Texas 2015 - 84th Regular

Texas Senate Bill SB1291 Compare Versions

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

Old	New	Differences
1	1	84R9026 TJB-F
2	2	By: Taylor of Collin S.B. No. 1291
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. Chapter 101, Tax Code, is amended by adding
11	11	Section 101.0022 to read as follows:
12	12	Sec. 101.0022. EFFECT OF CHAPTER 102; FAIRNESS AND EQUAL
13	13	TREATMENT IN TAXATION. The tax laws of this state shall be
14	14	construed and interpreted to further the rights stated under
15	15	Chapter 102.
16	16	SECTION 2. Subtitle A, Title 2, Tax Code, is amended by
17	17	adding Chapter 102 to read as follows:
18	18	CHAPTER 102. FAIRNESS AND EQUAL TREATMENT IN TAXATION
19	19	Sec. 102.001. SHORT TITLE. This chapter may be cited as the
20	20	Texas Fairness and Equal Treatment in Taxation Act.
21	21	Sec. 102.002. LEGISLATIVE INTENT. It is the intent of the
22	22	legislature that this chapter govern in all respects the
23	23	enforcement of the tax laws of this state.
24	24	Sec. 102.003. SCOPE OF CHAPTER. This chapter:
25	25	(1) protects all taxpayers and their property; and
26	26	(2) governs the assessment, collection, and
27	27	enforcement of every tax imposed by the state.
28	28	Sec. 102.004. RIGHTS OF TAXPAYERS. A person subject to a
29	29	tax imposed by this state shall have the right:
30	30	(1) to be treated fairly, courteously, and with
31	31	respect;
32	32	(2) to have access to tax forms, instructions, and
33	33	information written in clear, simple language;
34	34	(3) to obtain prompt, accurate answers to questions
35	35	about tax laws and policies and to receive assistance in complying
36	36	with those laws and policies;
37	37	(4) to receive in a timely manner and to review a copy
38	38	of the person's tax records;
39	39	(5) to be free from harassment in audit and collection
40	40	actions;
41	41	(6) to have tax laws enforced by employees or
42	42	contractors who are not paid, evaluated, or promoted based on the
43	43	amount of tax dollars they assess or collect;
44	44	(7) to promptly receive a refund of any tax, penalty,
45	45	or interest;
46	46	(8) to self-representation or to be able to authorize
47	47	another person to represent or accompany the person in a matter
48	48	involving tax administration;
49	49	(9) to identify and recover any tax overpayments
50	50	relating to the period that is the subject of an audit and to
51	51	conduct that review within a reasonable time of not less than two
52	52	years after the date the written notice is issued;
53	53	(10) to have reasonable, reciprocal, and enforceable
54	54	obligations in an audit and in the administrative hearing process;
55	55	(11) to the prompt release of any applicable liens
56	56	immediately following payments of any taxes, penalty, interest, and
57	57	filing fees that are due;
58	58	(12) to relief if the taxpayer relies on erroneous
59	59	advice or information given by an employee of the comptroller; and
60	60	(13) to a fair, impartial, and unbiased administrative
61	61	hearing.
62	62	SECTION 3. Section 111.009(b), Tax Code, is amended to read
63	63	as follows:
64	64	(b) A petition for redetermination must be filed before the
65	65	expiration of 90 [30] days after the date on which the service of
66	66	the notice of determination is completed or the redetermination is
67	67	barred. If a petition for redetermination is not filed before the
68	68	expiration of the period provided by this subsection, the
69	69	determination is final on the expiration of the period.
70	70	SECTION 4. Sections 111.064(a) and (c), Tax Code, are
71	71	amended to read as follows:
72	72	(a) Except as [otherwise] provided by Subsections (b) and
73	73	(c) [this section], for a refund under this chapter, interest is at
74	74	the rate [that is the lesser of the annual rate of interest earned
75	75	on deposits in the state treasury during December of the previous
76	76	calendar year, as determined by the comptroller, or the rate] set in
77	77	Section 111.060, and accrues on the amount found to be erroneously
78	78	paid for a period:
79	79	(1) beginning on the later of 60 days after the date of
80	80	payment or the due date of the tax report; and
81	81	(2) ending on, as determined by the comptroller,
82	82	either the date of allowance of credit on account of the
83	83	comptroller's final decision or audit or a date not more than 10
84	84	days before the date of the refund warrant.
85	85	(c) For a refund claimed after [before] September 1, 2005,
86	86	and before September 1, 2008, and granted for a report period due on
87	87	or after January 1, 2000, the rate of interest is the rate that is
88	88	the lesser of the annual rate of interest earned on deposits in the
89	89	state treasury during December of the previous calendar year, as
90	90	determined by the comptroller, or the rate set in Section 111.060.
