issue its amended
department determination within thirty days of the date of the remand, or
a longer period ordered by the Administrative Law Judge, the taxpayer
can again request a contested case hearing. At the new hearing the facts,
law, and other authority presented at the original hearing must be deemed
to have been presented in a timely manner for purposes of exhausting the
taxpayer's prehearing remedy. The statute of limitations remains
suspended by Section 12-54-85(G) during this process.
Subarticle 9
Appeals, Protests, and Refunds
for Property Valued by County Assessors
Section 12-60-2510. (A)(1) In the case of property tax assessments
made by the county assessor, (a) whenever the assessor increases the fair
market or special use value in making a property tax assessment by one
thousand dollars or more, or (b) whenever the first property tax
assessment is made on the property by a county assessor, the assessor, on
or before July first in the year in which the property tax assessment is
made, or as soon thereafter as practical, shall send the taxpayer a
property tax assessment notice. In years when real property is appraised
and assessed under a county equalization program, substantially all
property tax assessment notices must be mailed by July first. In these
reassessment years, if substantially all of the tax assessment notices are
not mailed by July first, the prior year's property tax assessment must be
the basis for all property tax assessments for the current tax year. A
property tax assessment notice under this subsection must be in writing
and must include:
(a) the fair market value;
(b) the special use value, if applicable;
(c) the assessment ratio;
(d) the property tax assessment;
(e) the percentage change over the prior market value, if there is
no change in use or physical characteristics of the property;
(f) the number of acres or lots;
(g) the location of the property;
(h) the tax map number; and
(i) the appeal procedure.
(2) The notice must be served upon the taxpayer personally or by
mailing it to the taxpayer at his last known place of residence which may
be determined from the most recent listing in the applicable telephone
directory, the department's motor vehicle registration list, county
treasurer's records, or official notice from the property taxpayer.
(3) In years when there is a notice of property tax assessment, the
property taxpayer must, within thirty days after the assessor mails the
property tax assessment notice, give the assessor written notice of
objection to one or more of the following: the fair market value, the
special use value, the assessment ratio, and the property tax
assessment.
(4) In years when there is no notice of property tax assessment, the
property taxpayer must, by March first, give the assessor written notice
of objection to one or more of the following: the fair market value, the
special use value, the assessment ratio, and the property tax assessment.
The failure to serve written notice of objection by March first is a waiver
of the taxpayer's right of protest for that tax year, and the assessor may
not review any request filed after March first.
(B) The department shall prescribe a standard property tax assessment
notice designed to contain the information required in subsection (A) in a
manner that may be easily understood.
Section 12-60-2520. (A) A property taxpayer may object to a
property tax assessment made by a county assessor by requesting in
writing to meet with the assessor within the time limits provided in
Section 12-60-2510. This written request is a notice of objection for
purposes of this subarticle.
(B) Within thirty days of the date of the request for a meeting or as
soon thereafter as practical, the assessor shall schedule a conference with
the property taxpayer. If the matter is not resolved at the conference, the
assessor shall advise the property taxpayer of the right to protest and
provide the taxpayer a form on which to file the protest. The property
taxpayer has thirty days after the date of the conference to file a written
protest with the assessor. The protest must contain:
(1) the name, address, and telephone number of the property
taxpayer;
(2) a description of the property in issue;
(3) a statement of facts supporting the taxpayer's position;
(4) a statement outlining the reasons for the appeal, including any
law or other authority, upon which the taxpayer relies; and
(5) the value and classification which the property taxpayer
considers the fair market value, special use value, if applicable, and the
proper classification.
The taxpayer may use the form prepared by the department, but use of
the form is not mandatory.
(C) The assessor shall respond to the written protest and the response
must:
(1) be in writing;
(2) be mailed to the property taxpayer by first class mail within
thirty days of the date of receipt of the property taxpayer's protest or as
soon thereafter as practical;
(3) include a statement of the initial property tax assessment and the
redetermined property tax assessment;
(4) state that the redetermined property tax assessment will become
final if the property taxpayer does not appeal the property tax assessment
to the county board of assessment appeals; and
(5) inform the taxpayer of procedures for all further appeals.
(D) The assessor may amend, modify, or rescind any property tax
assessment, except claims relating to property tax exemptions.
(E) Each protest and each response must be filed and maintained at
the office of the assessor for four years, and must be made available for
examination and copying by any property taxpayer, at the taxpayer's
expense pursuant to Chapter 4 of Title 30, the Freedom of Information
Act.
