HLS 16RS-1744 REENGROSSED
2016 Regular Session
HOUSE BILL NO. 978
BY REPRESENTATIVE DANAHAY
TAX/TAXATION: Provides for administration, disposition, enforcement, and adjudication
of state and local taxes under the jurisdiction of the Board of Tax Appeals
1 AN ACT
2To amend and reenact R.S. 47:302(K)(7)(b) and (W)(1), (2), and (4) as enacted by Act No.
3 22 of the 2016 First Extraordinary Session of the Legislature, 351, 1403(C),
4 1418(4)(b) and (7)(d), and 1432(B), and Section 2 of Act No. 198 of the 2014
5 Regular Session of the Legislature and to enact R.S. 47:351.1, 1418(4)(c) and (7)(e),
6 and 1435(D), relative to state and local taxes; to provide with respect to the
7 enforcement and adjudication of certain taxes; to provide for the disposition of
8 certain taxes, penalties, and interest; to provide with respect to disputes concerning
9 certain taxes and other claims against the state; to provide with respect to legal
10 challenges concerning constitutionality; to authorize refunds of certain occupational
11 license taxes; to authorize the transfer of cases; to require interagency transfers
12 between certain state agencies; to provide for applicability; to provide for
13 effectiveness; and to provide for related matters.
14Be it enacted by the Legislature of Louisiana:
15 Section 1. R.S. 47:302(K)(7)(b) and (W)(1), (2), and (4) as enacted by Act No. 22
16of the 2016 First Extraordinary Session of the Legislature, 351, 1403(C), 1418(4)(b) and
17(7)(d), and 1432(B) are hereby amended and reenacted and R.S. 47:351.1, 1418(4)(c) and
18(7)(e), and 1435(D) are hereby enacted to read as follows:
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1 §302. Imposition of tax
2 * * *
3 K. An additional tax shall be levied as follows:
4 * * *
5 (7)
6 * * *
7 (b) The amount specified in Item (i) of Subparagraph (a) of this Paragraph
8 as transferred to the Department of State Civil Service, Board of Tax Appeals, shall
9 be increased by fifty-five thousand dollars on July 1, 2015, by thirty-two thousand
10 dollars on July 1, 2016, and by five thousand dollars on the first day of each of the
11 two subsequent fiscal years when the amount distributed pursuant to this Subsection
12 in the fiscal year immediately preceding that date actually exceeds the amount
13 distributed in Fiscal Year 2013-2014. The amounts specified in Subparagraphs (a)
14 and (b) of this Paragraph shall be transferred by the secretary within the first thirty
15 days of each fiscal year and the Department of State Civil Service, Board of Tax
16 Appeals, may retain all funds which are transferred as directed in Subparagraphs (a)
17 and (b) of this Paragraph.
18 * * *
19 W.(1) Nothing in this Subsection Subsection K of this Section shall prohibit
20 a taxpayer from electing to separately file with the applicable parish sales and use
21 tax collector or central collection commission a use tax return and to remit the
22 correct and full amount of use tax due pursuant to the provisions of all applicable
23 local ordinances, hereinafter referred to as "paid local use tax return".
24 (2) If a dealer has withheld and remitted tax for a specific purchase pursuant
25 to the provisions of this Subsection Subsection K of this Section from a taxpayer
26 who subsequently files a paid use local tax return, the taxpayer may file an annual
27 use tax refund request with the secretary, hereinafter referred to as "refund request".
28 * * *
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1 (4) The secretary shall pay any refund due pursuant to this Subparagraph
2 Subsection from current collections of any tax levied pursuant to Subsection K of
3 this Section.
4 * * *
5 §351. Failure to pay tax; judgment prohibiting further pursuit of business
6 A. Failure to pay the tax levied by this Chapter shall ipso facto, without
7 demand or putting in default, cause the tax, interest, penalties, and costs to become
8 immediately delinquent, and the collector is hereby vested with authority, on motion
9 in a court of competent jurisdiction, to take a rule on the delinquent taxpayer to show
10 cause in not less than two or more than ten days, exclusive of holidays, why the
11 delinquent taxpayer should not be ordered to pay the total amount due and owing
12 under this Chapter. This rule may be tried out of term and in chambers and shall
13 always be tried by preference. If the rule is made absolute, the order therein
14 rendered shall be considered a judgment in favor of the municipality or parish for the
15 amount of the license, penalty, fees, and costs against the defendant, who shall also
16 be ordered to cease the further pursuit of business until the judgment is satisfied.
