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COMMITTEE REPORT
April 23, 2003
H. 3919
S. Printed 4/23/03--H.
Read the first time April 2, 2003.
To whom was referred a Bill (H. 3919) to amend the Code of Laws of South Carolina, 1976, by adding Section 12-2-100 so as to provide that a tax credit administered by the Department of Revenue, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting clause and inserting:
/ SECTION 1. Chapter 2, Title 12 of the 1976 Code is amended by adding:
"Section 12-2-100. Unless otherwise provided, a tax credit administered by the department must be used in the year it is generated and must not be refunded."
SECTION 2. Section 12-2-20 of the 1976 Code is amended to read:
"Section 12-2-20. As used in this title and in other titles which provide for taxes administered by the department 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."
SECTION 3. Section 12-2-25(A) of the 1976 Code is amended to read:
"(A) As used in this title and in other titles which provide for taxes administered by the department and unless otherwise required by the context:
(1) 'partnership' includes a limited liability company taxed for South Carolina income tax purposes as a partnership;
(2) 'partner' includes a member of a limited liability company taxed for South Carolina income tax purposes as a partnership;
(3) 'corporation' includes a limited liability company or professional or other association taxed for South Carolina income tax purposes as a corporation; and
(4) 'shareholder' includes a member of a limited liability company taxed for South Carolina income tax purposes as a corporation."
SECTION 4. Section 12-8-580(B)(2) and (3) of the 1976 Code, as last amended by Act 399 of 2000, are further amended to read:
"(2)(a) A sale does not include tax exempt or tax deferred transactions, other than installment sales.
(b) A sale does not include a transaction to the extent the gain on the sale of a principal residence is excluded in accordance with Internal Revenue Code Section 121. Any gain in excess of this permitted exclusion is subject to the provisions of this section.
(3) The department may exempt certain other classes of transactions from the provisions of this section when it determines that the benefits to the State are insufficient to justify the burdens imposed on the buyer and seller. The department may revoke the exemption granted by this item if it determines that the nonresident is not cooperating with the department in the determination of the nonresident taxpayer's correct South Carolina tax liability. The revocation does not revive the duty of a person purchasing real property or associated tangible personal property from a nonresident seller to withhold until the person receives notice of the revocation."
SECTION 5. A. Section 12-6-40(A)(1) of the 1976 Code, as last amended by Act 220 of 2002, is further amended to read:
"(1) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as amended through December 31, 2001 2002, and includes the effective date provisions contained in it."
B. Section 12-6-50(4) of the 1976 Code is amended to read:
"(4) Sections 78, 86, 87, 168(k), 196, and 280C;"
C. Section 12-6-540 of the 1976 Code is amended to read:
"Section 12-6-540. An income tax is imposed annually at the rate of five percent on the South Carolina taxable income of an organization described in Internal Revenue Code Sections 501 through 528 (Exempt Organizations) and 1381 (Cooperatives) as computed under Internal Revenue Code Sections 501(b) (unrelated business income), 528(d) (taxable income of homeowners' associations), and 1382 and 1383 (taxation of cooperatives). with the The modifications provided in Article 9 of this chapter and subject to the allocation and apportionment as provisions provided in Article 17 of this chapter apply for the taxes imposed by this section."
SECTION 6. Section 12-13-50 of the 1976 Code is amended to read:
"Section 12-13-50. The income tax provided in this chapter shall be in lieu of any and all other taxes on such associations, except use taxes, documentary stamp taxes deed recording fees, and taxes on real property. The real property of any such association shall be taxed in the place where it may be located, the same as the real property of individuals."
SECTION 7. Section 12-13-70 of the 1976 Code is amended to read:
"Section 12-13-70. The income tax imposed by this chapter shall be is administered by the State Department of Revenue. The department shall may make such rules and regulations and issue advisory opinions not inconsistent with law as may be required for the proper administration and enforcement of this chapter, and such rules and the department's regulations shall have full force and effect of law."
SECTION 8. Section 12-20-150 of the 1976 Code is amended to read:
"Section 12-20-150. The department shall prescribe rules and may promulgate regulations and issue advisory opinions necessary to enforce and administer the provisions of this chapter. These rules and regulations have the force of law."
SECTION 9. Section 12-28-940(C) of the 1976 Code is amended to read:
"(C) The department shall may promulgate regulations and issue advisory opinions establishing the evidence a supplier shall provide to receive the credit."
SECTION 10. Section 12-43-210(A) of the 1976 Code is amended to read:
"(A) All property must be assessed uniformly and equitably throughout the State. The South Carolina Department of Revenue shall may promulgate regulations to ensure equalization which must be adhered to by all assessing officials in the State."
SECTION 11. Section 12-43-230(c) of the 1976 Code is amended to read:
"(c) The department shall may further provide by regulation for definitions not inconsistent with general law for real property and personal property in order that such property shall must be assessed uniformly throughout the State."
SECTION 12. Section 12-54-110 of the 1976 Code is amended to read:
"Section 12-54-110. (A) When a person, who is required to make a return or obtain a license under the provisions of law administered by the department, (a) fails to do so at the time required, (b) delivers any return which, in the opinion of the department is erroneous, or (c) refuses to allow any regularly authorized agent of the department to examine his books and records, The department may summon:
(a)(1) the a person who,:
(a) is required to make a return or obtain a license pursuant to the provisions of law administered by the department and who fails to do so at the time required;
(b) delivers a return that the department considers erroneous; or
(c) refuses to allow an authorized agent of the department to examine his books and records;
(b)(2) any other another person having possession, care, or custody of books of account containing entries relating to the business of such person; or
(c)(3) any other another person it considers proper to.
(B) The summons may demand that the person appear before the department and produce the books at a time and place named in the summons and to give testimony and answer questions under oath respecting any item of income liable relating to a tax on the return thereof or other matter administered by the department.
(C) The summons must in all cases be served by an authorized agent of the department by delivering an attested copy to the person in hand or leaving the copy at the person's last or usual place of abode. When the summons requires the production of books and returns, it is sufficient if the books are described with reasonable certainty.
(D) Whenever If a person summoned under the provisions of pursuant to this section neglects or refuses to obey the summons, the department may apply to any a circuit judge for an attachment against him for contempt. Any judge may hear the application and, if satisfactory proof is made, shall issue an attachment directed to the sheriff of the county in which the person resides for the his arrest of the person. Upon When the person being is brought before him, the judge shall proceed to a hearing of the case. The judge and may make enforce obedience to the requirements of the summons by making an order consistent with existing laws for the punishment of contempt, to enforce obedience to the requirements of the summons."
SECTION 13. A. Section 12-6-3360(B) of the 1976 Code, as last amended by Act 332 of 2002, is further amended to read:
"(B) The department shall rank and designate the state's counties by December thirty-first each year using data from the South Carolina Employment Security Commission and the United States Department of Commerce. The county designations are effective for taxable years that begin in the following calendar year. The counties are ranked using the last three completed calendar years of available per capita income data and the last thirty-six months or three years of available unemployment rate data that are available on November first, with equal weight given to unemployment rate and per capita income as follows:
(1)(a) The twelve counties with a combination of the highest unemployment rate and lowest per capita income are designated distressed counties. Notwithstanding any other provision of law, no more than twelve counties may be designated or classified as distressed and notwithstanding any other provision of this section, a county may be designated as distressed only by virtue of the criteria provided in this subitem.
(b) A category with the same criteria as provided in subitem (a) of this item is designated least developed county which consists of underdeveloped counties otherwise eligible for this category.
(2) The twelve counties with a combination of the next highest unemployment rate and next lowest per capita income are designated underdeveloped counties.
(3) The eleven counties with a combination of the next highest unemployment rate and the next lowest per capita income are designated moderately developed counties.
(4) The eleven counties with a combination of the lowest unemployment rate and the highest per capita income are designated developed counties. The designation by the department is effective for corporate taxable years which begin after the date of designation.
(5)(a) A county, any portion of which is located within twenty-five miles of the boundaries of an applicable military installation or applicable federal facility as defined in Section 12-6-3450(1), shall receive the next increased credit designation for five years beginning with the year in which the military installation or federal facility became an applicable military installation or applicable federal facility as defined in Section 12-6-3450(1), with the additional requirement that the military installation must have reduced employment on the installation of at least three thousand employees.
(b) In addition to the designation in subitem (a), a county in which an applicable military installation or applicable federal facility is located is allowed an additional increased credit designation for five years beginning with the year the installation or facility meets the requirements.
(c) Notwithstanding the designations in Section 12-6-3360, Laurens, Cherokee, and Union Counties shall qualify for the next increased credit designation.
(d) In a county where less than five percent of the work force is in manufacturing, the credit allowed is one tier higher than the credit for which the county would otherwise qualify.
(e) For a job created in a county that is not traversed by an interstate highway, the credit allowed is one tier higher than the credit for which jobs created in the county would otherwise qualify. This subitem does not apply to a job created in a county eligible for a higher tier pursuant to another provision of this item."
B. Section 12-6-3415 of the 1976 Code, as added by Act 283 of 2000, is amended to read:
"Section 12-6-3415. (A) A taxpayer that claims a federal income tax credit pursuant to Section 41 of the Internal Revenue Code for increasing research activities for the taxable year is allowed a credit against any tax due pursuant to Section 12-6-530 or Section 12-20-50 equal to five percent of the taxpayer's qualified expenditures for research and development research expenses made in South Carolina. For the purposes of this credit, qualified research and development expenditures have expenses has the same meaning as provided for in Section 41 of the Internal Revenue Code.
(B) The credit taken in any one taxable year pursuant to this section may not exceed fifty percent of the taxpayer's remaining tax liability after all other credits have been applied. Any unused credit may be carried over to the immediately succeeding taxable years, except that the credit carry-over may not be used for a taxable year that begins on or after ten years from the date of the qualified expenditure research expenses."
C. Section 12-6-3470(A) of the 1976 Code is amended to read:
"(A)(1) An employer who employs a person who received Family Independence payments within this State for three months immediately preceding the month the person becomes employed is eligible for an income tax credit of:
(1)(a) twenty percent of the wages paid to the employee for each full month of employment for the first twelve months of employment;
(2)(b) fifteen percent of the wages paid to the employee for each full month of employment during the second twelve months of employment;
(3)(c) ten percent of the wages paid to the employee for each full month during the third twelve months of employment.
(2) Except for employees employed in distressed counties the maximum aggregate credit that may be claimed in a tax year for a single employee under pursuant to this subsection and Section 12-6-3360 is five thousand five hundred dollars."