Section 12-60-2530. (A) Within thirty days after the date of the
county assessor's response provided in Section 12-60-2520, a property
taxpayer may appeal a real property tax assessment to the county board
of assessment appeals. The board may rule on any timely appeal relating
to the correctness of any of the elements of the property tax assessment,
and also other relevant claims of a legal or factual nature, except claims
relating to property tax exemptions. Conferences held by the board are
subject to any rules prescribed for the county boards of assessment
appeals by the Administrative Law Judge Division. The assessor may
extend the time period for filing a taxpayer's appeal if the request for an
extension is received by the assessor within thirty days of the date of the
county assessor's response provided in Section 12-60-2520.
(B) An appeal to the board begins by giving written notice of intent to
appeal to the assessor.
(C) A conference on the appeal must be conducted by the board
within thirty days after the date of receiving a notice of appeal, or as
soon thereafter as practical. The board shall:
(1) set the place, date, and time for the conference;
(2) give the assessor and the property taxpayer at least thirty days'
written notice of the conference;
(3) advise the property taxpayer that all evidence must be presented
at the conference; and
(4) have the authority and jurisdiction to enter a default decision if
either the property taxpayer or the assessor fails to appear at the
conference, if proper notice of the conference was given. If a default
decision is entered against the property taxpayer for failure to appear at
the conference, the property tax assessment becomes a final property tax
assessment. A default order entered against the assessor for failure to
appear at the conference results in a final property tax assessment based
on the value stated in the property taxpayer's written protest. However,
the board may grant a continuance and refrain from entering a default
order upon good cause shown by any party.
(D) The intervention by an interested person not a party to the action
is allowed where:
(1) the intervenor has a legal or equitable interest in the property
which is the subject of the property tax assessment;
(2) the intervention is not prevented by any applicable statute of
limitations and the intervenor has exhausted his prehearing remedies;
(3) the disposition of the action could, as a practical matter, impede
protection of that interest; and
(4) the intervenor's interest is not being adequately represented by
the existing parties, and could be impeded, as a practical matter, if
intervention is denied.
(E) Each appeal must be considered by all board members present at a
meeting. The lesser of a majority of the members or three members of
the board is a quorum, unless the parties agree to a lesser number.
(F) At least fifteen days before the date of the conference, the
assessor shall file with the board:
(1) a copy of the original property tax assessment for the subject
property;
(2) the written protest of the property taxpayer;
(3) a written response to the taxpayer's protest; and
(4) copies of documents, including appraisals, property sales, and a
brief description of other evidence to be presented by him. Copies of the
documents filed with the board must be mailed or delivered to the
property taxpayer at the same time.
(G) At least fifteen days before the date of the conference, the
property taxpayer shall file with the board copies of documents, including
appraisals, property sales, and a brief description of other evidence to be
presented. Copies of the documents and lists must be mailed or delivered
to the assessor at the same time. The requirement that the property
taxpayer file the material with the board and mail or deliver it to the
assessor may be waived by the board.
(H) At least seven days before the date of the conference, the parties
may file with the board any response each may have to the information
filed by the other. This material must be mailed or delivered to the other
party at the same time.
(I) The conference must be held as follows:
(1) Conferences are open to the public.
(2) The board may meet in closed session to consider evidence
presented at the conference.
(3) The assessor shall explain the property tax assessment and his
response to the taxpayer's written protest.
(4) The assessor may provide the board with evidence to support
the property tax assessment.
(5) The property taxpayer shall state his reasons for protesting the
property tax assessment.
(6) The property taxpayer may provide the board with evidence to
support amending, modifying, or rescinding the property tax
assessment.
(7) A person intervening as a party in the appeal may state his
position and present evidence in support of his position.
(8) The assessor may rebut information and arguments presented
by the taxpayer or intervenor.
(9) The property taxpayer and intervenors, if any, may rebut
information and arguments presented by the assessor.
(10) Any member of the board may question the property taxpayer,
the assessor, and anyone else providing information at the conference.
Any member of the board may request additional information.
(J) After the conference, the board shall issue a decision based upon
the evidence before it as follows:
(1) The decision must be made by a majority vote of the board
members present at the conference. In case of a tie, the assessor's
determination is upheld.
(2) At the conclusion of the conference, the decision may be
announced orally or it may be reserved for consideration. In either
event, the board shall mail a written decision to the parties within fifteen
days after the date of the conference, or as soon thereafter as
practical.
