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Regular Session, 2010
SENATE BILL NO. 567
BY SENATOR MORRISH
TAX/TAXATION. Allows a taxpayer who is subject to any collection procedure for local
sales tax, or whose request for a refund of such tax has been denied by a collector, to initiate
a mandatory, binding, arbitration proceeding. (1/1/11)
AN ACT1
To amend and reenact R.S. 47:337.33(A)(3)(a) and (B), 337.45(A) and (B), 337.51(A) and2
(B), 337.53(C), 337.54, 337.61(2) and (3), 337.63(A)(1)(a), and 337.81(A), to enact3
R.S. 47:337.51.1 and 337.67(C)(3), and to repeal R.S. 47:337.101, relative to the4
sales and use tax of political subdivisions of the state; to provide for a procedure for5
mandatory arbitration of issues related to the collection or refund of such tax; and to6
provide for related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. R.S. 47:337.33(A)(3)(a) and (B), 337.45(A) and (B), 337.51(A) and (B),9
337.53(C), 337.54, 337.61(2) and (3), 337.63(A)(1)(a), and 337.81(A) are hereby amended10
and reenacted and R.S. 47:337.51.1 and 337.67(C)(3) are hereby enacted to read as follows:11
§337.33. Failure to pay tax; rule to cease business12
A. * * *13
(3)(a) Unless a written request for mandatory arbitration pursuant to14
R.S. 47:337.51.1 has been mailed before the rule is tried, If the rule is may be15
made absolute, in which case the order rendered thereon shall be considered a16
judgment in favor of the taxing authority, and the court shall enjoin and prohibit the17 SB NO. 567
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taxpayer from the further pursuit of his business until such time as he has paid the1
delinquent tax, interest, penalties, and all costs or has entered into an agreement with2
the collector to do so.3
* * *4
B. Failure to pay any tax due as provided in the local ordinance shall, without5
demand or putting in default, cause the tax, interest, penalties, and costs to become6
immediately delinquent and the collector has the authority, on motion in a court of7
competent jurisdiction, to take a rule on such person, to show cause in not less than8
two or more than ten days, exclusive of holidays, why such person should not be9
ordered to cease from further pursuit of business. This rule may be tried out of term10
and in chambers and shall always be tried by preference. Unless a written request11
for mandatory arbitration pursuant to R.S. 47:337.51.1 has been mailed, If the12
rule is may be made absolute, in which case the order rendered thereon shall be13
considered a judgment in favor of the taxing authority, prohibiting the person from14
the further pursuit of said business until he has paid the delinquent tax, interest,15
penalties, and costs, and every violation of the injunction shall be considered as a16
contempt of court and punished according to law.17
* * *18
§337.45. Alternative remedies for the collection of taxes19
A. In addition to following any of the special remedies provided in this20
Chapter, the collector may, in his discretion, proceed to enforce the collection of any21
taxes due under the local ordinance by means of any of the following alternative22
remedies or procedures unless a written request for mandatory arbitration23
pursuant to R.S. 47:337.51.1 has been timely mailed:24
(1) Assessment and distraint, as provided in R.S. 47:337.48 through 337.60.25
(2) Summary court proceeding, as provided in R.S. 47:337.61.26
(3) Ordinary suit under the provisions of the general laws regulating actions27
for the enforcement of obligations.28
B. The collector may choose which of these procedures he will pursue in each29 SB NO. 567
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case, and the counter-remedies and delays to which the taxpayer will be entitled will1
be only those which are not inconsistent with the proceeding initiated by the2
collector, provided that in every case the taxpayer shall be entitled to proceed under3
R.S. 47:337.63 and the mandatory arbitration procedure provided for in R.S.4
47:337.51.1 except (a) when an assessment for the tax in question has become final5
or (b) when a suit involving the same tax obligation is pending against him and the6
time for filing a written request for mandatory arbitration has elapsed; and7
provided further, that the fact that the collector has initiated proceedings under the8
assessment and distraint procedure will not preclude him from thereafter proceeding9
by summary or ordinary court proceedings for the enforcement of the same tax10
obligation.11
* * *12
§337.51. Notice of assessment and right to appeal or arbitration13
A. Having assessed the amount determined to be due, the collector shall send14
a notice by certified mail to the taxpayer against whom the assessment is imposed15
at the address given in the last report filed by said taxpayer, or to any address16
