By: Taylor H.B. No. 2488
A BILL TO BE ENTITLED
AN ACT
relating to the establishment of an independent agency to function
as a tax tribunal.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Amending Tax Code, Title 2, to add Chapter 114,
to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 114.001. SHORT TITLE. This chapter may be called the
Tax Tribunal Act.
Sec. 114.002. DEFINITIONS. As used in this Chapter:
(a) "Authorized representative" means:
(1) an attorney admitted to practice in this State, or
any other jurisdiction of the United States, including an attorney
who is a partner or member of, or is employed by, an accounting or
other professional services firm;
(2) an accountant licensed in this State or any other
jurisdiction of the United States;
(3) an enrolled agent authorized to practice before
the Internal Revenue Service;
(4) an officer, employee, partner or member of the
taxpayer; or
(5) any other person authorized in writing by the
taxpayer to represent it before the tribunal.
(b) "Tribunal" means the Tax Tribunal established by this
Chapter.
SUBCHAPTER B. ESTABLISHMENT, JUDGES, AND EMPLOYEES
Sec. 114.051. The Tax Tribunal. (a) There is hereby
established the Tax Tribunal.
(b) The tribunal is an independent agency.
(c) The tribunal shall officially exist on and after
September 1, 2013; however, the tribunal shall have the authority
to take any action prior to September 1, 2013 that is necessary for
the tribunal to properly exercise its powers on and after September
1, 2013.
Sec. 114.052. JUDGES. (a) The tribunal shall consist of at
least one judge. Additional judges may be appointed pursuant to
this section.
(b) Judges shall be appointed by the Governor for a term of
six years. If the tribunal has more than one judge, the initial
terms shall be staggered so that all judges' terms do not expire in
the same year. Under no circumstances shall a judge's initial term
exceed six years.
(c) Each judge shall receive an annual salary as provided in
section 659.012(a)(1) of the Government Code.
(d) Once appointed, each judge shall continue in office
until his or her term expires and until a successor has been
appointed.
(e) If, for any reason, a judge does not fulfill his or her
term, the Governor shall appoint a replacement judge, who will
complete the unexpired portion of the term.
(f) The Governor may remove a judge, after notice and an
opportunity to be heard, for neglect of duty, inability to perform
duties, malfeasance in office, or other good cause.
(g) A judge may disqualify or recuse himself or herself on
his or her own motion, or on the motion of any party, in any matter,
and shall be disqualified or recused as provided in the Texas Code
of Judicial Conduct and rules 18a and 18b of the Texas Rules of
Civil Procedure.
Sec. 114.053. QUALIFICATIONS OF JUDGES. (a) Each judge of
the tribunal shall:
(1) be a citizen of this State; and
(2) possess substantial knowledge of the tax law and
substantial experience representing taxpayers in tax cases.
(b) Each judge is subject to and shall follow the Texas Code
of Judicial Conduct.
(c) Each judge shall devote his or her full time during
business hours to the duties of his or her office. Each judge shall
not engage in any other gainful employment or business, nor hold
another office or position of profit in a government of this State,
any other State, or the United States. Notwithstanding these
prohibitions, a judge may own passive interests in business
entities and may earn income from incidental teaching, publishing,
or scholarly activities.
Sec. 114.054. CLERK, REPORTERS, AND OTHER EMPLOYEES. (a)
The tribunal shall appoint a clerk and a reporter, employ
additional personnel, and make such other expenditures, including
expenditures for libraries, publications, and equipment, as are
necessary to permit it to efficiently execute its functions.
(b) The reporter shall be appointed pursuant, and subject
to, the provisions of Section 52.021, Government Code.
(c) No employee of the tribunal shall act as attorney,
representative, or accountant for others in any matter involving
any tax imposed or levied by this State or political subdivision of
this State.
(d) In addition to the services of the official reporter,
the tribunal may contract the reporting of its proceedings and, in
the contract, fix the terms and conditions under which transcripts
will be supplied by the contractor to the tribunal and to other
persons and agencies.
