Texas 2021 - 87th Regular

Texas House Bill HB2080 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	H.B. No. 2080
	1	+	By: Leman, et al. (Senate Sponsor - Huffman) H.B. No. 2080
	2	+	(In the Senate - Received from the House April 19, 2021;
	3	+	April 19, 2021, read first time and referred to Committee on
	4	+	Finance; May 12, 2021, reported adversely, with favorable
	5	+	Committee Substitute by the following vote: Yeas 12, Nays 0;
	6	+	May 12, 2021, sent to printer.)
	7	+	Click here to see the committee vote
	8	+	COMMITTEE SUBSTITUTE FOR H.B. No. 2080 By: Huffman
2	9
3	10
	11	+	A BILL TO BE ENTITLED
4	12		AN ACT
5	13		relating to taxpayers' suits.
6	14		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
7	15		SECTION 1. Section 403.202(a), Government Code, is amended
8	16		to read as follows:
9	17		(a) If a person who is required to pay to any department of
10	18		the state government an occupation, excise, gross receipts,
11	19		franchise, license, or privilege tax or fee, [other than a tax or
12	20		fee to which Subchapter B, Chapter 112, Tax Code, applies] or
13	21		another [a] tax or [other] amount imposed under Subtitle A, Title 4,
14	22		Labor Code, contends that the tax or fee is unlawful or that the
15	23		department may not legally demand or collect the tax or fee, the
16	24		person shall pay the amount claimed by the state, and if the person
17	25		intends to bring suit under this subchapter, the person must submit
18	26		with the payment a protest.
19	27		SECTION 2. Subchapter J, Chapter 403, Government Code, is
20	28		amended by adding Section 403.222 to read as follows:
21	29		Sec. 403.222. APPLICABILITY. This subchapter does not
22	30		apply to a suit under Chapter 112, Tax Code.
23	31		SECTION 3. Subchapter A, Chapter 112, Tax Code, is amended
24	32		by adding Section 112.003 to read as follows:
25	33		Sec. 112.003. ATTORNEY'S FEES. Except for a sanction under
26	34		Chapter 10, Civil Practice and Remedies Code, or the Texas Rules of
27	35		Civil Procedure, attorney's fees may not be awarded in a suit
28	36		seeking legal or equitable relief against the state, a state
29	37		agency, or an officer of the state relating to the applicability,
30	38		assessment, collection, constitutionality, or amount of a tax, fee,
31	39		or penalty imposed by this title or Title 3 or collected by the
32	40		comptroller under any other law.
33	41		SECTION 4. Section 112.051, Tax Code, is amended by
34	42		amending Subsection (a) and adding Subsection (d) to read as
35	43		follows:
36	44		(a) If a person who is required to pay a tax [or fee] imposed
37	45		by this title or collected by the comptroller under any law,
38	46		including a local tax collected by the comptroller, contends that
39	47		the tax [or fee] is unlawful or that the public official charged
40	48		with the duty of collecting the tax [or fee] may not legally demand
41	49		or collect the tax [or fee], the person shall pay the amount claimed
42	50		by the state, and if the person intends to bring suit under this
43	51		subchapter, the person must submit with the payment a protest.
44	52		(d) This section and Section 112.052 are not severable from
45	53		the other provisions of this subchapter. If this section or Section
46	54		112.052 is held invalid for any reason, the entire subchapter is
47	55		invalid.
48	56		SECTION 5. Section 112.052, Tax Code, is amended to read as
49	57		follows:
50	58		Sec. 112.052. TAXPAYER SUIT AFTER PAYMENT UNDER PROTEST.
51	59		(a) A person may bring suit against the state to recover a [an
52	60		occupation, excise, gross receipts, franchise, license, or
53	61		privilege] tax [or fee] required to be paid to the state if the
54	62		person has first paid the tax under protest as required by Section
55	63		112.051 [of this code].