17 B. As an additional optional remedy of collection, the collector may issue
18 an assessment to a taxpayer in the same manner as is provided for in the Uniform
19 Local Sales Tax Code pursuant to Chapter 2-D of this Subtitle. The assessment may
20 be appealed to the Local Tax Division of the Board of Tax Appeals in the same
21 manner and subject to the same thirty day deadline as provided for in that Chapter.
22 §351.1. Occupational license tax refunds
23 Any taxpayer may apply to the collector for a refund of occupational license
24 tax paid that was not due. A taxpayer may appeal the collector's action on a claim
25 for refund to the Local Tax Division of the Board of Tax Appeals, in the same
26 manner and subject to the same deadlines as provided for in the Uniform Local Sales
27 Tax Code under Chapter 2-D of this Subtitle, including the prescriptive periods
28 referenced in R.S. 47:337.81(A)(2).
29 * * *
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1 §1403. Designation of officers; domicile; quorum; seal
2 * * *
3 C. A majority of the members of the board shall constitute a quorum for the
4 transaction of the business of the board, except as otherwise provided in this Chapter.
5 A vacancy in the board shall not impair the powers nor affect the duties of the board,
6 nor of the remaining members of the board. In the event of a vacancy or in the
7 absence of a board member, the chairman, or vice chairman during the absence of
8 the chairman, may order a case involving a state collector to be heard in accordance
9 with Paragraph (B)(2) of this Section, and the hearing judge shall render the
10 judgment of the board.
11 * * *
12 §1418. Definitions
13 For purposes of this Chapter, except when the context requires otherwise, the
14 words and expressions defined in this Section shall have the following meanings:
15 * * *
16 (4) "Local collector" means any of the following:
17 * * *
18 (b) The individual or entity responsible for collecting occupational license
19 tax or occupancy tax, or other collector responsible for collecting local taxes where
20 an action is appealable to the board.
21 (c) The agent or successor to any of the above, including any joint
22 commission, authority, or other duly constituted single collection entity, created by
23 an agreement, when administering or collecting the taxes of any local political
24 subdivision within the jurisdiction of the Board of Tax Appeals.
25 * * *
26 (7) "State collector" means any of the following:
27 * * *
28 (d) Any other collector of state taxes or fees, or any other state agency where
29 an agency action is appealable to the board.
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1 (e) The agent or successor of any of the foregoing offices when
2 administering a state tax or fee within the jurisdiction of the Board of Tax Appeals.
3 * * *
4 §1432. Notice; hearing; decision
5 * * *
6 B.(1)(a) The board has no jurisdiction to declare a statute or ordinance
7 unconstitutional. When the taxpayer or collector has pled the unconstitutionality of
8 a statute or ordinance, the board shall order the case transferred to the district court
9 of proper venue upon the motion of any party if the board finds that the case cannot
10 be resolved without reaching a declaration on the alleged unconstitutionality. Any
11 motion for transfer filed pursuant to this Subsection involving a state statute shall be
12 served upon the attorney general.
13 (b) Upon the motion of any party, a hearing on a request for a declaration of
14 unconstitutionality in a case transferred pursuant to this Subsection shall be given
15 priority and be heard by preference in the district court. After the issue concerning
16 the declaration of unconstitutionality has been finally decided, the district court, on
17 the motion of any party or on its own motion, may order the case remanded to the
18 board for adjudication of the underlying tax dispute.
19 (2)(c) A district court shall consider de novo the issues of unconstitutionality
20 pled in any case transferred to it pursuant to this Subsection, but upon the joint
21 motion of all parties and the attorney general, the board may develop a record and
22 make a recommendation to the district court on the issue.
23 (2)(a) The provisions of Paragraph (1) of this Subsection shall not be used
24 to challenge the constitutionality of any provision of this Chapter, or any other laws
25 relating to the jurisdiction of the board.
