South Carolina General Assembly
110th Session, 1993-1994

Bill 672


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Introducing Body:               Senate
Bill Number:                    672
Primary Sponsor:                Land
Committee Number:               30
Type of Legislation:            GB
Subject:                        Tax Commission, declaratory
                                judgment
Residing Body:                  House
Current Committee:              Ways and Means
Computer Document Number:       JIC/5719HC.93
Introduced Date:                19930413
Date of Last Amendment:         19940216
Last History Body:              House
Last History Date:              19940222
Last History Type:              Introduced, read first time,
                                referred to Committee
Scope of Legislation:           Statewide
All Sponsors:                   Land
Type of Legislation:            General Bill



History


Bill  Body    Date          Action Description              CMN  Leg Involved
____  ______  ____________  ______________________________  ___  ____________

672   House   19940222      Introduced, read first time,    30
                            referred to Committee
672   Senate  19940217      Read third time, sent to House
672   Senate  19940216      Amended, read second time
672   Senate  19940210      Committee Report: Favorable     06
                            with amendment
672   Senate  19930413      Introduced, read first time,    06
                            referred to Committee

View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

Indicates Matter Stricken
Indicates New Matter

COMMITTEE AMENDMENT ADOPTED

February 16, 1994

S. 672

Introduced by SENATOR Land

S. Printed 2/16/94--S.

Read the first time April 13, 1993.

A BILL

TO AMEND CHAPTER 4, TITLE 12, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SOUTH CAROLINA TAX COMMISSION, BY ADDING ARTICLE 9 SO AS TO AUTHORIZE THE COMMISSION TO SEEK A DECLARATORY JUDGMENT TO DETERMINE THE CONSTITUTIONALITY OR LEGALITY OF A TAX LAW OR LAW PROVIDING FOR THE ADMINISTRATION OF TAXES, TO PROVIDE FOR THE CASE TO BE HEARD IN THE SUPREME COURT ON AN EXPEDITED BASIS, TO PROVIDE FOR THE APPLICATION OF TAX LAW SUBJECT TO THE ACTION, AND TO PROVIDE TAXPAYER REMEDIES.

Amend Title To Conform

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. The General Assembly finds that:

(1) On occasion, the South Carolina Department of Revenue and Taxation is confronted with the administration and enforcement of a state statute when there are material concerns about the statute's constitutionality or legality. These concerns may arise from a statute of another state having similar effect and force being declared unconstitutional by the United States Supreme Court or by the highest court of another state, or by the enactment of a federal statute preempting state law.

(2) It is in the public's interest, and it is the intent of the General Assembly that there be no continuation of the administration and enforcement of an unconstitutional or illegal law.

(3) The purpose of this act is to provide a procedure to suspend temporarily the administration and enforcement of the statute until the courts can review the statute and determine whether or not it is invalid.

SECTION 2. Chapter 4, Title 12 of the 1976 Code is amended by adding:

"Article 9

Declaratory Judgments

Section 12-4-910. If the department determines that there is material doubt as to the constitutionality or legality of a tax statute or a statute which affects its ability to administer and enforce the tax laws, the department, after advising the State Budget and Control Board, may file a declaratory judgment action with the Supreme Court petitioning the court to review and determine the statute's constitutionality, legality, or both. The Supreme Court, upon receipt of the petition, shall schedule the matter for consideration at the earliest practicable date. Except as otherwise provided in this article, this action must be conducted in accordance with Chapter 53 of Title 15.

Section 12-4-920. A taxpayer whose duty to pay the tax and a person whose duty to collect the tax may be affected by the declaratory judgment action may intervene in the action.

Section 12-4-930. If an exemption, exclusion, deduction, or credit is determined to be unconstitutional or illegal, then, unless the imposition statute of the tax specifically provides otherwise, it is the legislative intent of the General Assembly that the tax be upheld and the exemption, exclusion, deduction, or credit be declared void.

Section 12-4-940. All statutes of limitations for assessment, collection, and claims and suits for refund are suspended from the date the action is filed until ninety days after the decision in the case becomes final.

Section 12-4-950. (A) If the statute imposes a tax, taxpayers shall continue to file returns showing the disputed tax during the pendency of the action, but need not pay the tax. If the tax is upheld, failure to pay penalties and interest are waived if the tax is paid within ninety days after the decision becomes final.

(B) If the statute allows an exemption, exclusion, deduction, or credit, taxpayers may continue to claim the exemption, exclusion, deduction, or credit, and if the exemption, exclusion, deduction, or credit is declared unconstitutional or illegal, failure to pay penalties and interest are waived if the tax is paid within ninety days after the decision becomes final.

Section 12-4-960. In addition to all other remedies, a taxpayer who after the petition provided in Section 12-4-720 is filed pays a tax which is declared to be unconstitutional or illegal under this article, may file a claim for refund any time within one year and ninety days after the decision becomes final. If, after administrative remedies are exhausted, the claim for refund is denied by the department, the taxpayer may file a suit for refund within thirty days from the date of the department's denial."

SECTION 3. Section 12-47-440 of the 1976 Code is amended to read:

"Section 12-47-440. Notwithstanding any other provisions of this Title law, whenever if it shall appear appears to any a taxpayer person that any license fee or tax or fee administered by the department imposed under this Title has been erroneously, improperly, or illegally assessed, collected, or otherwise paid over to the Commission department, the taxpayer person, by whom or on whose behalf the license fee or tax or fee was paid, may make application apply to the Commission department to abate or refund in whole or in part such the license fee or tax or fee. Should the Commission department, after having given such taxpayer the person a reasonable opportunity to be heard, decline declines to make such the abatement or refund, the taxpayer person may, within thirty days of the date of receipt of notice of the Commission's department's action declining the abatement or refund, bring an action against the Commission department for recovery of the license fee or tax or fee. The provisions of this section shall apply whether or not the license fee or tax or fee in question was paid under protest, but shall are only be available where the application provided for here is made in writing to the Commission department within a period of three years from the date the license fee or tax or fee was due to have been paid, without regard to extensions of time for payment, or if a later date would result, within one year of payment where an additional license fee or tax or fee is assessed and paid. Such The action shall must be brought in the court of common pleas for Richland County except that a resident of this State may elect to bring said the action in the court of common pleas for the county of his residence. A taxpayer or licensee who brings an action provided for in Sections 12-47-210 and 12-47-220 shall be is considered as having elected his remedy and is denied the benefits of this section."

SECTION 4. This act takes effect upon approval by the Governor except that Section 3 of this act is effective with respect to tax years beginning after December 31, 1989, and with respect to claims for refunds for prior years which are under review by the Department of Revenue and Taxation on the date the Governor approves this act.

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