Part 1.
COMPTROLLER OF PUBLIC ACCOUNTS
Chapter 1.
CENTRAL ADMINISTRATION
Subchapter A. PRACTICE AND PROCEDURES
1.
PRACTICE AND PROCEDURES
34 TAC §1.5
The Comptroller of Public Accounts proposes an amendment
to §1.5, concerning the initiation of a hearing. Subsection (c) incorporates
the 30-day statutory deadline imposed by House Bill 2425, 78th Regular Legislative
Session, 2003. All other proposed amendments to subsections (a), (b), and
(c) are for clarity and to update the rule to reflect current practice and
procedures.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be in providing up-to-date procedure for initiation of an administrative
hearing. This rule is adopted under 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 rule.
Comments on the proposal may be submitted to Eleanor Kim, General Counsel
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under 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
Tax Code, Title 2.
§1.5.Initiation of a Hearing.
(a)
Redetermination
hearing
[
(b)
Required documentary evidence
at the audit conference.
When a taxpayer timely requests a redetermination hearing, the agency
[
(c)
Refund
hearing
[
(d)
Hearings involving licenses and permits. The agency will
initiate hearings concerning the denial, suspension, or revocation of licenses
or permits by sending written notice to the taxpayer, which notice will include
a statement of the matters asserted and procedures to be followed.
(e)
An oral hearing under the Tax Code, §154.1142 or §155.0592,
will be set if requested by the permit holder within 15 calendar days of the
receipt of the notice of violation(s). This agency hereby certifies that
the proposal has been reviewed by legal counsel and found to be within the
agency's authority to adopt.
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 January 27, 2004.
TRD-200400507
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: March 14, 2004
For further information, please call: (512) 475-0387
34 TAC §1.15
The Comptroller of Public Accounts proposes an amendment
to §1.15, concerning reply to the position letter or notice of setting.
Subsection (d) is added to implement the written demand for documents provided
by House Bill 2425, 78th Regular Legislative Session, 2003. All other proposed
amendments to subsections (a), (b), and (c) are for clarity and to update
the rule to reflect current practice and procedures.
James LeBas, Chief Revenue Estimator, has determined that for the first
five-year period the rule will be in effect, there will be no significant
revenue impact on the state or units of local government.
Mr. LeBas also has determined that for each year of the first five years
the rule is in effect, the public benefit anticipated as a result of enforcing
the rule will be by providing up-to-date procedure for replying to a position
letter or demand notice for documents in connection with an administrative
hearing. This rule is adopted under 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 rule.
Comments on the proposal may be submitted to Eleanor Kim, General Counsel
Division, P.O. Box 13528, Austin, Texas 78711.
This amendment is proposed under 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
Tax Code, Title 2.
§1.15.Reply to the Position Letter ; Demand Notice for Documents [
(a)
After reviewing the position letter,
[
(b)
After reviewing a notice of setting issued for
[
(c)
All documentary evidence
to support facts or contention(s)
should be submitted with the reply to the position letter or the notice of
setting under subsection (b) of this section or
[
(d)
At any time after the original due date
of the reply to position letter, the assigned assistant general counsel may
issue a written demand notice to the taxpayer requesting that all documentary
evidence that would support facts or contentions(s) raised by the taxpayer
in connection to a refund claim be produced within a specified time period.
The time period specified in the written demand notice may not be less than
180 days. A taxpayer who fails to produce the requested documents within the
specified time period may not introduce in evidence any of the documents that
were not timely produced. The assigned administrative law judge cannot consider
documents that were not produced within the specified deadline. This section
is only applicable to the administrative hearing pending before the agency
and has no effect on a judicial proceeding pending under Tax Code, Chapter
112.
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 January 27, 2004.
TRD-200400508
Martin Cherry
Chief Deputy General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: March 14, 2004
For further information, please call: (512) 475-0387
of a deficiency
or jeopardy determination
].
If a taxpayer disagrees with the agency's
deficiency or jeopardy determination, the
[
A
] taxpayer may
request a redetermination hearing by
timely submitting to
[
sending
] the agency a written request for redetermination.
