Bill Text: GA HB100 | 2011-2012 | Regular Session | Introduced
Bill Title: Georgia Tax Court; create
Spectrum: Moderate Partisan Bill (Republican 6-1)
Status: (Passed) 2012-07-01 - Effective Date [HB100 Detail]
Download: Georgia-2011-HB100-Introduced.html
12 HB 100/AP
House
Bill 100 (AS PASSED HOUSE AND SENATE)
By:
Representatives Peake of the
137th,
Williams of the
4th,
Lindsey of the
54th,
Knight of the
126th,
Abrams of the
84th,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Titles 48 and 50 of the Official Code of Georgia Annotated, relating,
respectively, to revenue and taxation and state government, so as to create the
Georgia Tax Tribunal as an independent and autonomous division within the Office
of State Administrative Hearings operating under the sole direction of a chief
tribunal judge; to repeal provisions relating to the Department of Revenue
holding hearings when demanded by aggrieved taxpayers; to correct
cross-references; to provide for a short title; to provide for legislative
findings; to provide for the appointment, terms of office, designation, and
removal of judges; to provide for the qualification, oath of office, and
prohibition against other employment of judges; to provide for the principal
office, locations, and facilities of the tax tribunal; to provide for the
appointment of staff and expenditures of the tax tribunal; to provide for the
jurisdiction of the tax tribunal; to provide for the commencement of cases,
pleadings, and service of pleadings; to provide a stay of enforcement and
collection action; to provide for filing and other fees; to provide procedures
for hearings and decisions of the tax tribunal; to establish and provide the
jurisdiction and procedures for a small claims division of the tax tribunal; to
provide for appeals from tax tribunal decisions; to provide for representation
in the tax tribunal; to provide for service; to authorize the tax tribunal to
promulgate rules of practice and procedure and forms; to provide for powers,
duties, and authority of the tax tribunal and the small claims division; to
provide for procedures, conditions, and limitations; to provide for related
matters; to provide for effective dates; to provide for dual applicability; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
48 of the Official Code of Georgia Annotated, relating to revenue and taxation,
is amended by revising subsection (c) of Code Section 48-2-18, relating to State
Board of Equalization, as follows:
"(c)
As
chairman
chairperson
and chief administrative officer of the board, the commissioner shall furnish to
the board all necessary records and files and in this capacity may compel the
attendance of witnesses and the production of books and records or other
documents as
he
the
commissioner is empowered to do in the
administration of the tax laws. After final approval by the State Board of
Equalization of the digest of proposed assessments made by the commissioner and
after any adjustments by the board as authorized by this Code section are made,
the commissioner shall notify within 30 days each taxpayer in writing of the
proposed assessment of its property. At the same time, the commissioner shall
notify in writing the board of tax assessors of such county, as outlined in Code
Section 48-5-511, of the total proposed assessment of the property located
within the county of taxpayers who are required to return their property to the
commission
commissioner.
If any such taxpayer notifies the commissioner and the board of tax assessors in
any such county of its intent to dispute a portion of the proposed assessment
within 20 days after receipt of the notice, the county board of tax assessors
shall include in the county digest only the undisputed amount of the assessment,
and the taxpayer may challenge the commissioner's proposed assessment in an
appeal filed in the Superior Court of Fulton County
or with the
Georgia Tax Tribunal in accordance with Chapter 13A of Title
50 within 30 days of receipt of the
notice. In any such appeal
to the
superior court, the taxpayer shall have
the right of discovery as provided in Chapter 11 of Title 9, the 'Georgia Civil
Practice Act.'
In any such
appeal to the Georgia Tax Tribunal, discovery shall be as provided in Chapter
13A of Title 50, the 'Georgia Tax Tribunal Act of
2012.' Upon conclusion of the appeal, the
taxpayer shall remit to the appropriate counties any additional taxes owed, with
interest at the rate provided by law for judgments. Such interest shall accrue
from the date the taxes would have been due absent the appeal to the date the
additional taxes are remitted."
SECTION
2.
Said
title is further amended by revising paragraph (4) of subsection (c) of Code
Section 48-2-35, relating to refunds, as follows:
"(4)
Any taxpayer whose claim for refund is denied by the commissioner or the
commissioner's delegate or whose claim is not decided by the commissioner or the
commissioner's delegate within one year from the date of filing the claim shall
have the right to bring an action for a refund in the
Georgia Tax
Tribunal in accordance with Chapter 13A of Title 50 or in
the superior court of the county of the
residence of the taxpayer, except that:
(A)
If the taxpayer is a public utility or a nonresident, the taxpayer shall have
the right to bring an action for a refund in the
Georgia Tax
Tribunal in accordance with Chapter 13A of Title 50 or in
the superior court of the county in which
is located the taxpayer's principal place of doing business in this state or in
which the taxpayer's chief or highest corporate officer or employee resident in
this state maintains an office; or
(B)
If the taxpayer is a nonresident individual or foreign corporation having no
place of doing business and no officer or employee resident and maintaining an
office in this state, the taxpayer shall have the right to bring an action for a
refund in the
Georgia Tax
Tribunal in accordance with Chapter 13A of Title 50 or in
the Superior Court of Fulton County or in
the superior court of the county in which the commissioner in office at the time
the action is filed resides."