(3) The written decision of the board shall:
(a) explain the basis for the decision;
(b) state that if the decision is not appealed, it must be certified to
the county auditor for entry upon the property tax assessment rolls or tax
duplicate; and
(c) inform the parties of their right to request a contested case
hearing before the Administrative Law Judge Division.
Section 12-60-2540. (A) Within thirty days after the date of the
board's written decision, a property taxpayer or county assessor may
appeal a property tax assessment made by the board by requesting a
contested case hearing before the Administrative Law Judge Division in
accordance with the rules of the Administrative Law Judge Division.
(B) If a taxpayer requests a contested case hearing before the
Administrative Law Judge Division without exhausting his prehearing
remedy because he failed to file a protest or attend the conference with
the county board of assessment appeals, the Administrative Law Judge
shall dismiss the action without prejudice. If the taxpayer failed to
provide the county board with the facts, law, and other authority
supporting his position, he shall provide the representative of the county
at the hearing with the facts, law, and other authority he failed to present
to the county board earlier. The Administrative Law Judge shall then
remand the case to the county board for reconsideration in light of the
new facts or issues unless the representative of the county at the hearing
elects to forego the remand.
Upon remand the county board has thirty days, or a longer period
ordered by the Administrative Law Judge, to consider the new facts and
issues and amend its decision. The county board shall issue its amended
decision in the same manner as the original. The taxpayer has thirty days
after the date the county board's decision was mailed or delivered to the
taxpayer to again request a contested case hearing. Requests for a
hearing before the Administrative Law Judge Division must be made in
accordance with its rules. If the county board fails to issue its amended
decision within thirty days of the date of the remand, or a longer period
ordered by the Administrative Law Judge, the taxpayer can again request
a contested case hearing. At the new hearing the facts, law, and other
authority presented at the original hearing must be deemed to have been
presented in a timely manner for purposes of exhausting the taxpayer's
prehearing remedy. The statute of limitations remains suspended by
Section 12-54-85(G) during this process.
Section 12-60-2550. (A) If it is reasonably expected that the written
protest or appeal will not be resolved by December thirty-first of the tax
year, the county assessor shall notify the auditor to adjust the property
tax assessment of the property under protest to eighty percent of the
protested property tax assessment, or any valuation greater than eighty
percent agreed to in writing by the taxpayer, and enter the adjusted
property tax assessment on the tax duplicate. The tax must be paid as in
other cases.
(B) After final review of the protest or appeal, if the property tax
assessment is greater than the adjusted property tax assessment, a
corrected property tax assessment must be made and entered. Interest
determined in accordance with Section 12-54-25 must be collected in the
same manner as the tax.
(C) After final review of the protest or appeal, if the property tax
assessment is less than the adjusted property tax assessment, a corrected
property tax assessment must be made and entered. The overpayment of
tax must be refunded together with interest determined in accordance
with Section 12-54-25.
(D) For purposes of this section the `final review of the protest or
appeal' includes the final decision of the Administrative Law Judge
Division or court with respect to the property tax assessment if the
property tax assessment was heard by the Administrative Law Judge
Division or appealed to a court as provided in this subarticle.
Section 12-60-2560. (A) Subject to the limitations in Section
12-60-1750, and within the time limitation of Section 12-54-85(F), a
property taxpayer may seek a refund of real property taxes assessed by
the county assessor and paid, other than taxes paid on property the
taxpayer claims is exempt, by filing a claim for refund with the county
assessor who made the property tax assessment for the property for
which the tax refund is sought.
The assessor, upon receipt of a claim for refund, shall immediately
notify the county treasurer and the county auditor for the county from
which the refund is sought. The majority of these three officials shall
determine the taxpayer's refund, if any, and shall notify the taxpayer in
writing of their decision.
(B) Within thirty days after the decision is mailed to the taxpayer on
the claim for refund, a property taxpayer may appeal the decision to the
county board of assessment appeals. The board may rule on any timely
refund appeal relating to the correctness of the property tax assessment.
Conferences conducted by the board are pursuant to the same rules and
procedures provided in Section 12-60-2530 except that a taxpayer's
denied claim for refund is considered the assessor's response to a protest
of property tax assessment.
(C) Within thirty days after the board's decision is mailed to the
taxpayer, a property taxpayer or county assessor may appeal the decision
issued by the board by requesting a contested case hearing before the
Administrative Law Judge Division. Requests for a hearing before the
Administrative Law Judge Division must be made in accordance with its
rules.