SECTION 14. Section 12-6-3310 of the 1976 Code, as added by Act 76 of 1995, is amended to read:
"Section 12-6-3310. (A) All Credits allowed in this article are nonrefundable and useable may be used only in the year generated unless otherwise provided.
(B)(1) Unless specifically prohibited, an 'S' corporation, limited liability company taxed as a partnership, or partnership that qualifies for a credit pursuant to this article may pass through the credit earned to each shareholder of the 'S' corporation, member of the limited liability company, or partner of the partnership.
(2) A credit earned by an 'S' corporation owing corporate level income tax must first be used at the entity level. Only the remaining credit passes through to the shareholders of the 'S' corporation.
(3) The amount of the credit allowed a shareholder, partner, or member is equal to the percentage of the shareholder's stock ownership, partner's interest in the partnership, or member's interest in the limited liability company for the taxable year multiplied by the amount of the credit earned by the entity and available for pass through. Limitations upon reduction of income tax liability by use of a credit are computed based on the shareholder's, partner's, or member's tax liability. The credit is allowed against the type of tax or taxes specifically provided by the credit in this article."
SECTION 15. A. Section 12-6-3365(B) of the 1976 Code, as added by Act 277 of 2000, is amended to read:
"(B) To qualify for the moratorium pursuant to subsection (A), a taxpayer must shall create at least one hundred full-time new jobs at a facility in a county:
(1) with an average annual unemployment rate of at least twice the state average during each of the last two completed calendar years twenty-four months, based on the most recent unemployment rates rate data on November first available, or that is one of the three lowest per capita income counties, based on the average of the three most recent completed calendar years of available average per capita income data that are available on November first; and
(2) in which at least ninety percent of the taxpayer's total investment in this State is located."
B. Section 12-6-3365 of the 1976 Code, as added by Act 277 of 2000, is amended by adding at the end:
"(G) The department shall designate the moratorium counties by December thirty-first each year using data from the South Carolina Employment Security Commission and the United States Department of Commerce. The designations are effective for taxable years that begin in the following calendar year."
C. Section 12-10-35 of the 1976 Code, as last amended by Act 399 of 2000, is hereby repealed.
D. The repeal of Section 12-10-35 takes effect upon approval by the Governor and applies to tax years beginning after 2003; the repeal does not affect a moratorium in effect on that date.
SECTION 16. Section 12-44-30(14) of the 1976 Code, as last amended by Act 280 of 2002, is further amended to read:
"(14) 'Minimum investment' means a project which results in a total investment by a sponsor of not less than five million dollars within the investment period. If a county has an average annual unemployment rate of at least twice the state average during each of the last two completed calendar years, twenty-four months, based on data available on November first, the minimum investment is one million dollars. The department shall designate the reduced investment counties by December thirty-first each year using data from the South Carolina Employment Security Commission and the United States Department of Commerce. The designations are effective for a sponsor whose fee agreement is signed in the calendar year following the county designation. For all purposes of this chapter, the minimum investment may include amounts expended by a sponsor or sponsor affiliate as a nonresponsible party in a voluntary cleanup. If these amounts equal at least one million dollars, the investment threshold requirement of this chapter is deemed to have been met."
SECTION 17. Section 4-12-30(B)(3) of the 1976 Code, as last amended by Act 280 of 2002, is further amended to read:
"(3) The minimum level of investment must be at least five million dollars and must be invested within the time period provided in subsection (C)(2). If a county has an average annual unemployment rate of at least twice the state average during each of the last two calendar years, twenty-four months, based on data available on November first, the minimum level of investment is one million dollars. The department shall designate the reduced investment counties by December thirty-first each year using data from the South Carolina Employment Security Commission and the United States Department of Commerce. The designations are effective for a sponsor whose fee agreement is signed in the calendar year following the county designation. Investments may include amounts expended by a sponsor or sponsor affiliate as a nonresponsible party in a voluntary cleanup contract on the property pursuant to Article 7, Chapter 56 of Title 44, the Brownfields Voluntary Cleanup Program, if the Department of Health and Environmental Control has issued a certificate of completion for the cleanup. If these amounts equal at least one million dollars, the investment threshold requirement of this chapter is deemed to have been met."
SECTION 18. Article 5, Chapter 6, Title 12 of the 1976 Code is amended by adding:
"Section 12-6-535. For purposes of Internal Revenue Code Section 641(c), an electing small business trust is taxed at the highest rate provided in Section 12-6-510."
SECTION 19. Section 12-6-5020 of the 1976 Code is amended to read:
"Section 12-6-5020. (A) A consolidated return may be filed for the following corporations:
(1) a parent and substantially controlled subsidiary or subsidiaries;
(2) two or more corporations under substantially the entire control of the same interest.
However, a corporation that has elected to be taxed under Subchapter S of the Internal Revenue Code may not join in the filing of a consolidated income tax return under this section.
The terms 'substantially controlled' and 'substantially the entire control' mean the ownership of at least eighty percent of the total combined voting power of all classes of stock of all corporations that are a party to a consolidated return.
(B) All corporations included in a consolidated return must be subject to tax under Section 12-6-530.
(C) A corporation doing business entirely within this State may consolidate with a corporation doing a multistate business. Two or more corporations doing a multistate business may file a consolidated return.
(D) A consolidated return means a single return for two or more corporations in which income or loss is separately determined as follows:
(1) South Carolina taxable income or loss is computed separately for each corporation;
(2) allocable income is allocated separately for each corporation;
(3) apportionable income or loss is computed utilizing separate apportionment factors for each corporation;
(4) income or loss computed in accordance with items (1) through (3) of this subsection is combined and reported on a single return for the controlled group.
(E) All corporations included in a consolidated return or a combined return must use the same accounting year.
(F) If a corporation which files or is required to file a consolidated return is entitled to one or more income tax credits, including the carryover of unused credits from prior years, the income tax credits may be determined on a consolidated basis. Limitations on credits which refer to the income or the income tax liability of a corporation are deemed to refer to the income or income tax liability of the consolidated group, and credits shall reduce the consolidated group's tax liability regardless of whether or not the corporation entitled to the credit contributed to the tax liability or of the consolidated group.
(G) The election to file a consolidated return or separate returns must be made on an original and timely return and may not be changed after the return is filed.
(H) Once an election is made to file a consolidated return, this election must be adhered to until permission is granted by the department to file separate returns."
SECTION 20. Section 12-21-1090 of the 1976 Code is amended to read:
"Section 12-21-1090. The department shall may promulgate rules and regulations and issue advisory opinions for the payment and collection of the taxes levied by this article. The administrative provisions of Section 12-21-2870, wherever applicable, are hereby adopted for the administration and enforcement of the provisions of this article."
SECTION 21. Section 12-35-40 of the 1976 Code, as added by Act 334 of 2002, is amended to read:
"Section 12-35-40. For the purposes of reviewing or amending, or both, the agreement embodying the simplification requirements as contained in Section 12-35-70 of this chapter, this State shall enter into multistate discussions. For purposes of the discussions, this State must be represented by four delegates. The four delegates are the director of the department or the director's designee, the Chairman of the House Ways and Means Committee or the chairman's designee, the Chairman of the Senate Finance Committee or the chairman's designee, and one delegate appointed by the Governor from the business community. Any decision concerning the agreement must be made by a majority of this state's delegation present at the meeting. Members of the delegation shall receive the mileage, subsistence, and per diem, lodging, airfare, and other business expenses authorized by law for members of state boards, committees, and commissions and must be paid from sales and use tax collections."
SECTION 22. Section 12-36-2510 of the 1976 Code is amended to read:
"Section 12-36-2510. (A)(1) Notwithstanding other provisions of this chapter, when, in the opinion of the department, the nature of a taxpayers business renders it impracticable for the taxpayer to account for the sales or use taxes, as imposed by this chapter, at the time of purchase, the department may issue its certificate to the taxpayer authorizing the purchase at wholesale and the taxpayer is liable for the taxes imposed by this chapter with respect to the gross proceeds of sale, or sales price, of the property withdrawn, used or consumed by the taxpayer within this State. at its discretion, may issue or authorize for the efficient administration of the sales and use tax law any type of certificate allowing a taxpayer to purchase tangible personal property tax free and be liable for any taxes.
(2) In addition to any other type of certificate the department considers necessary to issue, the department may issue at its discretion:
(a) Direct Pay Certificate: a direct pay certificate allows its holder to make all purchases tax free and to report and pay directly to the department any taxes due. The holder of a direct pay certificate is liable for any taxes due. If an exemption or exclusion is not applicable, the tax is due upon the withdrawal, use, or consumption of the tangible personal property purchased with the certificate.
(b) Exemption Certificate: an exemption certificate, as opposed to allowing its holder to make all purchases tax free, allows its holder to make only certain purchases tax free such as machinery, electricity, or raw materials. The holder of an exemption certificate is liable for any taxes due. If an exemption or exclusion is not applicable, the tax is due upon purchase, or upon the withdrawal, use, or consumption of the tangible personal property purchased with the certificate if the application of the exemption or exclusion cannot be determined at the time of purchase.
(B) To reduce the complexity and administrative burden of transactions exempt from sales or use tax, the following provisions must be followed when a purchaser claims an exemption by use of an exemption certificate:
(1) the seller shall obtain at the time of the purchase any information determined necessary by the department, including the reason the purchaser is claiming a tax exemption or exclusion;
(2) the department, at its discretion, may utilize a system where the purchaser exempt from the payment of the tax is issued an identification number which must be presented to the seller at the time of the sale;
(3) the seller shall maintain proper records of exempt or excluded transactions and provide them to the department when requested and in the form requested by the department.
(C) A seller that complies with the provisions of this section is relieved from any tax otherwise applicable if it is determined that the purchaser improperly claimed an exemption or exclusion by use of a certificate, provided the seller fraudulently did not fail to collect or remit the tax, or both, or solicit a purchaser to participate in an unlawful claim of an exemption. The liability for any tax shifts to the purchaser who improperly claimed the exemption or exclusion by use of the certificate."
SECTION 23. A. Section 12-36-1310(C) of the 1976 Code is amended to read:
"(C) When a taxpayer is liable for the use tax imposed by this section on tangible personal property purchased in another state, upon which a sales or use tax was due and paid in the other state, the amount of the sales or use tax due and paid in the other state is allowed as a credit against the use tax due this State, upon proof of payment of that the sales or use tax was due and paid in the other state. The provisions of this section do not apply if the state in which the property was purchased does not allow substantially similar tax credits for tangible personal property purchased in this State. If the amount of the sales or use tax paid in the other state is less than the amount of use tax imposed by this article, the user shall pay the difference to the department."