obtainable from any private entity which will provide such address free of charge or17
from any federal, state, or local government entity, including but not limited to the18
United States Postal Service or from the United States Postal Service certified19
software. If no report has been timely filed, the collector shall send a notice by20
certified mail to the taxpayer against whom the assessment is imposed at any address21
obtainable from any private entity which will provide such address free of charge or22
from any federal, state, or local government entity, including but not limited to the23
United States Postal Service or from the United States Postal service certified24
software. This notice shall inform the taxpayer of the assessment and that he has25
sixty calendar days from the date of the notice to (a) pay the amount of the26
assessment; (b) request a hearing with the collector;(c) request mandatory27
arbitration pursuant to R.S. 47:337.51.1 or; (c) (d) pay under protest in accordance28
with R.S. 47:337.63.29 SB NO. 567
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B. If any dealer shall be aggrieved by any findings or assessment of the1
collector, he may, within thirty days of the receipt of notice of the assessment or2
finding, do either of the following:3
(1) File a protest with the collector in writing, signed by himself or his duly4
authorized agent, which shall be under oath and shall set forth the reason therefor,5
and may request a hearing. Thereafter, the collector shall grant a hearing to said6
dealer, if a hearing has been requested, and may make any order confirming,7
modifying or vacating any such finding or assessment. The filing of any such protest8
shall not abate any penalty for nonpayment, nor shall it stay the right of the taxing9
authority to collect the tax in any manner herein provided. Appeals from the decision10
of the collector shall be directed to any state, city or federal court of competent11
jurisdiction. This Section shall afford a legal remedy and right of action in any state,12
city or federal court having jurisdiction of the parties and subject matter for a full and13
complete adjudication of any and all questions arising in the enforcement of the local14
ordinance and this Chapter as to the legality of any tax accrued or accruing or the15
method of enforcement thereof.16
(2) Mail a written request for mandatory arbitration pursuant to R.S.17
47:337.51.1. 18
* * *19
§337.51.1. Mandatory arbitration procedure20
A.(1) Any taxpayer who is subject to any collection procedure provided21
for in this Chapter for sales and use tax, penalty, and/or interest, or whose22
request for a refund of such tax, penalty, and/or interest has been denied by a23
collector, may, in lieu of other remedies provided to him in this Chapter, timely24
initiate a mandatory arbitration proceeding in accordance with the provisions25
of this Section by mailing to the collector who is attempting to collect the tax,26
penalty, and/or interest a written request for mandatory arbitration.27
(2)(a) A timely mailed request for mandatory arbitration shall preclude28
any collection action by the collector, and shall suspend the running of any29 SB NO. 567
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prescription or other time limit or requirement to act in any provision of law or1
ordinance until the arbitration panel provided for in this Section has issued a2
final written decision, including but not limited to the time to respond to an3
ordinary suit; any remedy provided for in R.S. 47:337.45; a rule to cease4
business in R.S. 47:337.33; a payment under protest in R.S. 47:337.63; or5
auditing, examining or subpoena authority in R.S. 47:337.41, 337.42, and6
337.43.7
(b) A written request for mandatory arbitration mailed prior to an8
answer filed in an ordinary suit filed by a collector under the provisions of the9
general laws regulating actions for the enforcement of obligations shall be10
considered timely. 11
B.(1)(a) Upon receipt of the notification of the request for arbitration,12
the collector shall provide written notification to the secretary of the13
Department of Revenue of the pending arbitration proceeding.14
(b)The taxpayer and the collector shall each select one arbitrator from15
the registry of arbitrators provided for in Subparagraph (d) of this Paragraph16
within ten days of receipt of the notification of the request for arbitration. The17
two arbitrators selected shall then jointly agree on a third arbitrator to18
complete a panel of three. The arbitrators shall then select one of the three as19
a chief arbitrator.20
(c) In the event a taxpayer or a collector fails or refuses to comply with21
the arbitration procedure within the time periods provided for in this22
Subsection, plus any additional time as may be granted upon request by such23
party, the other party may appoint an arbitrator on behalf of such failing or24
