Bill Text: OR HB2467 | 2011 | Regular Session | Introduced
Bill Title: Relating to refund anticipation loans; declaring an emergency.
Spectrum: Unknown
Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB2467 Detail]
Download: Oregon-2011-HB2467-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 336
House Bill 2467
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Consumer Protection and Government Accountability)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires facilitators of income tax refund anticipation loans
and refund anticipation payment instruments to obtain license
from State Board of Tax Practitioners. Requires filing and
posting certain disclosures. Prohibits certain activities. Makes
violation unlawful practice subject to enforcement under Unlawful
Trade Practices Act.
Becomes operative January 1, 2012.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to refund anticipation loans; creating new provisions;
amending ORS 646.608, 673.605, 673.610, 673.615, 673.700,
673.730 and 673.990; repealing ORS 673.712; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2, 3, 4, 5, 6 and 7 of this 2011 Act
are added to and made a part of ORS 673.605 to 673.740. + }
SECTION 2. { + (1) A licensee shall file with the State Board
of Tax Practitioners a corporate surety bond or irrevocable
letter of credit in the sum of $25,000 that runs to the State of
Oregon. The corporate surety bond or irrevocable letter of credit
must be issued by a corporate surety or an insured institution,
as defined in ORS 706.008, that is authorized to do business in
this state.
(2) The liability of the corporate surety or insured
institution that issued the surety bond or irrevocable letter of
credit continues until two years after the licensee ceases to
conduct business in this state or until the bond or irrevocable
letter of credit is canceled, whichever is later. The corporate
surety or insured institution shall give the board at least 30
days' written notice before canceling or terminating liability
under the surety bond or irrevocable letter of credit. The
licensee, in order to comply with this section, shall ensure that
the full amount of the surety bond or irrevocable letter of
credit required under this section is available at all times.
(3) The aggregate liability of the corporate surety or insured
institution may not exceed the principal sum of the surety bond
or irrevocable letter of credit. + }
SECTION 3. { + (1) If at the time an applicant or a licensee
applies for or applies to renew a license under ORS 673.605 to
673.740 the licensee or applicant offers or intends to offer
refund anticipation loans to consumers, the applicant or licensee
shall file with the State Board of Tax Practitioners schedules
that disclose for the succeeding year:
(a) The interest rates that lenders for which the applicant or
licensee facilitates refund anticipation loans will charge; and
(b) The fees that the applicant or licensee will charge for
preparing tax returns and for filing tax forms electronically.
(2) If at any point after the applicant obtains or the licensee
renews a license under ORS 673.605 to 673.740 the applicant or
licensee learns of or makes a change to a rate, charge or
percentage that the applicant or licensee disclosed under
subsection (1) of this section, the applicant or licensee within
15 business days after learning of or making the change shall
file with the board an amendment that sets forth the corrected
rate, charge or percentage.
(3) In each location where the licensee conducts business as a
facilitator, the licensee shall display in public view:
(a) A schedule of the lender's current interest rates for
refund anticipation loans;
(b) A schedule of the licensee's fees for preparing tax returns
and for filing tax forms electronically; and
(c) A notice in which the licensee states that the licensee may
not require a taxpayer to obtain a refund anticipation loan or
refund anticipation payment instrument as a condition of filing
the taxpayer's tax return electronically and that the fee for
filing a tax return electronically does not depend on whether the
taxpayer has obtained a refund anticipation loan or refund
anticipation payment instrument.
(4) The licensee may not conduct business as a facilitator
unless the licensee displays in each location where the licensee
conducts business as a facilitator the schedules and the notice
described in subsection (3) of this section and unless the
licensee ensures that the lender charges and that the consumer
pays only the interest rate for a refund anticipation loan that
the licensee both displays on the schedule and discloses to the
consumer, as provided in section 4 of this 2011 Act. + }
SECTION 4. { + (1)(a) A licensee shall disclose to a consumer,
in the manner described in subsection (3) of this section and at
the time the consumer applies for a refund anticipation loan or a
refund anticipation payment instrument, all of the items set
forth in subsection (2) of this section.
(b) In making a disclosure under this section, the licensee
shall calculate the annual percentage rate as defined by the
federal Truth in Lending Act, 15 U.S.C. 1601 et seq., as in
effect on the effective date of this 2011 Act, except that,
notwithstanding the definition set forth for the annual
percentage rate under the Act, the annual percentage rate that
the licensee calculates and discloses under this section must
include all fees that the lender charges in connection with the
refund anticipation loan.
