Part I. Comptroller of Public Accounts

Chapter 1. Central Administration

Subchapter A. Practice and Procedure

1. Practice and Procedure

34 TAC §1.28

The Comptroller of Public Accounts proposes an amendment to §1.28, concerning comptroller's decision. The amendment conforms the rule to changes to the Administrative Procedure Act, Government Code, §2001.142(c), effective September 1, 1999. The amendment clarifies that (a) effective September 1, 1999, parties, when notified by mail of a Comptroller's Decision, are presumed to have been notified on the third day after notice of the decision is mailed, and (b) the Comptroller's Decision becomes final 20 days from the date of notification, unless a motion for rehearing is filed on or before the 20th day.

James LeBas, chief revenue estimator, has determined that for the first five-year period the amendment will be in effect there will be no significant revenue impact on the state or local government.

Mr. LeBas also has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of adopting the amendment will be in providing new information regarding tax responsibilities. This amendment is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to individuals who are required to comply with the proposed amendment.

Comments on the proposal may be submitted to John Neel, Chief, Administrative Law Judges, P.O. Box 13528, Austin, Texas 78711-3528.

This amendment is proposed under the Tax Code, §111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2.

The amendment implements the Tax Code, §111.009 and §111.105.

§1.28.Comptroller's Decision.

(a)

The proposed decision of the assigned administrative law judge must be approved by the Comptroller of Public Accounts before it is given effect. Notification of the [ The ] comptroller's decision will be mailed [ sent ] to the taxpayer and any authorized representative. For comptroller's decisions issued prior to September 1, 1999, the taxpayer and any authorized representative are presumed to have been notified of the comptroller's decision on the date notice of decision is mailed. For comptroller's decisions issued on or after September 1, 1999, the taxpayer and any authorized representative are presumed to have been notified of the comptroller's decision on the third day after notice of the decision is mailed. The comptroller's decision [ It ] is final 20 days from the date of notification [ mailed ], unless a motion for rehearing is filed on or before midnight of the 20th day. If the motion for rehearing is granted, the decision is vacated pending a subsequent decision upon rehearing. If the motion for rehearing is overruled, whether by order or operation of law, the decision is final on the date it is overruled.

(b)

The administrative law judge may issue a comptroller's decision without the issuance of a proposed decision if the parties are in agreement on all contested issues or if the parties agree to waive issuance of a proposed decision.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 9, 1999.

TRD-9904101

Martin Cherry

Special Counsel

Comptroller of Public Accounts

Earliest possible date of adoption: August 22, 1999

For further information, please call: (512) 463-4062

34 TAC §1.29

The Comptroller of Public Accounts proposes an amendment to §1.29, concerning Motion for Rehearing. The amendment conforms the rule to the Administrative Procedure Act, Government Code, §2001.146, by clarifying that the time deadlines for filing a motion for rehearing, for filing a reply to a motion for rehearing, and for ruling on a motion for rehearing are calculated from the date the parties are given notification of a Comptroller's Decision.

James LeBas, chief revenue estimator, has determined that for the first five-year period the amendment will be in effect there will be no significant revenue impact on the state or local government.

Mr. LeBas also has determined that for each year of the first five years the amendment is in effect the public benefit anticipated as a result of adopting the amendment will be in providing new information regarding tax responsibilities. This amendment is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. There is no significant anticipated economic cost to individuals who are required to comply with the proposed amendment.

Comments on the proposal may be submitted to John Neel, Chief, Administrative Law Judges, P.O. Box 13528, Austin, Texas 78711-3528.

This amendment is proposed under the Tax Code, §111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2.

The amendment implements the Tax Code, §111.009 and §111.105.

§1.29. Motion for Rehearing.

A motion for rehearing may be filed by any party with the assigned administrative law judge no later than [ within ] 20 days after [ from ] the date notification of the comptroller's decision is provided to the parties [ mailed ]. The motion must state each specific ground upon which the party believes the comptroller's decision is erroneous. In addition, a motion for rehearing on a refund claim must state the amount of the refund sought. Any reply to a motion for rehearing must be filed no later than [ within ] 30 days after the date notification of the decision is provided to the parties [ mailed ]. The motion must [ will ] be acted on no later than [ within ] 45 days after the date notification of the decision is provided to the parties [ mailed ], or the motion will be overruled by operation of law. These times may be varied as provided by the Administrative Procedure [ and Texas Register ] Act, Government Code, §2001.146(e) [ §16(e) and (f) ]. If a rehearing is granted, a notice will be issued to the parties setting out all pertinent information.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on July 9, 1999.

TRD-9904102

Martin Cherry

Special Counsel

Comptroller of Public Accounts

Earliest possible date of adoption: August 22, 1999

For further information, please call: (512) 463-4062