SECTION
3.
Said
title is further amended by revising paragraph (3) of subsection (c) of Code
Section 48-2-36, relating to actions for which the commissioner may grant
extensions of time, as follows:
"(3)
Filing a petition with the superior
court, the
Georgia Tax Tribunal in accordance with Chapter 13A of Title
50, or the office of state administrative
hearings as allowed under the laws of this state;"
SECTION
4.
Said
title is further amended by revising subsection (a) of Code Section 48-2-50,
relating to review of assessments, as follows:
"(a)
The commissioner's assessments shall not be reviewed except by the procedure
provided in this chapter
or Chapter 13A
of Title 50. No trial court shall have
jurisdiction of proceedings to question the assessments, except as provided in
this chapter
or Chapter 13A
of Title 50."
SECTION
5.
Said
title is further amended by revising Code Section 48-2-59, relating to appeals,
payment of taxes admittedly owed, bonds, and costs, as follows:
"48-2-59.
(a)
Except with respect to claims for refunds, either party may appeal from any
order, ruling, or finding of the commissioner to the
Georgia Tax
Tribunal in accordance with Chapter 13A of Title 50 or
the superior court of the county of the
residence of the taxpayer, except that:
(1)
If the taxpayer is a public utility or nonresident, the appeal of either party
shall be to the
Georgia Tax
Tribunal in accordance with Chapter 13A of Title 50 or
the superior court of the county in which
is located the taxpayer's principal place of doing business or in which the
taxpayer's chief or highest corporate officer residing in this state maintains
his
such
officer's office; or
(2)
If the taxpayer is a nonresident individual or a foreign corporation having no
place of doing business and no officer or employee residing and maintaining
his
such
officer's office in this state, the
taxpayer shall have the right to appeal to the
Georgia Tax
Tribunal
in accordance
with Chapter 13A of Title 50 or the
Superior Court of Fulton County or to the superior court of the county in which
the commissioner in office at the time the action is filed resides.
(b)
The appeal
and necessary records shall be certified by the commissioner and shall be filed
with the clerk of
taxpayer shall
commence an appeal by filing a petition with the Georgia Tax Tribunal in
accordance with Chapter 13A of Title 50 or
the superior court within 30 days from the date of decision by the commissioner.
The
procedure provided by law for applying for and granting appeals from the probate
court to the superior court shall apply as far as suitable to the appeal
authorized by this Code section, except that the appeal authorized by this Code
section may be filed within 30 days from the date of decision by the
commissioner.
(c)
Before the superior court shall have jurisdiction to entertain an appeal filed
by any aggrieved taxpayer, the taxpayer shall file with the clerk of the
superior court a written statement whereby the taxpayer agrees to pay on the
date or dates the taxes become due all taxes for which the taxpayer has admitted
liability. Additionally, the taxpayer shall file with the clerk of the superior
court within 30 days from the date of decision by the commissioner, except
where
when
the value of the appellant's title or interest in real property owned in this
state is in excess of the amount of the tax in dispute, a surety bond or other
security in an amount satisfactory to the clerk, conditioned to pay any tax over
and above that for which the taxpayer has admitted liability and which is found
to be due by a final judgment of the court, together with interest and costs.
It shall be ground for dismissal of the appeal if the taxpayer fails to pay all
taxes admittedly owed upon the due date or dates as provided by law.
This
subsection shall not apply to appeals filed with the Georgia Tax Tribunal as
provided in Chapter 13A of Title 50.
(d)(1)
If the final judgment of the court places upon the taxpayer any tax liability
which has not already been paid and if the tax or any part of the tax
has:
(A)
Not become due on the date of the final judgment of the court, then the taxpayer
shall pay the amount of the unpaid tax liability on the due date or dates as
provided by law; or
(B)
Already become due at the time of final judgment of the court, the taxpayer
shall immediately pay the tax or as much of the tax as has already become due,
with interest.
(2)
In the event the final judgment of the court is adverse to the taxpayer,
he
the
taxpayer shall pay the court costs
regardless of whether the tax or any part of the tax has or has not become due
at the time of the final judgment of the court.
(3)
This subsection shall not apply to appeals filed with the Georgia Tax Tribunal
as provided in Chapter 13A of Title
50."
SECTION
6.
Said
title is further amended by revising Code Section 48-3-1, relating to tax
executions, as follows:
"48-3-1.
The
commissioner may issue an execution for the collection of any tax, fee, license,
penalty, interest, or collection costs due the state. The execution shall be
directed to all and singular sheriffs of this state or to the commissioner or
his
the
commissioner's authorized representatives
and shall command them to levy upon the goods, chattels, lands, and tenements of
the taxpayer, provided that the commissioner may transmit such executions
electronically. Each sheriff shall execute the execution as in cases of writs
of execution from the superior courts. Whenever any writ of execution has been
issued by the commissioner, the taxpayer, in order to obtain a determination of
whether the tax is legally due, may tender to the levying officer
his
such
taxpayer's affidavit of illegality to the
execution and, upon
his
such
taxpayer's payment of the tax if required
as a condition precedent by the law levying the tax or upon
his
such
taxpayer's giving a good and solvent bond
in such an amount to cover the total of any adverse judgment plus costs
where
when
the law does not require the payment of the tax as a condition precedent, the
levying officer shall return the affidavit of illegality, except as otherwise
provided by law, to the superior court of the county of the taxpayer's
residence. The affidavit of illegality shall be summarily heard and determined
by the court.