(2) The licensee must disclose:
(a) The fees that the licensee will charge for preparing a tax
return or filing tax forms electronically.
(b) A list or table that shows examples of the amounts that the
licensee and the lender will charge in fees and in interest for
refund anticipation loans of $500, $750, $1,000, $1,500, $2,000
and $3,000. For each example, the list or table must disclose
separately the amount of each lender's fee, the annual percentage
rate for the loan and the total amount of money a consumer would
pay in fees and in interest for the loan.
(c) The lender's fees, interest rate and annual percentage rate
for the refund anticipation loan that the consumer will pay if
approved. If a consumer, as a condition of obtaining the loan,
must establish or maintain a deposit account with the lender to
receive the consumer's tax refund and thereby to offset the
amount the consumer owes on the loan, the maturity date of the
loan for the purpose of determining the annual percentage rate
disclosure under this section, regardless of the annual
percentage rate disclosure that the federal Truth in Lending Act
requires, is the estimated date on which the tax refund will be
deposited in the consumer's account.
(d) The time at which the consumer will receive the amount
loaned if the lender approves the loan.
(e) A notice in which the licensee discloses:
(A) The average amount of time in which a person that files a
tax return electronically in the current filing year can expect
to receive a tax refund deposited directly into the person's bank
account, according to information available from state and
federal taxing authorities;
(B) The average amount of time in which a person that files a
tax return electronically in the current filing year can expect
to receive a tax refund mailed to the person, according to
information provided by state and federal taxing authorities; and
(C) The difference, in days, between the time at which the
consumer would receive the loan amount from a refund anticipation
loan, as disclosed in accordance with paragraph (d) of this
subsection, and the time by which, on average, a person that
files a tax return electronically will receive a refund from the
taxing authority deposited directly to the person's deposit
account, without applying for or receiving a refund anticipation
loan.
(f) A notice in which the licensee states that:
(A) A refund anticipation payment instrument is not necessary
if the consumer has an account in a depository institution;
(B) The state and federal taxing authorities do not guarantee
that the consumer will receive the full amount of an anticipated
tax refund or that the consumer will receive a refund on a
specific date;
(C) A refund anticipation loan is a loan and not the consumer's
actual tax refund; and
(D) The consumer is responsible for repaying the loan and
related fees and interest from other money or assets the consumer
has if the consumer does not receive a tax refund or the
anticipated full amount of the tax refund.
(3)(a) The facilitator must make the disclosures described in
subsection (2) of this section orally and in writing on a form
separate from the application form. If the facilitator solicits
or conducts negotiations with the consumer concerning a refund
anticipation loan or refund anticipation payment instrument in a
language other than the English language, the facilitator shall
make the disclosures described in this section in writing in the
English language and orally and in writing in the language in
which the facilitator solicited or conducted negotiations with
the consumer concerning the refund anticipation loan or refund
anticipation payment instrument.
(b) The licensee shall make a written disclosure required under
subsection (2) of this section on a form that the State Board of
Tax Practitioners specifies by rule. + }
SECTION 5. { + (1) The State Board of Tax Practitioners by
rule shall specify the form and content for the schedules and
disclosures required in sections 3 and 4 of this 2011 Act, except
for information in the schedules or disclosures that the licensee
must fill in or supply.
(2) The board shall make the forms for the schedules and
disclosures described in subsection (1) of this section available
to licensees in the three languages other than the English
language that are most commonly spoken in this state. + }
SECTION 6. { + A licensee, while acting as a facilitator, may
not:
(1)(a) Charge a consumer a fee of any type in a transaction
related to a refund anticipation loan or refund anticipation
payment instrument. The licensee may charge a fee in a
transaction related to a refund anticipation loan or refund
anticipation payment instrument only if the fee is a fee that the
lender imposes for originating or processing the refund
anticipation loan or refund anticipation payment instrument. The
licensee shall remit the amount of a lender's fee to the lender.
(b) This subsection does not preclude a facilitator from
charging a fee or other consideration that the facilitator
usually charges or imposes in the ordinary course of business for
services that are not connected with a refund anticipation loan
or refund anticipation payment instrument, such as a fee for
preparing a tax return or filing a tax return electronically.
(2) Misrepresent a term, condition or material fact associated
with an agreement for a refund anticipation loan or refund
anticipation payment instrument.