refusing party.25
(d)(i) Arbitrators for the panel shall be selected from the registry of26
arbitrators compiled in accordance with this Subsection.27
(ii) The Board of Directors of the Louisiana Association of Tax28
Administrators shall annually appoint not less than ten arbitrators to the29 SB NO. 567
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registry, each of whom shall be board certified tax administrators. In the event1
there are less than ten certified tax administrators available for such2
appointment, the board of directors may select any local sales tax administrator3
with at least five years experience in sales and use tax, provided such local sales4
tax administrator is not a party to the arbitration proceeding.5
(iii) The Business and Industry Committee of the Louisiana Association6
of Tax Administrators, the Louisiana Association of Business and Industry, and7
the Society of Louisiana CPAs jointly shall appoint not less than ten arbitrators8
to the registry, each of whom shall possess at least five years of experience in the9
area of sales and use tax.10
(2)(a) After his selection, the chief arbitrator shall provide a written11
request to the taxpayer and the collector for the submission of a detailed12
statement of fact or law in support of their positions and such other documents13
as the parties deem necessary, which are to be provided to each member of the14
panel and to the other party within thirty days of the date of the request.15
(b) The chief arbitrator shall then designate a time and place for a16
hearing, unless a hearing is specifically waived in writing by both parties.17
(c) All records, documentation, testimony, and other submissions related18
to the arbitration proceeding shall be subject to the provisions of R.S. 47:150819
et seq.20
(3)(a)(i) After due consideration of the statements and documents21
provided to the panel, and any additional submissions required by the panel,22
and argument and evidence submitted at the hearing, the panel shall issue a23
written decision.24
(ii)(AA) Decisions of the panel relating to common sales tax law as25
defined in R.S. 47:337.2(C)(1)(b) shall require consultation with the Department26
of Revenue prior to the rendering or issuance of the decision.27
(BB) The decision shall be the opinion of at least a majority of the panel;28
provided that any dissenting panel member may submit reasons for dissent29 SB NO. 567
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from the majority. The decision shall be rendered within thirty days of the1
conclusion of the hearing, or within thirty days of timely receipt of the2
statements and documents in the absence of a hearing.3
(4) The parties to the arbitration proceeding provided for in this Section4
shall share equally in the cost of such proceeding, provided that each party shall5
bear its own respective costs of providing the necessary documentation,6
witnesses, travel, or other costs and expenses of the arbitration proceeding.7
(5)(a) The decision of the panel shall be in writing and shall state the8
legal and factual reasons upon which the decision is based.9
(b) A copy of the decision shall be sent to the taxpayer, the collector, and10
the secretary of the Department of Revenue.11
(c) The decision of the panel shall be binding on the parties and shall be12
considered a final judgment under this Chapter.13
C. (1) Upon request of a taxpayer and upon proper showing by such14
taxpayer that the principle of law involved in an additional assessment is15
already pending before an arbitration panel pursuant to this Section, the16
taxpayer, upon agreement to abide by the decision of the arbitration panel, may17
make a written request to the collector that the additional assessment be18
included in the pending arbitration matter. If the collector agrees that the19
principle of law involved in the additional assessment is already pending before20
the arbitration panel, then the validity of such assessment shall be determined21
by the decision of the panel.22
* * *23
§337.53. Assessment and notice when tax is in jeopardy24
* * *25
C. The taxpayer against whom the assessment lies can stay distraint of his26
property, or sale of his property already distrained, as the case may be, only by the27
immediate payment of the assessment or by posting with the collector a surety bond28
for twice the amount of such assessment, or of a lower amount acceptable to the29 SB NO. 567
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collector, with such sureties as the collector deems necessary. The taxpayer shall1
have sixty calendar days from the date of payment, or the date of posting bond, to2
either appeal to a court of competent jurisdiction for a redetermination of the3
assessment or mail a written request for mandatory arbitration pursuant to R.S.4