91	91	SECTION 5. Section 111.104, Tax Code, is amended by
92	92	amending Subsections (a), (c), and (d) and adding Subsection (c-1)
93	93	to read as follows:
94	94	(a) If the comptroller finds that an amount of tax, penalty,
95	95	or interest has been unlawfully or erroneously collected, the
96	96	comptroller shall credit the amount against any other amount when
97	97	due and payable by the taxpayer from whom the amount was collected.
98	98	The remainder of the amount, if any, must [may] be promptly refunded
99	99	to the taxpayer from money appropriated for tax refund purposes.
100	100	(c) A claim for a refund must:
101	101	(1) be written;
102	102	(2) state the [fully and in detail each] reason or
103	103	ground on which the claim is founded; and
104	104	(3) be filed before the later of the:
105	105	(A) expiration of the applicable limitation
106	106	period as provided by this code; or
107	107	(B) [before the] expiration of two years [six
108	108	months] after the date a jeopardy or deficiency determination or a
109	109	notice of audit results indicating the right to a credit or that no
110	110	additional tax is due becomes final[, whichever period expires
111	111	later].
112	112	(c-1) Notwithstanding Subsection (c) or Sections 111.206(d)
113	113	and 111.207(c), a claim for a refund may not be filed after the
114	114	eighth anniversary of the date the tax was due.
115	115	(d) [A refund claim for an amount of tax that has been found
116	116	due in a jeopardy or deficiency determination is limited to the
117	117	amount of tax, penalty, and interest and to the tax payment period
118	118	for which the determination was issued.] The failure to file a
119	119	timely tax refund claim is a waiver of any demand against the state
120	120	for an alleged overpayment.
121	121	SECTION 6. Section 111.1042(b), Tax Code, is amended to
122	122	read as follows:
123	123	(b) An informal review under this section is not a hearing
124	124	or contested case under Chapter 2001, Government Code, provided
125	125	that an informal review of a refund claim is an administrative
126	126	proceeding for purposes of this title.
127	127	SECTION 7. Section 111.107(a), Tax Code, is amended to read
128	128	as follows:
129	129	(a) Except as otherwise expressly provided, a person may
130	130	request a refund or a credit or the comptroller may make a refund or
131	131	issue a credit for the overpayment of a tax imposed by this title at
132	132	any time before the expiration of the period during which the
133	133	comptroller may assess a deficiency for the tax and not thereafter
134	134	unless the refund or credit is requested:
135	135	(1) under Subchapter B-1, [B of] Chapter 112, and the
136	136	refund is made or the credit is issued under a court order;
137	137	(2) under the provision of Section 111.104(c)(3)
138	138	applicable to a refund claim filed after a jeopardy or deficiency
139	139	determination becomes final; [or]
140	140	(3) under Chapter 162, except Section 162.126(f),
141	141	162.128(d), 162.228(f), or 162.230(d); or
142	142	(4) without regard to the expiration of any period of
143	143	limitation, at any time on or before the second anniversary of the
144	144	date a jeopardy or deficiency determination becomes final or the
145	145	eighth anniversary of the date the tax was due, whichever is later,
146	146	and the refund or credit is limited to the reporting periods for
147	147	which the jeopardy or deficiency determination was issued.
148	148	SECTION 8. Section 111.206, Tax Code, is amended by adding
149	149	Subsection (c-1) and amending Subsection (d) to read as follows:
150	150	(c-1) The comptroller's assessment or suit for collection
151	151	authorized under this section shall be limited to the items and
152	152	periods for which the final determination was issued.
153	153	(d) If a final determination results in the taxpayer having
154	154	overpaid the amount of tax due the state, the taxpayer may file a
155	155	claim for refund with the comptroller for the amount of the
156	156	overpayment before the first anniversary of the date the final
157	157	determination becomes final. If the comptroller assesses tax by
158	158	issuing a deficiency determination within the period provided by
159	159	Subsection (c), the taxpayer may file a claim for refund for an
160	160	amount of tax that has been found due in a deficiency determination
161	161	before the 180th day after the deficiency determination becomes
162	162	final[, but the claim is limited to the items and the tax payment
163	163	period for which the determination was issued].