If a taxpayer requests a contested case hearing before the
Administrative Law Judge Division without exhausting his prehearing
remedy because he failed to file a claim for refund or attend the
conference with the county board of assessment appeals, the
Administrative Law Judge shall dismiss the action without prejudice. If
the taxpayer failed to provide the county board with the facts, law, and
other authority supporting his position, he shall provide the representative
of the county at the hearing with the facts, law, and other authority he
failed to present to the county board earlier. The Administrative Law
Judge shall then remand the case to the county board for reconsideration
in light of the new facts or issues unless the representative of the county
at the hearing elects to forego the remand.
Upon remand the county board has thirty days, or a longer period
ordered by the Administrative Law Judge, to consider the new facts and
issues and amend its decision. The county board shall issue its amended
decision in the same manner as the original. The taxpayer has thirty days
after the date the county board's decision was mailed or delivered to the
taxpayer to again request a contested case hearing. Requests for a
hearing before the Administrative Law Judge Division must be made in
accordance with its rules. If the county board fails to issue its amended
decision within thirty days of the date of the remand, or a longer period
ordered by the Administrative Law Judge, the taxpayer can again request
a contested case hearing. At the new hearing the facts, law, and other
authority presented at the original hearing must be deemed to have been
presented in a timely manner for purposes of exhausting the taxpayer's
prehearing remedy. The statute of limitations remains suspended by
Section 12-54-85(G) during this process.
Subarticle 13
Protests, Appeals, and Refunds
for Personal Property Valued by County Auditor
Section 12-60-2910. (A) A property taxpayer may object to a
personal property tax assessment or a denial of a homestead exemption
made by the county auditor by requesting in writing to meet with the
auditor within thirty days after the tax notice is mailed.
(B) Within thirty days of the request for a meeting, or as soon
thereafter as practical, the auditor shall schedule a conference with the
taxpayer. If the matter is not resolved at the conference, the auditor shall
advise the taxpayer of the right to protest and provide the taxpayer a
form on which to file the protest. The taxpayer shall file with the auditor
a written protest within thirty days after the date of the conference. The
protest shall contain:
(1) the name, address, and phone number of the taxpayer;
(2) a copy of the tax notice or a description of the property
including the receipt number of the tax notice;
(3) a statement of facts supporting the taxpayer's position;
(4) a statement outlining the reasons for the appeal, including any
law or other authority upon which the taxpayer relies; and
(5) the value which the taxpayer considers the fair market value of
the property.
The taxpayer may use the form provided by the auditor but is not
required to use this form.
(C) The auditor shall respond to the written protest and the response
must:
(1) be in writing;
(2) be mailed to the taxpayer by first class mail within thirty days of
receipt of the taxpayer's protest or as soon thereafter as practical;
(3) if applicable, include a statement of the initial personal property
tax assessment and the redetermined personal property tax assessment,
including the recalculated fair market value;
(4) state that a recalculated personal property tax assessment will be
made, or the auditor's decision on the homestead exemption will become
final, if the taxpayer does not request a contested case hearing before the
Administrative Law Judge Division; and
(5) inform the taxpayer of his right to request a contested case
hearing before the Administrative Law Judge Division.
(D) The auditor may amend, modify, or rescind any property tax
assessment, except claims relating to property tax exemptions, other than
the homestead exemption.
(E) Each protest and each response must be filed and maintained at
the office of the auditor for four years, and must be made available for
examination and copying by any property taxpayer at the taxpayer's
expense pursuant to Chapter 4 of Title 30, the Freedom of Information
Act.
Section 12-60-2920. (A) Within thirty days after the date of the
county auditor's response provided in Section 12-60-2910, a taxpayer
may appeal a personal property tax assessment, or denial of a homestead
exemption, by requesting a contested case hearing before the
Administrative Law Judge Division in accordance with its rules.
(B) If a taxpayer requests a contested case hearing before the
Administrative Law Judge Division without exhausting his prehearing
remedy because he failed to file a protest or meet with the auditor, the
Administrative Law Judge shall dismiss the action without prejudice. If
the taxpayer failed to provide the auditor with the facts, law, and other
authority supporting his position, he shall provide the representative of
the county at the hearing with the facts, law, and other authority he failed
to present to the auditor earlier. The Administrative Law Judge shall
then remand the case to the auditor for reconsideration in light of the
new facts or issues unless the representative of the county at the hearing
elects to forego the remand.