B. This act takes effect upon approval by the Governor and applies to purchase of subjected tangible personal property made on or after that date.
SECTION 24. Section 12-53-40 of the 1976 Code is amended to read:
"Section 12-53-40. Notwithstanding any other another provision of law, there shall be is added as costs to each warrant or tax execution collected, served, or recorded by a duly authorized representative of the department an amount equivalent to five percent of the total of the warrant or tax execution or the sum of three dollars, whichever is the greater and, in addition, a sum equal to the fee provided in Section 8-21-310(20) the sum of five dollars. Such These costs, together with the costs of storage, advertising, and sale, shall must be deducted from proceeds of sale before any other payment of prior liens or claims are paid. Fee charged by clerks of court for the recording and satisfaction of warrants for distraint or tax executions issued by the department shall must be paid by the State Treasurer on proper warrant from the department from funds appropriated by the General Assembly."
SECTION 25. Chapter 54, Title 12 of the 1976 Code is amended by adding:
"Section 12-54-124. In the case of the transfer of a majority of the assets of a business, other than cash, whether through sale, gift, devise, inheritance, liquidation, distribution, merger, consolidation, corporate reorganization, lease or otherwise, any tax generated by the business which was due on or before the date of any part of the transfer constitutes a lien against the assets in the hands of a purchaser, or any other transferee, until the taxes are paid. Whether a majority of the assets have been transferred is determined by the fair market value of the assets transferred, and not by the number of assets transferred. The department may not issues a license to continue the business to the transferee until all taxes due the State have been settled and paid, and may revoke a license issued to the business in violation of this section.
This section does not apply if the purchaser receives a certificate of compliance from the department stating that all tax returns have been filed and all taxes generated by the business have been paid. The certificate of compliance is valid if it is obtained no more than thirty days before the sale or transfer."
SECTION 26. Section 12-54-25(D) of the 1976 Code is amended to read:
"(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(a)(2) and 6622."
SECTION 27. Section 12-54-240(B)(5) of the 1976 Code is amended to read:
"(5) inspection of returns by officials of other jurisdictions in accordance with Section 12-7-1690 12-54-220;"
SECTION 28. Section 12-54-240(B) of the 1976 Code, as last amended by Act 356 of 2002, is further amended by adding at the end:
"(24) disclosure of information pursuant to a subpoena issued by a federal grand jury or the State Grand Jury of South Carolina."
SECTION 29. 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. (A) Except as provided in subsection (B), 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.
(B) Notwithstanding subsection (A), an action for a declaratory judgment where the sole issue is whether a statute is constitutional may be brought in circuit court. This exception does not include a claim that the statute is unconstitutional as applied to a person or a limited class or classes of persons.
(C) Notwithstanding subsections (A) and (B) ,a claim or action for the refund of taxes may not be brought as a class action in the Administrative Law Judge Division or any court of law in this State, and the department may not be named or made a defendant in any other class action brought in this State.
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)(1)(i) through (c)(1)(vi), and (c)(2)(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 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, incompetence and disreputable conduct is defined in Section 10.51 of United States Treasury Department Circular No. 230. The department may review a petition for reinstatement as provided in Section 10.81.
(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 10.34 of United States Treasury Department Circular No. 230.
(F) For purposes of this section the terms in United States Treasury Department Circular No. 230 must be given the meanings necessary to effectuate this section. For example, unless a different meaning is required:
(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).;
(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.
(3) references to tax return mean appropriate return, including property tax returns filed with the department;
(4) references to federal tax obligations mean all South Carolina taxes, including property taxes and property tax assessments, where administered by the department."
SECTION 30. 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 subsection (D) 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 31. 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 32. Section 12-60-2510(A)(2) of the 1976 Code is amended to read:
"(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. "
SECTION 33. A. Section 12-6-3535 of the 1976 Code, as added by Act 299 of 2002, is amended to read:
"Section 12-6-3535. (A) A taxpayer who is allowed a federal income tax credit under Section 47 of the Internal Revenue Code for making qualified rehabilitation expenditures for a certified historic structure located in this State is allowed to claim a credit against the tax imposed by this chapter. For the purposes of this section, 'taxpayer', 'qualified rehabilitation expenditures', and " certified historic structure" are defined as provided in the Internal Revenue Code Section 47 and the applicable treasury regulations. The amount of the credit is ten percent of the expenditures that qualify for the federal credit. To claim the credit allowed by this subsection, the taxpayer must attach to the return a copy of the section of the federal income tax return showing the credit claimed, along with any other information that the Department of Revenue determines is necessary for the calculation of the credit provided by this subsection.
(B) A taxpayer who is not eligible for a federal income tax credit under Section 47 of the Internal Revenue Code and who makes rehabilitation expenses for a certified historic residential structure located in this State is allowed to claim a credit against the tax imposed by this chapter. The amount of the credit is twenty-five percent of the rehabilitation expenses. To claim the credit allowed by this subsection, the taxpayer must attach to the return a copy of the certification obtained from the State Historic Preservation Officer verifying that the historic structure has been rehabilitated in accordance with this subsection, along with all information that the Department of Revenue determines is necessary for the calculation of the credit provided by this subsection.
For the purposes of this subsection subsections (B) through (F):
(1) 'Certified historic residential structure' means a structure or portion of a structure that is an owner-occupied personal residence if the residence is not actively used in a trade or business, held for the production of income, or held for sale or disposition in the ordinary course of the taxpayer's trade or business; and that is:
(a) listed individually in the National Register of Historic Places;
(b) considered by the State Historic Preservation Officer to contribute to the historic significance of a National Register Historic District;
(c) considered by the State Historic Preservation Officer to meet the criteria for individual listing in the National Register of Historic Places; or
(d) an outbuilding of an otherwise eligible property considered by the State Historic Preservation Officer to contribute to the historic significance of the property.
(2) 'Certified rehabilitation' means repairs or alterations consistent with the Secretary of the Interior's Standards for Rehabilitation and certified as such by the State Historic Preservation Officer before commencement of the work. The review by the State Historic Preservation Officer shall include all repairs, alterations, rehabilitation, and new construction on the certified historic residential structure and the property on which it is located. To qualify for the credit, the taxpayer shall receive documentation from the State Historic Preservation Officer verifying that the completed project was rehabilitated in accordance with the standards for rehabilitation. The rehabilitation expenses must, within a thirty-six-month period, exceed fifteen thousand dollars. A taxpayer shall not take more than one credit on the same certified historic residential structure within ten years.
(3) 'Rehabilitation expenses' means expenses incurred by the taxpayer in the certified rehabilitation of a certified historic residential structure, that are paid before the credit is claimed including preservation and rehabilitation work done to the exterior of a certified historic residential structure, repair and stabilization of historic structural systems, restoration of historic plaster, energy efficiency measures except insulation in frame walls, repairs or rehabilitation of heating, air-conditioning, or ventilating systems, repairs or rehabilitation of electrical or plumbing systems exclusive of new electrical appliances and electrical or plumbing fixtures, and architectural and engineering fees.
'Rehabilitation expenses' do not include the cost of acquiring or marketing the property, the cost of new construction beyond the volume of the existing building certified historic residential structure, the value of an owner's personal labor, or the cost of personal property.
(4) 'State Historic Preservation Officer' means the Director of the Department of Archives and History or the director's designee who administers the historic preservation programs within the State.
(5) 'Owner-occupied residence' means a building or portion of a building in which the taxpayer has an ownership interest, in whole or in part in fee, by life estate, or as the income beneficiary of a property trust, that is, after being placed in service, the residence of the taxpayer and is not:
(a) actively used in a trade or business;
(b) held for the production of income; or
(c) held for sales or disposition in the ordinary course of the taxpayer's trade or business.
(C)(1) The entire credit may not be taken for the taxable year in which the property is placed in service, but must be taken in equal installments over a five-year period beginning with the year in which the property is placed in service. For a certified rehabilitation of a certified historic residential structure "placed 'Placed in service"' is defined as the taxable year means the certified rehabilitation is completed and allows for the intended use. Any unused portion of any credit installment may be carried forward for the succeeding five years.
(2) For purposes of subsection (A), A an 'S' corporation, limited liability company, or partnership that qualifies for a credit under this section subsection may pass through the credit earned to each shareholder of the 'S' corporation, member of the limited liability company, or partner of the partnership. For purposes of this subsection, limited liability company means a limited liability company taxed as a partnership. The amount of the credit allowed a shareholder, member, or partner by this subsection is equal to the shareholder's percentage of stock ownership, member's interest in the limited liability company, or the partner's interest in the partnership for the taxable year multiplied by the amount of the credit earned by the entity. The credit earned pursuant to this section by a an 'S' corporation owing corporate level income tax must be used first at the entity level. Only the remaining credit passes through to each shareholder.
(D) Additional work done by the taxpayer while the credit is being claimed, for a period of up to five years, must be consistent with the Secretary of the Interior's Standards for Rehabilitation. During this period the State Historic Preservation Officer may review additional work to the certified historic structure or certified historic residential structure and has the right to inspect certified historic structures and certified historic residential structures. If additional work is not consistent with the Standards for Rehabilitation, the taxpayer and Department of Revenue must be notified in writing and any unused portion of the credit, including carry forward, is forfeited.
(E) The South Carolina Department of Archives and History shall develop an application and may promulgate regulations, including the establishment of fees, needed to administer the certification process. The Department of Revenue may promulgate regulations, including the establishment of fees, to administer the tax credit.
(F) A taxpayer may appeal a decision of the State Historic Preservation Officer to a committee of the State Review Board appointed by the chairperson."
B. This act takes effect upon approval by the Governor and is effective for taxable years beginning after 2002 for property placed in service after June 30, 2003, for costs paid in taxable years beginning after 2002.
SECTION 34. 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 35. Section 30-2-30(1) of the 1976 Code, as added by Act 225 of 2002, is amended to read:
"(1) 'Personal information' means information that identifies or describes an individual including, but not limited to, an individual's photograph or digitized image, social security number, date of birth, driver's identification number, name, home address, home telephone number, medical or disability information, education level, financial status, bank account(s) number(s), account or identification number issued by and/or used, or both, by any federal or state governmental agency or private financial institution, employment history, height, weight, race, other physical details, signature, biometric identifiers, and any credit records or reports.
'Personal information' does not mean information about boating accidents, vehicular accidents, driving violations, boating violations, or driver status, or names and addresses from any registration documents filed with the Department of Revenue as a business address which also may be a personal address."