(3) Fail to arrange for a refund anticipation loan promptly
after a consumer applies for the loan or fail to deliver a refund
anticipation loan approved by the lender to the consumer within
48 hours after the time disclosed in accordance with section 4
(2)(d) of this 2011 Act.
(4) Require a taxpayer to obtain a refund anticipation loan or
refund anticipation payment instrument in exchange for filing the
taxpayer's tax return electronically or in exchange for a
reduction or discount in any fee the licensee charges for
preparing or filing the taxpayer's tax return.
(5) Engage in a fraudulent transaction, practice or course of
business in connection with a refund anticipation loan or refund
anticipation payment instrument.
(6) Facilitate a refund anticipation loan for which the annual
percentage rate, calculated and disclosed as provided in section
4 (1)(b) of this 2011 Act, exceeds 36 percent.
(7) Facilitate a refund anticipation loan for which the lender
charges more interest than the licensee indicated in schedules
filed with the board under section 3 of this 2011 Act.
(8) Facilitate a loan that a lender secures with or arranges to
have repaid directly from the proceeds of a tax refund a consumer
receives from the State Treasury.
(9) Collect or facilitate in collecting, alone or in
conjunction with another person, an outstanding or delinquent
refund anticipation loan for a lender or other creditor, or an
assignee of the lender or creditor. For the purposes of this
subsection, soliciting, processing, receiving or accepting an
application for a refund anticipation loan or refund anticipation
payment instrument in which a contract provision or other
agreement permits the lender, creditor or assignee to receive
payment for an outstanding or delinquent refund anticipation loan
by offset or other means constitutes facilitating the collection
of the outstanding or delinquent refund anticipation loan.
(10) Direct, or arrange for the direction of, any portion of
the amount that a consumer pays toward a refund anticipation loan
into paying fees or charges for check cashing, credit insurance
or other goods or services unrelated to preparing and filing tax
returns or facilitating the refund anticipation loan.
(11) Take, or arrange for another person to take, an interest
in property of the consumer other than the proceeds of the
consumer's tax refund as security for the payment of the refund
anticipation loan.
(12) Engage in unconscionable activity.
(13) Violate a rule or order that the board adopts or issues
under this section or section 2, 3, 4 or 5 of this 2011 Act, or
violate a consent agreement between the licensee and the board.
In addition to any other penalty provided for a violation of this
section or section 2, 3 or 4 of this 2011 Act, a violation is an
unlawful practice under ORS 646.608 that is enforceable under ORS
646.638. + }
SECTION 7. { + Sections 2, 3, 4, 5 and 6 of this 2011 Act do
not apply to a person that does not deal directly with taxpayers
or consumers but that acts solely as an intermediary between a
facilitator and a lender or between a facilitator and a state or
federal taxing authority by processing or transmitting,
electronically or otherwise, tax or credit information or by
preparing a payment instrument by means of which a facilitator
delivers a refund anticipation loan to a consumer. + }
SECTION 8. ORS 673.605 is amended to read:
673.605. As used in ORS 673.605 to 673.740 { + : + }
{ - unless the context requires otherwise: - }
{ - (1) 'Board' means the State Board of Tax Practitioners
created by ORS 673.725. - }
{ - (2)(a) 'Facilitator' means a person that individually or
in conjunction or cooperation with another person processes,
receives or accepts for delivery an application for a refund
anticipation loan or a check in payment of refund anticipation
loan proceeds or in any other manner materially facilitates the
making of a refund anticipation loan. - }
{ - (b) 'Facilitator' does not mean a financial institution
as defined in ORS 706.008, a person who has been issued a license
under ORS chapter 725, an affiliate that is a servicer for a
financial institution or for a person issued a license under ORS
chapter 725, a person issued a certificate as a certified public
accountant or licensed as a public accountant by the Oregon Board
of Accountancy, or any person that acts solely as an intermediary
and does not deal with a taxpayer in the making of a refund
anticipation loan. - }
{ - (3) 'Lender' means a person that makes a refund
anticipation loan with the person's own funds or a line of credit
or other funding from a financial institution as defined in ORS
706.008, but does not include a financial institution as defined
in ORS 706.008. - }
{ - (4) 'Refund anticipation loan' means a loan that the
lender arranges to be repaid directly from the proceeds of the
taxpayer's federal or state personal income tax refund. - }
{ - (5)(a) 'Refund anticipation loan fee' means the charges,
fees or other consideration charged or imposed by the lender or
facilitator for the making of a refund anticipation loan. - }
{ - (b) 'Refund anticipation loan fee' does not mean any
charge, fee or other consideration usually charged or imposed by
the facilitator in the ordinary course of business for nonloan
services, including fees for tax return preparation and fees for
electronic filing of tax returns. - }
{ - (6) 'Tax consultant' means a person who is licensed under
ORS 673.605 to 673.740 to prepare or advise or assist in the
preparation of personal income tax returns for another and for
valuable consideration. - }
{ - (7) 'Taxpayer' means an individual who files a federal or
Oregon personal income tax return. - }
{ - (8) 'Tax preparer' means any person who is licensed under
ORS 673.605 to 673.740 as a tax preparer. - }
{ + (1) 'Consumer' means an individual who, alone or together
with another individual:
(a) Receives a solicitation for a refund anticipation loan from
a facilitator;
(b) Applies for a refund anticipation loan; or
(c) Receives from a facilitator or lender approval for or funds
in connection with a refund anticipation loan or refund
anticipation payment instrument.