Whenever any
writ of execution has been issued by the commissioner for the collection of any
tax, or any penalty, interest, or collection costs imposed with respect to any
tax, the taxpayer may file a petition in the Georgia Tax Tribunal in accordance
with Chapter 13A of Title 50 to obtain a determination of whether any such
amounts are legally
due."
SECTION
7.
Said
title is further amended by revising subsection (b) of Code Section 48-5-519,
relating to property tax returns filed by railroad equipment companies, as
follows:
"(b)
The returns shall be made to the commissioner by the chief executive officer in
charge of the cars in this state. The final assessment of the property of
railroad equipment companies shall be fixed in the same manner as the proposed
assessments of property of public utilities under this article and Code Section
48-2-18, except that with respect to railroad equipment
companies,
such assessment shall be final rather than proposed.
By following
the procedure set forth in subsection (c) of Code Section 48-2-18 for appeals of
proposed assessments of public utility property,
any
Any
railroad equipment company may bring in the Superior Court of Fulton County
or in the
Georgia Tax Tribunal in accordance with Chapter 13A of Title
50 a de novo action of the
final
assessment so fixed."
SECTION
8.
Said
title is further amended by revising subsection (b) of Code Section 48-6-7,
relating to refunds of real estate transfer taxes, as follows:
"(b)(1)
A taxpayer whose claim for a refund is denied by the commissioner or
his
the
commissioner's delegate or with respect to
whose claim no decision is rendered by the commissioner or
his
the
commissioner's delegate within one year
from the date of filing the claim shall have the right to bring an action for a
refund in the superior court of the county where the disputed tax was originally
collected or
in the Georgia Tax Tribunal in accordance with Chapter 13A of Title
50. The taxpayer shall bring the action
for refund against the clerk of superior court of the county which collected the
disputed tax. The commissioner in
his
the
commissioner's official capacity shall be
made a party defendant to the action in order that the interests of the state
may be represented in the action. The Attorney General shall represent both
defendants in the action. If it is determined in the action that an amount
claimed by the taxpayer was erroneously or illegally collected, the taxpayer
shall be entitled to judgment against the defendant clerk of the superior court
in
his
the
clerk's official capacity for the amount
erroneously or illegally collected, without interest to the date of
judgment.
(2)
No action for refund shall be brought after the expiration of 60 days from the
date of denial of the taxpayer's claim for refund by the
commissioner.
(3)
For the purposes of this Code section, a failure by the commissioner to grant or
deny the taxpayer's claim for refund within the one-year period shall constitute
a constructive denial of the
claim."
SECTION
9.
Said
title is further amended by revising paragraph (1) of subsection (e) of Code
Section 48-6-76, relating to refunds of intangible recording taxes, as follows:
"(e)(1)
Any taxpayer whose claim for refund is denied entirely or in part by the
commissioner or with respect to whose claim no decision is rendered by the
commissioner within 30 days from the date of filing the claim shall have the
right to bring an action for refund of the amount so claimed and not approved
against the collecting officer or said officer's successor who collected the
amount, in said officer's official capacity, in the superior court of the county
whose official collected the amount
or in the
Georgia Tax Tribunal in accordance with Chapter 13A of Title
50."
SECTION
10.
Said
title is further amended by revising subparagraph (d)(2)(C) of Code Section
48-7-31, relating to allocation and apportionment of corporate income, as
follows:
"(C)
If the allocation and apportionment provisions provided for in this paragraph do
not fairly represent the extent of the taxpayer's business activity in this
state, the taxpayer may petition the commissioner for, or the commissioner may
by regulation require, with respect to all or any part of the taxpayer's
business activity, if reasonable:
(i)
Separate accounting;
(ii)
The exclusion of any one or more of the factors;
(iii)
The inclusion of one or more additional factors that will fairly represent the
taxpayer's business activity within this state; or
(iv)
The employment of any other method to effectuate an equitable allocation and
apportionment of the taxpayer's income.
The
denial of a petition under this subparagraph shall be appealable pursuant to
either
Code Section 48-2-59
or
50-13-12.
Such an appeal shall be filed within 30 days of the date of the commissioner's
notice of denial;"
SECTION
11.
Said
title is further amended by revising subsection (b) of Code Section 48-7-165,
relating to hearing procedure and adjustments of incorrect debts, as
follows:
"(b)
The hearing established by subsection (a) of this Code section shall be in lieu
of a hearing before the department
pursuant to
Code Section 50-13-12; and the department shall not grant a
hearing to determine the validity of the
debt or the propriety of the setoff."
SECTION
12.
Title
50 of the Official Code of Georgia Annotated, relating to state government, is
amended by repealing Code Section 50-13-12, relating to Department of Revenue
hearings for aggrieved taxpayers and election of remedies, and designating said
Code section as reserved.
SECTION
13.
