Texas 2015 - 84th Regular

Texas House Bill HB3650 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	84R2617 TJB-F
2	2	By: Guerra H.B. No. 3650
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the collection, administration, and enforcement of
8	8	state taxes and fees.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 111.009(b), Tax Code, is amended to read
11	11	as follows:
12	12	(b) A petition for redetermination must be filed before the
13	13	expiration of 90 [30] days after the date on which the service of
14	14	the notice of determination is completed or the redetermination is
15	15	barred. If a petition for redetermination is not filed before the
16	16	expiration of the period provided by this subsection, the
17	17	determination is final on the expiration of the period.
18	18	SECTION 2. Sections 111.064(a) and (c), Tax Code, are
19	19	amended to read as follows:
20	20	(a) Except as [otherwise] provided by Subsections (b) and
21	21	(c) [this section], for a refund under this chapter, interest is at
22	22	the rate [that is the lesser of the annual rate of interest earned
23	23	on deposits in the state treasury during December of the previous
24	24	calendar year, as determined by the comptroller, or the rate] set in
25	25	Section 111.060, and accrues on the amount found to be erroneously
26	26	paid for a period:
27	27	(1) beginning on the later of 60 days after the date of
28	28	payment or the due date of the tax report; and
29	29	(2) ending on, as determined by the comptroller,
30	30	either the date of allowance of credit on account of the
31	31	comptroller's final decision or audit or a date not more than 10
32	32	days before the date of the refund warrant.
33	33	(c) For a refund claimed after [before] September 1, 2005,
34	34	and before September 1, 2015, and granted for a report period due on
35	35	or after January 1, 2000, the rate of interest is the rate that is
36	36	the lesser of the annual rate of interest earned on deposits in the
37	37	state treasury during December of the previous calendar year, as
38	38	determined by the comptroller, or the rate set in Section 111.060.
39	39	SECTION 3. Section 111.104, Tax Code, is amended by
40	40	amending Subsections (a), (c), and (d) and adding Subsection (c-1)
41	41	to read as follows:
42	42	(a) If the comptroller finds that an amount of tax, penalty,
43	43	or interest has been unlawfully or erroneously collected, the
44	44	comptroller shall credit the amount against any other amount when
45	45	due and payable by the taxpayer from whom the amount was collected.
46	46	The remainder of the amount, if any, must [may] be promptly refunded
47	47	to the taxpayer from money appropriated for tax refund purposes.
48	48	(c) A claim for a refund must:
49	49	(1) be written;
50	50	(2) state the [fully and in detail each] reason or
51	51	ground on which the claim is founded; and
52	52	(3) be filed before the later of the:
53	53	(A) expiration of the applicable limitation
54	54	period as provided by this code; or
55	55	(B) [before the] expiration of two years [six
56	56	months] after the date a jeopardy or deficiency determination or a
57	57	notice of audit results indicating that no additional tax is due is
58	58	issued [becomes final, whichever period expires later].
59	59	(c-1) Notwithstanding Subsection (c) or Sections 111.206(d)
60	60	and 111.207(c), a claim for a refund may not be filed after the
61	61	eighth anniversary of the date the tax was due.
62	62	(d) [A refund claim for an amount of tax that has been found
63	63	due in a jeopardy or deficiency determination is limited to the
64	64	amount of tax, penalty, and interest and to the tax payment period
65	65	for which the determination was issued.] The failure to file a
66	66	timely tax refund claim is a waiver of any demand against the state
67	67	for an alleged overpayment.
68	68	SECTION 4. Section 111.1042(b), Tax Code, is amended to
69	69	read as follows:
70	70	(b) An informal review under this section is not a hearing
71	71	or contested case under Chapter 2001, Government Code, provided
72	72	that an informal review of a refund claim is an administrative
73	73	proceeding for purposes of this title.
74	74	SECTION 5. Section 111.105(e), Tax Code, is amended to read
75	75	as follows:
76	76	(e) During the administrative hearing process, a person
77	77	claiming a refund under Section 111.104 must submit documentation
78	78	to enable the comptroller to verify the claim for refund. After
79	79	discovery has been completed, the [The] comptroller may issue a
80	80	notice of demand that all evidence to support the claim for refund
81	81	must be produced before the expiration of a specified date in the
82	82	notice. The specified date in the notice may not be earlier than
83	83	180 days after the date of the notice [refund is claimed]. The
84	84	comptroller may not consider evidence produced after the specified
85	85	date in the notice in an administrative hearing. The limitation
86	86	provided by this subsection does not apply to a judicial proceeding
87	87	filed in accordance with Chapter 112.