(2) 'Facilitator' means:
(a) A person that alone or in conjunction or cooperation with
another person:
(A) Solicits or conducts negotiations in connection with an
application for a refund anticipation loan or refund anticipation
payment instrument;
(B) Receives, accepts or processes an application for a refund
anticipation loan or refund anticipation payment instrument;
(C) Services or collects proceeds from a refund anticipation
loan or refund anticipation payment instrument on behalf of
another person; or
(D) Facilitates a refund anticipation loan or refund
anticipation payment instrument in any other manner.
(b) A lender that, without the assistance or cooperation of
another person, directly:
(A) Solicits or conducts negotiations in connection with an
application for a refund anticipation loan or refund anticipation
payment instrument;
(B) Receives, accepts or processes an application for a refund
anticipation loan or refund anticipation payment instrument;
(C) Collects for the lender's own benefit a fee, charge or
other consideration, other than interest due the lender from a
refund anticipation loan, for services related to receiving,
accepting or processing an application for a refund anticipation
loan or refund anticipation payment instrument; or
(D) Services or collects proceeds from a refund anticipation
loan or refund anticipation payment instrument on behalf of
another person.
(3)(a) 'Lender' means a person that makes a refund anticipation
loan with the person's own funds or a line of credit or other
funding from a financial institution, as defined in ORS 706.008.
(b) 'Lender' does not include a federal bank, as defined in ORS
706.008, or a federal credit union.
(4) 'Licensee' means a person that is licensed under ORS
673.605 to 673.740.
(5) 'Person' means an individual, a joint venture, a
partnership, a cooperative, a limited liability company, an
association, a joint stock company, a corporation, a trust or an
unincorporated organization.
(6) 'Refund anticipation loan' means:
(a) A loan that a lender makes under a contract or agreement
that requires a consumer to repay the loan from the proceeds of
the consumer's federal or state income tax refund, or a loan that
a consumer expects to repay from the proceeds of the tax refund;
or
(b) A loan that a lender makes under a contract or agreement
that requires a consumer to repay the loan from the proceeds of a
subsequent loan of the type described in paragraph (a) of this
subsection, or a loan that a consumer expects to repay from the
proceeds of a subsequent loan of the type described in paragraph
(a) of this subsection.
(7) 'Refund anticipation payment instrument' means evidence of
an arrangement under which a lender, facilitator or affiliated
person:
(a) Opens a temporary account to receive a consumer's tax
refund on the consumer's behalf;
(b) Issues the proceeds of the consumer's tax refund to the
consumer in the form of a check, prefunded debit card, gift card
or other record of a promise to pay an amount of money or provide
goods or services in an amount specified in the record when the
record is presented to another person; and
(c) Charges and receives a fee or other compensation from the
consumer for the arrangement.
(8) 'Tax consultant' means a person that is licensed under ORS
673.605 to 673.740 to prepare or advise or assist in preparing
personal income tax returns for a consumer in exchange for
valuable consideration.
(9) 'Taxpayer' means an individual who:
(a) Files a federal or Oregon personal income tax return; or
(b) Pays a fee, charge or other consideration for the services
of a licensee in preparing the individual's tax return, filing
the tax return electronically or applying for a refund
anticipation loan or refund anticipation payment instrument.
(10) 'Tax preparer' means a person that is licensed as a tax
preparer under ORS 673.605 to 673.740.