SUBCHAPTER C. JURISDICTION AND VENUE
Sec. 114.101. JURISDICTION. (a) The tribunal shall hear
all cases in relation to the collection, receipt, administration,
and enforcement of:
(1) a tax imposed under this title; and
(2) any other tax, fee, or other amount that the
comptroller is required to collect, receive, administer, or enforce
under a law not included in this title.
(b) Payment of the tax, penalty, or interest identified in a
deficiency determination under section 111.008 of the Tax Code is
not required to initiate a proceeding with the tribunal.
(c) The tribunal shall not have the power to determine the
constitutionality of the tax statutes or rules of this State.
Sec. 114.102. VENUE. (a) All hearings conducted by the
tribunal shall be at its offices in Austin, Texas.
Sec. 114.103. COMMENCEMENT OF PROCEEDINGS. (a) A taxpayer
may initiate a proceeding before the tribunal by filing a petition
on or before the expiration of 60 days following the date of the
comptroller's:
(1) deficiency determination issued pursuant to
section 111.008 of the Tax Code;
(2) denial of a refund claim filed pursuant to section
111.104 of the Tax Code; or
(3) other notice or demand assessing a tax, fee,
penalty, interest, or other amount administered by the comptroller.
(b) A petition filed under subsection (a) of this section
shall name the comptroller as respondent in his or her official
capacity, and be served on the comptroller in a manner prescribed by
rule 21a of the Texas Rules of Civil Procedure.
(c) The comptroller shall file its answer with the tribunal
no later than 30 days after service of the petition, and serve a
copy on the taxpayer and its representative, if any, in a manner
prescribed by rule 21a of the Texas Rules of Civil Procedure.
(d) The petition shall be in a form as prescribed by the
tribunal.
Sec. 114.104. NO ELECTION OF REMEDIES. (a) Filing a
petition under Tax Code section 114.103 does not prejudice a
taxpayer's right to file suit pursuant to the provisions of Chapter
112 of the Tax Code.
SUBCHAPTER D. DISCOVERY AND HEARINGS
Sec. 114.151. APPLICATION OF THE TEXAS RULES OF CIVIL
PROCEDURE. (a) Unless otherwise provided in this Act, the
provisions of the Texas Rules of Civil Procedure shall apply to all
aspects of proceedings before the tribunal; provided, however, that
the tribunal may, by rule or by order in a particular proceeding,
modify the Texas Rules of Civil Procedure to fairly and efficiently
resolve disputes between the parties.
Sec. 114.152. DISCOVERY; SUBPOENAS. (a) The parties to a
proceeding are entitled to the forms of discovery provided in rules
190 through 215 of the Texas Rules of Civil Procedure; however, the
parties to a proceeding shall make every effort to conduct
discovery by informal consultation or communication.
(b) A judge of the tribunal shall have the power to rule on
discovery matters presented by the parties to a proceeding.
(c) A judge or clerk of the tribunal, on the request of any
party to the proceeding, shall issue subpoenas requiring the
attendance of witnesses and giving of testimony and subpoenas
requiring the production of evidence or things.
(d) Any employee of the tribunal designated in writing for
such purpose by a tribunal judge may administer oaths.
(e) Any witness who is subpoenaed or whose deposition is
taken shall receive the same fees established in section 22.001 of
the Civil Practice and Remedies Code.
(f) A judge of the tribunal shall have the power granted to
the courts of this State under section 21.002 of the Government Code
to enforce compliance with a subpoena issued under this section.
Sec. 114.153. SUMMARY DISPOSITION. (a) Any party to a
proceeding may file a motion for summary disposition.
(b) The judge shall grant a motion for summary disposition
if the evidence before him or her establishes that there is no
genuine issue as to any material fact and that the moving party is
entitled to a decision in its favor as a matter of law.
(c) A movant shall file its motion for summary disposition
at least 30 days before the date of the hearing on the merits. The
motion must include:
(1) a separate statement that sets forth plainly and
concisely all material facts that the moving party contends are
undisputed;
(2) a clear and specific reference to the evidence
supporting the facts that the moving party contends are undisputed;
and
(3) copies the evidence supporting the facts that the
moving party contends are undisputed.