SECTION 36. Notwithstanding any other provision of law, the amendment to Section 12-37-220(B)(11) of the 1976 Code, made pursuant to Section 7I, Act 334 of 2002, is effective for property tax years beginning after 2001.
SECTION 37. A. Section 12-4-580 of the 1976 Code, as last amended by Act 363 of 2002, is further amended to read:
"Section 12-4-580. (A) The department and any other another governmental entity may contract to allow the department to collect any an outstanding liabilities liability owed the governmental entity. In administering the provisions of such those agreements, the department has all the rights and powers of collection allowed it under provided pursuant to this title for the collection of taxes and all such the rights and powers authorized the governmental entity to which the liability is owed.
(B) The department may charge and retain a reasonable fee for any a collection effort made on behalf of a governmental entity's entity behalf. The department may expend the funds resulting from any fees so charged and retained and may carry the funds forward from one fiscal year to the next. The amount of the fee must be negotiated between the governmental entity and the department. The debtor must be given full credit toward the satisfaction of the debt for the amount of the fee collected by the department pursuant to this section.
(C) Governmental entities that contract with the department pursuant to this section and those entities whose debts are submitted for collection through an association shall indemnify the department against any injuries, actions, liabilities, or proceedings arising from the department's collecting or attempting to collect collection or attempted collection by the department of the liability owed to the governmental entity.
(D) As used in this section:
(1) 'governmental entity' means the State and any a state agency, board, committee, department, department, or public institution of higher learning; all political subdivisions of the State; and all federal agencies, boards, and departments commissions; and a federal, state, county, or local governmental or quasi-governmental entity. 'Political subdivision' includes the Municipal Association of South Carolina and the South Carolina Association of Counties when these organizations submit claims on behalf of their members a county or local governmental or quasi-governmental entity.
(2) 'liabilities owed the governmental entity' means a debt which is certified by the governmental entity to be owed it for which all rights of administrative or judicial appeal have been exhausted or all time limits for these appeals have expired."
B. Section 12-56-20 of the 1976 Code, as last amended by Act 334 of 2002, is further amended to read:
"Section 12-56-20. As used in this chapter:
(1) 'Claimant agency' means a state agency, board, committee, commission, public institution of higher learning, political subdivision, or any other governmental or quasi governmental quasi-governmental entity of any state or the United States. It includes the South Carolina Student Loan Corporation, housing authorities established pursuant to Articles 5, 7, and 9 of Chapter 3 of Title 31, and the Internal Revenue Service, and the United States Department of Education. It also includes a private institution of higher learning for the purpose of collecting debts related to default on authorized educational loans made pursuant to Chapter 111, 113, or 115 of Title 59. 'Political subdivision' includes the Municipal Association of South Carolina and the South Carolina Association of Counties when these organizations submit claims on behalf of their members, other political subdivisions, or other claimant agencies as defined in this item a county or local governmental or quasi-governmental entity. A political subdivision who submits a claim through an association is a claimant agency for the purpose of the notice and appeal provisions and other requirements of this chapter.
(2) 'Department' means the South Carolina Department of Revenue.
(3) 'Debtor' means a person having a delinquent debt or account with a claimant agency which has not been adjusted, satisfied, or set aside by court order, or discharged in bankruptcy.
(4) 'Delinquent debt' means any a sum due and owing any a claimant agency, including collection costs, court costs, fines, penalties, and interest which have accrued through contract, subrogation, tort, operation of law, or any other legal theory regardless of whether there is an outstanding judgment for that sum which is legally collectible and for which a collection effort has been or is being made. It does not include sums owed to county hospitals when the hospital and the debtor have entered into a written payment agreement and the debtor is current in meeting the obligations of the agreement. 'Delinquent debt' also includes any fine, penalty, cost, fee, assessment, surcharge, service charge, restitution, or other amount imposed by a court or as a direct consequence of a final court order which is received by or payable to the clerk of the appropriate court or treasurer of the entity where the court is located.
(5) 'Refund' means any individual or corporate South Carolina income tax refund payable. This term also includes any a refund belonging to a debtor resulting from the filing of a joint income tax return."
C. Section 12-56-60 of the 1976 Code is amended to read:
"Section 12-56-60. (A) A claimant agency seeking to attempt collection of a delinquent debt through setoff shall notify the department in writing and supply information the department determines necessary to identify the debtor whose refund is sought to be set off. A request for setoff may be made only after the claimant agency has notified the debtor of its intention to cause the debtor's refund to be set off not less than thirty days before the claimant agency's request to the department. The claimant agency promptly shall notify the debtor when the liability out of which the setoff arises is satisfied. The claimant agency promptly shall notify the department of a reduction in the delinquent debt. Notification to the department and the furnishing of identifying information must occur on or before a date specified by the department in the year preceding the calendar year during which the refund would be paid. Additionally, subject to the notification deadline specified above, the notification is effective only to initiate setoff for claims against refunds that would be made in the calendar year subsequent to the year in which notification is made to the department.
(B) Upon receiving the certification of the claimant agency of the amount of the delinquent debt, the department shall determine if the debtor is due a refund. If the debtor is due a refund of more than twenty-five dollars a tolerance amount as determined by the department, the department shall set off the delinquent debt against the amount of the refund in excess of twenty-five dollars and transfer the amount set off to the claimant agency. The department may retain an amount not to exceed twenty-five dollars of each refund set off to defray its administrative expenses, and that amount may be added to the debt. No apportionment Apportionment is not required in the cases case of a refunds refund resulting from filing a joint returns return. A person has no property right or property interest in a refund until all amounts due the State and claimant agencies are paid. The department shall consider any a delinquent debt and debtor list provided by a claimant agency as correct and the department is not liable for a wrongful or improper setoff."
D. Section 12-56-62 of the 1976 Code is amended to read:
"Section 12-56-62. The notice of intention to set off must be given by mailing the notice, with postage prepaid, addressed to the debtor at the address provided to the claimant agency when the debt was incurred or at the debtor's last known address. The giving of the notice by mail is complete upon the expiration of thirty days after deposit of the notice in the mail. A certification by the claimant agency that the notice has been sent as required by this section is presumptive proof that the requirements as to notice are met, even if the notice actually has not been received by the debtor. The notice must include a statement of appeal procedures available to the debtor, substantially as follows:
'According to our records, you owe the (claimant agency) a debt in the amount of (amount of the debt), plus interest, if applicable, for (type of debt). You are hereby notified of the (claimant agency's) intention to submit this debt to the South Carolina Department of Revenue to be set off against your individual income tax refund refunds until the debt is paid in full. Pursuant to the Setoff Debt Collection Act, this amount, plus all costs, will be deducted from your South Carolina individual income tax refund refunds unless you file a written protest within thirty days of the date of this notice. If you file a joint return with your spouse, this amount will be deducted from the total joint refund refunds without regard to which spouse incurred the debt or actually withheld the taxes. The protest must contain the following information:
(1) your name;
(2) your address;
(3) your social security number;
(4) the type of debt in dispute; and
(5) a detailed statement of all the reasons you disagree
with or dispute the debt.
The original written protest must be mailed to the (claimant agency) at the following address:
(address of the entity requesting the setoff)'."
E. Section 12-56-63 of the 1976 Code is amended to read:
"Section 12-56-63. (A) A debtor who protests the debt shall file a written protest with the claimant agency at the address provided in the claimant agency's notification of intention to set off. The protest must be filed within thirty days of the date of the notice of intention to set off and must contain the debtor's name, address, and social security tax identification number, identify the type of debt in dispute, and give a detailed statement of all the reasons which that support the protest. The requirements of this section are jurisdictional.
(B) To recover costs incurred by the Municipal Association of South Carolina and the South Carolina Association of Counties for submitting a debt pursuant to this chapter and Section 12-4-580 to the department for collection, the association may charge an administrative fee, not to exceed twenty-five dollars, that must be added to the debt. An association defined as a political subdivision in Section 12-56-20(1) may contract with another political subdivision for the processing of debts to be submitted to the department. These services may be funded through an administrative fee. The An association is exempt from the notice and appeal procedures of this chapter. The entity responsible for the notice and hearing requirements of this chapter is the political subdivision which that has submitted its claim through the association or governmental entity which has submitted it directly to the department is responsible for the notice and hearing requirements of this chapter."
F. Section 12-56-65 of the 1976 Code is amended to read:
"Section 12-56-65. (A) Before submitting a debt to the department, the claimant agency shall appoint a hearing officer to hear a protest of a debtor. This hearing officer is vested with the authority to decide a protest in favor of either the debtor or the claimant agency. The claimant agency shall certify to the department, on a form prescribed by the department, that a hearing officer has been appointed and shall inform the department of the name, address, and telephone number of the hearing officer. If this hearing officer is unable to serve at any time, the claimant agency shall appoint another hearing officer.
(B) Upon receipt of a notice of protest, the claimant agency shall notify the department that a protest has been received and shall hold an informal hearing at which the debtor may present evidence, documents, and testimony to dispute the debt. The claimant agency shall notify the debtor of the date, time, and location of the informal hearing. At the conclusion of the informal hearing, the hearing officer shall render his determination. Upon receipt of a sworn certification from the hearing officer that he held an informal hearing and ruled in favor of the claimant agency, the department may proceed to collect the delinquent debt with the setoff, regardless of a subsequent appeal by the debtor.
(C) A debtor may seek relief from the hearing officer's determination by requesting, within thirty days of the determination, a contested case hearing before the Administrative Law Judge Division. A request for a hearing before the Administrative Law Judge Division must be made in accordance with its rules.
(D) If a setoff is made portion of the delinquent debt is collected by the department and the determination of the hearing officer in favor of the claimant agency is later reversed or the debtor prevails in a claim for refund, the claimant agency shall refund the appropriate amount to the taxpayer, including the appropriate amount of the fee. If the claimant agency is found to be entitled to no part of the amount set off, it shall refund the entire amount plus the administrative fee retained by the department. That portion of the refund reflecting the administrative department's fee must be paid from claimant agency funds. If the claimant agency is found to be entitled to a portion of the an amount collected by set off, it is not required to refund the administrative setoff fee retained by the department.
(E) If a refund is retained in error, the claimant agency shall pay to the taxpayer interest calculated as provided in Section 12-54-20 from the date provided by law after which interest is paid on refunds until the appeal is final, except that interest does not accrue when the claimant agency is the Office of Child Support Services of the South Carolina Department of Social Services.
(F) If the claimant agency determines that money has been erroneously or illegally set off collected, the claimant agency, in its discretion, may issue a refund the amount of the setoff, even if the debtor does not file a protest or file a claim for refund.
