By: Guerra H.B. No. 3713
A BILL TO BE ENTITLED
AN ACT
relating to the collection, administration, and enforcement of
state taxes and fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 111.009(b), Tax Code, is amended to read
as follows:
(b) A petition for redetermination must be filed before the
expiration of 90 [30] days after the date on which the service of
the notice of determination is completed or the redetermination is
barred. If a petition for redetermination is not filed before the
expiration of the period provided by this subsection, the
determination is final on the expiration of the period.
SECTION 2. Sections 111.064(a) and (c), Tax Code, are
amended to read as follows:
(a) Except as [otherwise] provided by Subsections (b) and
(c) [this section], for a refund under this chapter, interest is at
the rate [that is the lesser of the annual rate of interest earned
on deposits in the state treasury during December of the previous
calendar year, as determined by the comptroller, or the rate] set in
Section 111.060, and accrues on the amount found to be erroneously
paid for a period:
(1) beginning on the later of 60 days after the date of
payment or the due date of the tax report; and
(2) ending on, as determined by the comptroller,
either the date of allowance of credit on account of the
comptroller's final decision or audit or a date not more than 10
days before the date of the refund warrant.
(c) For a refund claimed after [before] September 1, 2005,
and before September 1, 2013, and granted for a report period due on
or after January 1, 2000, the rate of interest is the rate that is
the lesser of the annual rate of interest earned on deposits in the
state treasury during December of the previous calendar year, as
determined by the comptroller, or the rate set in Section 111.060.
SECTION 3. Section 111.104, Tax Code, is amended by
amending Subsections (a), (c), and (d) and adding Subsection (c-1)
to read as follows:
(a) If the comptroller finds that an amount of tax, penalty,
or interest has been unlawfully or erroneously collected, the
comptroller shall credit the amount against any other amount when
due and payable by the taxpayer from whom the amount was collected.
The remainder of the amount, if any, must [may] be promptly refunded
to the taxpayer from money appropriated for tax refund purposes.
(c) A claim for a refund must:
(1) be written;
(2) state the [fully and in detail each] reason or
ground on which the claim is founded; and
(3) be filed before the later of the:
(A) expiration of the applicable limitation
period as provided by this code; or
(B) [before the] expiration of two years [six
months] after the date a jeopardy or deficiency determination or a
notice of audit results indicating that no additional tax is due is
issued [becomes final, whichever period expires later].
(c-1) Notwithstanding Subsection (c) or Sections 111.206(d)
and 111.207(c), a claim for a refund may not be filed after the
eighth anniversary of the date the tax was due.
(d) [A refund claim for an amount of tax that has been found
due in a jeopardy or deficiency determination is limited to the
amount of tax, penalty, and interest and to the tax payment period
for which the determination was issued.] The failure to file a
timely tax refund claim is a waiver of any demand against the state
for an alleged overpayment.
SECTION 4. Section 111.1042(b), Tax Code, is amended to
read as follows:
(b) An informal review under this section is not a hearing
or contested case under Chapter 2001, Government Code, provided
that an informal review of a refund claim is an administrative
proceeding for purposes of this title.
SECTION 5. Section 111.105(e), Tax Code, is amended to read
as follows:
(e) During the administrative hearing process, a person
claiming a refund under Section 111.104 must submit documentation
to enable the comptroller to verify the claim for refund. After
discovery has been completed, the [The] comptroller may issue a
notice of demand that all evidence to support the claim for refund
must be produced before the expiration of a specified date in the
notice. The specified date in the notice may not be earlier than
180 days after the date of the notice [refund is claimed]. The
comptroller may not consider evidence produced after the specified
date in the notice in an administrative hearing. The limitation
provided by this subsection does not apply to a judicial proceeding
filed in accordance with Chapter 112.
SECTION 6. Section 111.107(a), Tax Code, is amended to read
as follows:
(a) Except as otherwise expressly provided, a person may
request a refund or a credit or the comptroller may make a refund or
issue a credit for the overpayment of a tax imposed by this title at
any time before the expiration of the period during which the
comptroller may assess a deficiency for the tax and not thereafter
unless the refund or credit is requested:
(1) under Subchapter B-1, [B of] Chapter 112, and the
refund is made or the credit is issued under a court order;
(2) under the provision of Section 111.104(c)(3)
applicable to a refund claim filed after a jeopardy or deficiency
determination becomes final; [or]
(3) under Chapter 162, except Section 162.126(f),
162.128(d), 162.228(f), or 162.230(d); or
(4) without regard to the expiration of any period of
limitation, at any time on or before the second anniversary of the
date the comptroller issues a deficiency or jeopardy determination
or the eighth anniversary of the date the tax was due, whichever is
later, and the refund or credit is limited to the reporting periods
for which the deficiency or jeopardy determination was issued.
SECTION 7. Section 111.206, Tax Code, is amended by adding
Subsection (c-1) and amending Subsection (d) to read as follows:
(c-1) The comptroller's assessment or suit for collection
authorized under this section shall be limited to the items and
periods for which the final determination was issued.