Said
title is further amended by revising subsection (c) of Code Section 50-13-13,
relating to hearings in contested cases, as follows:
"(c)
Except in
cases in which a hearing has been demanded under Code Section 50-13-12,
subsection
Subsection
(a) of this Code section and the other provisions of this chapter concerning
contested cases shall not apply to any case arising in the administration of the
revenue laws, which case is subject to a subsequent de novo trial of the law and
the facts in the superior court
or in the
Georgia Tax Tribunal in accordance with Chapter 13A of this
title."
SECTION
14.
Said
title is further amended by adding a new subsection to Code Section 50-13-42,
relating to applicability, to read as follows:
"(c)
This article shall not apply with respect to any matter as to which an aggrieved
party is permitted to file a petition with the Georgia Tax Tribunal in
accordance with Chapter 13A of this
title."
SECTION
15.
Said
title is further amended by adding a new chapter to read as
follows:
"CHAPTER
13A
50-13A-1.
This
chapter shall be known and may be cited as the 'Georgia Tax Tribunal Act of
2012.'
50-13A-2.
The
General Assembly finds that there is a need for an independent specialized
agency separate and apart from the Department of Revenue to resolve disputes
between the department and taxpayers in an efficient and cost-effective manner.
Such an agency would:
(1)
Improve the utilization of judicial resources by resolving tax cases in a more
streamlined and efficient manner;
(2)
Increase the uniformity of decision making in tax cases;
(3)
Improve the equal access of all parties to court process; and
(4)
Increase public confidence in the fairness of the state tax system.
50-13A-3.
Except
where the context may otherwise clearly require, all terms used in this chapter
shall have the meaning given such term by Code Section 48-1-2. As used in this
chapter, the term 'tribunal' means the Georgia Tax Tribunal established by Code
Section 50-13A-4 which shall be an independent and autonomous division within
the Office of State Administrative Hearings operating under the sole direction
of the chief tribunal judge.
50-13A-4.
(a)
There is created within the executive branch of government the Georgia Tax
Tribunal. The tribunal shall be assigned for administrative purposes only, as
provided in Code Section 50-4-3, to the Department of Administrative Services
and shall be funded through appropriations by the General Assembly to the
Department of Administrative Services.
(b)
The tribunal shall have a seal engraved with the words 'Georgia Tax Tribunal.'
The tribunal shall authenticate all of its orders, records, and proceedings with
the seal, and the courts of this state shall take judicial notice of the
seal.
50-13A-5.
(a)
The tribunal shall consist of at least one full-time administrative law judge.
If the tribunal has more than one judge, each shall exercise the powers of the
tribunal in all matters, causes, or proceedings assigned to him or
her.
(b)
Initial tribunal judges shall be appointed by the Governor. If, initially, the
tribunal has only one judge, that individual shall be appointed for a term of
four years and shall be the chief tribunal judge; provided, however, that if,
initially, the tribunal has more than one judge, then one judge shall be
appointed for an initial term of four years and one judge shall be appointed as
chief tribunal judge for an initial term of six years to ensure that the judges'
initial terms do not expire in the same year. Once appointed, each initial
tribunal judge shall continue in office until his or her term expires and a
successor has been appointed and confirmed. Initial tribunal judges may be
reappointed for successive terms, provided that each successive term shall be
for four years.
(c)
After initial appointments are made pursuant to subsection (b) of this Code
section, all appointments and reappointments of the chief tribunal judge and
other tribunal judges shall be made by the Governor, with the consent of the
Senate, for terms of four years. Once appointed and confirmed, each such
tribunal judge shall continue in office until his or her term expires and a
successor has been appointed and confirmed. A tribunal judge may be reappointed
for successive terms.
(d)
Each tribunal judge shall receive an annual salary no less than that of the
chief administrative law judge of the Office of State Administrative Hearings;
provided, however, that the tribunal judge's total salary shall not be reduced
during such judge's term of appointment.
(e)
A vacancy in the tribunal occurring other than by expiration of term shall be
filled for the unexpired term in the same manner as an original
appointment.
(f)
The executive of the tribunal shall be the chief tribunal judge who shall have
sole charge of the administration of the tribunal, including, but not limited
to, the preparation of a budget and matters involving employment and
expenditures as set forth in Code Section 50-13A-8, and shall apportion among
the judges all causes, matters, and proceedings coming before the
tribunal.
(g)
With the consent of the Senate, the Governor may remove a tribunal judge, after
notice and an opportunity to be heard, for neglect of duty, inability to perform
duties, malfeasance in office, or other good cause.
(h)
Whenever the tribunal trial docket or business becomes congested or any tribunal
judge is absent, is disqualified, or for any other reason is unable to perform
his or her duties as tribunal judge, and it appears to the Governor that the
services of an additional tribunal judge or judges should be provided, the
Governor may, without obtaining the approval of the Senate, appoint a judge, or
judges, pro tempore of the tribunal. Any person appointed judge pro tempore of
the tribunal shall have the qualifications set forth in subsections (a) and (b)
of Code Section 50-13A-6 and shall serve for a period not to exceed 12
months.
(i)
A tribunal judge may disqualify himself or herself on his or her own motion in
any matter and may be disqualified for any cause listed in Code Section
15-1-8.
50-13A-6.
(a)
Each judge of the tribunal shall be a citizen of the United States and, during
the period of service, a resident of this state. No person shall be appointed
as a tribunal judge unless at the time of appointment the individual is an
attorney licensed to practice in this state and has practiced primarily in the
area of tax law for at least eight years.