88	88	SECTION 6. Section 111.107(a), Tax Code, is amended to read
89	89	as follows:
90	90	(a) Except as otherwise expressly provided, a person may
91	91	request a refund or a credit or the comptroller may make a refund or
92	92	issue a credit for the overpayment of a tax imposed by this title at
93	93	any time before the expiration of the period during which the
94	94	comptroller may assess a deficiency for the tax and not thereafter
95	95	unless the refund or credit is requested:
96	96	(1) under Subchapter B-1, [B of] Chapter 112, and the
97	97	refund is made or the credit is issued under a court order;
98	98	(2) under the provision of Section 111.104(c)(3)
99	99	applicable to a refund claim filed after a jeopardy or deficiency
100	100	determination becomes final; [or]
101	101	(3) under Chapter 162, except Section 162.126(f),
102	102	162.128(d), 162.228(f), or 162.230(d); or
103	103	(4) without regard to the expiration of any period of
104	104	limitation, at any time on or before the second anniversary of the
105	105	date the comptroller issues a deficiency or jeopardy determination
106	106	or the eighth anniversary of the date the tax was due, whichever is
107	107	later, and the refund or credit is limited to the reporting periods
108	108	for which the deficiency or jeopardy determination was issued.
109	109	SECTION 7. Section 111.206, Tax Code, is amended by adding
110	110	Subsection (c-1) and amending Subsection (d) to read as follows:
111	111	(c-1) The comptroller's assessment or suit for collection
112	112	authorized under this section shall be limited to the items and
113	113	periods for which the final determination was issued.
114	114	(d) If a final determination results in the taxpayer having
115	115	overpaid the amount of tax due the state, the taxpayer may file a
116	116	claim for refund with the comptroller for the amount of the
117	117	overpayment before the first anniversary of the date the final
118	118	determination becomes final. If the comptroller assesses tax by
119	119	issuing a deficiency determination within the period provided by
120	120	Subsection (c), the taxpayer may file a claim for refund for an
121	121	amount of tax that has been found due in a deficiency determination
122	122	before the 180th day after the deficiency determination becomes
123	123	final[, but the claim is limited to the items and the tax payment
124	124	period for which the determination was issued].
125	125	SECTION 8. Section 111.207, Tax Code, is amended to read as
126	126	follows:
127	127	Sec. 111.207. TOLLING OF LIMITATION PERIOD. (a) In
128	128	determining the expiration date for a period when a tax imposed by
129	129	this title may be assessed, collected, or refunded, the following
130	130	periods are not considered:
131	131	(1) the period following the date of a tax payment made
132	132	under protest, but only if a lawsuit is timely filed in accordance
133	133	with Chapter 112;
134	134	(2) the period during which a judicial proceeding is
135	135	pending in a court of competent jurisdiction to determine the
136	136	amount of the tax due;
137	137	(3) the period during which an administrative
138	138	redetermination or refund proceeding [hearing] is pending before
139	139	the comptroller; and
140	140	(4) the period during which an indictment or
141	141	information is pending for a felony offense related to the
142	142	administration of the Tax Code against any taxpayer or any person
143	143	personally liable or potentially personally liable for the payment
144	144	of the tax under Section 111.0611.
145	145	(b) [The suspension of a period of limitation under
146	146	Subsection (a)(1), (2), or (3) is limited to the issues that were
147	147	contested under those subdivisions.
148	148	[(c)] A bankruptcy case commenced under Title 11 of the
149	149	United States Code suspends the running of the period prescribed by
150	150	any section of this title for the assessment or collection of any
151	151	tax imposed by this title until the bankruptcy case is dismissed or
152	152	closed. After the case is dismissed or closed, the running of the
153	153	period resumes until finally expired.
154	154	(c) In determining the expiration date for filing a refund
155	155	claim for a tax imposed by this title, the period during which an
156	156	administrative proceeding is pending before the comptroller or the
157	157	State Office of Administrative Hearings for the same period and
158	158	type of tax is not considered.
159	159	SECTION 9. Chapter 112, Tax Code, is amended by adding
160	160	Subchapter B-1 to read as follows:
161	161	SUBCHAPTER B-1. SUITS TO CONTEND PAYMENT OF ANY TAX OR FEE
162	162	COLLECTED BY COMPTROLLER
163	163	Sec. 112.071. APPLICABILITY. This subchapter applies to
164	164	any lawsuit to contend the payment of any tax or fee imposed by this
165	165	title or collected by the comptroller under any law, including a
166	166	local tax collected by the comptroller.