(G) A setoff collection may not be contested more than one year after the date the setoff it was made. The date of the setoff collection must be conclusively determined by the department. This provision must be construed as a statute of repose and not as a statute of limitation.
(H) A debtor may make a claim for refund of an amount collected pursuant to this chapter within one year from the date the amount is collected, in the same manner as seeking relief from a hearing officer's determination pursuant to Section 12-56-65 or 12-56-67."
SECTION 38. Article 7, Chapter 21, Title 12 of the 1976 Code is amended by adding:
"Section 12-21-1085. Except as provided in Section 12-21-1035 and Sections 12-21-1320 to 12-21-1350, the taxes provided for in this article are in lieu of all other taxes and licenses on beer and wine of the State, the county, or the municipality, except the sales and use tax, and include licenses for its delivery by the wholesaler."
SECTION 39. Section 6-4-30 of the 1976 Code is repealed.
SECTION 40. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 41. Unless otherwise provided, this act takes effect upon approval by the Governor, except that SECTION 13C. applies to tax years beginning after 2003. /
Renumber sections to conform.
Amend title to conform.
ROBERT W. HARRELL, JR. for Committee.
REVENUE IMPACT 1/
The original bill reduced general fund corporation income tax revenue by an estimated $26,400,000 in FY2003-04 by allowing an additional 30% bonus depreciation allowance as permitted by federal income tax statutes in the Internal Revenue Code. This amended bill has decoupled the state income tax code from the federal bonus depreciation allowance provision, and will not affect state general fund revenue in FY2003-04.
Explanation of Amendment (April 21, 2003) - By the House Ways & Means Committee
Section 5(B). This renumbered section would amend Section 12-6-50(4) to specifically not adopt the Internal Revenue Code provisions of Section 168(k) of the Internal Revenue Code of 1986 as amended through December 31, 2002 dealing with the 30% bonus depreciation allowance for assets placed in service after September 10, 2001 and before September 11, 2004. This amendment would decouple the state income tax code from federal statutes regarding bonus depreciation, and would, therefore, have no impact on state general fund corporation income tax revenue in FY2003-04.
Section 33. A taxpayer is allowed a tax credit of ten percent for qualified rehabilitation expenditures for certain historic commercial structures, and a tax credit of twenty-five percent for qualified rehabilitation expenditures for certain historic residential structures. Apart from technical changes and other clarifying amendments, this section adds that tax credits may be claimed against "...costs paid in taxable years beginning after 2002" thereby reducing credits available to some taxpayers during FY2003-04. The estimated effect on state general fund revenue in FY2003-04 would be minimal.
Explanation of Bill filed April 2, 2003
This bill clarifies language, makes technical changes (inserts omitted references and deletes obsolete sections) to existing language or updates administrative procedures. The following sections of the bill are expected to have a revenue impact in FY2003-04.
Section 5. This section would amend Section 12-6-40(A)(1) to change the date that the state conforms to the Internal Revenue Code through December 31, 2002. The Job Creation and Worker Assistance Act of 2002 (P.L. 107-147) signed by President Bush in March 2002 allows a taxpayer an additional 30% bonus depreciation allowance for assets placed in service after September 10, 2001 and before September 11, 2004. The taxpayer is also entitled to "normal" first-year depreciation on the remaining value of the asset. The state usually conforms to changes in Federal tax statutes through December 31st of each year. Thus far, the state has not conformed nor decoupled from the Federal bonus depreciation tax statute. Based on consultations with the Department of Revenue, the BEA estimates that the additional 30% bonus depreciation will result in an estimated loss of $26,400,000 in FY2003-04. The BEA Board decided not to include this revenue offset in its revenue estimate, pending a decision by the General Assembly on conformity with the federal code.
Section 13. An employer that employs a person who received Family Independence payments for three months immediately preceding the month the person becomes employed is eligible for an income tax credit ranging from ten percent to twenty percent based upon the length of employment. The maximum aggregate credit that may be claimed in a tax year for a single employee is $5,500. This section would allow employers in distressed counties that employ persons who received Family Independence payments to exceed the maximum aggregate credit amount of $5,500 per employee in a single tax year. Since this section is not effective until FY2004-05, there would not be an impact on state general fund revenue in FY2003-04, because this section would not be effective until tax years after 2003. Also, we do not expect individuals hired from the Family Independence program to make enough income to exceed the $5,500 cap.
Approved By:
William C. Gillespie
Board of Economic Advisors
1/ This statement meets the requirement of Section 2-7-71 for a state revenue impact, Section 2-7-76 for a local revenue impact, and Section 6-1-85(B) for an estimate of the shift in local property tax incidence.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 12-2-100 SO AS TO PROVIDE THAT A TAX CREDIT ADMINISTERED BY THE DEPARTMENT OF REVENUE IS USEABLE IN THE YEAR IT IS GENERATED AND IS NONREFUNDABLE; TO AMEND SECTION 12-2-20, RELATING TO THE DEFINITION OF "PERSON" FOR TAXATION PURPOSES, SO AS TO PROVIDE THAT THE DEFINITION APPLIES NOT ONLY IN TITLE 12, BUT ALSO IN OTHER TITLES WHICH PROVIDE FOR TAXES THAT ARE ADMINISTERED BY THE DEPARTMENT OF REVENUE; TO AMEND SECTION 12-2-25, AS AMENDED, RELATING TO DEFINITIONS PERTAINING TO LIMITED LIABILITY COMPANIES AND SINGLE-MEMBER LIMITED LIABILITY COMPANIES, SO AS TO PROVIDE THAT THE DEFINITIONS APPLY NOT ONLY IN TITLE 12, BUT ALSO IN OTHER TITLES WHICH PROVIDE FOR TAXES THAT ARE ADMINISTERED BY THE DEPARTMENT OF REVENUE; TO AMEND SECTION 12-6-40, AS AMENDED, RELATING TO ADOPTION OF THE INTERNAL REVENUE CODE, SO AS TO ADOPT IT TO STATE LAW AS AMENDED THROUGH 2002; TO AMEND SECTION 12-6-540, RELATING TO THE STATE INCOME TAX RATES APPLICABLE TO EXEMPT ORGANIZATIONS AND COOPERATIVES, SO AS TO PROVIDE A SPECIFIC REFERENCE TO THE TAX RATE APPLICABLE TO HOMEOWNERS' ASSOCIATIONS; TO AMEND SECTION 12-8-580, AS AMENDED, RELATING TO STATE INCOME TAX WITHHOLDING ON PROCEEDS OF THE SALE OF REAL PROPERTY BY NONRESIDENTS, SO AS TO CONFORM THE CALCULATION OF AMOUNTS SUBJECT TO WITHHOLDING TO THE PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986 ALLOWING THE EXCLUSION FROM TAXABLE INCOME OF A PORTION OF THE GAIN ON THE SALE OF A PRINCIPAL RESIDENCE AND TO ALLOW THE DEPARTMENT OF REVENUE TO REVOKE EXEMPTIONS FROM WITHHOLDING ALLOWED FOR CERTAIN TRANSACTIONS IF THE DEPARTMENT DETERMINES THE NONRESIDENT IS NOT COOPERATING IN THE DETERMINATION OF THE TAXPAYER'S SOUTH CAROLINA INCOME TAX LIABILITY; TO AMEND SECTION 12-13-50, RELATING TO EXCEPTIONS FROM THE BUILDING AND LOAN ASSOCIATION INCOME TAX, SO AS TO PROVIDE THAT PAYMENT OF THE INCOME TAX PROVIDED IN CHAPTER 13, TITLE 12 SHALL NOT BE IN LIEU OF DEED RECORDING FEES; TO AMEND SECTIONS 12-13-70, 12-20-150, 12-28-940, 12-43-210, AND 12-43-230, RELATING TO THE ADMINISTRATION OF THE DEPARTMENT OF REVENUE, THE COMPUTATION OF MOTOR FUEL TAXES, THE ESTABLISHMENT OF UNIFORM AND EQUITABLE TAX ASSESSMENTS, AND THE PROMULGATION OF DEFINITIONAL REGULATIONS TO FACILITATE THE ESTABLISHMENT OF UNIFORM TAX ASSESSMENTS, SO AS TO CHANGE THE DEPARTMENT'S DUTY TO PROMULGATE REGULATIONS FROM MANDATORY TO PERMISSIVE, TO CLARIFY THE DEPARTMENT'S AUTHORITY TO ISSUE ADVISORY OPINIONS, AND TO MAKE TECHNICAL CORRECTIONS; TO AMEND SECTION 12-54-110, RELATING TO THE POWER OF THE DEPARTMENT OF REVENUE TO SUMMON A TAXPAYER OR OTHERS, SO AS TO INCLUDE TAX MATTERS AND OTHER MATTERS ADMINISTERED BY THE DEPARTMENT; TO AMEND SECTION 12-6-3360, AS AMENDED, RELATING TO THE JOB TAX CREDIT, SO AS TO PROVIDE FOR COUNTY DESIGNATIONS TO BE EFFECTIVE FOR THE TAXABLE YEARS BEGINNING THE FOLLOWING CALENDAR YEAR; TO AMEND SECTION 12-6-3415, RELATING TO INCOME TAX CREDIT FOR RESEARCH AND DEVELOPMENT EXPENSES, SO AS TO MAKE IT APPLICABLE ONLY FOR RESEARCH EXPENSES; TO AMEND SECTION 12-6-3470, RELATING TO EMPLOYER TAX CREDIT, SO AS TO EXEMPT APPLICATION OF THE MAXIMUM AGGREGATE CREDIT FOR EMPLOYEES IN DISTRESSED COUNTIES; TO AMEND SECTION 12-6-3310, RELATING TO CREDITS AGAINST INCOME TAX, SO AS TO PROVIDE FOR PASS THROUGH OF A CREDIT TO A SHAREHOLDER, MEMBER, OR PARTNER OF AN "S" CORPORATION, LIMITED LIABILITY COMPANY TAXED LIKE A PARTNERSHIP, AND PARTNERSHIP; TO AMEND SECTION 12-6-3365, RELATING TO CORPORATE INCOME TAX MORATORIUM FOR JOB CREATION, SO AS TO REVISE THE DATA USED FOR COMPUTING A COUNTY'S UNEMPLOYMENT RATE AND TO PROVIDE THAT THE DEPARTMENT NAME THE MORATORIUM COUNTIES, EFFECTIVE FOR THE TAXABLE YEAR BEGINNING