Upon remand the auditor has thirty days, or a longer period ordered
by the Administrative Law Judge, to consider the new facts and issues
and amend its decision. The auditor shall issue his amended decision in
the same manner as the original. The taxpayer has thirty days after the
date the auditor's decision was mailed or delivered to the taxpayer to
again request a contested case hearing. Requests for a hearing before
the Administrative Law Judge Division must be made in accordance with
its rules. If the auditor fails to issue its amended decision within thirty
days of the date of the remand, or a longer period ordered by the
Administrative Law Judge, the taxpayer can again request a contested
case hearing. At the new hearing the facts, law, and other authority
presented at the original hearing must be deemed to have been presented
in a timely manner for purposes of exhausting the taxpayer's prehearing
remedy. The statute of limitations remains suspended by Section
12-54-85(G) during this process.
Section 12-60-2930. (A) After final review of the protest, if the
property tax assessment is greater than the adjusted property tax
assessment, a corrected property tax assessment must be made and
entered. Interest determined in accordance with Section 12-54-25 must
be collected in the same manner as the tax.
(B) After final review of the protest, if the property tax assessment is
less than the adjusted property tax assessment, a corrected property tax
assessment must be made and entered. The overpayment of tax must be
refunded together with interest determined in accordance with Section
12-54-25.
(C) For purposes of this section the `final review of the protest'
includes the final decision of the Administrative Law Judge Division or
court with respect to the property tax assessment if the property tax
assessment was heard by the Administrative Law Judge Division or
appealed to a court as provided in this subarticle.
Section 12-60-2940. (A) Subject to the limitations in Section
12-60-1750, and within the time limitation of Section 12-54-85(F), a
property taxpayer may seek a refund of property taxes assessed by the
county auditor and paid, other than taxes paid on property the taxpayer
claims is exempt unless the exemption is the homestead exemption, by
filing a claim for refund with the county auditor who made the personal
property tax assessment on the property for which the tax refund is
sought. The auditor upon receipt of a claim for refund shall immediately
notify the county treasurer and county assessor. A majority of these
three officials shall determine the taxpayer's refund, if any, and shall
notify the taxpayer in writing of their decision.
(B) A taxpayer may appeal the decision by requesting a contested case
hearing before the Administrative Law Judge Division in accordance with
its rules within thirty days of the written denial of the claim for
refund.
(C) If a taxpayer requests a contested case hearing before the
Administrative Law Judge Division without exhausting his prehearing
remedy because he failed to file a claim for refund, the Administrative
Law Judge shall dismiss the action without prejudice. If the taxpayer
failed to provide the auditor with the facts, law, and other authority
supporting his position, he shall provide the representative of the county
at the hearing with the facts, law, and other authority he failed to present
to the auditor earlier. The Administrative Law Judge shall then remand
the case to the three county officials for reconsideration in light of the
new facts or issues unless the representative of the county at the hearing
elects to forego the remand.
Upon remand the three county officials have thirty days, or a longer
period ordered by the Administrative Law Judge, to consider the new
facts and issues and amend their decision. The three county officials
shall issue their amended decision in the same manner as the original.
The taxpayer has thirty days after the date the taxpayer was notified of
the amended decision to again request a contested case hearing. Requests
for a hearing before the Administrative Law Judge Division must be
made in accordance with its rules. If the three county officials fail to
issue their amended decision within thirty days of the date of the remand,
or a longer period ordered by the Administrative Law Judge, the taxpayer
can again request a contested case hearing. At the new hearing the facts,
law, and other authority presented at the original hearing must be deemed
to have been presented in a timely manner for purposes of exhausting the
taxpayer's prehearing remedy. The statute of limitations remains
suspended by Section 12-54-85(G) during this process.
Article 13
Procedures in Revenue Cases
Administrative Law Judge Division
DMV Hearing Officers and Courts
Section 12-60-3310. A party permitted to request a contested case
hearing with the Administrative Law Judge Division shall make his
request and serve it on opposing parties in accordance with rules
established by the Administrative Law Judge Division. A party
requesting a contested case hearing before the DMV hearing officers,
within the time set forth in this chapter, shall make the request in writing
to the department representative.
Section 12-60-3320. In order to increase the efficiency and reduce the
costs of contested cases, all parties to a contested case hearing, in good
faith, shall do their best to stipulate the facts and issues upon which they
can agree.