(11) 'Unconscionable activity' means actions or conduct by
which a facilitator knowingly takes advantage of a consumer's or
taxpayer's physical infirmity, lack of knowledge, illiteracy or
inability to understand the contracts, documents, charges or fees
related to a refund anticipation loan or refund anticipation
payment instrument. + }
SECTION 9. ORS 673.610 is amended to read:
673.610. ORS 673.605 to 673.740 do not apply to:
(1) { - Any - } { + A + } full or part-time employee hired
to fill a permanent position, who in connection with
{ - the - } duties as an employee has { - the - } { +
an + } incidental duty { - of preparing - } { + to
prepare + } income tax returns { + only + } for the { +
employer's + } business { - of the employer only - } .
(2) { - Any - } { + An + } attorney at law
{ - rendering - } { + who renders + } services in { - the
performance of the - } { + performing + } duties { - of - }
{ + as + } an attorney at law.
(3) { - While acting as such, any fiduciary, or the regular
employees thereof, acting on behalf of the fiduciary estate, the
testator, trustor, grantor, or beneficiaries thereof. - } { + A
fiduciary or an employee of a fiduciary during the time the
fiduciary acts on behalf of a fiduciary estate or a testator,
trustor, grantor or beneficiary of the fiduciary estate. + }
(4) A certified public accountant who holds an active permit
issued by { - any - } { + this or another + } state, a public
accountant
{ - holding - } { + who holds + } a valid permit issued under
ORS 673.100 or a public accounting firm { + that is + }
registered in { - any - } { + this or another + } state.
(5) { - Any - } { + An + } employee of a certified public
accountant, public accountant or registered public accounting
firm described in subsection (4) of this section.
(6) { - Any - } { + A + } person employed by a local, state
or federal governmental agency but only { - in performance
of - } { + at the time the person is performing + } official
duties.
{ + (7) A financial institution, as defined in ORS 706.008,
or an employee of a financial institution. + }
SECTION 10. ORS 673.615 is amended to read:
673.615. Except as otherwise provided in ORS 673.605 to
673.740:
(1) A person may not prepare or advise or assist in { - the
preparation of - } { + preparing + } personal income tax
returns for { - another and - } { + a taxpayer in
exchange + } for valuable consideration or represent that the
person { - is so engaged - } { + prepares or advises or
assists in preparing income tax returns in exchange for valuable
consideration + } unless the person is licensed as a tax
consultant under ORS 673.605 to 673.740.
(2) A tax preparer may prepare or advise or assist in { - the
preparation of - } { + preparing + } tax returns only under the
supervision of a tax consultant, or a person described in ORS
673.610 (2) or (4), and subject to { - such - } conditions and
limitations { - as - } { + that + } the State Board of Tax
Practitioners { - by rule may impose - } { + imposes by
rule + }.
(3) A person may not { - be a facilitator of a refund
anticipation loan without first being issued a license - }
{ + act or conduct business as a facilitator in this state
unless the person is licensed + } as a tax consultant or tax
preparer under ORS
{ - 673.640 - } { + 673.605 to 673.740 + }.
SECTION 11. ORS 673.700 is amended to read:
673.700. The State Board of Tax Practitioners may refuse to
issue or renew a tax { - consultant - } { + consultant's + }
or { + tax + } preparer's license, or may suspend or revoke a
tax { - consultant - } { + consultant's + } or { + tax + }
preparer's license, or may reprimand { - any - } { + a + }
person licensed as a tax consultant or tax preparer for:
(1) { - Violation of - } { + Violating + } ORS 673.615
{ - , - } { + or + } 673.705 or
{ - 673.712 - } { + section 2, 3, 4 or 6 of this 2011
Act + }.
(2) { - Failure - } { + Failing + } to keep the records
required by ORS 673.690.
(3) Negligence or incompetence in tax consultant or tax
preparer practice or when acting in the capacity of a tax
preparer or tax consultant in another state, or under an exempt
status or in preparation of the personal income tax return for
another state or the federal government.
(4)(a) Conduct resulting in a { + felony + } conviction
{ - of a felony - } under the laws of { - any - } { + this
or another + } state or of the United States. However, { - such
conduct - } { + the board + } may { - be considered - } { +
consider a conviction + } only to the extent permissible under
the provisions of ORS 670.280; or
(b) Conviction of { - any - } { + a + } crime, an essential
element of which is dishonesty, fraud or deception, under the
laws of { - any - } { + this or another + } state or of the
United States.