THE FOLLOWING CALENDAR YEAR; TO AMEND SECTION 12-44-30, AS AMENDED, AND SECTION 4-12-30, AS AMENDED, BOTH RELATING TO THE DEFINITION OF "MINIMUM INVESTMENT" FOR PURPOSES OF A FEE IN LIEU OF PROPERTY TAX, BOTH SO AS TO PROVIDE FOR EFFECTIVENESS OF COUNTY DESIGNATIONS IN THE FOLLOWING CALENDAR YEAR, AND TO PROVIDE THAT THE DEPARTMENT DESIGNATE REDUCED INVESTMENT COUNTIES, EFFECTIVE FOR A SPONSOR WHOSE FEE AGREEMENT IS SIGNED IN THE CALENDAR YEAR FOLLOWING THE DESIGNATION; TO REPEAL SECTION 12-10-35, RELATING TO A MORATORIUM ON STATE CORPORATE INCOME TAXES; BY ADDING SECTION 12-6-535 SO AS TO PROVIDE THAT FOR PURPOSES OF INTERNAL REVENUE CODE SECTION 641(c), AN ELECTING SMALL BUSINESS TRUST IS TAXED AT THE HIGHEST RATE PROVIDED IN SECTION 12-6-510; TO AMEND SECTION 12-6-5020, RELATING TO ENTITIES AUTHORIZED TO FILE CONSOLIDATED CORPORATE INCOME TAX RETURNS, SO AS TO PROVIDE THAT A CORPORATION THAT HAS ELECTED TO BE TAXED UNDER SUBCHAPTER S OF THE INTERNAL REVENUE CODE MAY NOT JOIN IN THE FILING OF A CONSOLIDATED INCOME TAX RETURN; TO AMEND SECTION 12-21-1090, RELATING TO REGULATIONS FOR THE PAYMENT AND COLLECTION OF CERTAIN TAXES, SO AS TO ALLOW THE DEPARTMENT TO PROMULGATE REGULATIONS AND ISSUE ADVISORY OPINIONS FOR THE PAYMENT AND COLLECTION OF CERTAIN TAXES; TO AMEND SECTION 12-35-40, RELATING TO MULTISTATE DISCUSSIONS OF SIMPLIFICATION REQUIREMENTS IN CONNECTION WITH THE SIMPLIFIED SALES AND USE TAX ADMINISTRATION ACT, SO AS TO PROVIDE THAT THE DELEGATION TO THE MULTISTATE DISCUSSION MEETINGS MAY BE REIMBURSED FOR LODGING, AIR FARE, AND OTHER BUSINESS EXPENSES; TO AMEND SECTION 12-36-2510, RELATING TO THE PROCEDURE FOR SEGREGATING SALES AND USE TAX WHEN IT IS IMPRACTICAL, SO AS TO AUTHORIZE THE DEPARTMENT OF REVENUE TO ISSUE CERTIFICATES ALLOWING A TAXPAYER TO PURCHASE TANGIBLE PERSONAL PROPERTY TAX FREE, TO PROVIDE THAT THE TAXPAYER BE LIABLE FOR ANY TAXES, AND TO PROVIDE A PROCEDURE FOR THE EFFICIENT ADMINISTRATION OF THIS PROCEDURE; TO AMEND SECTION 12-36-1310, AS AMENDED, RELATING TO THE IMPOSITION OF A STATE USE TAX ON CERTAIN TANGIBLE PERSONAL PROPERTY AND PROVIDING A CREDIT FOR TAXES PAID IN ANOTHER STATE, SO AS TO REQUIRE PROOF THAT THE SALES OR USE TAX WAS DUE AND PAID IN THE OTHER STATE AND TO DELETE A RECIPROCITY REQUIREMENT; TO AMEND SECTION 12-53-40, RELATING TO COSTS AND EXPENSES OF TAX SALES AND COLLECTIONS, SO AS TO INCLUDE THE COST OF FILING, ENROLLING, AND SATISFACTION OF A STATE TAX LIEN; BY ADDING SECTION 12-54-124 SO AS TO PROVIDE THAT IN THE CASE OF THE TRANSFER OF A MAJORITY OF THE ASSETS OF A BUSINESS OTHER THAN CASH, ANY TAX GENERATED BY THE BUSINESS WHICH WAS DUE ON OR BEFORE THE DATE OF THE TRANSFER CONSTITUTES A LIEN AGAINST THE ASSETS IN THE HANDS OF THE TRANSFEREE UNTIL THE TAXES ARE PAID, TO PROVIDE THAT FAIR MARKET VALUE MUST BE USED TO DETERMINE WHETHER A MAJORITY OF THE ASSETS HAVE BEEN TRANSFERRED, TO PROVIDE THAT THE DEPARTMENT OF REVENUE MAY NOT ISSUE A LICENSE TO CONTINUE THE BUSINESS TO THE TRANSFEREE UNTIL ALL TAXES DUE TO THE STATE HAVE BEEN PAID AND MAY REVOKE A LICENSE ISSUED TO A BUSINESS THAT VIOLATES THIS PROVISION; TO AMEND SECTION 12-54-25, RELATING TO INTEREST THAT MUST BE PAID ON ANY TAX THAT IS NOT PAID WHEN DUE, SO AS TO MAKE A TECHNICAL CHANGE; TO AMEND SECTION 12-54-240, AS AMENDED, RELATING TO THE DISCLOSURE OF CERTAIN RECORDS OF AND REPORTS AND RETURNS FILED WITH THE DEPARTMENT OF REVENUE, SO AS TO INCLUDE AS AN EXCEPTION TO THE PROHIBITION OF DISCLOSURE INFORMATION PURSUANT TO A SUBPOENA ISSUED BY A FEDERAL OR THE STATE GRAND JURY; TO AMEND ARTICLE 1, CHAPTER 60 OF TITLE 12, 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; 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; TO AMEND SECTION 30-2-30, RELATING TO DEFINITIONS USED IN THE FAMILY PRIVACY PROTECTION ACT OF 2002, SO AS TO PROVIDE THAT PERSONAL INFORMATION DOES NOT MEAN INFORMATION ABOUT THE NAMES AND ADDRESSES FROM REGISTRATION DOCUMENTS FILED WITH THE DEPARTMENT OF REVENUE AS A BUSINESS ADDRESS WHICH ALSO MAY BE A PERSONAL ADDRESS; AND TO REPEAL SECTION 6-4-30 RELATING TO THE DUTIES OF THE DEPARTMENT OF REVENUE IN CONNECTION WITH THE ACCOMMODATIONS TAX.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 2, Title 12 of the 1976 Code is amended by adding:
"Section 12-2-100. Unless otherwise provided, a tax credit administered by the department must be used in the year it is generated and must not be refunded."
SECTION 2. Section 12-2-20 of the 1976 Code is amended to read:
"Section 12-2-20. As used in this title and in other titles which provide for taxes administered by the department 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."
SECTION 3. Section 12-2-25(A) of the 1976 Code is amended to read:
"(A) As used in this title and in other titles which provide for taxes administered by the department and unless otherwise required by the context:
(1) 'partnership' includes a limited liability company taxed for South Carolina income tax purposes as a partnership;
(2) 'partner' includes a member of a limited liability company taxed for South Carolina income tax purposes as a partnership;
(3) 'corporation' includes a limited liability company or professional or other association taxed for South Carolina income tax purposes as a corporation; and
(4) 'shareholder' includes a member of a limited liability company taxed for South Carolina income tax purposes as a corporation."
SECTION 4. Section 12-8-580(B)(2) and (3) of the 1976 Code, as last amended by Act 399 of 2000, are further amended to read:
"(2)(a) A sale does not include tax exempt or tax deferred transactions, other than installment sales.
(b) A sale does not include a transaction to the extent the gain on the sale of a principal residence is excluded in accordance with Internal Revenue Code Section 121. Any gain in excess of this permitted exclusion is subject to the provisions of this section.
(3) The department may exempt certain other classes of transactions from the provisions of this section when it determines that the benefits to the State are insufficient to justify the burdens imposed on the buyer and seller. The department may revoke the exemption granted by this item if it determines that the nonresident is not cooperating with the department in the determination of the nonresident taxpayer's correct South Carolina tax liability. The revocation does not revive the duty of a person purchasing real property or associated tangible personal property from a nonresident seller to withhold until the person receives notice of the revocation."
SECTION 5. A. Section 12-6-40(A)(1) of the 1976 Code, as last amended by Act 220 of 2002, is further amended to read:
"(1) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as amended through December 31, 2001 2002, and includes the effective date provisions contained in it."
B. Section 12-6-540 of the 1976 Code is amended to read:
"Section 12-6-540. An income tax is imposed annually at the rate of five percent on the South Carolina taxable income of an organization described in Internal Revenue Code Sections 501 through 528 (Exempt Organizations) and 1381 (Cooperatives) as computed under Internal Revenue Code Sections 501(b) (unrelated business income), 528(d) (taxable income of homeowners' associations), and 1382 and 1383 (taxation of cooperatives). with the The modifications provided in Article 9 of this chapter and subject to the allocation and apportionment as provisions provided in Article 17 of this chapter apply for the taxes imposed by this section."
SECTION 6. Section 12-13-50 of the 1976 Code is amended to read:
"Section 12-13-50. The income tax provided in this chapter shall be in lieu of any and all other taxes on such associations, except use taxes, documentary stamp taxes deed recording fees, and taxes on real property. The real property of any such association shall be taxed in the place where it may be located, the same as the real property of individuals."
SECTION 7. Section 12-13-70 of the 1976 Code is amended to read:
"Section 12-13-70. The income tax imposed by this chapter shall be is administered by the State Department of Revenue. The department shall may make such rules and regulations and issue advisory opinions not inconsistent with law as may be required for the proper administration and enforcement of this chapter, and such rules and the department's regulations shall have full force and effect of law."
SECTION 8. Section 12-20-150 of the 1976 Code is amended to read:
"Section 12-20-150. The department shall prescribe rules and may promulgate regulations and issue advisory opinions necessary to enforce and administer the provisions of this chapter. These rules and regulations have the force of law."
SECTION 9. Section 12-28-940(C) of the 1976 Code is amended to read:
"(C) The department shall may promulgate regulations and issue advisory opinions establishing the evidence a supplier shall provide to receive the credit."
SECTION 10. Section 12-43-210(A) of the 1976 Code is amended to read:
"(A) All property must be assessed uniformly and equitably throughout the State. The South Carolina Department of Revenue shall may promulgate regulations and issue advisory opinions to ensure equalization which must be adhered to by all assessing officials in the State."