(b)
Before entering upon the duties of office, each tribunal judge shall take and
subscribe to an oath or affirmation that he or she shall faithfully discharge
the duties of the office, and such oath shall be filed in the office of the
Secretary of State.
(c)
Each tribunal judge shall devote his or her full time during business hours to
the duties of the tribunal. A tribunal judge shall not engage in any other
gainful employment or business that interferes with or is inconsistent with his
or her duties as a judge and shall not hold another office or position of profit
in a government of this state, any other state, or the United
States.
(d)
If a tribunal judge does not have a full docket of tax cases, the chief tribunal
judge may, acting in his or her sole discretion, petition the chief
administrative law judge of the Office of State Administrative Hearings to allow
such tribunal judge to hear and resolve nontax cases pending before the Office
of State Administrative Hearings. The chief tribunal judge, the chief
administrative law judge of the Office of State Administrative Hearings, and the
tribunal judge in question shall mutually agree upon the number and types of
such cases, taking into account the particular judge's background and
qualifications.
50-13A-7.
(a)
The tribunal's principal location shall be located in Fulton County, Georgia,
and in a building that is separate and apart from any building in which the
commissioner has an office.
(b)
The tribunal may, but shall not be required to, conduct hearings at its
principal location in Fulton County. The tribunal may also hold hearings at any
place within this state, with a view toward securing to taxpayers a reasonable
opportunity to appear before the tribunal with as little inconvenience and
expense as practicable. When the tribunal holds hearings outside of its
principal location, it shall do so in a place that is physically separate from
facilities regularly occupied by the commissioner.
50-13A-8.
(a)
The chief tribunal judge shall appoint a clerk of the tribunal, a court
reporter, and such other employees, including staff attorneys and clerical
assistants, and make such other expenditures, including expenditures for
library, publications, and equipment, as are reasonably necessary to permit the
tribunal to execute its functions efficiently; provided, however, that the chief
tribunal judge shall endeavor to utilize staff employed by the Office of State
Administrative Hearings and shall consult with the chief state administrative
law judge so as to best utilize staff positions to best serve both the tribunal
and the Office of State Administrative Hearings.
(b)
A tribunal court reporter shall be subject to the provisions of Code Sections
15-14-20 through 15-14-36 as if appointed by a judge of a superior court, except
when such provisions are in conflict with this chapter.
(c)
No employee of the tribunal shall act as attorney, representative, or accountant
for others in a matter involving any tax imposed or levied by this state or
county or municipality of this state.
(d)
In addition to contracting the services of the tribunal court reporter, the
chief tribunal judge may contract the reporting of tribunal proceedings and, in
the contract, fix the terms and conditions under which transcripts shall be
supplied by the contractor to the tribunal and to other persons and
agencies.
50-13A-9.
(a)
On and after January 1, 2013, any person may petition the tribunal for relief as
set forth in Code Sections 48-2-18, 48-2-35, 48-2-59, 48-3-1, 48-5-519, 48-6-7,
and 48-6-76 and subparagraph (d)(2)(C) of Code Section 48-7-31. The tribunal
shall have jurisdiction over actions for declaratory judgment that fall within
subsection (a) of Code Section 50-13-10 and involve a rule of the commissioner
that is applicable to taxes administered by the commissioner under Title
48.
(b)
The tribunal shall have concurrent jurisdiction with the superior courts over
those matters set forth in subsection (a) of this Code section.
(c)
The tribunal shall not have jurisdiction to hear any matter arising under Title
3 or Title 40.
(d)
No person shall be required as a condition either to initiating or maintaining
an action before the tribunal to provide a surety bond or other security for any
amounts that may be in dispute in such action. Nothing contained in this
chapter shall be construed to prohibit the commissioner from requiring a bond
under those circumstances set forth in Code Section 48-2-51.
50-13A-10.
(a)
Actions may be commenced before the tribunal on and after January 1, 2013.
Actions before the tribunal shall be commenced by filing a petition with the
tribunal, naming the commissioner as respondent in his or her official capacity,
within the time periods prescribed by Code Section 48-2-18, 48-2-35, 48-2-59,
48-6-7, or 48-6-76 or subparagraph (d)(2)(C) of Code Section 48-7-31, as the
case may be, or as otherwise provided by law. The petitioner shall serve a copy
of the petition on the commissioner and the Attorney General and attach a
certificate of service to the petition filed with the tribunal. In the case of
a refund action pursuant to Code Section 48-6-7 or 48-6-76, the petition also
shall be served on the clerk of the superior court or collecting officer who is
made a party to the action. Service shall be accomplished by certified mail or
statutory overnight delivery. The petition shall include a summary statement of
facts and law upon which the petitioner relies in seeking the requested
relief.