164	164	SECTION 9. Section 111.207, Tax Code, is amended to read as
165	165	follows:
166	166	Sec. 111.207. TOLLING OF LIMITATION PERIOD. (a) In
167	167	determining the expiration date for a period when a tax imposed by
168	168	this title may be assessed, collected, or refunded, the following
169	169	periods are not considered:
170	170	(1) the period following the date of a tax payment made
171	171	under protest, but only if a lawsuit is timely filed in accordance
172	172	with Chapter 112;
173	173	(2) the period during which a judicial proceeding is
174	174	pending in a court of competent jurisdiction to determine the
175	175	amount of the tax due;
176	176	(3) the period during which an administrative
177	177	redetermination or refund proceeding [hearing] is pending before
178	178	the comptroller; and
179	179	(4) the period during which an indictment or
180	180	information is pending for a felony offense related to the
181	181	administration of the Tax Code against any taxpayer or any person
182	182	personally liable or potentially personally liable for the payment
183	183	of the tax under Section 111.0611.
184	184	(b) [The suspension of a period of limitation under
185	185	Subsection (a)(1), (2), or (3) is limited to the issues that were
186	186	contested under those subdivisions.
187	187	[(c)] A bankruptcy case commenced under Title 11 of the
188	188	United States Code suspends the running of the period prescribed by
189	189	any section of this title for the assessment or collection of any
190	190	tax imposed by this title until the bankruptcy case is dismissed or
191	191	closed. After the case is dismissed or closed, the running of the
192	192	period resumes until finally expired.
193	193	(c) In determining the expiration date for filing a refund
194	194	claim for a tax imposed by this title, the period during which an
195	195	administrative proceeding is pending before the comptroller or the
196	196	State Office of Administrative Hearings for the same period and
197	197	type of tax is not considered.
198	198	SECTION 10. Chapter 112, Tax Code, is amended by adding
199	199	Subchapter B-1 to read as follows:
200	200	SUBCHAPTER B-1. SUITS TO CONTEST PAYMENT OF ANY TAX OR FEE
201	201	COLLECTED BY COMPTROLLER
202	202	Sec. 112.071. APPLICABILITY. This subchapter applies to
203	203	any lawsuit to contest the payment of any tax or fee imposed by this
204	204	title or collected by the comptroller under any law, including a
205	205	local tax collected by the comptroller.
206	206	Sec. 112.072. PAYMENT UNDER PROTEST NOT REQUIRED. (a) A
207	207	person may not be required to pay a disputed tax under protest as a
208	208	prerequisite to filing a lawsuit contesting any tax or fee imposed
209	209	by this title or collected by the comptroller under any law,
210	210	including a local tax collected by the comptroller.
211	211	(b) A person may not be required to pay a disputed tax as a
212	212	prerequisite to an appeal.
213	213	Sec. 112.073. NOTICE OF TAX ABATEMENT. (a) A person who
214	214	wishes to file a lawsuit under this subchapter must first file a
215	215	notice of tax abatement with the comptroller.
216	216	(b) Abatement of the tax may not be refused, provided that
217	217	the taxpayer satisfies the requirements of this subchapter and
218	218	timely files a lawsuit.
219	219	(c) The notice of tax abatement must be in writing on a form
220	220	approved by the comptroller.
221	221	(d) The notice of tax abatement must be filed with the
222	222	comptroller within the period stated in Section 111.104(c)(3) for
223	223	the filing of a refund claim.
224	224	(e) A statement of the grounds that states each reason for
225	225	contesting the tax or fee that is the subject of the notice of tax
226	226	abatement must accompany the notice of tax abatement.
227	227	Sec. 112.074. LIMITATIONS. (a) Except as provided by
228	228	Subsection (b), a suit under this subchapter must be filed before
229	229	the 91st day after the date the notice of tax abatement was filed,
230	230	or the suit is barred.
231	231	(b) For the tax imposed under Chapter 171 for a regular
232	232	annual period, if an extension is granted to the taxpayer under
233	233	Section 171.202(c) for filing the report and the taxpayer files the
234	234	report on or before the last date of the extension period, the
235	235	notice of abatement of the tax required by this subchapter may be
236	236	filed with the report to cover the entire amount of tax paid for the
237	237	period, and the suit for the recovery of the entire amount of tax
238	238	paid for the period may be filed before the 91st day after the date
239	239	the report is filed.
240	240	Sec. 112.075. CLASS ACTIONS. (a) This subchapter applies
241	241	to a class action.
242	242	(b) For purposes of this section, a class action includes a
243	243	suit brought under this subchapter by at least two persons who have
244	244	filed a notice of tax abatement as required by this subchapter.
245	245	(c) In a class action brought under this subchapter, all
246	246	taxpayers who are within the same class as the persons bringing the
247	247	suit, who are represented in the class action, and who have abated
248	248	payment of the disputed tax under this section are not required to
249	249	file separate suits, but are entitled to and are governed by the
250	250	decision rendered in the class action.
