PART 1. COMPTROLLER OF PUBLIC ACCOUNTS
CHAPTER 1. CENTRAL ADMINISTRATION
SUBCHAPTER A. PRACTICE AND PROCEDURES
DIVISION 1. PRACTICE AND PROCEDURES
The Comptroller of Public Accounts proposes to amend §1.18, concerning filing of documents, §1.22, concerning oral and written submission hearings, and §1.33, concerning discovery. The amendments are to change references to the State Office of Administrative Hearings Rules of Procedure that were renumbered in amendments effective November 26, 2008. Additionally, §1.22 is being amended to allow for more efficient resolution when a taxpayer abandons their case.
John Heleman, Chief Revenue Estimator, has determined that for the first five-year period the rules will be in effect, there will be no significant revenue impact on the state or units of local government. The proposed amendments would have no significant fiscal impact on small businesses.
Mr. Heleman also has determined that for each year of the first five years the rules are in effect, the proposed amendments would benefit the public by updating references in Comptroller rules. 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 Rick Budd, Deputy General Counsel, General Counsel Division, P.O. Box 13528, Austin, Texas 78711-3528 or by email at rick.budd@cpa.state.tx.us.
The amendments are proposed under Tax Code, §111.002, which provides the comptroller with authority to prescribe, adopt, and enforce rules relating to the administration and enforcement provisions of Tax Code, Title 2.
The amendments implement Tax Code, §§111.001, 111.009, and 111.105, which provide for the collection of taxes and redetermination and refund hearings.
§1.18.Filing of Documents.
All documents submitted with or after the Position Letter selection
form must be filed with the assistant general counsel. See §1.32
of this title (relating to Service) for the manner in which these
filings may be made. Note that rules of service governing filing documents
at SOAH will vary. See SOAH, Rules of Procedure, 1 TAC
§155.101 [§155.23].
§1.22.Oral and Written Submission Hearings.
(a) It is the agency's policy to encourage resolution and early settlement of all contested matters.
(b) If, after reviewing a taxpayer's Reply to the Tax Division's Position Letter, as well as all other available evidence, and conducting any mediation requested by a taxpayer, the parties are unable to resolve or settle all contested matters, the Tax Division will, at a taxpayer's request or on its own motion, file a Request to Docket Case form with SOAH. Such Request to Docket Case form will be filed promptly following taxpayer's request, but in no case shall it be filed more than 30 days after such request, unless the parties agree otherwise.
(c) At the time the Request to Docket Case form is
filed with SOAH, the agency shall file with SOAH a copy of all pleadings
served on the agency by the taxpayer and on the taxpayer by the agency,
including but not limited to the Statement of Grounds, Position Letter,
Reply and Response along with any exhibits or attachments thereto
in accordance with the provisions of SOAH Rules of Procedure,
§155.53 [§155.9].
(d) If the parties are unable to resolve or settle all contested matters, and resolution requires a hearing, then, except as otherwise noted or required, the taxpayer will be given the option of selecting:
(1) A written submission hearing before a SOAH administrative law judge, or
(2) An oral hearing before a SOAH administrative law judge.
(e) If the taxpayer fails to make a selection, the
case may be dismissed for want of prosecution without the issuance
of a proposal for decision, or may [will] be docketed
as a written submission hearing, subject to subsection (f) of this section.
(f) A taxpayer may change the selection of oral or written submission hearing made in subsection (d) of this section, by filing a motion with SOAH. Such a motion would be filed according to SOAH Rules of Procedure.
(g) The Tax Division has the option of requesting an oral hearing in any case in which it has the burden of proof.
(h) All hearings held pursuant to Tax Code, §154.1142 or §155.0592, will be oral hearings.
§1.33.Discovery.
(a) Discovery. The APA applies to matters of discovery.
(b) Discovery at the agency will be conducted under
the same guidelines as set out in SOAH Rule of Procedure, 1 TAC
§155.251 [§155.31
]. Discovery while a hearing is docketed
at SOAH will be conducted under SOAH Rule of Procedure, 1 TAC
§155.251 [§155.31].
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 May 19, 2009.
TRD-200901946
Martin Cherry
General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: July 5, 2009
For further information, please call: (512) 475-0387