(d) If a final determination results in the taxpayer having
overpaid the amount of tax due the state, the taxpayer may file a
claim for refund with the comptroller for the amount of the
overpayment before the first anniversary of the date the final
determination becomes final. If the comptroller assesses tax by
issuing a deficiency determination within the period provided by
Subsection (c), the taxpayer may file a claim for refund for an
amount of tax that has been found due in a deficiency determination
before the 180th day after the deficiency determination becomes
final[, but the claim is limited to the items and the tax payment
period for which the determination was issued].
SECTION 8. Section 111.207, Tax Code, is amended to read as
follows:
Sec. 111.207. TOLLING OF LIMITATION PERIOD. (a) In
determining the expiration date for a period when a tax imposed by
this title may be assessed, collected, or refunded, the following
periods are not considered:
(1) the period following the date of a tax payment made
under protest, but only if a lawsuit is timely filed in accordance
with Chapter 112;
(2) the period during which a judicial proceeding is
pending in a court of competent jurisdiction to determine the
amount of the tax due;
(3) the period during which an administrative
redetermination or refund proceeding [hearing] is pending before
the comptroller; and
(4) the period during which an indictment or
information is pending for a felony offense related to the
administration of the Tax Code against any taxpayer or any person
personally liable or potentially personally liable for the payment
of the tax under Section 111.0611.
(b) [The suspension of a period of limitation under
Subsection (a)(1), (2), or (3) is limited to the issues that were
contested under those subdivisions.
[(c)] A bankruptcy case commenced under Title 11 of the
United States Code suspends the running of the period prescribed by
any section of this title for the assessment or collection of any
tax imposed by this title until the bankruptcy case is dismissed or
closed. After the case is dismissed or closed, the running of the
period resumes until finally expired.
(c) In determining the expiration date for filing a refund
claim for a tax imposed by this title, the period during which an
administrative proceeding is pending before the comptroller or the
State Office of Administrative Hearings for the same period and
type of tax is not considered.
SECTION 9. Chapter 112, Tax Code, is amended by adding
Subchapter B-1 to read as follows:
SUBCHAPTER B-1. SUITS TO CONTEND PAYMENT OF ANY TAX OR FEE COLLECTED
BY COMPTROLLER
Sec. 112.071. APPLICABILITY. This subchapter applies to
any lawsuit to contend the payment of any tax or fee imposed by this
title or collected by the comptroller under any law, including a
local tax collected by the comptroller.
Sec. 112.072. PAYMENT UNDER PROTEST NOT REQUIRED. (a) A
person may not be required to pay a disputed tax under protest as a
prerequisite to filing a lawsuit contending any tax or fee imposed
by this title or collected by the comptroller under any law,
including a local tax collected by the comptroller.
(b) A person may not be required to pay a disputed tax as a
prerequisite to an appeal.
Sec. 112.073. NOTICE OF TAX ABATEMENT. (a) A person who
wishes to file a lawsuit under this subchapter must first file a
notice of tax abatement with the comptroller.
(b) Abatement of the tax may not be refused, provided that
the taxpayer satisfies the requirements of this subchapter and
timely files a lawsuit.
(c) The notice of tax abatement must be in writing on a form
approved by the comptroller.
(d) The notice of tax abatement must be filed with the
comptroller within the period stated in Section 111.104(c)(3) for
the filing of a refund claim.
(e) A statement of the grounds that states fully and in
detail each reason for contending the tax or fee that is the subject
of the notice of tax abatement must accompany the notice of tax
abatement.
Sec. 112.074. LIMITATIONS. (a) Except as provided by
Subsection (b), a suit under this subchapter must be filed before
the 91st day after the date the notice of tax abatement was filed,
or the suit is barred.
(b) For the tax imposed under Chapter 171 for a regular
annual period, if an extension is granted to the taxpayer under
Section 171.202(c) for filing the report and the taxpayer files the
report on or before the last date of the extension period, the
notice of abatement of the tax required by this subchapter may be
filed with the report to cover the entire amount of tax paid for the
period, and the suit for the recovery of the entire amount of tax
paid for the period may be filed before the 91st day after the date
the report is filed.
Sec. 112.075. CLASS ACTIONS. (a) This subchapter applies
to a class action.
(b) For purposes of this section, a class action includes a
suit brought under this subchapter by at least two persons who have
filed a notice of tax abatement as required by this subchapter.
(c) In a class action brought under this subchapter, all
taxpayers who are within the same class as the persons bringing the
suit, who are represented in the class action, and who have abated
payment of the disputed tax under this section are not required to
file separate suits, but are entitled to and are governed by the
decision rendered in the class action.
Sec. 112.076. SUIT AGAINST PUBLIC OFFICIALS. A suit under
this subchapter must be brought against the public officials
charged with the duty of collecting the tax or fee, the comptroller,
and the attorney general.