56	64		(b) A suit under this section must be brought before the
57	65		91st day after the date the protest payment was made, or the suit is
58	66		barred[, except that for the tax imposed by Chapter 171 for a
59	67		regular annual period, if an extension is granted to the taxpayer
60	68		under Section 171.202(c) for filing the report and the taxpayer
61	69		files the report on or before the last date of the extension period,
62	70		the protest required by Section 112.051 may be filed with the report
63	71		to cover the entire amount of tax paid for the period, and suit for
64	72		the recovery of the entire amount of tax paid for the period may be
65	73		filed before the 91st day after the date the report is filed. If the
66	74		report is not filed on or before the last date of the extension
67	75		period, a protest filed with the report applies only to the amount
68	76		of tax, if any, paid when the report is filed].
69	77		(c) The state may bring a counterclaim in a suit brought
70	78		under this section if the counterclaim relates to taxes [or fees]
71	79		imposed under the same statute and during the same period as the
72	80		taxes [or fees] that are the subject of the suit and if the
73	81		counterclaim is filed not later than the 30th day before the date
74	82		set for trial on the merits of the suit. The state is not required to
75	83		make an assessment of the taxes [or fees] subject to the
76	84		counterclaim under any other statute, and the period of limitation
77	85		applicable to an assessment of the taxes [or fees] does not apply to
78	86		a counterclaim brought under this subsection.
79	87		(d) A taxpayer shall produce contemporaneous records and
80	88		supporting documentation appropriate to the tax [or fee] for the
81	89		transactions in question to substantiate and enable verification of
82	90		a taxpayer's claim relating to the amount of the tax, penalty, or
83	91		interest that has been assessed or collected or will be refunded, as
84	92		required by Section 111.0041.
85	93		SECTION 6. Section 112.053, Tax Code, is amended by
86	94		amending Subsections (a) and (c) and adding Subsections (d) and (e)
87	95		to read as follows:
88	96		(a) A suit authorized by this subchapter must be brought
89	97		against the public official charged with the duty of collecting the
90	98		tax [or fee], the comptroller, and the attorney general.
91	99		(c) A copy of the written protest as originally filed must
92	100		be attached to the original petition filed by the person paying the
93	101		tax [or fee] with the court and to the copies of the original
94	102		petition served on the comptroller, the attorney general, and the
95	103		public official charged with the duty of collecting the tax [or
96	104		fee].
97	105		(d) The attorney general shall represent the comptroller in
98	106		a suit under this subchapter.
99	107		(e) A person may not intervene in a suit under this
100	108		subchapter.
101	109		SECTION 7. Section 112.058, Tax Code, is amended by
102	110		amending Subsection (a) and adding Subsections (b) and (c) to read
103	111		as follows:
104	112		(a) [Payments made under protest are to be handled as
105	113		follows:
106	114		[(1) An officer who receives payments made under
107	115		protest as required by Section 112.051 shall each day send to the
108	116		comptroller the payments, a list of the persons making the
109	117		payments, and a written statement that the payments were made under
110	118		protest.
111	119		[(2)] The comptroller shall, immediately on receipt of
112	120		a payment made under protest under Section 112.051, deposit each
113	121		portion of the payment to the credit of the account or fund
114	122		[payments to each fund] to which the tax [or fee] paid under protest
115	123		is allocated by law.
116	124		(b) [(3)] The comptroller shall maintain detailed records
117	125		of payments made under protest under Section 112.051.
118	126		(c) An amount paid [(4) A payment] under protest under
119	127		Section 112.051 bears pro rata interest. The pro rata interest is
120	128		the amount of interest earned by the amount paid under protest
121	129		[protested funds].
122	130		SECTION 8. Section 112.059, Tax Code, is amended to read as
123	131		follows:
124	132		Sec. 112.059. DISPOSITION OF PROTEST PAYMENTS BELONGING TO
125	133		THE STATE. If a suit authorized by this subchapter is not brought
126	134		in the manner or within the time required or if the suit is properly
127	135		filed and results in a final determination that an amount paid under
128	136		protest [a tax payment or a portion of a tax payment made under
129	137		protest], including the pro rata amount of interest earned on the
130	138		amount [payment], belongs to the state, the comptroller shall
131	139		ensure that the proper amount is [has been] deposited to the credit
132	140		of the appropriate state account or fund.