251	251	Sec. 112.076. SUIT AGAINST PUBLIC OFFICIALS. A suit under
252	252	this subchapter must be brought against the public officials
253	253	charged with the duty of collecting the tax or fee, the comptroller,
254	254	and the attorney general.
255	255	Sec. 112.077. COPY OF WRITTEN STATEMENT OF GROUNDS. A copy
256	256	of the written statement of grounds as originally filed with the
257	257	notice of tax abatement must be attached to the original petition
258	258	filed by the person contesting the tax or fee with the court and to
259	259	the copies of the original petition served on the comptroller, the
260	260	attorney general, and the public official charged with the duty of
261	261	collecting the tax or fee.
262	262	Sec. 112.078. TRIAL DE NOVO. The trial of the issues in a
263	263	lawsuit under this subchapter is de novo.
264	264	SECTION 11. Subchapter C, Chapter 112, Tax Code, is amended
265	265	by adding Section 112.10101 to read as follows:
266	266	Sec. 112.10101. REQUIREMENTS BEFORE INJUNCTION. (a) An
267	267	action for a restraining order or injunction that prohibits the
268	268	assessment or collection of a tax or fee imposed by this title or
269	269	collected by the comptroller under any law, including a local tax
270	270	collected by the comptroller, or a statutory penalty assessed for
271	271	the failure to pay the tax or fee may not be brought against the
272	272	public official charged with the duty of collecting the tax or fee
273	273	or a representative of the public official unless the applicant for
274	274	the order or injunction first:
275	275	(1) files with the attorney general not later than the
276	276	fifth day before the date the action is filed a statement of the
277	277	grounds on which the order or injunction is sought; and
278	278	(2) files with the comptroller a written notice of
279	279	abatement of tax on a form approved by the comptroller.
280	280	(b) A person may not be required to pay a disputed tax or fee
281	281	under protest or post a bond to guarantee the payment of any
282	282	disputed tax or fee as a prerequisite to filing an action under
283	283	this section.
284	284	SECTION 12. Section 112.1011(a), Tax Code, is amended to
285	285	read as follows:
286	286	(a) A court may not issue a restraining order or consider
287	287	the issuance of an injunction that prohibits the assessment or
288	288	collection of an amount described by Section 112.10101(a)
289	289	[112.101(a)] unless the applicant for the order or injunction
290	290	demonstrates that:
291	291	(1) irreparable injury will result to the applicant if
292	292	the order or injunction is not granted;
293	293	(2) no other adequate remedy is available to the
294	294	applicant; and
295	295	(3) the applicant has a reasonable possibility of
296	296	prevailing on the merits of the claim.
297	297	SECTION 13. Section 112.1012, Tax Code, is amended to read
298	298	as follows:
299	299	Sec. 112.1012. COUNTERCLAIM. The state may bring a
300	300	counterclaim in a suit for a temporary or permanent injunction
301	301	brought under this subchapter if the counterclaim relates to taxes
302	302	or fees imposed under the same statute and during the same period as
303	303	the taxes or fees that are the subject of the suit and if the
304	304	counterclaim is filed not later than the 30th day before the date
305	305	set for trial on the merits of the application for a temporary or
306	306	permanent injunction. The state is not required to make an
307	307	assessment of the taxes or fees subject to the counterclaim under
308	308	any other statute[, and the period of limitation applicable to an
309	309	assessment of the taxes or fees does not apply to a counterclaim
310	310	brought under this section].
311	311	SECTION 14. Section 112.108, Tax Code, is amended to read as
312	312	follows:
313	313	Sec. 112.108. OTHER ACTIONS PROHIBITED. Except for a
314	314	restraining order or injunction issued as provided by this
315	315	subchapter, a court may not issue a restraining order, injunction,
316	316	[declaratory judgment,] writ of mandamus or prohibition, order
317	317	requiring the payment of taxes or fees into the registry or custody
318	318	of the court, or other similar legal or equitable relief against the
319	319	state or a state agency relating to the applicability, assessment,
320	320	collection, or constitutionality of a tax or fee covered by this
321	321	subchapter or the amount of the tax or fee due[, provided, however,
322	322	that after filing an oath of inability to pay the tax, penalties,
323	323	and interest due, a party may be excused from the requirement of
324	324	prepayment of tax as a prerequisite to appeal if the court, after
325	325	notice and hearing, finds that such prepayment would constitute an
326	326	unreasonable restraint on the party's right of access to the
327	327	courts]. The court may grant such relief as may be reasonably
328	328	required by the circumstances. A grant of declaratory relief
329	329	against the state or a state agency shall not entitle the winning
330	330	party to recover attorney fees.
