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H. 3865
STATUS INFORMATION
General Bill
Sponsors: Rep. Kirsh
Document Path: l:\council\bills\bbm\9694sl03.doc
Introduced in the House on March 26, 2003
Currently residing in the House Committee on Ways and Means
Summary: Revenue Department; property taxes
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 3/26/2003 House Introduced and read first time HJ-75 3/26/2003 House Referred to Committee on Ways and Means HJ-75
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND ARTICLE 1, CHAPTER 60 OF TITLE 12, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO SOUTH CAROLINA REVENUE PROCEDURES ACT, SO AS TO REVISE THE MANNER IN WHICH AND CONDITIONS UNDER WHICH DISPUTES OR CLAIMS WITH THE DEPARTMENT OF REVENUE ARE DETERMINED AND RESOLVED; TO AMEND ARTICLE 5, CHAPTER 60 OF TITLE 12, RELATING TO STATE REVENUE APPEALS PROCEDURES, SO AS TO REVISE THESE APPEAL PROCEDURES; TO AMEND SECTION 12-60-2110, RELATING TO PROPERTY TAX ASSESSMENT PROTESTS, SO AS TO REVISE THE TIME FOR FILING THESE PROTESTS; TO AMEND SECTION 12-60-2510, AS AMENDED, RELATING TO PROPERTY TAX ASSESSMENT NOTICES, SO AS TO CLARIFY CERTAIN REFERENCES IN THE SECTION; TO AMEND SECTION 12-60-2910, RELATING TO OBJECTIONS TO PERSONAL PROPERTY TAX ASSESSMENTS, SO AS TO REVISE THE TIME WITHIN WHICH A TAXPAYER MUST OBJECT TO THE ASSESSMENT; AND TO AMEND ARTICLE 13, CHAPTER 60 OF TITLE 12, RELATING TO PROCEDURES AND CONTESTED REVENUE CASES, SO AS TO REVISE THE DUTIES, FUNCTIONS, AND RESPONSIBILITIES OF THE ADMINISTRATIVE LAW JUDGE DIVISION AND DEPARTMENT HEARING OFFICERS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 1, Chapter 60 of Title 12 of the 1976 Code is amended to read:
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 a dispute with the Department of Revenue. 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 recording the liability of the taxpayer in the office of the department, subject to the restrictions in Section 12-60-440.
(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 a county officer or official who issues an official property tax assessment for real property.
(6) 'County auditor' or 'auditor' means any a 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 of property tax assessments issued by the property tax assessor for the county and which also hears appeals of refund claims of property as determined by the majority of the county assessor, county auditor, and county treasurer.
(8) 'Deficiency' means the amount by which a tax exceeds the amount shown on any a 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.
(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 'Division decision' means a decision by a division of the department that affects the rights or obligations of a person for which no specific appeals rights are provided by this act. Division decision includes the refusal to expunge or satisfy a lien.
(14) 'DMV matters' means matters related to driver licenses, motor vehicle registrations, and motor vehicle titles.
(15)(14) '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)(15) 'Exhaustion of the taxpayer's 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 the 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.
(16) 'Internal Revenue Code' means the Internal Revenue Code as provided in Section 12-6-40(A).
(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 a table provided by the department for use with any a 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 a 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 a 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 a 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 a document specifically stating that it is not a proposed assessment.
(24) 'Protest' means a written appeal of a proposed assessment or a division decision 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, including property subject to collection pursuant to Chapter 18 of Title 27, except property taxes.
(27) 'Tax' or 'taxes' means all taxes, licenses, permits, fees, or other amounts, including interest, regulatory and other penalties, and civil fines, imposed by this title, or subject to assessment or collection by the department, including property subject to collection pursuant to Chapter 18 of Title 27.
(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 a licensee, and any an 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 may extend any time limitations provided by this title and for any other taxes. The department and a taxpayer may agree to extend any time limitations or waive, including any requirements provided in Article 5 or Article 9 of this chapter.
(B) Time limitations provided under pursuant to this chapter and Chapter 54 are suspended during a stay ordered by the Taxpayers' Rights Advocate.
Section 12-60-50. (A) For purposes of this title and for any other taxes, when the last day of any a specified time period is a Saturday, Sunday, or a legal holiday, the end of the period is extended to the next business day. For this purpose, 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.