167	167	Sec. 112.072. PAYMENT UNDER PROTEST NOT REQUIRED. (a) A
168	168	person may not be required to pay a disputed tax under protest as a
169	169	prerequisite to filing a lawsuit contending any tax or fee imposed
170	170	by this title or collected by the comptroller under any law,
171	171	including a local tax collected by the comptroller.
172	172	(b) A person may not be required to pay a disputed tax as a
173	173	prerequisite to an appeal.
174	174	Sec. 112.073. NOTICE OF TAX ABATEMENT. (a) A person who
175	175	wishes to file a lawsuit under this subchapter must first file a
176	176	notice of tax abatement with the comptroller.
177	177	(b) Abatement of the tax may not be refused, provided that
178	178	the taxpayer satisfies the requirements of this subchapter and
179	179	timely files a lawsuit.
180	180	(c) The notice of tax abatement must be in writing on a form
181	181	approved by the comptroller.
182	182	(d) The notice of tax abatement must be filed with the
183	183	comptroller within the period stated in Section 111.104(c)(3) for
184	184	the filing of a refund claim.
185	185	(e) A statement of the grounds that states fully and in
186	186	detail each reason for contending the tax or fee that is the subject
187	187	of the notice of tax abatement must accompany the notice of tax
188	188	abatement.
189	189	Sec. 112.074. LIMITATIONS. (a) Except as provided by
190	190	Subsection (b), a suit under this subchapter must be filed before
191	191	the 91st day after the date the notice of tax abatement was filed,
192	192	or the suit is barred.
193	193	(b) For the tax imposed under Chapter 171 for a regular
194	194	annual period, if an extension is granted to the taxpayer under
195	195	Section 171.202(c) for filing the report and the taxpayer files the
196	196	report on or before the last date of the extension period, the
197	197	notice of abatement of the tax required by this subchapter may be
198	198	filed with the report to cover the entire amount of tax paid for the
199	199	period, and the suit for the recovery of the entire amount of tax
200	200	paid for the period may be filed before the 91st day after the date
201	201	the report is filed.
202	202	Sec. 112.075. CLASS ACTIONS. (a) This subchapter applies
203	203	to a class action.
204	204	(b) For purposes of this section, a class action includes a
205	205	suit brought under this subchapter by at least two persons who have
206	206	filed a notice of tax abatement as required by this subchapter.
207	207	(c) In a class action brought under this subchapter, all
208	208	taxpayers who are within the same class as the persons bringing the
209	209	suit, who are represented in the class action, and who have abated
210	210	payment of the disputed tax under this section are not required to
211	211	file separate suits, but are entitled to and are governed by the
212	212	decision rendered in the class action.
213	213	Sec. 112.076. SUIT AGAINST PUBLIC OFFICIALS. A suit under
214	214	this subchapter must be brought against the public officials
215	215	charged with the duty of collecting the tax or fee, the comptroller,
216	216	and the attorney general.
217	217	Sec. 112.077. COPY OF WRITTEN STATEMENT OF GROUNDS. A copy
218	218	of the written statement of grounds as originally filed with the
219	219	notice of tax abatement must be attached to the original petition
220	220	filed by the person contending the tax or fee with the court and to
221	221	the copies of the original petition served on the comptroller, the
222	222	attorney general, and the public official charged with the duty of
223	223	collecting the tax or fee.
224	224	Sec. 112.078. TRIAL DE NOVO. The trial of the issues in a
225	225	lawsuit under this subchapter is de novo.
226	226	SECTION 10. Subchapter C, Chapter 112, Tax Code, is amended
227	227	by adding Section 112.10101 to read as follows:
228	228	Sec. 112.10101. REQUIREMENTS BEFORE INJUNCTION. (a) An
229	229	action for a restraining order or injunction that prohibits the
230	230	assessment or collection of a tax or fee imposed by this title or
231	231	collected by the comptroller under any law, including a local tax
232	232	collected by the comptroller, or a statutory penalty assessed for
233	233	the failure to pay the tax or fee may not be brought against the
234	234	public official charged with the duty of collecting the tax or fee
235	235	or a representative of the public official unless the applicant for
236	236	the order or injunction first:
237	237	(1) files with the attorney general not later than the
238	238	fifth day before the date the action is filed a statement of the
239	239	grounds on which the order or injunction is sought; and
240	240	(2) files with the comptroller a written notice of
241	241	abatement of tax on a form approved by the comptroller.
242	242	(b) A person may not be required to pay a disputed tax or fee
243	243	under protest or post a bond to guarantee the payment of any
244	244	disputed tax or fee as a prerequisite to filing an action under
245	245	this section.