(b)
The commissioner and any other respondents shall file a response to petitioner's
statement of facts and law which constitutes his or her answer with the tribunal
no later than 30 days after the service of the petition. The commissioner and
any other respondents shall serve a copy of their response on the petitioner's
representative or, if the petitioner is not represented, on the petitioner, and
shall file a certificate of such service with the response. If in any case a
response has not been filed within the time required by this subsection, the
case shall automatically become in default unless the time for filing the
response has been extended by agreement of the parties, for a period not to
exceed 30 days, or by the judge of the tribunal. The default may be opened as a
matter of right by the filing of a response within 15 days of the day of default
and payment of costs. At any time before final judgment, the judge of the
tribunal, in his or her discretion, may allow the default to be opened for
providential cause that prevented the filing of the response or for excusable
neglect or when the tribunal judge, from all the facts, determines that a proper
case has been made for the default to be opened on terms to be fixed by the
tribunal judge.
(c)
Pleadings and proceedings before the tribunal shall be subject to the amendment
and supplementation provisions of Code Section 9-11-15.
(d)
Code Section 50-13A-18 shall apply to service of pleadings and
documents.
(e)
As soon as reasonably practicable, the tribunal judge shall schedule a
prehearing conference to address discovery, scheduling, and other
matters.
(f)
The tribunal judge may remand a matter in dispute to the commissioner for
further consideration upon motion by all parties to the proceeding, for good
cause shown on the motion of any party, or sua sponte when the tribunal judge
reasonably determines that circumstances warrant. Any such remand shall not
divest the tribunal of jurisdiction, and the tribunal judge's order shall
provide that any party, upon appropriate advance notice to all other parties,
shall be entitled to have such matter returned to the tribunal for
resolution.
(g)
Contested cases pending before the Office of State Administrative Hearings on
and before December 31, 2012, and cases when the taxpayer made a written demand
for a hearing pursuant to Code Section 50-13-12 before January 1, 2013, shall
not be transferred to the tribunal. If, on and after January 1, 2013, a written
petition for relief or a demand for hearing is filed with the commissioner or by
the affected party directly with the Office of State Administrative Hearings in
a matter falling within the tribunal's jurisdiction under subsection (a) of Code
Section 50-13A-9, such matter shall be transferred to the tribunal, and the
remaining provisions of this chapter shall be applicable.
50-13A-11.
(a)
Except as provided for in Code Section 48-2-51, involving jeopardy assessments,
the filing of a petition with the tribunal shall operate as a stay of any
enforcement or collection action by the commissioner with respect to any tax,
penalty, interest, or any collection costs that are disputed in the petition
until the tribunal decision is finalized, including appeals to the superior
court pursuant to Code Section 50-13A-17 or to any appellate court.
(b)
Upon petition by the commissioner, and for good cause shown, the tribunal judge
may lift the stay provided for in subsection (a) of this Code
section.
50-13A-12.
(a)
Upon filing a petition, the petitioner shall pay to the clerk of the tribunal a
fee as determined by the rules established by the tribunal.
(b)
A similar fee shall be paid by other parties making an appearance in the
proceeding, except that no fee shall be charged to a government body or
government official appearing in a representative capacity.
(c)
The chief tribunal judge may fix a fee, not in excess of the fees charged and
collected by the clerks of the superior courts of this state, for compiling, or
for preparing and compiling, a transcript of the record, or for copying any
record, entry, or other paper and the compilation and certification
thereof.
50-13A-13.
(a)
The provisions of Chapter 11 of Title 9, the 'Georgia Civil Practice Act,'
governing discovery and depositions shall apply to proceedings before the
tribunal; provided, however, that the parties to a proceeding shall make every
effort to conduct discovery by informal consultation or communication. Upon
motion of a party, the frequency or extent of formal discovery methods may be
limited by the tribunal if it determines that the discovery is unduly burdensome
or expensive when taking into account the amount in controversy, limitations on
the parties' resources, and the importance of the issues at stake in the
litigation.
(b)
The chief tribunal judge shall, by rules and regulations or by order in a
particular proceeding, prescribe the period during which any discovery shall be
commenced and completed. After the period for completing discovery has expired,
or earlier as the parties may agree, the parties to a proceeding shall stipulate
all relevant and nonprivileged matters to the fullest extent to which complete
or qualified agreement can be reached or fairly should be reached. Neither the
existence nor the use of the discovery mechanisms authorized by this Code
section shall excuse failure to comply with this provision.
(c)(1)
A party shall disclose to other parties at a reasonable time prior to the
hearing the identity of any person who may be called at trial to present expert
testimony.
(2)
Except as otherwise stipulated or directed by the tribunal judge, expert witness
disclosure shall, with respect to a witness who is retained or specially
employed to provide expert testimony in the case or whose duties as an employee
of the party regularly involve giving expert testimony, be accompanied by a
written report prepared and signed by the witness if one has been prepared or
will be offered at the hearing.
(d)
A judge or the 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.
(e)
Any employee of the tribunal designated in writing for such purpose by a
tribunal judge, or by the chief tribunal judge if more than one judge has been
appointed, may administer oaths.
(f)
Any witness who is subpoenaed or whose deposition is taken shall receive the
same fees and mileage as a witness in a superior court of this
state.
(g)
In proceedings before the tribunal, if any party or an agent or employee of a
party disobeys or resists any lawful order of process; neglects to produce,
after having been ordered to do so, any pertinent book, paper, or document;
refuses to appear after having been subpoenaed; upon appearing, refuses to take
the oath or affirmation as a witness; or, after taking the oath or affirmation,
refuses to testify, the tribunal judge shall have the same rights and powers
given any other court under Chapter 11 of Title 9, the 'Georgia Civil Practice
Act.' If any person or party refuses as specified in this subsection, the
tribunal judge may certify the facts to the superior court of the county where
the offense is committed for appropriate action, including a finding of
contempt.