Section 12-60-3330. In view of the desirability of consistent property
tax treatment throughout the State and of the department's oversight of
county property tax matters, the Administrative Law Judge can request
the participation of the department in any case before it which arose from
a property tax assessed by a county assessor or county auditor, and the
department may intervene at the Administrative Law Judge level in any
case which arose from a property tax assessed by a county assessor or
county auditor.
Section 12-60-3340. Contested case hearings must be without a jury
and, except as otherwise provided by this chapter, must be held in
accordance with Chapter 23 of Title 1. Contested case hearings held by
the Administrative Law Judge Division must be heard in accordance with
its rules.
Section 12-60-3350. In any action covered by this chapter, no costs or
disbursements may be charged or allowed to either party, except for the
service of process and the attendance of witnesses.
Section 12-60-3360. The DMV hearing officers shall make available
to the public copies of decisions made by them in actions covered by this
chapter edited to delete medical or other confidential information. The
Administrative Law Judge Division shall make its decisions available to
the public in accordance with Section 1-23-600.
Section 12-60-3370. Except as provided below, a taxpayer shall pay,
or post a bond for, all taxes, including interest, penalties, and other
amounts determined to be due by the Administrative Law Judge or DMV
hearing officer before appealing the decision to the circuit court. For
property tax cases covered by Section 12-60-2140 or 12-60-2550, the
taxpayer need only pay the amount assessed under the appropriate
section.
Section 12-60-3380. Except as otherwise provided in this chapter, a
party may appeal a decision of the Administrative Law Judge Division or
the DMV hearing officers to the circuit court in Richland County except
that a resident of this State may elect to bring the action in the circuit
court for the county of his residence. Appeals of Administrative Law
Judge Division decisions must be made in accordance with Section
1-23-610(B). Appeals of DMV hearing officers must be made by filing a
petition with the circuit court and serving the petition on the opposing
parties not more than thirty days after the party received the decision and
order of the judge or hearing officer.
Section 12-60-3390. If a taxpayer brings an action covered by this
chapter in circuit court, other than an appeal of an Administrative Law
Judge decision or DMV hearing officer decision, the circuit court shall
dismiss the case without prejudice."
B. Article 3, Chapter 31, Title 12 of the 1976 Code is amended by
adding:
"Section 12-31-290. A person who operates or causes to be
operated on any highway in this State any motor vehicle that does not
carry a registration card required by this chapter, or any motor vehicle
that does not display, in the manner prescribed by this chapter or by the
department, the identification marker required by this chapter, is guilty of
a misdemeanor and, upon conviction, must be punished by a fine of not
more than one hundred dollars. Each day's operation in violation of any
provision of this section constitutes a separate offense."
C. Article 1, Chapter 54, Title 12 of the 1976 Code is amended by
adding:
"Section 12-54-25. (A) If any tax is not paid when due, interest
is due on the unpaid portion from the time the tax was due until paid in
its entirety. For administrative convenience, the department may waive
up to fifteen days' interest.
(B) For purposes of this section, a tax is due on the last day provided
for its payment, without regard for any extension of time for payment
and without regard for or to any assessment under Section 12-60-910.
Stamp taxes and any other tax for which no payment date is provided are
due on the day the liability arises.
(C) Any tax refunded or credited must include interest on the amount
of the credit or refund from the later of the date the tax was paid or the
original due date of the return to the date the refund was sent or
delivered to the taxpayer or the credit made. If any overpayment of tax
imposed by this title is refunded within seventy-five days after the last
day prescribed for filing the tax return, determined without regard to any
extension of time for filing the return, or, in the case of a return filed
after the last date, is refunded within seventy-five days after the date the
return is filed, no interest is allowed under this subsection on the
overpayment. If the taxpayer files a claim for a credit or refund for any
overpayment of tax, and the overpayment is refunded within seventy-five
days after the claim is filed, no interest is allowed on the overpayment
from the date the claim is filed until the day the refund is made.
(D) Except as preempted or superseded by federal law or
inter-governmental compact such as the International Fuel Tax
Agreement, the rate of interest on underpayments and overpayments is
established by the department in the same manner and at the same time
as the underpayment rate provided in Internal Revenue Code Sections
6621 and 6622."
D. (1) Article 1, Chapter 54, Title 12 of the 1976 Code is amended by
adding:
"Section 12-54-85. (A) Except as otherwise provided in this
section, the amount of taxes or fees due under laws administered by the
department must be determined and assessed within thirty-six months
from the date the return or document was filed or due to be filed,
whichever is later.