26 (b) Any party to an action brought pursuant to the provisions of this Chapter
27 that seeks to raise the challenges referenced in Subparagraph (a) of this Paragraph
28 shall file a petition in the Nineteenth Judicial District Court specifically pleading the
29 basis for their challenge prior to either the filing or the deadline for filing of any
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1 pleading with the board. Any petition filed pursuant to this Subparagraph shall be
2 served upon the board, the attorney general, and any opposing parties in the
3 underlying board action, and shall be given priority of hearing by the district court.
4 Failure to follow the procedures set forth in this Subparagraph shall bar any appeal
5 on the claims required to be brought pursuant to the provisions of this Paragraph.
6 The provisions of this Paragraph do not extend the date for filing any pleading with
7 the board.
8 * * *
9 §1435. Jurisdiction of courts to review decisions of the board
10 * * *
11 D. Except as otherwise specifically provided for by local rule of a court of
12 appeal, when a judgment of the board is to be modified or reversed and one court of
13 appeal judge dissents, the case shall be reargued before a panel of at least five judges
14 prior to rendition of judgment, and a majority shall concur to render judgment.
15 Section 2. Section 2 of Act No. 198 of the 2014 Regular Session of the Legislature
16is hereby amended and reenacted to read as follows:
17 Section 2. The Board of Tax Appeals and the secretary of the Department
18 of Revenue may shall enter into an agreement for a fixed annual interagency transfer
19 to the board as payment in lieu of filing fees owed by the secretary.
20 Section 3. The provisions of this Act amending R.S. 47:1418 and 1432 are
21procedural and interpretative and shall be effective on the effective date of Act No. 640 of
22the 2014 Regular Session of the Legislature, except that in any pending case, the provisions
23of this Act enacting R.S. 47:1432(B)(2)(b) shall be applicable only to those pleadings filed
24by, or due from, a party after the effective date of this Act.
25 Section 4. Upon the joint motion of all parties, a district court may transfer, to the
26Board of Tax Appeals for adjudication, any matter pending before the court concerning
27disputes of state or local taxes or fees.
28 Section 5. This Act shall become effective upon signature by the governor or, if not
29signed by the governor, upon expiration of the time for bills to become law without signature
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1by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If
2vetoed by the governor and subsequently approved by the legislature, this Act shall become
3effective on the day following such approval.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 978 Reengrossed 2016 Regular Session Danahay
Abstract: Establishes procedures and requirements related to the enforcement and
adjudication of various state and local taxes, including changes to the funding for,
membership, and authority of the Board of Tax Appeals.
Board of Tax Appeals
Present law establishes the Board of Tax Appeals (board) to act as an appeal board to hear
and decide questions of law and fact arising from disputes between a taxpayer or dealer and
the state collector in the enforcement of any tax, excise, license, permit or any other tax law
administered by the state collector, and between taxpayers or dealers and local sales and use
tax collectors.
Present law authorizes the board and the secretary of the Dept. of Revenue (secretary) to
enter into an agreement for a fixed annual interagency transfer to the board as payment in
lieu of filing fees owed by the secretary.
Proposed law changes present law by making the agreement between the board and the
secretary mandatory rather than discretionary.
Present law provides funding for operation of the board through an annual distribution of
certain proceeds from the state sales and use tax collected on sales by a remote dealer on
behalf of local taxing authorities. Each year the secretary of the Dept. of Revenue is
required to reduce the distribution to local taxing authorities and transfer to the board
$187,000 to be expended for purposes of the Local Tax Division. Thereafter, in each of the
two subsequent fiscal years, if the total collections of the tax exceed the amount of
collections in FY 2013-2014, the amount shall be increased to $194,000 per year in FY
2016-2017, and $199,000 per year in FY 2017-2018.
Proposed law retains present law with the following changes:
(1)Repeals the requirement that the increase would be contingent upon the total tax
collections from which the dedication is derived exceeds those of FY 2013-2014.
(2)The increase for FY 2016-2017 is changed from $5,000 to $32,000.
(3)A new allocation increase established for FY 2018-2019 in the amount of $5,000.
Present law establishes quorum requirements for the transaction of the business of the board,
and provides that a vacancy in the board shall not impair the powers nor affect the duties of
the board, nor of the remaining members of the board. Present law authorizes the chairman
to appoint a single board member to serve as hearing judge of the board.