50-13A-14.
(a)
Trials in proceedings before the tribunal shall be de novo and without a jury.
Hearings shall be open to the public, but on motion of any party, if such party
shows good cause to protect certain information from being disclosed to the
public, the tribunal judge may issue a protective order or an order closing part
or all of a hearing to the public.
(b)
The tribunal shall take evidence, and the tribunal judges shall conduct hearings
and issue final judgments and interlocutory orders.
(c)
The tribunal judges shall apply the rules of evidence as applied in the trial of
civil nonjury cases in the superior courts; provided, however, that for hearings
conducted in the small claims division, the tribunal judge may, when necessary
to ascertain facts not reasonably susceptible of proof under such rules,
consider evidence not otherwise admissible thereunder if it is of a type
commonly relied upon by reasonably prudent persons in the conduct of their
affairs.
(d)
Testimony before a tribunal judge shall be given only on oath or
affirmation.
(e)
The petition and other pleadings in the proceeding shall be deemed to conform to
the proof presented at the hearing, unless a party satisfies the tribunal judge
that presentation of the evidence would unfairly prejudice the party in
maintaining its position on the merits or unless deeming the taxpayer's petition
to conform to the proof would confer jurisdiction on the tribunal over a matter
that would not otherwise come within the tribunal's jurisdiction.
(f)
Except for hearings conducted in the small claims division of the tribunal as
provided in Code Section 50-13A-16, all hearings before the tribunal shall be
recorded by means acceptable for use in courts of this state.
50-13A-15.
(a)
Except with regard to proceedings in the small claims division of the tribunal
pursuant to Code Section 50-13A-16, the tribunal judge shall render all final
judgments and interlocutory orders in writing, as appropriate, including therein
a concise statement of the facts found and the conclusions of law reached. The
tribunal judge's final judgment or interlocutory order shall, subject to law,
grant such relief, invoke such remedies, and issue such orders as the tribunal
judge deems appropriate to carry out its final judgment or interlocutory
order.
(b)
The chief tribunal judge shall adopt rules and regulations to address
confidentiality of taxpayer information and proceedings before the
tribunal.
(c)
The tribunal judges shall adhere to the principle of stare decisis. The
tribunal judge'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 tribunal judges in subsequent cases involving similar facts, unless
the tribunal judge's interpretation or application conflicts with that of an
appellate court or the tribunal judge provides satisfactory reasons for
departing from prior precedent.
(d)
Except as to a final judgment of the small claims division, all other final
judgments of the tribunal shall be indexed and published in such print or
electronic form as the chief tribunal judge deems best adapted for public
convenience. Such publications shall be made permanently available and
constitute the official reports of the tribunal.
50-13A-16.
(a)
There is hereby established a small claims division of the
tribunal.
(b)
Judges of the tribunal shall sit as the judges of the small claims
division.
(c)
Within 90 days of filing a petition pursuant to the Code Section 50-13A-9, a
taxpayer may elect to have the small claims division have jurisdiction over any
proceeding with respect to which the amount of tax and penalties in controversy,
exclusive of interest, is less than a threshold amount determined by the rules
of the tribunal. A taxpayer may not revoke such election to proceed in the
small claims division after this 90 day period. For good cause, the tribunal
judge may, on his or her own motion or on the motion of a party to the case,
remove a case from the small claims division.
(d)
In proceedings before the small claims division of the tribunal, accountants and
other tax return preparers designated by the taxpayer shall be permitted to
accompany and appear with the taxpayer in order to provide factual information
regarding positions taken on tax returns of the taxpayer. An accountant or tax
return preparer accompanying and appearing with a taxpayer for this purpose
shall not be deemed to be acting as an advocate of the taxpayer or representing
the taxpayer before the tribunal.
(e)
At any time prior to entry of judgment, a taxpayer may dismiss a proceeding in
the small claims division by notifying the clerk of the tribunal in writing.
Such dismissal shall be without prejudice.
(f)
Hearings in the small claims division shall be conducted in a manner consistent
with proceedings before magistrate courts, as specified in Article 3 of Chapter
10 of Title 15. The tribunal judge may receive such evidence as the judge deems
appropriate for determination of the case. Testimony shall be given under oath
or affirmation.
(g)
A judgment of the small claims division shall be conclusive upon all parties and
may not be appealed. A judgment of the small claims division shall not be
considered or cited as precedent in any other case, hearing, or
proceeding.
50-13A-17.
(a)
As used in this Code section, the term 'reviewing court' means the Superior
Court of Fulton County.
(b)
Any party may appeal a final judgment of the tribunal, except for judgments of
the small claims division, to the reviewing court. Proceedings for judicial
review shall be instituted by filing a petition with the reviewing court within
30 days after the service of the tribunal's final judgment or, if a rehearing is
requested, within 30 days after the decision thereon. Copies of the petition
for judicial review shall be served upon the tribunal and all parties of record.
The petition shall state the nature of the petitioner's interest, the fact
showing that the petitioner is aggrieved by the judgment, and the grounds as
specified in subsection (g) of this Code section upon which the petitioner
contends that the judgment should be reversed or modified. The petition for
judicial review may be amended by leave of the reviewing court.