(B) Except where payment of taxes is required to be made in funds which are immediately available to the State by electronic funds transfer or otherwise, the provisions of Internal Revenue Code Section 7502 relating to timely mailing as timely filing and paying are applicable to returns, other documents, or payment of taxes imposed by this title, or subject to assessment and collection by the department.
Section 12-60-60. No An action of a court, or an administrative law judge, or a hearing officer can cannot stay or prevent the department or any an 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 A writ of mandamus may must not be granted or issued from a court, or an 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 a 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 a state or local tax authority, or any of their officials or employees, relating to a client's rights, privileges, or liabilities under pursuant to 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 may represent them in administrative tax proceedings with the Internal Revenue Service pursuant to Section 10.3(a), (b), and (c), Section 10.7(a), (c)(i) through (c)(vi), and (c)(viii), and Section 10.7(d) and (e) 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 a 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 a 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 12-6-40(A). (revised as of July 1, 1994) as found in Title 31, Code of Federal Regulations, subtitled;
(2) references in United States Treasury Department Circular No. 230 to:
(a) the United States or federal are deemed to include includes 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 the department or local tax authority; and
(c) the Director of Practice is deemed to mean means the director or his designee."
SECTION 2. Article 5, Chapter 60 of Title 12 is amended to read:
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 the procedures prescribed by of 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. Except in the case of fraud, an order abating a jeopardy assessment, or additional assessments resulting from adjustments made by the Internal Revenue Service, the department may not assess taxes imposed by the same article, or chapter if the chapter has no article, for any a 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.
Section 12-60-420. (A) If a division of the department makes a division decision or determines there is a deficiency in any a state tax, it may send by first class mail or deliver a the division decision or the proposed assessment to the taxpayer. The division decision or the proposed assessment must explain the basis for the division decision or the proposed assessment and state that an assessment will be made unless the taxpayer protests the division decision or the proposed assessment as provided in Section 12-60-450.
(B) The division decision or proposed assessment will become final and, if applicable, an assessment will be made for the amount of a proposed assessment. The department shall make available forms which taxpayers may use to protest the division decision or the proposed assessments. The division decision or 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 or liability, one division decision or the 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 division decision or the 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 a 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. (A) The department may not assess a deficiency until thirty ninety 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) penalties for failure to file or failure to pay, or penalties that are determined as a percentage of interest;
(4) amounts reported on a return or other document, or paid as tax; or
(5) assessments as provided in Section 12-60-910.
(B) If a proposed assessment was not issued, the taxpayer may request an abatement of any an assessment due to a mathematical or clerical error, or for a penalty described in item (3), within thirty days of the date of the assessment. Upon receipt of the request for abatement the department shall abate the assessment. Any A 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 A levy or collection proceeding may not 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 division decision or a proposed assessment by filing a written protest with the department within thirty ninety days of the date of the division decision or 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) if relevant, the tax period or date for which the tax was proposed;
(4) if relevant, 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 6, 11, or 13 of this title.
(C) The filing of an appeal of the a proposed assessment as provided in subsection (A) extends the time for assessment as provided in Section 12-54-85(G).
(D)(1) 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.
(2) If the taxpayer fails to respond or participate in the this 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)(15)(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)(15)(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) if a proposed assessment was protested, 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 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.
Section 12-60-470. (A) A taxpayer may seek a refund of any a 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) Only the taxpayer legally liable for the tax may file a claim for refund or receive a refund, except that after the application of Section 12-60-490 against the person claiming or receiving the refund:
(1) the assignment of a refund may be made, but only after the department has authorized the refund and issued an order for the refund to the State Treasurer's office; or
(2) a person who acts as a collector and remitter of state taxes may claim a credit or refund of the tax collected, but only if the person establishes that he has paid the tax in question to the State, and;
(a) repaid the tax to the person from whom he collected it; or
(b) obtained the written consent of the person from whom he collected the tax to the allowance of the credit or refund.;
(2) a purchaser who has paid sales tax to a retailer for a specific transaction may claim a refund if the retailer who paid the sales tax to the State has assigned, in writing, the right to a refund of that sales tax to the purchaser;
(3) except as allowed in items (1) and (2) above, the taxpayer legally liable for the tax may only assign a refund to another person after the taxpayer's claim is allowed, the amount of the refund is finally decided, and the department has approved the 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 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 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 before, 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 a 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 an 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 a 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. (A) 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 a contested case hearing before the Administrative Law Judge Division, 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.