(B) Except as otherwise provided in this section, if the tax or fee is
not required to be remitted with a return or document, the amount of
taxes or fees due the State of South Carolina under laws administered by
the department must be determined and assessed within thirty-six months
after the date on which any part of the tax or fee was paid.
(C) The department may determine and assess taxes and fees after the
thirty-six month limitation if:
(1) In the case of income, estate and generation skipping transfer
taxes, the taxes are assessed within one hundred eighty days of receiving
notice from the Internal Revenue Service of a final determination of a tax
adjustment made by the Internal Revenue Service.
(2) There is fraudulent intent to evade the taxes or fees.
(3) The taxpayer failed to file a return or document as required by
law.
(4) There is a twenty percent understatement of the total taxes and
fees required to be shown on the return or document. The taxes or fees
in this case may be assessed at any time within seventy-two months from
the date the return or document was filed or due to be filed, whichever is
later.
(5) The person liable for any taxes or fees administered by the
department consents in writing, before the expiration of the time
prescribed in this section for assessing taxes or fees due, to the
assessment of the taxes or fees after the time prescribed by this
section.
(D) Every corporation shall notify the department in writing of all
changes in taxable income reported to the Internal Revenue Service when
the taxable income is changed by the Internal Revenue Service.
Notification to the department must be made within thirty days after a
final determination is received from the Internal Revenue Service.
Notification of adjustments made by the Internal Revenue Service must
be made under separate cover from any return filed or due to be filed
with the department.
Notwithstanding any restrictions on filing a claim for refund provided
in subsection (F) below, a corporation may file a claim for refund
resulting from an overpayment due to changes in taxable income made
by the Internal Revenue Service within thirty days from the date the
Internal Revenue Service changes the taxable income.
(E) No tax may be collected by levy, warrant for distraint, or
proceedings in court, unless (1) the levy, warrant for distraint, or
proceedings in court were begun within ten years after the assessment of
the tax, (2) the taxpayer has agreed to extend this period, or (3) the
running of this period is suspended in accordance with this section.
(F)(1) Except as provided in subsection (D) above, claims for credit
or refund must be filed within three years of the time the return was
filed, or two years from the date of payment, whichever is later. If no
return was filed, a claim for refund must be filed within two years from
the date of payment.
(2) If the claim was filed by the taxpayer during the three-year
period prescribed in item (1), the amount of the credit or refund may not
exceed the portion of the tax paid within the period, immediately
preceding the filing of the claim, equal to three years plus the period of
any extension of time for filing the return.
(3) If the claim was not filed within the three-year period, the
amount of the credit or refund may not exceed the portion of the tax paid
during the two years immediately preceding the filing of the claim.
(4) If no claim was filed, the credit or refund may not exceed the
amount which would be allowable under item (2) or (3), as the case may
be, as if a claim were filed on the date the credit or refund is
allowed.
(G) The running of the period of limitations provided in subsections
(A), (B), (C), (D), and (E) of this section is suspended:
(1) for ninety days after the date the taxpayer gives notice of
termination of a waiver or extension of the assessment period;
(2) for ninety days after the date of a proposed assessment, property
tax assessment notice, or tax notice;
(3) from the date of a proposed assessment, property tax assessment
notice, or tax notice, until ninety days after a decision becomes final, if a
taxpayer protests the proposed assessment, property tax assessment
notice, or tax notice;
(4) from the date when an action is stayed by injunction, order of a
court, or statutory prohibition, until ninety days after the injunction or
prohibition is lifted; and
(5) during the pendency of a stay ordered by the Taxpayers' Rights
Advocate.
For purposes of this section, a decision does not become final until the
decision cannot be considered, heard, or reheard by request, appeal, or
petition by the Administrative Law Judge Division, DMV hearing
officers, or any court."
(2) It is the intention of the General Assembly that the provisions of
Section 12-54-85 of the 1976 Code as added by this act supersede the
provisions of Section 12-54-85 of the 1976 Code as it may be added to
the 1976 Code by any other act of 1995.
E. Section 12-45-180 of the 1976 Code, as last amended by Act 9 of
1993, is further amended by deleting the last paragraph which reads:
"If the payment dates required by this section fall on a Saturday,
Sunday, or legal holiday, the dates are extended to the end of the second
business day immediately following which is not a Saturday, Sunday, or
legal holiday."
F. Section 12-37-850 of the 1976 Code is amended to read:
"Section 12-37-850. The action of an auditor under Sections
12-37-780, 12-37-790, and 12-37-810 to 12-37-830 must not be
interfered with by any court of this State by mandamus, summary
process, or any other proceeding, but the taxpayer has the rights, and no
others, than those provided by Chapter 60 of this title."