(d) The non-moving party may file a response within 14 days
of receipt of the motion for summary disposition. The response
must:
(1) include a separate statement
(A) addressing each of the material facts that
the moving party contends are undisputed; and
(B) indicating whether the non-moving party
agrees or disagrees that the facts are undisputed;
(2) plainly and concisely set forth any other material
facts that the non-moving party contends are disputed;
(3) clearly and specifically refer to evidence
supporting the material facts that the non-moving party contends
are disputed; and
(4) object to the form of the motion and to the
evidence.
(e) The moving party may file a response within 7 days of
receipt of the non-moving party's response. The reply must include
objections to the form of the response and to the evidence.
Sec. 114.154. HEARINGS. (a) Hearings before the tribunal
shall be de novo.
(b) Hearings are confidential and are not open to the
public.
(c) Unless provided otherwise in this Act or in rules
promulgated by the tribunal, hearings shall be conducted according
to the Texas Rules of Civil Procedure governing nonjury civil cases
in the district courts of this State.
(d) The tribunal shall take evidence, conduct hearings,
rule on motions, and issue final decisions.
(e) The rules of evidence as applied in a nonjury civil case
in a district court of this State shall apply to a proceeding before
the tribunal except that evidence inadmissible under those rules
may be admitted, at the discretion of the judge, if the evidence is:
(1) necessary to ascertain facts not reasonably
susceptible of proof under those rules;
(2) not precluded by statute; and
(3) of a type on which a reasonably prudent person
commonly relies in the conduct of the person's affairs.
(f) Testimony may be given only on oath or affirmation.
(g) In the case of an issue of fact:
(1) the burden of proof is on the comptroller:
(A) by a preponderance of the evidence, if the
issue is whether the suspension or revocation of a license is
warranted; or
(B) by clear and convincing evidence, if the
issue is whether the imposition of additional penalty for willful
or fraudulent failure to pay tax is warranted;
(2) the burden of proof is on the taxpayer:
(A) by a preponderance of the evidence, if
contesting an action, or proposed action, of the comptroller; or
(B) by clear and convincing evidence, if claiming
a transaction is exempt from taxation.
SUBCHAPTER E. DECISIONS
Sec. 114.201. AUTHORITY. (a) A decision by a judge of the
tribunal shall be deemed to be the decision of the tribunal.
Sec. 114.202. DECISION TO BE IN WRITING. (a) The tribunal
shall render its decision in writing, including a concise statement
of the facts found and the conclusions of law reached. All
decisions shall grant such relief, invoke such remedies, and issue
such orders as the tribunal deems appropriate to carry out its
orders and decisions. The tribunal shall promptly mail a notice of
its decision to the taxpayer and the comptroller.
(b) The tribunal shall render its decision no later than 90
days after the submission of the last brief filed subsequent to the
completion of the hearing or, if briefs are not submitted, then no
later than 90 days after completion of the hearing. The tribunal
may extend the 90 day period, for good cause, up to 30 additional
days.
(c) If the tribunal fails to render its decision by the
applicable deadlines established in subsection (b) of this section,
the tribunal is deemed to have ruled against the taxpayer on all
issues.
(d) The tribunal's decision shall finally decide the
matters in controversy, unless the taxpayer timely appeals the
decision as provided in section 114.251 of this Act.
(e) The tribunal shall adhere to the principle of stare
decisis. The tribunal's interpretation of a tax statute subject to
contest in one case shall be followed by the tribunal in subsequent
cases involving the same statute, and its application of a statute
to the facts of one case shall be followed by the tribunal in
subsequent cases involving similar facts, unless the tribunal's
interpretation or application conflicts with that of a district or
appellate court or the tribunal provides satisfactory reasons for
departing from prior precedent.
(f) A decision of the tribunal shall become final 45 days
after the issuance of a notice of decision or 45 days after the
tribunal fails to issue a decision as provided in section
141.202(c).
Sec. 114.203. PUBLICATION OF DECISIONS; CONFIDENTIALITY.
(a) A final decision of the tribunal shall be indexed and published
in print or electronic form as the tribunal deems best adapted for
public convenience.
(b) A published final decision shall comply with the
confidentiality provisions of section 114.352 of this Act.