47:337.51.1. During this period, the collector shall hold any payment made in an5
escrow account. If the taxpayer does not appeal or mail a request for mandatory6
arbitration, the collector shall immediately credit such payment to tax collections7
or proceed to collect from sureties, if any were given. In the event of an appeal or8
request for mandatory arbitration, such payment or demand for payment from9
sureties given shall be held in abeyance pending the redetermination or affirmation10
of the assessment by the court which last reviews the matter or a decision by an11
arbitration panel pursuant to R.S. 47:337.51.1. Final payment, or collection from12
sureties, will be for the amount of the affirmed or redetermined assessment or the13
amount set forth in the decision of such arbitration panel.14
§337.54. Assessment and claims in bankruptcy and receivership15
Upon the adjudication of bankruptcy of any taxpayer in any bankruptcy16
proceeding, or the appointment of a receiver for any taxpayer in a receivership17
proceeding, before any court of this state or of the United States, the collector may18
immediately make a determination from any available information or by estimate or19
otherwise, of the amount of tax, penalty and interest the taxpayer is liable to pay and20
immediately assess said amount, and by a writing to be retained as a part of his21
official records indicate that such assessment has been made. Such assessment may22
be made whenever a tax becomes due under the provisions of this Chapter,23
regardless of whether it is then payable or not. Claims for such assessments, and24
additional interest and attorney fees thereon, shall be presented for adjudication in25
accordance with law to the court before which the bankruptcy or receivership26
proceeding is pending despite the pendency of delays before assessment provided in27
R.S. 47:337.48 through 337.51, or the pendency of an appeal to the collector or the28
courts for a redetermination, or the pendency of a mandatory arbitration29 SB NO. 567
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proceeding pursuant to R.S. 47:337.51.1. However, no petition for the1
redetermination of an assessment or request for mandatory arbitration pursuant2
to R.S. 47:337.51.1 shall be filed with the collector after an adjudication of3
bankruptcy or the appointment of a receiver, unless the petition is accompanied by4
a certified copy of an order of the court before which the bankruptcy or receivership5
proceedings is pending, authorizing the trustee or receiver to prosecute such appeal.6
* * *7
§337.61. Collection by summary court proceeding authorized8
In addition to any other procedure provided in this Chapter or elsewhere in9
the laws of this state, and for the purpose of facilitating and expediting the10
determination and trial of all claims for taxes, penalties, interest, attorney fees, or11
other costs and charges arising, there is hereby provided a summary proceeding for12
the hearing and determination of all claims by or on behalf of the taxing authority,13
or by or on behalf of the collector, for taxes and for the penalties, interest, attorney14
fees, costs or other charges due thereon, by preference in all courts, all as follows:15
* * *16
(2) All defenses, whether by exception or to the merits, made or intended to17
be made to any such claim, must be presented at one time and filed in the court of18
original jurisdiction, or a written request for mandatory arbitration pursuant to19
R.S. 47:337.51.1 shall be mailed, prior to the time fixed for the hearing, and no20
court shall consider any defense unless so presented and filed. This provision shall21
be construed to deny to any court the right to extend the time for pleading defenses,22
and no continuance shall be granted by any court to any defendant except for legal23
grounds set forth in the Louisiana Code of Civil Procedure. 24
(3) That, unless a written request for mandatory arbitration pursuant to25
R.S. 47:337.51.1 has been timely mailed, all matters involving any such claim shall26
be decided within forty-eight hours after submission, whether in term time or in27
vacation, and whether in the court of first instance or in an appellate court, and all28
judgments sustaining any such claim shall be rendered and signed the same day, and29 SB NO. 567
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shall become final and executory on the fifth calendar day after rendition. No new1
trial, rehearing or devolutive appeal shall be allowed. Suspensive appeals may be2
granted, but must be perfected within five calendar days from the rendition of the3
judgment by giving of bond, with good and solvent security, in a sum double that of4
the total amount of the judgment, including costs. Such appeals, whether to a court5
of appeal or to the supreme court, shall be made returnable in not more than fifteen6
calendar days from the rendition of the judgment.7