(5) Conviction of willful failure to pay { - any - } { +
a + } tax or estimated tax, file { - any - } { + a + } tax
return, keep records or supply information required under the tax
laws of { - any - } { + this or another + } state or of the
United States, or conviction of { - the willful - } { +
willfully + } making, rendering, { - delivery, disclosure, - }
{ + delivering, disclosing, + } signing or verifying { - of
any - } { + a + } false or fraudulent list, return, account,
statement or other document, or of supplying { - any - } false
or fraudulent information, required under the tax laws of
{ - any - } { + this or another + } state or of the United
States.
(6) { - Failure - } { + Failing + } to comply with
continuing education requirements under ORS 673.655 or under ORS
673.667 unless { - such requirements have been waived by the
board. - } { + the board has waived the requirements. + }
(7) { - Violation of - } { + Violating + } the code of
professional conduct prescribed by the board.
(8) { - Failure - } { + Failing + } to pay { - any - }
{ + a + } civil penalty incurred under ORS 673.735 within the
time determined by the board.
(9) Cancellation, revocation or refusal to renew by
{ - any - } { + a + } state or federal agency of, or entry of
a consent order, stipulated agreement or judgment related to, the
person's authority to practice law, to practice as a certified
public accountant or a public accountant or to practice under
other regulatory law in { - any - } { + this or another + }
state, or to practice as an enrolled agent, if the grounds for
the cancellation, revocation, refusal to renew, consent order,
stipulated agreement or judgment were related to income tax
preparation or if dishonesty, fraud or deception was involved.
(10) Cancellation, revocation or refusal to renew by
{ - any - } { + a + } state or federal agency of, or entry of
a consent order, stipulated agreement or judgment related to, a
business's authority to conduct operations related to the
practice of law, certified public accountancy, public accountancy
or other services provided under regulatory law in { - any - }
{ + this or another + } state, or to provide enrolled agent
services, if the grounds for the cancellation, revocation,
refusal to renew, consent order, stipulated agreement or judgment
involved the conduct or actions of the licensee or applicant and:
(a) Were related to income tax preparation; or
(b) Involved dishonesty, fraud or deception.
SECTION 12. ORS 673.730 is amended to read:
673.730. The State Board of Tax Practitioners { - shall
have - } { + has + } the following powers, in addition to the
powers otherwise granted by ORS 673.605 to 673.740, and
{ - shall have - } { + has + } all powers necessary or proper
to carry the granted powers into effect:
(1) { + (a) + } To determine qualifications of applicants for
licensing as a tax consultant or a tax preparer in this state;
{ + (b) + } To cause examinations to be prepared, conducted
and graded; and
{ + (c) + } To issue licenses to qualified applicants upon
{ - their - } { + the applicants' + } compliance with ORS
673.605 to 673.740 and the rules of the board.
(2)(a) To restore the license of { - any - } { + a + } tax
consultant or { + tax + } preparer whose license has been
suspended or revoked. { + The board's power to restore a license
specifically includes the power to restore a license that was
suspended or revoked because a person was convicted of a crime.
In making a determination to restore a license, the board shall
consider the relationship of the facts that supported the
conviction to the code of professional conduct and shall consider
intervening circumstances in evaluating the person's fitness to
receive or hold a tax consultant's or tax preparer's license. + }
(b) { - The power of the board - } To suspend { - any - }
{ + a + } license under ORS 673.700 { + , which + } includes
the power to restore { + the license + }:
(A) At a time certain; or
(B) When the person subject to suspension fulfills conditions
for reissuance set by the board.
{ - (c) The power of the board to restore a license under
paragraph (a) of this subsection specifically includes the power
to restore a license suspended or revoked for the reason that the
person has been convicted of a crime. In making a determination
to restore a license, the board shall consider the relationship
of the facts which supported the conviction to the code of
professional conduct and all intervening circumstances in
determining the fitness of the person to receive or hold a tax
consultant's or tax preparer's license. - }
(3) To investigate alleged violations of ORS 673.605 to
673.740, or { - any - } { + a + } rule or order adopted
{ - thereunder - } { + or issued under ORS 673.605 to
673.740 + }. The board may keep information gathered pursuant to
an investigation by the board confidential until there is a final
order or determination by the board, unless { + the board
considers + }disclosure { - is considered - } necessary
{ - by the board for the investigation or prosecution of - }
{ + to investigate or prosecute + } an alleged violation of ORS
673.605 to 673.740, or { - any - } { + a + } rule or
order { + the board + } adopted { - thereunder - } { + or
issued under ORS 673.605 to 673.740 + }. The board may keep
personal financial information { + the board + } gathered
pursuant to an investigation { - by the board - } confidential
after { + the board makes + } a final order or determination
{ - by the board - } , unless { + the board considers + }
disclosure { - is considered - } necessary { - by the board
for the investigation or prosecution of - } { + to investigate
or prosecute + } an alleged violation of ORS 673.605 to 673.740,
or { - any - } { + a + } rule or order { + the board + }
adopted { - thereunder - } { + or issued under ORS 673.605 to
673.740 + }. For purposes of this subsection, personal financial
information includes but is not limited to tax returns.