(c) A published final decision shall not include the
following types of information:
(1) identity of the taxpayer and its employees;
(2) taxpayer identification numbers;
(3) trade secrets;
(4) intellectual property; or
(5) any other type of information that could possibly
identify the taxpayer.
SUBCHAPTER F. APPEALS
Sec. 114.251. DE NOVO APPEAL TO THE DISTRICT COURT. (a) A
taxpayer may appeal a final decision of the tribunal to the district
courts of Travis County pursuant to Chapter 112 of the Tax Code.
(b) The appeal under this section is de novo.
(c) A taxpayer must appeal a final decision of the tribunal
on or before the expiration of 30 days after the date the decision
becomes final under section 114.202(f) of this Act.
SUBCHAPTER G. REPRESENTATION
Sec. 114.301. REPRESENTATIVES. (a) The comptroller shall
be represented by its general counsel in all proceedings before the
tribunal.
(b) A taxpayer may represent itself, or may appear through
its authorized representative in all proceedings before the
tribunal.
Sec. 114.302. PRACTICE OF LAW. (a) Under no circumstance
shall representation of a taxpayer before the tribunal be
considered the practice of law.
SUBCHAPTER H. MISCELLANEOUS PROVISIONS
Sec. 114.351. RULES AND FORMS. (a) The tribunal is
authorized to promulgate and adopt all reasonable rules and forms
as may be necessary or appropriate to carry out the intent and
purposes of this Act.
(b) Rules shall be adopted in accordance with the rulemaking
procedures of Chapter 2001 of the Government Code.
Sec. 114.352. CONFIDENTIALITY. All information received by
the tribunal as a result of a hearing conducted under the provisions
of this Act shall be confidential as provided in section 111.006 of
the Tax Code, and is not subject to disclosure under Chapter 552 of
the Government Code.
SECTION 2. Section 111.00455, Tax Code, is amended to read
as follows:
Sec. 111.00455. CONTESTED CASES CONDUCTED BY TAX TRIBUNAL.
[TAX DIVISION OF STATE OFFICE OF ADMINISTRATIVE HEARINGS.] (a) The
tribunal [tax division of the State Office of Administrative
Hearings] shall conduct any contested case hearing as provided by
Chapter 114, [2003.101,] Tax [Government] Code, in relation to the
collection, receipt, administration, and enforcement of:
(1) a tax imposed under this title; and
(2) any other tax, fee, or other amount that the
comptroller is required to collect, receive, administer, or enforce
under a law not included in this title.
(b) The following are not contested cases under Subsection
(a) and Chapter 114, [Section, 2003.101,] Tax [Government] Code:
(1) a show cause hearing or any hearing not related to
the collection, receipt, administration, or enforcement of the
amount of a tax or fee imposed, or the penalty or interest
associated with that amount, except for a hearing under Section
151.157(f), 151.1575(d), 151.712(g), 154.1142, or 155.0592;
(2) a property value study hearing under Subchapter M,
Chapter 403, Government Code;
(3) a hearing in which the issue relates to:
(A) Chapters 72-75, Property Code;
(B) forfeiture of a right to do business;
(C) a certificate of authority;
(D) articles of incorporation;
(E) a penalty imposed under Section 151.703(d);
(F) the refusal or failure to settle under
Section 111.101; or
(G) a request for or revocation of an exemption
from taxation; and
(4) any other hearing not related to the collection,
receipt, administration, or enforcement of the amount of a tax or
fee imposed, or the penalty or interest associated with that
amount.
(c) A reference in law to the comptroller that relates to
the performance of a contested case hearing described by Subsection
(a) means the tribunal. [tax division of the State Office of
Administrative Hearings.]
SECTION 3. Section 111.105(a), Tax Code, is amended to read
as follows:
Sec. 111.105. TAX REFUND: HEARING. (a) A person claiming a
refund under Section 111.104 is entitled to a hearing on the claim
if the person requests a hearing on or before the 60th [30th] day
after the date the comptroller issues a letter denying the claim for
refund. The person is entitled to 20 days' notice of the time and
place of the hearing.
SECTION 4. Subchapter D, Chapter 2003, Government Code, is
repealed.
SECTION 5. This Act takes effect September 1, 2013.