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HB NO. 978
Proposed law retains present law and adds provisions authorizing the designation of a
member of the board to serve as hearing judge in instances where there is a vacancy on the
board or the absence of a board member, but only for cases involving the state collector.
Present law excludes from the jurisdiction of the board, matters of requiring a declaration
of unconstitutionality and establishes the procedure for the transfer of such a case to a
district court, which shall consider de novo the issues of unconstitutionality. Further, upon
the joint motion of all parties and the attorney general, the board may develop a record and
make a recommendation to the district court on the issue.
Proposed law retains present law and adds a requirement that a motion to transfer any such
case involving a state statute be served upon the attorney general. Proposed law requires that
a hearing on a request for a declaration of unconstitutionality in a case transferred pursuant
to present law be given priority and be heard by preference in the district court. Proposed
law further provides that after the issue concerning the declaration of unconstitutionality has
been finally decided, the district court, on the motion of any party or on its own motion, may
order the case remanded to the board for adjudication of the underlying tax dispute.
Proposed law provides procedures relative to the making of any claim as to the
constitutionality of any provision of present law concerning the jurisdiction of the board,
which procedures include the filing of a petition in the 19
th
JDC. Proposed law further
requires that any such petition be served upon the board, the attorney general, and any
opposing parties in the underlying board action, and that the pleading be given priority of
hearing by the district court. A failure to follow these procedures shall bar any appeal on
the claim.
Present law provides that courts of appeal shall have jurisdiction to review decisions of the
board in the same manner as provided for in civil matters.
Proposed law retains present law and adds a requirement to clarify that when a judgment of
the board is modified or reversed, and one court of appeal judge dissents, the case shall be
reargued before a panel of at least five judges prior to rendition of judgment, and a majority
shall concur to render judgment, except as may be otherwise specifically provided for by
local rule of a court of appeal.
Proposed law expands the jurisdiction of the board to include appeals concerning
occupational license taxes imposed by a municipality or parish, other local taxes, and state
taxes and fees collected by agencies other than the Dept. of Revenue. Proposed law further
provides that upon the joint motion of all parties, a district court may transfer to the board
for adjudication, any matter pending before the court concerning disputes of state or local
taxes or fees.
Occupational License Tax
Present law relative to occupational license taxes imposed by a municipal or parish taxing
authority, establishes the procedure for a tax collector to pursue the collection of delinquent
taxes through a rule to show cause before a court as to why a delinquent taxpayer should not
be ordered to pay taxes due.
Proposed law retains present law and adds a requirement that the judgment include the
amount of the license, penalty, fees, and costs against the defendant. Further, the order shall
require the business to cease the further pursuit of business until the judgment is satisfied,
in the same manner as provided for in present law concerning the collection of license fees.
Proposed law adds an optional remedy of collection by way of issuance of an assessment to
a taxpayer in the same manner as is provided for in the Uniform Local Sales Tax Code for
the collection of sales and use taxes. The assessment may be appealed to the Local Tax
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Division of the Board of Tax Appeals in the same manner and subject to the same 30 day
deadline as provided for in matters concerning local sales and use taxes.
Proposed law adds authorization for appeals for and refunds of occupational license taxes
erroneously paid. A taxpayer may appeal a collector's action on a claim for refund to the
Local Tax Division of the Board of Tax Appeals, in the same manner and subject to the same
deadlines as provided for in the Uniform Local Sales Tax Code for purposes of local sales
and use taxes.
The provisions of proposed law amending R.S. 47:1418 and 1432 concerning the expansion
of the board's jurisdiction to include additional state and local taxes, and the procedures
concerning the definition of collectors, challenges to constitutionality of jurisdiction of the
board shall be effective on the effective date of Act No. 640 of the 2014 R.S. (June 12,
2014), with certain exceptions, as the nature of such amendments is procedural and
interpretative as relates to that Act.
Effective upon signature of governor or lapse of time for gubernatorial action.
(Amends R.S. 47:302(K)(7)(b) and (W)(1), (2), and (4) as enacted by Act No. 22 of the 2016
1
st
ES, 351, 1403(C), 1418(4)(b) and (7)(d), and 1432(B), and §2 of Act No. 198 of the 2014
R.S.; Adds R.S. 47:351.1, 1418(4)(c) and (7)(e), and 1435(D))
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