34 TAC §1.13
The Comptroller of Public Accounts proposes an amendment
to §1.13, concerning initiation of an expedited hearing. The rule is
being amended to reflect organizational changes.
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 Eleanor Kim, Deputy General
Counsel, General Counsel Division, 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.
§1.13.Initiation of an Expedited Hearing.
(a)
A taxpayer may request an expedited hearing at the time
a petition for redetermination or written request for refund hearing is filed.
An expedited hearing is one conducted under the accelerated pre-hearing and
hearing timetable set forth in this section.
(b)
To obtain an expedited hearing, a taxpayer must do the
following at the time the petition for redetermination or written request
for refund hearing is filed:
(1)
request in writing the election of the expedited procedure
and specify whether an oral hearing or a hearing on written submissions is
preferred;
(2)
pre-file its statement of grounds and all evidence
(other than resale and exemption certificates) on which it intends to rely
at the hearing, including summaries of testimony of witnesses expected to
be called at an oral hearing. Contentions and evidence not pre-filed by the
taxpayer shall be deemed inadmissible;
(3)
agree to abbreviated discovery timetables in the event
the tax division should initiate discovery during the pre-hearing phase;
(4)
request an extended oral hearing, if desired;
(5)
agree to file resale and exemption certificates no
later than the date of hearing or by the 60th day from the date of the hearing
request, whichever occurs first, and to waive in writing the requirement of
written notice and the 60-day period for the presentation of certificates
as provided in Tax Code, §151.054(e); and
(6)
waive in writing the issuance of a proposed decision.
(c)
The
general counsel or his designee
[
Chief
Hearings Attorney
] shall, within ten days of his receipt of a request
for an expedited hearing, make a determination as to whether the request qualifies
for an expedited hearing. If it does not, the taxpayer will be so notified
in writing, and advised that either with the filing of additional curative
documentation the case can proceed on an expedited basis or that the case
will be placed on the agency's regular hearings docket.
(d)
For good cause shown, a request for an expedited hearing
may be withdrawn; however, the waiver of the 60-day period pursuant to subsection
(b)(5) of this section cannot be withdrawn. A taxpayer's request for continuance,
or a request for an extended oral hearing filed after the initial request
for an expedited hearing, shall not be granted unless there is a showing of
good cause. Withdrawal of the request for an expedited hearing, or the granting
of a motion for continuance or an extended oral hearing, shall cause the hearing
to be set on the agency's regular hearings docket.
(e)
The tax division may petition the Administrative Law Judge
for conversion from an expedited to a regular hearing for good cause shown,
including, but not limited to, the need for additional policy consideration
of issues raised, the need for extended discovery, for reasons of agency policy
or court case hold, or for extended examination of records presented by the
taxpayer. The Administrative Law Judge shall rule on such motion on the basis
of written pleadings submitted by the parties.
(f)
A compliant expedited hearing request shall be set and
decided on the following timetable:
(1)
within 20 days of receipt of the request by the
general
counsel or his designee
[
Chief Hearings Attorney
] an oral
hearing or written submission closing date not to exceed 60 days from the
date of receipt of the request shall be set by the Chief Administrative Law
Judge;
(2)
a date, not to exceed 50 days from the date of receipt
of the request by the
general counsel or his designee
[
Chief
Hearings Attorney
], shall be set as a deadline for the Tax Division
to file a written response to the taxpayer's statement of grounds and pre-filed
evidence;
(3)
a final decision shall be issued as follows:
(A)
if no audit amendment is required in order to issue the
final decision, within 45 days of the date of the oral hearing or the date
the written submission record closes; or
(B)
if an audit amendment is required in order to issue the
final decision, within 75 days of the date of the oral hearing or the date
the written submission record closes; and
(4)
a motion for rehearing may be filed as provided
in §1.29 of this title (relating to Motion for Rehearing).
(g)
Hearings conducted pursuant to the expedited timetable
established in this section shall not be subject to the provisions of §§1.9,
1.10, 1.11, 1.14, 1.15, 1.16, 1.20, and 1.27 of this title (relating to Rules
of Practice and Procedure).
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 14, 1999.
TRD-9904262
Martin Cherry
Special Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: August 29, 1999
For further information, please call: (512) 463-4062