SECTION 11. Section 12-43-230(c) of the 1976 Code is amended to read:
"(c) The department shall may further provide by regulation and advisory opinions for definitions not inconsistent with general law for real property and personal property in order that such property shall must be assessed uniformly throughout the State."
SECTION 12. Section 12-54-110 of the 1976 Code is amended to read:
"Section 12-54-110. (A) When a person, who is required to make a return or obtain a license under the provisions of law administered by the department, (a) fails to do so at the time required, (b) delivers any return which, in the opinion of the department is erroneous, or (c) refuses to allow any regularly authorized agent of the department to examine his books and records, The department may summon:
(a)(1) the a person who,:
(a) is required to make a return or obtain a license pursuant to the provisions of law administered by the department and who fails to do so at the time required;
(b) delivers a return that the department considers erroneous; or
(c) refuses to allow an authorized agent of the department to examine his books and records;
(b)(2) any other another person having possession, care, or custody of books of account containing entries relating to the business of such person; or
(c)(3) any other another person it considers proper to.
(B) The summons may demand that the person appear before the department and produce the books at a time and place named in the summons and to give testimony and answer questions under oath respecting any item of income liable relating to a tax on the return thereof or other matter administered by the department.
(C) The summons must in all cases be served by an authorized agent of the department by delivering an attested copy to the person in hand or leaving the copy at the person's last or usual place of abode. When the summons requires the production of books and returns, it is sufficient if the books are described with reasonable certainty.
(D) Whenever If a person summoned under the provisions of pursuant to this section neglects or refuses to obey the summons, the department may apply to any a circuit judge for an attachment against him for contempt. Any judge may hear the application and, if satisfactory proof is made, shall issue an attachment directed to the sheriff of the county in which the person resides for the his arrest of the person. Upon When the person being is brought before him, the judge shall proceed to a hearing of the case. The judge and may make enforce obedience to the requirements of the summons by making an order consistent with existing laws for the punishment of contempt, to enforce obedience to the requirements of the summons."
SECTION 13. A. Section 12-6-3360(B) of the 1976 Code, as last amended by Act 332 of 2002, is further amended to read:
"(B) The department shall rank and designate the state's counties by December thirty-first each year using data from the South Carolina Employment Security Commission and the United States Department of Commerce. The county designations are effective for taxable years that begin in the following calendar year. The counties are ranked using the last three completed calendar years of available per capita income data and the last thirty-six months or three years of available unemployment rate data that are available on November first, with equal weight given to unemployment rate and per capita income as follows:
(1)(a) The twelve counties with a combination of the highest unemployment rate and lowest per capita income are designated distressed counties. Notwithstanding any other provision of law, no more than twelve counties may be designated or classified as distressed and notwithstanding any other provision of this section, a county may be designated as distressed only by virtue of the criteria provided in this subitem.
(b) A category with the same criteria as provided in subitem (a) of this item is designated least developed county which consists of underdeveloped counties otherwise eligible for this category.
(2) The twelve counties with a combination of the next highest unemployment rate and next lowest per capita income are designated underdeveloped counties.
(3) The eleven counties with a combination of the next highest unemployment rate and the next lowest per capita income are designated moderately developed counties.
(4) The eleven counties with a combination of the lowest unemployment rate and the highest per capita income are designated developed counties. The designation by the department is effective for corporate taxable years which begin after the date of designation.
(5)(a) A county, any portion of which is located within twenty-five miles of the boundaries of an applicable military installation or applicable federal facility as defined in Section 12-6-3450(1), shall receive the next increased credit designation for five years beginning with the year in which the military installation or federal facility became an applicable military installation or applicable federal facility as defined in Section 12-6-3450(1), with the additional requirement that the military installation must have reduced employment on the installation of at least three thousand employees.
(b) In addition to the designation in subitem (a), a county in which an applicable military installation or applicable federal facility is located is allowed an additional increased credit designation for five years beginning with the year the installation or facility meets the requirements.
(c) Notwithstanding the designations in Section 12-6-3360, Laurens, Cherokee, and Union Counties shall qualify for the next increased credit designation.
(d) In a county where less than five percent of the work force is in manufacturing, the credit allowed is one tier higher than the credit for which the county would otherwise qualify.
(e) For a job created in a county that is not traversed by an interstate highway, the credit allowed is one tier higher than the credit for which jobs created in the county would otherwise qualify. This subitem does not apply to a job created in a county eligible for a higher tier pursuant to another provision of this item."
B. Section 12-6-3415 of the 1976 Code, as added by Act 283 of 2000, is amended to read:
"Section 12-6-3415. (A) A taxpayer that claims a federal income tax credit pursuant to Section 41 of the Internal Revenue Code for increasing research activities for the taxable year is allowed a credit against any tax due pursuant to Section 12-6-530 or Section 12-20-50 equal to five percent of the taxpayer's qualified expenditures for research and development research expenses made in South Carolina. For the purposes of this credit, qualified research and development expenditures have expenses has the same meaning as provided for in Section 41 of the Internal Revenue Code.
(B) The credit taken in any one taxable year pursuant to this section may not exceed fifty percent of the taxpayer's remaining tax liability after all other credits have been applied. Any unused credit may be carried over to the immediately succeeding taxable years, except that the credit carry-over may not be used for a taxable year that begins on or after ten years from the date of the qualified expenditure research expenses."
C. Section 12-6-3470(A) of the 1976 Code is amended to read:
"(A)(1) An employer who employs a person who received Family Independence payments within this State for three months immediately preceding the month the person becomes employed is eligible for an income tax credit of:
(1)(a) twenty percent of the wages paid to the employee for each full month of employment for the first twelve months of employment;
(2)(b) fifteen percent of the wages paid to the employee for each full month of employment during the second twelve months of employment;
(3)(c) ten percent of the wages paid to the employee for each full month during the third twelve months of employment.
(2) Except for employees employed in distressed counties the maximum aggregate credit that may be claimed in a tax year for a single employee under pursuant to this subsection and Section 12-6-3360 is five thousand five hundred dollars."
SECTION 14. Section 12-6-3310 of the 1976 Code, as added by Act 76 of 1995, is amended to read:
"Section 12-6-3310. (A) All Credits allowed in this article are nonrefundable and useable may be used only in the year generated unless otherwise provided.
(B)(1) Unless specifically prohibited, an 'S' corporation, limited liability company taxed as a partnership, or partnership that qualifies for a credit pursuant to this article may pass through the credit earned to each shareholder of the 'S' corporation, member of the limited liability company, or partner of the partnership.
(2) A credit earned by an 'S' corporation owing corporate level income tax must first be used at the entity level. Only the remaining credit passes through to the shareholders of the 'S' corporation.
(3) The amount of the credit allowed a shareholder, partner, or member is equal to the percentage of the shareholder's stock ownership, partner's interest in the partnership, or member's interest in the limited liability company for the taxable year multiplied by the amount of the credit earned by the entity and available for pass through. Limitations upon reduction of income tax liability by use of a credit are computed based on the shareholder's, partner's, or member's tax liability. The credit is allowed against the type of tax or taxes specifically provided by the credit in this article."
SECTION 15. A. Section 12-6-3365(B) of the 1976 Code, as added by Act 277 of 2000, is amended to read:
"(B) To qualify for the moratorium pursuant to subsection (A), a taxpayer must shall create at least one hundred full-time new jobs at a facility in a county:
(1) with an average annual unemployment rate of at least twice the state average during each of the last two completed calendar years twenty-four months, based on the most recent unemployment rates rate data on November first available, or that is one of the three lowest per capita income counties, based on the average of the three most recent completed calendar years of available average per capita income data that are available on November first; and
(2) in which at least ninety percent of the taxpayer's total investment in this State is located."
B. Section 12-6-3365 of the 1976 Code, as added by Act 277 of 2000, is amended by adding at the end:
"(G) The department shall designate the moratorium counties by December thirty-first each year using data from the South Carolina Employment Security Commission and the United States Department of Commerce. The designations are effective for taxable years that begin in the following calendar year."
C. Section 12-10-35 of the 1976 Code, as last amended by Act 399 of 2000, is hereby repealed.
D. The repeal of Section 12-10-35 takes effect upon approval by the Governor and applies to tax years beginning after 2003; the repeal does not affect a moratorium in effect on that date.
SECTION 16. Section 12-44-30(14) of the 1976 Code, as last amended by Act 280 of 2002, is further amended to read:
"(14) 'Minimum investment' means a project which results in a total investment by a sponsor of not less than five million dollars within the investment period. If a county has an average annual unemployment rate of at least twice the state average during each of the last two completed calendar years, twenty-four months, based on data available on November first, the minimum investment is one million dollars. The department shall designate the reduced investment counties by December thirty-first each year using data from the South Carolina Employment Security Commission and the United States Department of Commerce. The designations are effective for a sponsor whose fee agreement is signed in the calendar year following the county designation. For all purposes of this chapter, the minimum investment may include amounts expended by a sponsor or sponsor affiliate as a nonresponsible party in a voluntary cleanup. If these amounts equal at least one million dollars, the investment threshold requirement of this chapter is deemed to have been met."
SECTION 17. Section 4-12-30(B)(3) of the 1976 Code, as last amended by Act 280 of 2002, is further amended to read:
"(3) The minimum level of investment must be at least five million dollars and must be invested within the time period provided in subsection (C)(2). If a county has an average annual unemployment rate of at least twice the state average during each of the last two calendar years, twenty-four months, based on data available on November first, the minimum level of investment is one million dollars. The department shall designate the reduced investment counties by December thirty-first each year using data from the South Carolina Employment Security Commission and the United States Department of Commerce. The designations are effective for a sponsor whose fee agreement is signed in the calendar year following the county designation. Investments may include amounts expended by a sponsor or sponsor affiliate as a nonresponsible party in a voluntary cleanup contract on the property pursuant to Article 7, Chapter 56 of Title 44, the Brownfields Voluntary Cleanup Program, if the Department of Health and Environmental Control has issued a certificate of completion for the cleanup. If these amounts equal at least one million dollars, the investment threshold requirement of this chapter is deemed to have been met."
SECTION 18. Article 5, Chapter 6, Title 12 of the 1976 Code is amended by adding:
"Section 12-6-535. For purposes of Internal Revenue Code Section 641(c), an electing small business trust is taxed at the highest rate provided in Section 12-6-510."
SECTION 19. Section 12-6-5020 of the 1976 Code is amended to read:
"Section 12-6-5020. (A) A consolidated return may be filed for the following corporations:
(1) a parent and substantially controlled subsidiary or subsidiaries;
(2) two or more corporations under substantially the entire control of the same interest.