133	141		SECTION 9. Sections 112.060(c) and (d), Tax Code, are
134	142		amended to read as follows:
135	143		(c) Each [tax] refund warrant shall be drawn against the
136	144		accounts or funds [each fund] to which the amounts [taxes] paid
137	145		under protest are allocated by law. If there are not sufficient
138	146		funds in an account or fund [each fund to which the taxes paid under
139	147		protest are allocated by law] to pay a refund required to be paid
140	148		under Subsection (a) [of this section], [then] the comptroller
141	149		shall draw the warrant against the General Revenue Fund or other
142	150		account or fund [funds] from which refunds [refund appropriations]
143	151		may be made, as the comptroller determines appropriate.
144	152		(d) The comptroller shall issue each [tax] refund warrant
145	153		and shall deliver it to the person entitled to receive it.
146	154		SECTION 10. Chapter 112, Tax Code, is amended by adding
147	155		Subchapter E to read as follows:
148	156		SUBCHAPTER E. SUIT AFTER REDETERMINATION
149	157		Sec. 112.201. SUIT AFTER REDETERMINATION. (a) A person may
150	158		sue the comptroller to dispute an amount of tax, penalty, or
151	159		interest assessed in a deficiency redetermination or jeopardy
152	160		redetermination under Chapter 111 if the person has:
153	161		(1) filed a request for redetermination under Chapter
154	162		111;
155	163		(2) obtained a redetermination under Chapter 111 that
156	164		includes a finding by the comptroller of the disputed and
157	165		undisputed amounts; and
158	166		(3) filed a motion for rehearing of the
159	167		redetermination that complies with Chapter 2001, Government Code,
160	168		and that states the specific grounds of error and the disputed
161	169		amounts associated with the grounds of error.
162	170		(b) A person bringing a suit under this subchapter shall
163	171		pay, as provided by Chapter 111, the redetermination amounts that
164	172		are not disputed in the motion for rehearing. The failure to pay an
165	173		undisputed amount does not affect the jurisdiction of a court to
166	174		consider a suit that complies with Subsection (a).
167	175		(c) A person bringing a suit under this subchapter may pay
168	176		the disputed amounts as provided by Chapter 111. A disputed amount
169	177		that is not paid as provided by Chapter 111 and that is determined
170	178		to be due in a final judgment accrues penalties and interest as
171	179		provided by Chapter 111. After the comptroller has been timely
172	180		served in a suit that complies with this subchapter, the
173	181		comptroller and the attorney general are enjoined from collecting
174	182		disputed amounts from the person bringing the suit during the
175	183		pendency of the suit but are not enjoined from asserting tax liens.
176	184		Damages may be awarded under Chapter 65, Civil Practice and
177	185		Remedies Code, if the court determines that all or part of the
178	186		enjoined collection amounts were disputed solely for delay.
179	187		(d) A suit under this subchapter must be brought against
180	188		both the comptroller and the attorney general.
181	189		(e) A suit under this subchapter must be filed before the
182	190		expiration of 90 days after the issue date of the denial of the
183	191		motion for rehearing or it is barred.
184	192		(f) The disputed and undisputed amounts of the
185	193		redetermination must be set out in the original petition. A copy of
186	194		the motion for rehearing must be attached to the original petition
187	195		filed with the court and to the copies of the original petition
188	196		served on the comptroller and the attorney general.
189	197		(g) A person may not intervene in a suit under this
190	198		subchapter.
191	199		Sec. 112.202. RECORDS. A person shall produce, in
192	200		connection with a suit under this subchapter, contemporaneous
193	201		records and supporting documentation appropriate to the tax for the
194	202		transactions in question to substantiate and enable verification of
195	203		the person's claim relating to the amount of the tax, penalty, or
196	204		interest that has been assessed or collected, as required by
197	205		Section 111.0041.