This
written request must include a statement of grounds that complies with the
requirements set forth by §1.7 of this title. To be considered timely,
the
[
The time limit for filing a
] request
for a hearing
must be filed within
[
is
] 30 days
from the date of the
[
for a
] deficiency determination
or within
[
and
] 20 days
from the date of the
[
for a
] jeopardy
determination.
If the written request with the statement of grounds cannot
be submitted within the applicable time limit, the taxpayer may request an
extension as provided by §1.6 of this title. A request for a redetermination
hearing that is not submitted within the original time limit
[
The
request must include a statement of grounds that sets out in detail the reasons
the taxpayer does not agree with the determination. If the statement of grounds
is not received within the time limit
] or
before the expiration
of an extended time limit
[
an extension of the time limit granted
prior to the expiration of the time limit, a hearing
] will not be granted
. A
[
and the
] taxpayer
who cannot obtain a redetermination
hearing may
[
must
] pay the determination and request a refund
in order to raise
[
before
] any objection to the determination[
can be considered
].
. The agency's auditor
] may request in writing that the taxpayer produce
documentary evidence [
on any issue
]for inspection
that would
support the taxpayer's statement of grounds.
The written request
may specify that resale or exemption certificates to support tax-free sales
must be submitted within 60 days from the date of the request.
[
must be served no later than five working days following the exit conference
and must identify with specificity the nature of the documents sought, including
the schedule or examination to which the documents relate. If such documentary
evidence is
]
Resale or exemption certificates that are
not
submitted within
the
60
day time limit
[
days after
a petition for redetermination is acknowledged, such documentary evidence
] will
not
be
accepted as evidence to support a claim
of tax-free sales
[
inadmissible for purposes of the redetermination
hearing
].
of tax paid
].
If a taxpayer disagrees with the agency's denial of a refund claim, the taxpayer
may request a refund hearing by timely submitting to the agency a written
request for a refund hearing. This written request must include a statement
of grounds that complies with the requirements set forth by §1.7 of this
title. To be considered timely, the request for a hearing must be filed within
30 days from the date of the denial. If the written request with the statement
of grounds cannot be submitted within the applicable time limit, the taxpayer
may request an extension as provided by §1.6 of this title. A request
for a refund hearing that is not submitted within the original time limit
or before the expiration of an extended time limit will not be granted.
[
Within the time limits provided in the Tax Code, §111.104(c), a taxpayer
may request a refund of any tax, penalty, or interest paid to the comptroller
by sending the agency a written request. The request must include a statement
of grounds that sets out in detail the grounds on which the claim is founded.
] If no grounds are stated as a basis for the claim, a hearing will
not be granted and the claim will be denied. If the claim is granted for any
tax amount, any corresponding penalty and interest amount previously paid
will be refunded.
or Notice of Setting ].
If
] a taxpayer
may
[
desires to
] present additional
facts or legal arguments for consideration by the administrative law judge
by filing
[
,
] a reply to the position letter [
should
be filed
]
within the due date specified in the notice of setting.
The notice of setting may not set the due date for the reply earlier than
20 days from the date the notice of setting is issued
.
For
] hearings under [
the
]Tax Code, §154.1142 or §155.0592,
a permit holder may present facts or legal arguments for consideration by
the administrative law judge by filing a reply to the notice of setting
within the specified due date. The notice of setting may not set the due date
for the reply earlier than 20 days from the date the notice of setting is
issued
.
that is not submitted
] on or before the due date for
the
[
a
] reply[
under subsection (a) or (b) of this section is inadmissible for purposes of
a hearing unless an extension to present additional evidence is granted by
the assigned administrative law judge because of an emergency or extraordinary
circumstances
].
The assigned assistant general counsel may object
to the introduction of documentary evidence that was not timely submitted,
and at his or her discretion, the assigned administrative law judge may rule
the documentary evidence to be inadmissible or may grant additional time for
the assistant general counsel to review the documents.
[
The notice
of setting will specify a due date not sooner than 20 days after the issuance
of the notice of setting for this reply. If any issues are raised or presented
for the first time at the hearing, a party may plead surprise and move for
a continuance, or move that the issues not be considered, which motion shall
be granted at the discretion of the administrative law judge.
]
Chapter 16.
ELECTRONIC TRANSFER OF PAYMENTS TO THE TEXAS STATE TREASURY DEPARTMENT