(4) To enforce the provisions of ORS 673.605 to 673.740 and to
exercise general supervision over tax consultant and tax preparer
practice.
(5) To issue an order directed to a person to cease and desist
from { - any - } { + a + } violation or threatened violation
of ORS 673.615, 673.643 { - , - } { + or + } 673.705 or
{ - 673.712 - } { + section 2, 3, 4 or 6 of this 2011 Act + },
or { - any - } { + a + } rule or order { + the board + }
adopted
{ - thereunder - } { + or issued under ORS 673.615, 673.643
or 673.705 or section 2, 3, 4 or 6 of this 2011 Act + }, if the
board has reason to believe that a person has { - been - }
engaged, is engaging or is about to engage in { - any violation
of - } { + violating + } ORS 673.615, 673.643 { - , - }
{ + or + } 673.705 or { - 673.712 - } { + section 2, 3, 4 or
6 of this 2011 Act + }, or
{ - any - } { + a + } rule or order { + the board + }
adopted { - thereunder - } { + or issued under ORS 673.615,
673.643 or 673.705 or section 2, 3, 4 or 6 of this 2011 Act + }.
(6) To assess civil penalties within a cease and desist order
issued under subsection (5) of this section if the board has
reason to believe that a person has { - been - } engaged or is
engaging in { - any - } { + a + } violation of ORS 673.615,
673.643 { - , - } { + or + } 673.705 or
{ - 673.712 - } { + section 2, 3, 4 or 6 of this 2011
Act + }, or { - any - } { + a + } rule or order { + the
board + } adopted { - thereunder - } { + or issued under ORS
673.615, 673.643 or 673.705 or section 2, 3, 4 or 6 of this 2011
Act + }. The civil penalty may not exceed $5,000 per violation.
(7) To formulate a code of professional conduct for tax
consultants and tax preparers. { + As part of the code of
professional conduct, the board shall state that a licensee
acting as a facilitator violates the code of professional conduct
if the licensee charges a fee for the licensee's benefit in
connection with offering or facilitating a refund anticipation
loan or refund anticipation payment instrument or if the licensee
facilitates a loan for which the annual percentage rate,
calculated and disclosed as provided in section 4 (1)(b) of this
2011 Act, exceeds 36 percent. + }
(8) To assess against the licensee or any other person found
guilty of violating { - any - } { + a + } provision of ORS
673.605 to 673.740, or { - any - } { + a + } rule or
order { + the board + } adopted { - thereunder - } { + or
issued under ORS 673.605 to 673.740 + }, in addition to any other
sanctions, the costs associated with the disciplinary or other
action { - taken by - } the board { + takes + }.
(9) To order that { - any person who has - } { + a person
that + } engaged in or is engaging in { - any - } { + a + }
violation of ORS 673.605 to 673.740, or { - any - } { + a + }
rule or order { + the board + } adopted { - thereunder - }
{ + or issued under ORS 673.605 to 673.740 + }, shall offer to
rescind and pay restitution to { - anyone - } { + a
person + } harmed by the violation { - who - } { + that + }
seeks rescission.
(10) To adopt rules pursuant to ORS chapter 183 necessary to
carry out the provisions of ORS 673.605 to 673.740.
SECTION 13. ORS 673.990 is amended to read:
673.990. (1) Violation of any of the provisions of ORS 673.310,
673.320, 673.345 or 673.350 is a Class A misdemeanor. Whenever
the Oregon Board of Accountancy has reason to believe that any
person is liable to punishment under this subsection it may
certify the facts to the Attorney General, who may, in the
discretion of the Attorney General, cause appropriate proceedings
to be brought.
(2) Violation of { - any provision of ORS 673.605 to 673.740,
or any rule adopted thereunder - } { + a provision of ORS
673.615 (1) or (2), 673.643, 673.660, 673.663, 673.690 or
673.705, or a rule or order adopted or issued by the State Board
of Tax Practitioners under ORS 673.615 (1) or (2), 673.643,
673.660, 673.663, 673.690 or 673.705 + }, is a { + Class A + }
misdemeanor.