(c)
Notwithstanding any provisions of law or tribunal rule with respect to motions
for rehearing or reconsideration after a final tribunal judgment or
interlocutory order, the filing of such a motion shall not be a prerequisite to
the filing of any action for judicial review or relief; provided, however, that
no objection to any order or judgment of the tribunal shall be considered by the
reviewing court upon petition for review unless such objection has been heard by
the tribunal.
(d)
Within 30 days after the service of the petition for judicial review or within
further time allowed by the reviewing court, the tribunal shall transmit to the
reviewing court the original or a certified copy of the entire record of the
proceeding under review. By stipulation of all parties to the review
proceedings, the record may be shortened. A party unreasonably refusing to
stipulate to limit the record may be taxed by the reviewing court for the
additional costs. The reviewing court may require or permit subsequent
corrections or additions to the record.
(e)
If, before the date set for hearing in the reviewing court, application is made
to the
reviewing
court for leave to present additional evidence and it is shown to the
satisfaction of the reviewing court that the additional evidence is material and
there were good reasons for failure to present it in the proceedings before the
tribunal, the reviewing court may order that the additional evidence be taken
before the tribunal upon conditions determined by the reviewing court. A
tribunal judge may modify his or her findings and judgment by reason of the
additional evidence and shall file that evidence and any modifications, new
findings, or judgments with the reviewing court.
(f)
The hearing or a petition for judicial review shall be conducted by the
reviewing court without a jury and shall be confined to the record. In cases of
alleged irregularities in procedure before the tribunal not shown in the record,
proof thereon may be taken in the reviewing court. The reviewing court, upon
request, shall hear oral argument and receive written briefs. The reviewing
court shall affirm, reverse, or modify the tribunal's judgment or remand the
case for further proceedings within 90 days of the filing of the last such
written brief.
(g)
The reviewing court shall not substitute its judgment for that of the tribunal's
as to the weight of the evidence on questions of fact. The reviewing court may
affirm the tribunal's judgment or remand the case for further proceedings. The
reviewing court may reverse or modify the judgment if substantial rights of the
petitioner have been prejudiced because the tribunal judge's findings,
inferences, conclusions, or judgments are:
(1)
In violation of constitutional or statutory provisions;
(2)
In excess of the statutory authority of the tribunal;
(3)
Made upon unlawful procedure;
(4)
Affected by other error of law;
(5)
Clearly erroneous in view of the reliable, probative, and substantial evidence
on the whole record; or
(6)
Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
(h)
An aggrieved party may seek a review of any final judgment of the reviewing
court by the Court of Appeals or the Supreme Court, as provided by
law.
50-13A-18.
(a)
An initial petition shall be served by certified mail or statutory overnight
delivery and any other pleading, motion, response, statement, or document
permitted or required to be served shall be served by first-class mail or hand
delivery.
(b)
Any pleading, motion, response, statement, or document required by law, rule, or
regulation to be received by or filed with the tribunal pursuant to the
requirements of this chapter shall be deemed to be received by or filed with the
tribunal on the earlier of:
(1)
The date such pleading, motion, response, statement, or document is actually
received by the tribunal;
(2)
The official postmark date such pleading, motion, response, statement, or
document was mailed, properly addressed with postage prepaid, by registered or
certified mail; or
(3)
The date on which such pleading, motion, response, statement, or document was
delivered to a commercial delivery company for statutory overnight delivery as
provided in Code Section 9-10-12 as evidenced by the receipt provided by the
commercial delivery company.
(c)
Mailing or delivery to the address of the taxpayer given on the taxpayer's
petition or to the address of the taxpayer's representative of record, if any,
or to the usual place of business of the commissioner, and, when applicable, of
the clerk of superior court or collecting official who is made a party to the
action shall constitute personal service on such party. The chief tribunal
judge may by rule prescribe that notice by other means shall constitute personal
service and may in a particular case order that notice be given to additional
persons or order that notice be given by other means.
50-13A-19.
The
tribunal shall adopt rules of practice and procedure and adopt all reasonable
rules and forms as may be necessary or appropriate to carry out the intent and
purposes of this chapter.
50-13A-20.
(a)
For purposes of the language contained in the Code sections referenced in
subsection (b) of this Code section, the term 'agency' shall include the
tribunal.
(b)
Only the following provisions of Article 1 of Chapter 13 of this title shall
apply to the tribunal and its administration:
(1)
Code Section 50-13-3, except for paragraph (4) of subsection (a);
(2)
Code Section 50-13-4, except for paragraphs (3) and (4) of subsection (a) and
subsections (b), (g), (h), and (i);
(3)
Code Section 50-13-6, except for paragraph (2) of subsection (c);
(4)
Code Section 50-13-7;
(5)
Code Section 50-13-8; and
(6)
Code Section 50-13-10."
SECTION
16.
(a)
Except as provided in subsection (b) of this section, this section, Section 15,
and Section 17 of this Act shall become effective on July 1, 2012, and shall be
applicable to all proceedings commenced on or after January 1,
2013.
(b) Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case.
(b) Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case.
SECTION
17.
All
laws and parts of laws in conflict with this Act are repealed.