G. Section 12-37-2680 of the 1976 Code, as last amended by Act 181
of 1993, is further amended to read:
"Section 12-37-2680. The assessed value of the vehicle must be
determined as of the first day of the month preceding the beginning of
the tax year for the vehicles. The assessed values must be published in
guides or manuals by the South Carolina Department of Revenue and
Taxation and provided to the auditor of each county as often as may be
necessary to provide for current values. When the value of any vehicle is
not set forth in the guide or manual the auditor shall determine the value
from other available information."
H. The penultimate paragraph of Section 12-43-220(c) of the 1976
Code, as added by Act 187 of 1993, is amended to read:
"Notwithstanding any other provision of law, a taxpayer may
apply for a refund of property taxes paid when the property could have
been taxed at the legal residence assessment ratio, as is provided for
above. The application must be made in accordance with Section
12-60-2560. The taxpayer must establish that the property in question
was in fact his legal residence. A county council may, by ordinance,
allow refunds for the county government portion of property taxes for
such additional past years as it determines advisable."
I. The following sections, articles, and chapters of Title 12 of the 1976
Code are repealed: Section 12-4-335, Chapter 5 of Title 12, Sections
12-7-620, 12-7-630, 12-7-1650, 12-7-1670, 12-7-2000, 12-7-2210,
12-7-2220, 12-7-2240, 12-7-2300, 12-7-2310, 12-7-2440, 12-7-2510,
12-7-2710, 12-7-2720, 12-7-2730, 12-7-2740, 12-7-2750, 12-7-2760,
12-7-2780, 12-9-400, 12-9-810, 12-9-820, 12-9-830, 12-9-840, 12-9-850,
12-16-1130, 12-16-1310, 12-16-1320, 12-16-1330, 12-16-1340,
12-16-1350, 12-16-1360, 12-16-1920, 12-16-1930, 12-16-1940, 12-19-60,
12-19-160, 12-21-160, 12-21-470, 12-21-700, 12-21-710, 12-21-2080,
12-21-2480, 12-21-2560, 12-21-2570, 12-21-2840, 12-21-2850,
12-21-3020, 12-21-3030, 12-21-3040, 12-21-3050, 12-21-3060,
12-21-3090, 12-21-3100, 12-21-3110, 12-21-3120, 12-21-3130, 12-23-70,
12-23-80, 12-23-100, 12-23-110, 12-27-50, 12-27-310, 12-27-340,
12-27-580, 12-27-820, 12-29-140, 12-29-420, 12-29-430, Article 7 of
Chapter 29, 12-31-460, 12-31-470, 12-31-480, Article 7 of Chapter 31,
12-37-2180, 12-37-2480, 12-39-65, 12-43-305, Chapter 47 of Title 12,
12-49-70, Article 3 of Chapter 53, Sections 12-54-20, 12-54-30,
12-54-80, and any other provision in Title 12 concerning tax appeals.
Any inconsistent provisions in Title 56 concerning appeals within the
jurisdiction of the department are superseded by this act and shall have
no force or effect.
J. The Code Commissioner shall:
(1) place all appropriate provisions of acts dealing with revenue
related procedures and state restructuring enacted in the 1995 Session of
the General Assembly in the appropriate part of Chapter 60, Title 12 of
the 1976 Code, as added by this section, and in so doing he shall modify
the language of code sections as necessary to implement the intent of the
General Assembly;
(2) eliminate or delete from the chapter added by this section any
provision of law the subject matter of which was repealed or deleted by
the General Assembly in the 1995 session;
(3) amend provisions in the chapter added by this section
corresponding to amendments of the tax procedure laws of this State
enacted by the General Assembly during the 1995 session in other acts;
and
(4) correct cross references considered necessary in affected
provisions of the 1976 Code.
K. Except where inappropriate, a reference in any law or document to a
provision of the 1976 Code repealed by this section is considered a
reference to the appropriate provisions of Chapter 60 of Title 12 of the
1976 Code.
L. This section takes effect on the first day of the second month
following approval by the Governor. However, the Tax Board of
Review, as provided in Chapter 5, Title 12 of the 1976 Code, continues
in existence until any cases appealed to it before the effective date of this
section are disposed of.
Time effective
SECTION 5. Unless otherwise stated, this act takes effect upon approval
by the Governor.
Approved the 12th day of June, 1995. |