However, a corporation that has elected to be taxed under Subchapter S of the Internal Revenue Code may not join in the filing of a consolidated income tax return under this section.
The terms 'substantially controlled' and 'substantially the entire control' mean the ownership of at least eighty percent of the total combined voting power of all classes of stock of all corporations that are a party to a consolidated return.
(B) All corporations included in a consolidated return must be subject to tax under Section 12-6-530.
(C) A corporation doing business entirely within this State may consolidate with a corporation doing a multistate business. Two or more corporations doing a multistate business may file a consolidated return.
(D) A consolidated return means a single return for two or more corporations in which income or loss is separately determined as follows:
(1) South Carolina taxable income or loss is computed separately for each corporation;
(2) allocable income is allocated separately for each corporation;
(3) apportionable income or loss is computed utilizing separate apportionment factors for each corporation;
(4) income or loss computed in accordance with items (1) through (3) of this subsection is combined and reported on a single return for the controlled group.
(E) All corporations included in a consolidated return or a combined return must use the same accounting year.
(F) If a corporation which files or is required to file a consolidated return is entitled to one or more income tax credits, including the carryover of unused credits from prior years, the income tax credits may be determined on a consolidated basis. Limitations on credits which refer to the income or the income tax liability of a corporation are deemed to refer to the income or income tax liability of the consolidated group, and credits shall reduce the consolidated group's tax liability regardless of whether or not the corporation entitled to the credit contributed to the tax liability or of the consolidated group.
(G) The election to file a consolidated return or separate returns must be made on an original and timely return and may not be changed after the return is filed.
(H) Once an election is made to file a consolidated return, this election must be adhered to until permission is granted by the department to file separate returns."
SECTION 20. Section 12-21-1090 of the 1976 Code is amended to read:
"Section 12-21-1090. The department shall may promulgate rules and regulations and issue advisory opinions for the payment and collection of the taxes levied by this article. The administrative provisions of Section 12-21-2870, wherever applicable, are hereby adopted for the administration and enforcement of the provisions of this article."
SECTION 21. Section 12-35-40 of the 1976 Code, as added by Act 334 of 2002, is amended to read:
"Section 12-35-40. For the purposes of reviewing or amending, or both, the agreement embodying the simplification requirements as contained in Section 12-35-70 of this chapter, this State shall enter into multistate discussions. For purposes of the discussions, this State must be represented by four delegates. The four delegates are the director of the department or the director's designee, the Chairman of the House Ways and Means Committee or the chairman's designee, the Chairman of the Senate Finance Committee or the chairman's designee, and one delegate appointed by the Governor from the business community. Any decision concerning the agreement must be made by a majority of this state's delegation present at the meeting. Members of the delegation shall receive the mileage, subsistence, and per diem, lodging, airfare, and other business expenses authorized by law for members of state boards, committees, and commissions and must be paid from sales and use tax collections."
SECTION 22. Section 12-36-2510 of the 1976 Code is amended to read:
"Section 12-36-2510. (A)(1) Notwithstanding other provisions of this chapter, when, in the opinion of the department, the nature of a taxpayers business renders it impracticable for the taxpayer to account for the sales or use taxes, as imposed by this chapter, at the time of purchase, the department may issue its certificate to the taxpayer authorizing the purchase at wholesale and the taxpayer is liable for the taxes imposed by this chapter with respect to the gross proceeds of sale, or sales price, of the property withdrawn, used or consumed by the taxpayer within this State. at its discretion, may issue or authorize for the efficient administration of the sales and use tax law any type of certificate allowing a taxpayer to purchase tangible personal property tax free and be liable for any taxes.
(2) In addition to any other type of certificate the department considers necessary to issue, the department may issue at its discretion:
(a) Direct Pay Certificate: a direct pay certificate allows its holder to make all purchases tax free and to report and pay directly to the department any taxes due. The holder of a direct pay certificate is liable for any taxes due. If an exemption or exclusion is not applicable, the tax is due upon the withdrawal, use, or consumption of the tangible personal property purchased with the certificate.
(b) Exemption Certificate: an exemption certificate, as opposed to allowing its holder to make all purchases tax free, allows its holder to make only certain purchases tax free such as machinery, electricity, or raw materials. The holder of an exemption certificate is liable for any taxes due. If an exemption or exclusion is not applicable, the tax is due upon purchase, or upon the withdrawal, use, or consumption of the tangible personal property purchased with the certificate if the application of the exemption or exclusion cannot be determined at the time of purchase.
(B) To reduce the complexity and administrative burden of transactions exempt from sales or use tax, the following provisions must be followed when a purchaser claims an exemption by use of an exemption certificate:
(1) the seller shall obtain at the time of the purchase any information determined necessary by the department, including the reason the purchaser is claiming a tax exemption or exclusion;
(2) the department, at its discretion, may utilize a system where the purchaser exempt from the payment of the tax is issued an identification number which must be presented to the seller at the time of the sale;
(3) the seller shall maintain proper records of exempt or excluded transactions and provide them to the department when requested and in the form requested by the department.
(C) A seller that complies with the provisions of this section is relieved from any tax otherwise applicable if it is determined that the purchaser improperly claimed an exemption or exclusion by use of a certificate, provided the seller fraudulently did not fail to collect or remit the tax, or both, or solicit a purchaser to participate in an unlawful claim of an exemption. The liability for any tax shifts to the purchaser who improperly claimed the exemption or exclusion by use of the certificate."
SECTION 23. A. Section 12-36-1310(C) of the 1976 Code is amended to read:
"(C) When a taxpayer is liable for the use tax imposed by this section on tangible personal property purchased in another state, upon which a sales or use tax was due and paid in the other state, the amount of the sales or use tax due and paid in the other state is allowed as a credit against the use tax due this State, upon proof of payment of that the sales or use tax was due and paid in the other state. The provisions of this section do not apply if the state in which the property was purchased does not allow substantially similar tax credits for tangible personal property purchased in this State. If the amount of the sales or use tax paid in the other state is less than the amount of use tax imposed by this article, the user shall pay the difference to the department."
B. This act takes effect upon approval by the Governor and applies to purchase of subjected tangible personal property made on or after that date.
SECTION 24. Section 12-53-40 of the 1976 Code is amended to read:
"Section 12-53-40. Notwithstanding any other another provision of law, there shall be is added as costs to each warrant or tax execution collected, served, or recorded by a duly authorized representative of the department an amount equivalent to five percent of the total of the warrant or tax execution or the sum of three dollars, whichever is the greater and, in addition, a sum equal to the fee provided in Section 8-21-310(20) the sum of five dollars. Such These costs, together with the costs of storage, advertising, and sale, shall must be deducted from proceeds of sale before any other payment of prior liens or claims are paid. Fee charged by clerks of court for the recording and satisfaction of warrants for distraint or tax executions issued by the department shall must be paid by the State Treasurer on proper warrant from the department from funds appropriated by the General Assembly."
SECTION 25. Chapter 54, Title 12 of the 1976 Code is amended by adding:
"Section 12-54-124. In the case of the transfer of a majority of the assets of a business, other than cash, whether through sale, gift, devise, inheritance, liquidation, distribution, merger, consolidation, corporate reorganization, lease or otherwise, any tax generated by the business which was due on or before the date of any part of the transfer constitutes a lien against the assets in the hands of a purchaser, or any other transferee, until the taxes are paid. Whether a majority of the assets have been transferred is determined by the fair market value of the assets transferred, and not by the number of assets transferred. The department may not issues a license to continue the business to the transferee until all taxes due the State have been settled and paid, and may revoke a license issued to the business in violation of this section.
This section does not apply if the purchaser receives a certificate of compliance from the department stating that all tax returns have been filed and all taxes generated by the business have been paid. The certificate of compliance is valid if it is obtained no more than thirty days before the sale or transfer."
SECTION 26. Section 12-54-25(D) of the 1976 Code is amended to read:
"(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(a)(2) and 6622."
SECTION 27. Section 12-54-240(B)(5) of the 1976 Code is amended to read:
"(5) inspection of returns by officials of other jurisdictions in accordance with Section 12-7-1690 12-54-220;"
SECTION 28. Section 12-54-240(B) of the 1976 Code, as last amended by Act 356 of 2002, is further amended by adding at the end:
"(24) disclosure of information pursuant to a subpoena issued by a federal grand jury or the State Grand Jury of South Carolina."
SECTION 29. 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. (A) Except as provided in subsection (B), 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.
(B) Notwithstanding subsection (A), an action for a declaratory judgment where the sole issue is whether a statute is constitutional may be brought in circuit court. This exception does not include a claim that the statute is unconstitutional as applied to a person or a limited class or classes of persons.
(C) Notwithstanding subsections (A) and (B) ,a claim or action for the refund of taxes may not be brought as a class action in the Administrative Law Judge Division or any court of law in this State, and the department may not be named or made a defendant in any other class action brought in this State.
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)(1)(i) through (c)(1)(vi), and (c)(2)(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 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, incompetence and disreputable conduct is defined in Section 10.51 of United States Treasury Department Circular No. 230. The department may review a petition for reinstatement as provided in Section 10.81.
(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 10.34 of United States Treasury Department Circular No. 230.
(F) For purposes of this section the terms in United States Treasury Department Circular No. 230 must be given the meanings necessary to effectuate this section. For example, unless a different meaning is required:
(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).;
(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.
(3) references to tax return mean appropriate return, including property tax returns filed with the department;
(4) references to federal tax obligations mean all South Carolina taxes, including property taxes and property tax assessments, where administered by the department."
SECTION 30. 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 31. 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 32. 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 33. 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 34. 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 35. Section 30-2-30(1) of the 1976 Code, as added by Act 225 of 2002, is amended to read:
"(1) 'Personal information' means information that identifies or describes an individual including, but not limited to, an individual's photograph or digitized image, social security number, date of birth, driver's identification number, name, home address, home telephone number, medical or disability information, education level, financial status, bank account(s) number(s), account or identification number issued by and/or used, or both, by any federal or state governmental agency or private financial institution, employment history, height, weight, race, other physical details, signature, biometric identifiers, and any credit records or reports.
'Personal information' does not mean information about boating accidents, vehicular accidents, driving violations, boating violations, or driver status, or names and addresses from any registration documents filed with the Department of Revenue as a business address which also may be a personal address."
SECTION 36. Section 6-4-30 of the 1976 Code is repealed.
SECTION 37. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 38. Unless otherwise provided, this act takes effect upon approval by the Governor, except that SECTION 13C. applies to tax years beginning after 2003.
This web page was last updated on Thursday, June 25, 2009 at 9:43 A.M.