198	206		Sec. 112.203. COUNTERCLAIM. (a) The state may bring a
199	207		counterclaim in a suit under this subchapter if:
200	208		(1) the counterclaim relates to taxes imposed under
201	209		the same statute and during the same period as the taxes that are
202	210		the subject of the suit; and
203	211		(2) the counterclaim is filed not later than the 30th
204	212		day before the date set for trial on the merits of the suit.
205	213		(b) The state is not required to make an assessment of the
206	214		taxes subject to the counterclaim under any other statute, and the
207	215		period of limitation applicable to an assessment of the taxes does
208	216		not apply to a counterclaim brought under this section.
209	217		Sec. 112.204. ISSUES IN SUIT. (a) The grounds of error
210	218		contained in the motion for rehearing are the only issues that may
211	219		be raised in a suit under this subchapter.
212	220		(b) A suit under this subchapter applies only to a tax
213	221		liability period considered in the comptroller's redetermination.
214	222		Sec. 112.205. ATTORNEY GENERAL TO REPRESENT COMPTROLLER.
215	223		The attorney general shall represent the comptroller in a suit
216	224		under this subchapter.
217	225		Sec. 112.206. TRIAL DE NOVO. In a suit under this
218	226		subchapter, the issues shall be tried de novo as are other civil
219	227		cases.
220	228		Sec. 112.207. JUDGMENT. (a) The amount of a judgment
221	229		refunding disputed taxes, penalties, or interest paid to the
222	230		comptroller shall be credited against any tax, penalty, or interest
223	231		imposed by this title and due from the plaintiff.
224	232		(b) The remainder of the amount of a judgment not credited
225	233		against a tax, penalty, or interest shall be refunded to the
226	234		plaintiff.
227	235		(c) The plaintiff is entitled to interest on the amount of
228	236		tax refunded in a judgment for the plaintiff equal to the amount of
229	237		interest that would be due if the tax had been deposited in the
230	238		suspense account of the comptroller. The interest accrues beginning
231	239		from the date that the tax was paid until:
232	240		(1) the date that the amount is credited against the
233	241		plaintiff's tax liability; or
234	242		(2) a date determined by the comptroller that is not
235	243		sooner than 10 days before the actual date on which a refund warrant
236	244		is issued.
237	245		Sec. 112.208. RES JUDICATA. The rule of res judicata
238	246		applies in a suit under this subchapter only if the issues and the
239	247		tax liability periods in controversy are the same as were decided in
240	248		a previous final judgment entered in a Texas court of record in a
241	249		suit between the same parties.
242	250		SECTION 11. The following provisions are repealed:
243	251		(1) Section 403.212(e), Government Code;
244	252		(2) Sections 112.058(d) and (e), Tax Code; and
245	253		(3) Subchapter C, Chapter 112, Tax Code.
246	254		SECTION 12. The changes in law made by this Act apply only
247	255		to a suit to dispute an amount of tax, penalty, or interest that
248	256		becomes due and payable on or after the effective date of this Act.
249	257		A suit to dispute an amount of tax, penalty, or interest that became
250	258		due and payable before the effective date of this Act is governed by
251	259		the law as it existed immediately before the effective date of this
252	260		Act, and the former law is continued in effect for that purpose.
253	261		SECTION 13. This Act takes effect September 1, 2021.
254		-	______________________________ ______________________________
255		-	President of the Senate Speaker of the House
256		-	I certify that H.B. No. 2080 was passed by the House on April
257		-	15, 2021, by the following vote: Yeas 144, Nays 0, 1 present, not
258		-	voting; and that the House concurred in Senate amendments to H.B.
259		-	No. 2080 on May 24, 2021, by the following vote: Yeas 141, Nays 5,
260		-	1 present, not voting.
261		-	______________________________
262		-	Chief Clerk of the House
263		-	I certify that H.B. No. 2080 was passed by the Senate, with
264		-	amendments, on May 19, 2021, by the following vote: Yeas 31, Nays
265		-	0.
266		-	______________________________
267		-	Secretary of the Senate
268		-	APPROVED: __________________
269		-	Date
270		-	__________________
271		-	Governor
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