Sec. 112.077. COPY OF WRITTEN STATEMENT OF GROUNDS. A copy
of the written statement of grounds as originally filed with the
notice of tax abatement must be attached to the original petition
filed by the person contending the tax or fee with the court and to
the copies of the original petition served on the comptroller, the
attorney general, and the public official charged with the duty of
collecting the tax or fee.
Sec. 112.078. TRIAL DE NOVO. The trial of the issues in a
lawsuit under this subchapter is de novo.
SECTION 10. Subchapter C, Chapter 112, Tax Code, is amended
by adding Section 112.10101 to read as follows:
Sec. 112.10101. REQUIREMENTS BEFORE INJUNCTION. (a) An
action for a restraining order or injunction that prohibits the
assessment or collection of a tax or fee imposed by this title or
collected by the comptroller under any law, including a local tax
collected by the comptroller, or a statutory penalty assessed for
the failure to pay the tax or fee may not be brought against the
public official charged with the duty of collecting the tax or fee
or a representative of the public official unless the applicant for
the order or injunction first:
(1) files with the attorney general not later than the
fifth day before the date the action is filed a statement of the
grounds on which the order or injunction is sought; and
(2) files with the comptroller a written notice of
abatement of tax on a form approved by the comptroller.
(b) A person may not be required to pay a disputed tax or fee
under protest or post a bond to guarantee the payment of any
disputed tax or fee as a prerequisite to filing an action under this
section.
SECTION 11. Section 112.1011(a), Tax Code, is amended to
read as follows:
(a) A court may not issue a restraining order or consider
the issuance of an injunction that prohibits the assessment or
collection of an amount described by Section 112.10101(a)
[112.101(a)] unless the applicant for the order or injunction
demonstrates that:
(1) irreparable injury will result to the applicant if
the order or injunction is not granted;
(2) no other adequate remedy is available to the
applicant; and
(3) the applicant has a reasonable possibility of
prevailing on the merits of the claim.
SECTION 12. Section 112.108, Tax Code, is amended to read as
follows:
Sec. 112.108. OTHER ACTIONS PROHIBITED. Except for a
restraining order or injunction issued as provided by this
subchapter, a court may not issue a restraining order, injunction,
[declaratory judgment,] writ of mandamus or prohibition, order
requiring the payment of taxes or fees into the registry or custody
of the court, or other similar legal or equitable relief against the
state or a state agency relating to the applicability, assessment,
collection, or constitutionality of a tax or fee covered by this
subchapter or the amount of the tax or fee due[, provided, however,
that after filing an oath of inability to pay the tax, penalties,
and interest due, a party may be excused from the requirement of
prepayment of tax as a prerequisite to appeal if the court, after
notice and hearing, finds that such prepayment would constitute an
unreasonable restraint on the party's right of access to the
courts]. The court may grant such relief as may be reasonably
required by the circumstances. A grant of declaratory relief
against the state or a state agency shall not entitle the winning
party to recover attorney fees.
SECTION 13. Section 151.508, Tax Code, is amended to read as
follows:
Sec. 151.508. OFFSETS. In making a determination, the
comptroller shall [may] offset an overpayment for one or more
periods against an underpayment, penalty, and interest accrued on
the underpayment for the same period or one or more other periods,
provided the taxpayer may elect not to accept the offset. Any
interest accrued on the overpayment shall be included in the
offset.
SECTION 14. Section 151.511(c), Tax Code, is amended to
read as follows:
(c) If an additional claim is asserted, the petitioner is
entitled to a 90-day [30-day] continuance of the hearing to permit
the petitioner to obtain and present evidence applicable to the
items on which the additional claim is based.
SECTION 15. Section 403.202(a), Government Code, is amended
to read as follows:
(a) If a person who is required to pay to any department of
the state government an occupation, excise, gross receipts,
franchise, license, or privilege tax or fee, other than a tax or fee
to which Subchapter B-1 [B], Chapter 112, Tax Code, applies or a tax
or other amount imposed under Subtitle A, Title 4, Labor Code,
contends that the tax or fee is unlawful or that the department may
not legally demand or collect the tax or fee, the person shall pay
the amount claimed by the state, and if the person intends to bring
suit under this subchapter, the person must submit with the payment
a protest.
SECTION 16. The following provisions of the Tax Code are
repealed:
(1) Section 111.1042(d);
(2) Section 111.107(b);
(3) Subchapter B, Chapter 112;
(4) Section 112.101; and
(5) Section 112.104.
SECTION 17. (a) This Act applies only to a claim for a
refund made on or after the effective date of this Act, without
regard to whether the taxes that are the subject of the claim were
due before, on, or after that date.
(b) This Act, including Subchapter B-1, Chapter 112, Tax
Code, as added by this Act, and Section 112.10101, Tax Code, as
added by this Act, applies only to a lawsuit or action filed on or
after the effective date of this Act. A lawsuit or action filed
before the effective date of this Act is governed by the law
applicable to the lawsuit or action immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 18. This Act takes effect September 1, 2013.