SECTION 14. ORS 646.608 is amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under ORS chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
(y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
(z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.
(aa) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(bb) Violates ORS 646A.070 (1).
(cc) Violates any requirement of ORS 646A.030 to 646A.040.
(dd) Violates the provisions of ORS 128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates ORS 646.569.
(gg) Violates the provisions of ORS 646A.142.
(hh) Violates ORS 646A.360.
(ii) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(jj) Violates ORS 646.563.
(kk) Violates ORS 759.690 or any rule adopted pursuant thereto.
(LL) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(mm) Violates ORS 646A.210 or 646A.214.
(nn) Violates any provision of ORS 646A.124 to 646A.134.
(oo) Violates ORS 646A.095.
(pp) Violates ORS 822.046.
(qq) Violates ORS 128.001.
(rr) Violates ORS 646.649 (2) to (4).
(ss) Violates ORS 646A.090 (2) to (4).
(tt) Violates ORS 87.686.
(uu) Violates ORS 646.651.
(vv) Violates ORS 646A.362.
(ww) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
(xx) Violates ORS 180.440 (1) or 180.486 (1).
(yy) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(zz) Violates ORS 87.007 (2) or (3).
(aaa) Violates ORS 92.405 (1), (2) or (3).
(bbb) Engages in an unlawful practice under ORS 646.648.
(ccc) Violates ORS 646A.365.
(ddd) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
(eee) Sells a gift card in violation of ORS 646A.276.
(fff) Violates ORS 646A.102, 646A.106 or 646A.108.
(ggg) Violates ORS 646A.430 to 646A.450.
(hhh) Violates a provision of ORS 744.318 to 744.384, 744.991
and 744.992.
(iii) Violates a provision of ORS 646A.702 to 646A.720.
(jjj) Violates ORS 646A.530 30 or more days after a recall
notice, warning or declaration described in ORS 646A.530 is
issued for the children's product, as defined in ORS 646A.525,
that is the subject of the violation.
(kkk) Violates a provision of ORS 697.612, 697.642, 697.652,
697.662, 697.682, 697.692 or 697.707.
(LLL) Violates the consumer protection provisions of the
Servicemembers Civil Relief Act, 50 U.S.C. App. 501 et seq., as
in effect on January 1, 2010.
(mmm) Violates a provision of ORS 646A.480 to 646A.495.
(nnn) Violates ORS 646A.082.
(ooo) Violates ORS 646.647.
(ppp) Violates ORS 646A.115.
(qqq) Violates a provision of ORS 646A.405.
{ + (rrr) Violates a provision of section 2, 3, 4 or 6 of
this 2011 Act or a rule or order of the State Board of Tax
Practitioners adopted or issued under section 2, 3, 4 or 6 of
this 2011 Act. + }
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
(5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection (1)(xx)
of this section by a person other than a prosecuting attorney,
relief is limited to an injunction and the prevailing party may
be awarded reasonable attorney fees.
SECTION 15. { + ORS 673.712 is repealed. + }
SECTION 16. { + Sections 2 to 7 of this 2011 Act, the
amendments to ORS 646.608, 673.605, 673.610, 673.615, 673.700,
673.730 and 673.990 by sections 8 to 14 of this 2011 Act and the
repeal of ORS 673.712 by section 15 of this 2011 Act apply to the
activities of facilitators and lenders, as defined in ORS
673.605, that conduct business on or after the operative date set
forth in section 17 (1) of this 2011 Act. + }
SECTION 17. { + (1) Sections 2 to 7 of this 2011 Act, the
amendments to ORS 646.608, 673.605, 673.610, 673.615, 673.700,
673.730 and 673.990 by sections 8 to 14 of this 2011 Act and the
repeal of ORS 673.712 by section 15 of this 2011 Act become
operative on January 1, 2012.
(2) The State Board of Tax Practitioners may adopt rules or
take any action before the operative date set forth in subsection
(1) of this section that is necessary to enable the board to
exercise, on and after the operative date set forth in subsection
(1) of this section, all the duties, functions and powers
conferred upon the board by sections 2 to 7 of this 2011 Act and
the amendments to ORS 646.608, 673.605, 673.610, 673.615,
673.700, 673.730 and 673.990 by sections 8 to 14 of this 2011
Act. + }
SECTION 18. { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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