(B) 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 a court. A case decided under pursuant to this section may not be cited by either the department or any a taxpayer in any a 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.
Section 12-60-910. (A) If the department finds that the assessment or the collection of a tax or a deficiency for any a 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 An action by the department made under pursuant to this subsection is a 'jeopardy assessment'.
(B) If a jeopardy assessment is made under pursuant to subsection (A), notice of the jeopardy assessment must be provided to the taxpayer by any one 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 an 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 a 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 by filing a request with the department. 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 a request for a contested case hearing is received by the department, it shall file its response with the Administrative Law Judge Division. Within twenty days after the department's response a request for a contested case hearing is received by the department, or as soon thereafter as practicable, an administrative law judge shall hold the contested case hearing and 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 a 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.
(1) In a contested case hearing pursuant to subsection (C), the department has the burden of proof showing the making of the jeopardy assessment was reasonable under the circumstances.
(2) In a contested case hearing pursuant to subsection (C), the taxpayer has the burden of proof of showing the tax assessed as a result of the action taken pursuant to Section 12-60-910 is not appropriate.
(G)(1) If the administrative law judge determines that the collection of the tax assessed is in jeopardy, the administrative law judge shall remand the case to the department to issue a department determination for the period or period in issue within the time period determined by the judge. This department determination is not limited by the administrative law judge's finding of the appropriate amount to collect as a jeopardy assessment. The taxpayer may appeal this department determination in accordance with Section 12-60-460. At the contested case hearing on this department determination, the parties can raise issues and arguments previously presented at the jeopardy hearing;
(2) if the administrative law judge determines that the collection of the tax assessed is not in jeopardy, the department may issue a department determination in accordance with Section 12-60-450(E).
Section 12-60-1310. (A) If a division of the department denies a person any a 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 ninety 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 the 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)(15)(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)(15)(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 Provisions in this chapter applies do not apply to, or has any have an effect on, any a license suspended or revoked (1) by the Department of Public Safety, (2) by judicial decision or order, (3)(2) where a statute requires the department or the Department of Public Safety to suspend or revoke a license, or (4)(3) by other operation of law."
SECTION 3. Section 12-60-2110 of the 1976 Code is amended to read:
"Section 12-60-2110. In the case of property tax assessments made by a division of the department, protests must be filed within thirty ninety 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 ninety 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 ninety days after the date the notice of denial is mailed to the taxpayer."
SECTION 4. Section 12-60-2510 of the 1976 Code, as last amended by Act 271 of 2002, is further amended to read:
"Section 12-60-2510. (A)(1) In the case of property tax assessments made by the county assessor, whenever the assessor increases the fair market or special use value in making a property tax assessment by one thousand dollars or more, or whenever the first property tax assessment is made on the property by a county assessor, the assessor, by July first in the year in which the property tax assessment is made, or as soon after as is 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 February first of the implementation year. In these reassessment years, if substantially all of the tax assessment notices are not mailed by February 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) value as limited by Section 12-37-223A, if applicable;
(c) the special use value, if applicable;
(d) the assessment ratio;
(e) the property tax assessment;
(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 Department of Public Safety'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 ninety 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 5. Section 12-60-2910(A) of the 1976 Code is amended to read:
"(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 at any time on or before the later of:
(1) thirty ninety days after the tax notice is mailed; or
(2) last day the tax levied upon the assessment may be timely paid."
SECTION 6. Article 13, Chapter 60 of Title 12 of the 1976 Code is amended to read:
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 a 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 a 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 and the rules of the Administrative Law Judge Division must be heard in accordance with its rules.
Section 12-60-3350. In any an 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 otherwise provided, a taxpayer shall pay, or post a bond for, all taxes, not including penalties or civil fines, determined to be due by the administrative law judge 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 pay only the amount assessed pursuant to 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 Appeal of a decision of the 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."
SECTION 7. This act takes effect upon approval by the Governor.
This web page was last updated on Monday, December 7, 2009 at 10:32 A.M.