* * *8
§337.63. Mandatory arbitration or remittance of tax under protest; suits to recover9
A.(1)(a)(i) Any taxpayer protesting the payment of any amount found due by10
the collector or the enforcement of any provision of law in relation thereto may mail11
a written request for mandatory arbitration pursuant to R.S. 47:337.51.1. 12
(ii) If the taxpayer chooses not to avail himself of mandatory arbitration,13
he shall remit to the collector the amount due and at that time shall give notice of14
intention to file suit for the recovery of such tax.15
* * *16
§337.67. Suspension and interruption of prescription17
* * *18
C. The running of such prescriptive period may also be suspended as follows:19
* * *20
(3) By use of the mandatory arbitration procedure provided for in R.S.21
47:337.51.1. 22
* * *23
§337.81. Appeals from the collector's disallowance of refund claim24
A(1) If the collector fails to act on a properly filed claim for refund or credit25
within one year from the date received by him or if the collector denies the claim in26
whole or in part, the taxpayer claiming such refund or credit may within thirty days27
of the notice of disallowance of the claim request a hearing with the collector for28
redetermination. The collector shall render a decision within thirty days of the29 SB NO. 567
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request by the taxpayer. 1
(2) The taxpayer may appeal a denial of a claim for refund to a court of2
competent jurisdiction or mail a written request for mandatory arbitration3
pursuant to R.S. 47:337.51.1. No appeal may be filed or request for arbitration4
made before the expiration of one year from the date of filing such claim unless the5
collector renders a decision thereon within that time, nor after the expiration of6
ninety days from the date of mailing by certified or registered mail by the collector7
to the taxpayer of a notice of the disallowance of the part of the claim to which such8
appeal relates.9
* * *10
Section 2. R.S. 47:337.101 is hereby repealed.11
Section 3. This Act shall become effective on January 1, 2011; if vetoed by the12
governor and subsequently approved by the legislature, this Act shall become effective on13
January 1, 2011, or on the day following such approval by the legislature, whichever is later.14
The original instrument was prepared by Alan Miller. The following digest,
which does not constitute a part of the legislative instrument, was prepared
by Nancy Vicknair.
DIGEST
Morrish (SB 567)
Present law authorizes local sales tax collectors to enforce collections by means of any of
the following alternative remedies or procedures:
(1) Assessment and distraint.
(2)Summary court proceeding.
(3) Ordinary suit under the provisions of the general laws regulating actions for the
enforcement of obligations.
After the local collector chooses, the taxpayer is entitled only to those remedies and delays
which are not inconsistent with the proceeding initiated by the collector, except that in every
case a taxpayer may pay the tax under protest and file suit for recovery except (1) when an
assessment for the tax has become final or (2) when a suit involving the same tax obligation
is pending against him.
Present law requires the assessment to notify the taxpayer that he has 60 calendar days from
the date of the assessment notice to (1) pay the amount of the assessment; (2) request a
hearing with the collector or; (3) pay under protest and file suit for recovery. If there is a
protest, the collector must grant a hearing, if it has been requested, and then the collector
may make any order confirming, modifying or vacating the finding or assessment. The
filing of the protest does not abate any penalty for nonpayment, nor does it stay the right of SB NO. 567
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the collector to collect the tax in any manner provided in the law. Appeals from the decision
of the collector are to any state, city or federal court of competent jurisdiction.
Proposed law allows a taxpayer who is subject to any collection procedure for local sales tax,
penalty, and/or interest, or whose request for a refund of such tax, penalty, and/or interest
has been denied by a collector, in lieu of other remedies provided to him in present law, to
"timely" initiate a mandatory arbitration proceeding by mailing to the collector who is
attempting to collect the tax, penalty, and/or interest a written request for mandatory
arbitration.
A written request for mandatory arbitration mailed prior to the following is considered
"timely":
1. An answer filed in an ordinary suit filed by a collector.
2. A hearing on a rule to cease business or a summary judgement.
3. Within 30 days of the receipt of notice of a final assessment.
4. Within 60 days from the date of payment or the posting of bond in the case of a
jeopardy assessment.