246	246	SECTION 11. Section 112.1011(a), Tax Code, is amended to
247	247	read as follows:
248	248	(a) A court may not issue a restraining order or consider
249	249	the issuance of an injunction that prohibits the assessment or
250	250	collection of an amount described by Section 112.10101(a)
251	251	[112.101(a)] unless the applicant for the order or injunction
252	252	demonstrates that:
253	253	(1) irreparable injury will result to the applicant if
254	254	the order or injunction is not granted;
255	255	(2) no other adequate remedy is available to the
256	256	applicant; and
257	257	(3) the applicant has a reasonable possibility of
258	258	prevailing on the merits of the claim.
259	259	SECTION 12. Section 112.108, Tax Code, is amended to read as
260	260	follows:
261	261	Sec. 112.108. OTHER ACTIONS PROHIBITED. Except for a
262	262	restraining order or injunction issued as provided by this
263	263	subchapter, a court may not issue a restraining order, injunction,
264	264	[declaratory judgment,] writ of mandamus or prohibition, order
265	265	requiring the payment of taxes or fees into the registry or custody
266	266	of the court, or other similar legal or equitable relief against the
267	267	state or a state agency relating to the applicability, assessment,
268	268	collection, or constitutionality of a tax or fee covered by this
269	269	subchapter or the amount of the tax or fee due[, provided, however,
270	270	that after filing an oath of inability to pay the tax, penalties,
271	271	and interest due, a party may be excused from the requirement of
272	272	prepayment of tax as a prerequisite to appeal if the court, after
273	273	notice and hearing, finds that such prepayment would constitute an
274	274	unreasonable restraint on the party's right of access to the
275	275	courts]. The court may grant such relief as may be reasonably
276	276	required by the circumstances. A grant of declaratory relief
277	277	against the state or a state agency shall not entitle the winning
278	278	party to recover attorney fees.
279	279	SECTION 13. Section 151.508, Tax Code, is amended to read as
280	280	follows:
281	281	Sec. 151.508. OFFSETS. In making a determination, the
282	282	comptroller shall [may] offset an overpayment for one or more
283	283	periods against an underpayment, penalty, and interest accrued on
284	284	the underpayment for the same period or one or more other periods,
285	285	provided the taxpayer may elect not to accept the offset. Any
286	286	interest accrued on the overpayment shall be included in the
287	287	offset.
288	288	SECTION 14. Section 151.511(c), Tax Code, is amended to
289	289	read as follows:
290	290	(c) If an additional claim is asserted, the petitioner is
291	291	entitled to a 90-day [30-day] continuance of the hearing to permit
292	292	the petitioner to obtain and present evidence applicable to the
293	293	items on which the additional claim is based.
294	294	SECTION 15. Section 403.202(a), Government Code, is amended
295	295	to read as follows:
296	296	(a) If a person who is required to pay to any department of
297	297	the state government an occupation, excise, gross receipts,
298	298	franchise, license, or privilege tax or fee, other than a tax or fee
299	299	to which Subchapter B-1 [B], Chapter 112, Tax Code, applies or a tax
300	300	or other amount imposed under Subtitle A, Title 4, Labor Code,
301	301	contends that the tax or fee is unlawful or that the department may
302	302	not legally demand or collect the tax or fee, the person shall pay
303	303	the amount claimed by the state, and if the person intends to bring
304	304	suit under this subchapter, the person must submit with the payment
305	305	a protest.
306	306	SECTION 16. The following provisions of the Tax Code are
307	307	repealed:
308	308	(1) Section 111.1042(d);
309	309	(2) Section 111.107(b);
310	310	(3) Subchapter B, Chapter 112;
311	311	(4) Section 112.101; and
312	312	(5) Section 112.104.
313	313	SECTION 17. (a) This Act applies only to a claim for a
314	314	refund made on or after the effective date of this Act, without
315	315	regard to whether the taxes that are the subject of the claim were
316	316	due before, on, or after that date.
317	317	(b) This Act, including Subchapter B-1, Chapter 112, Tax
318	318	Code, as added by this Act, and Section 112.10101, Tax Code, as
319	319	added by this Act, applies only to a lawsuit or action filed on or
320	320	after the effective date of this Act. A lawsuit or action filed
321	321	before the effective date of this Act is governed by the law
322	322	applicable to the lawsuit or action immediately before the
323	323	effective date of this Act, and that law is continued in effect for
324	324	that purpose.
325	325	SECTION 18. This Act takes effect September 1, 2015.