331	331	SECTION 15. Section 112.1512, Tax Code, is amended to read
332	332	as follows:
333	333	Sec. 112.1512. COUNTERCLAIM. The state may bring a
334	334	counterclaim in a suit brought under this subchapter if the
335	335	counterclaim relates to taxes or fees imposed under the same
336	336	statute and during the same period as the taxes or fees that are the
337	337	subject of the suit and if the counterclaim is filed not later than
338	338	the 30th day before the date set for trial on the merits of the suit.
339	339	The state is not required to make an assessment of the taxes or fees
340	340	subject to the counterclaim under any other statute[, and the
341	341	period of limitation applicable to an assessment of the taxes or
342	342	fees does not apply to a counterclaim brought under this section].
343	343	SECTION 16. Section 151.508, Tax Code, is amended to read as
344	344	follows:
345	345	Sec. 151.508. OFFSETS. In making a determination, the
346	346	comptroller shall [may] offset an overpayment for one or more
347	347	periods against an underpayment, penalty, and interest accrued on
348	348	the underpayment for the same period or one or more other periods,
349	349	provided the taxpayer may elect not to accept the offset. Any
350	350	interest accrued on the overpayment shall be included in the
351	351	offset.
352	352	SECTION 17. Section 151.511(c), Tax Code, is amended to
353	353	read as follows:
354	354	(c) If an additional claim is asserted, the petitioner is
355	355	entitled to a 90-day [30-day] continuance of the hearing to permit
356	356	the petitioner to obtain and present evidence applicable to the
357	357	items on which the additional claim is based.
358	358	SECTION 18. Section 403.202(a), Government Code, is amended
359	359	to read as follows:
360	360	(a) If a person who is required to pay to any department of
361	361	the state government an occupation, excise, gross receipts,
362	362	franchise, license, or privilege tax or fee, other than a tax or fee
363	363	to which Subchapter B-1 [B], Chapter 112, Tax Code, applies or a tax
364	364	or other amount imposed under Subtitle A, Title 4, Labor Code,
365	365	contends that the tax or fee is unlawful or that the department may
366	366	not legally demand or collect the tax or fee, the person shall pay
367	367	the amount claimed by the state, and if the person intends to bring
368	368	suit under this subchapter, the person must submit with the payment
369	369	a protest.
370	370	SECTION 19. Section 2003.101(e), Government Code, is
371	371	amended to read as follows:
372	372	(e) Notwithstanding Section 2001.058, the comptroller may
373	373	not change a finding of fact or conclusion of law made by the
374	374	administrative law judge or vacate or modify an order issued by the
375	375	administrative law judge [only if the comptroller:
376	376	[(1) determines that the administrative law judge:
377	377	[(A) did not properly apply or interpret
378	378	applicable law, then existing comptroller rules or policies, or
379	379	prior administrative decisions; or
380	380	[(B) issued a finding of fact that is not
381	381	supported by a preponderance of the evidence; or
382	382	[(2) determines that a comptroller policy or a prior
383	383	administrative decision on which the administrative law judge
384	384	relied is incorrect].
385	385	SECTION 20. The following provisions are repealed:
386	386	(1) Section 2003.101(f), Government Code;
387	387	(2) Section 111.0041(c), Tax Code;
388	388	(3) Section 111.1042(d), Tax Code;
389	389	(4) Section 111.105(e), Tax Code;
390	390	(5) Section 111.107(b), Tax Code;
391	391	(6) Subchapter B, Chapter 112, Tax Code;
392	392	(7) Section 112.101, Tax Code;
393	393	(8) Section 112.104, Tax Code; and
394	394	(9) Section 112.151(f), Tax Code.
395	395	SECTION 21. (a) This Act applies only to a claim for a
396	396	refund made on or after the effective date of this Act, without
397	397	regard to whether the taxes that are the subject of the claim were
398	398	due before, on, or after that date.
399	399	(b) This Act, including Subchapter B-1, Chapter 112, Tax
400	400	Code, as added by this Act, and Section 112.10101, Tax Code, as
401	401	added by this Act, applies only to a lawsuit or action filed on or
402	402	after the effective date of this Act. A lawsuit or action filed
403	403	before the effective date of this Act is governed by the law
404	404	applicable to the lawsuit or action immediately before the
405	405	effective date of this Act, and that law is continued in effect for
406	406	that purpose.
407	407	SECTION 22. This Act takes effect September 1, 2015.