5. Within 90 days of the notice of a collector of the disallowance of a claim for a
refund.
A timely mailed request precludes any collection action by the collector, and shall suspend
the running of any prescription or other time limit or requirement to act in any provision of
law or ordinance until the arbitration panel has issued a final written decision.
Proposed law requires the taxpayer and the collector to each select one arbitrator from the
"registry of arbitrators" set forth below within 10 days of receipt of the notification of the
request for arbitration. The two arbitrators selected must then jointly agree on a third
arbitrator to complete a panel of three. The arbitrators select one of the three as a chief
arbitrator. In the event a taxpayer or a collector fails or refuses to comply with the arbitration
procedure within the time periods provided in the proposed law, plus any additional time as
may be granted upon his request, the other party may appoint an arbitrator on behalf of such
failing or refusing party.
Proposed law requires the selection of arbitrators from following "registry of arbitrators".
The Board of Directors of the Louisiana Association of Tax Administrators must annually
appoint not less than 10 arbitrators to the registry, each of whom shall be board certified tax
administrators. In the event there are less than 10 certified tax administrators available for
such appointment, the Board of Directors may select any local sales tax administrator with
at least 5 years experience in sales and use tax, provided such local sales tax administrator
is not a party to the arbitration proceeding.
The Business and Industry Committee of the Louisiana Association of Tax Administrators,
the Louisiana Association of Business and Industry, and the Society of Louisiana CPAs must
jointly appoint not less than 10 arbitrators to the registry, each of whom shall possess at least
5 years of experience in the area of sales and use tax.
Proposed law requires the chief arbitrator to provide a written request to the taxpayer and
the collector for the submission of a detailed statement of fact or law in support of their
positions and such other documents as the parties deem necessary, which are to be provided
to each member of the panel and to the other party within 30 days of the date of the request.
The chief arbitrator then designates a time and place for a hearing, unless a hearing is SB NO. 567
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specifically waived in writing by both parties. All records, documentation, testimony, and
other submissions related to the arbitration proceeding are subject to the confidentiality
provisions of R.S. 47:1508 et seq.
The panel must issue a written decision stating the legal and factual reasons upon which the
decision is based. The decision must be the opinion of at least a majority of the panel;
provided that any dissenting panel member may submit reasons for dissent from the
majority. The decision shall be rendered within 30 days of the conclusion of the hearing, or
within 30 days of timely receipt of the statements and documents in the absence of a hearing.
The decision of the panel is binding on the parties and is considered a final judgement.
Decisions relating to "common sales tax law" as defined in R.S. 47:337.2(C)(1)(b) requires
consultation with the Department of Revenue prior to the rendering or issuance of the
decision.
The parties share equally in the cost of the arbitration proceeding, provided that each party
must bear its own respective costs of providing the necessary documentation, witnesses,
travel, or other costs and expenses of the arbitration proceeding.
Proposed law authorizes a taxpayer to make a written request to the collector that an
additional assessment be included in the pending arbitration matter upon a proper showing
that the principle of law involved in the additional assessment is already pending before an
arbitration panel and his agreement to abide by the decision of the arbitration panel. If the
collector agrees that the principle of law involved in the additional assessment is already
pending before the arbitration panel, then the validity of the assessment shall be determined
by the decision of the panel.
Effective January 1, 2011.
(Amends R.S. 47:337.33(A)(3)(a) and (B), 337.45(A) and (B), 337.51(A) and (B),
337.53(C), 337.54, 337.61(2) and (3), 337.63(A)(1)(a), and 337.81(A); adds R.S.
47:337.51.1 and 337.67(C)(3); repeals R.S. 47:337.101)
Summary of Amendments Adopted by Senate
Senate Floor Amendments to engrossed bill.
1. Changes the proposed law from one which requires local sales tax collectors
to assess tax before taking any other collection actions and authorizes
taxpayers to appeal such assessments and refund denials to a "local sales tax
division" of the board of tax appeals, to one which allows such taxpayers to
require local tax collectors to participate in mandatory, binding arbitration,
as set forth above.