Bill Text: TX HB3713 | 2013-2014 | 83rd Legislature | Introduced
Bill Title: Relating to the collection, administration, and enforcement of state taxes and fees.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2013-04-29 - No action taken in committee [HB3713 Detail]
Download: Texas-2013-HB3713-Introduced.html
By: Guerra | H.B. No. 3713 |
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relating to the collection, administration, and enforcement of | ||
state taxes and fees. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 111.009(b), Tax Code, is amended to read | ||
as follows: | ||
(b) A petition for redetermination must be filed before the | ||
expiration of 90 [ |
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the notice of determination is completed or the redetermination is | ||
barred. If a petition for redetermination is not filed before the | ||
expiration of the period provided by this subsection, the | ||
determination is final on the expiration of the period. | ||
SECTION 2. Sections 111.064(a) and (c), Tax Code, are | ||
amended to read as follows: | ||
(a) Except as [ |
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(c) [ |
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the rate [ |
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Section 111.060, and accrues on the amount found to be erroneously | ||
paid for a period: | ||
(1) beginning on the later of 60 days after the date of | ||
payment or the due date of the tax report; and | ||
(2) ending on, as determined by the comptroller, | ||
either the date of allowance of credit on account of the | ||
comptroller's final decision or audit or a date not more than 10 | ||
days before the date of the refund warrant. | ||
(c) For a refund claimed after [ |
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and before September 1, 2013, and granted for a report period due on | ||
or after January 1, 2000, the rate of interest is the rate that is | ||
the lesser of the annual rate of interest earned on deposits in the | ||
state treasury during December of the previous calendar year, as | ||
determined by the comptroller, or the rate set in Section 111.060. | ||
SECTION 3. Section 111.104, Tax Code, is amended by | ||
amending Subsections (a), (c), and (d) and adding Subsection (c-1) | ||
to read as follows: | ||
(a) If the comptroller finds that an amount of tax, penalty, | ||
or interest has been unlawfully or erroneously collected, the | ||
comptroller shall credit the amount against any other amount when | ||
due and payable by the taxpayer from whom the amount was collected. | ||
The remainder of the amount, if any, must [ |
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to the taxpayer from money appropriated for tax refund purposes. | ||
(c) A claim for a refund must: | ||
(1) be written; | ||
(2) state the [ |
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ground on which the claim is founded; and | ||
(3) be filed before the later of the: | ||
(A) expiration of the applicable limitation | ||
period as provided by this code; or | ||
(B) [ |
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notice of audit results indicating that no additional tax is due is | ||
issued [ |
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(c-1) Notwithstanding Subsection (c) or Sections 111.206(d) | ||
and 111.207(c), a claim for a refund may not be filed after the | ||
eighth anniversary of the date the tax was due. | ||
(d) [ |
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timely tax refund claim is a waiver of any demand against the state | ||
for an alleged overpayment. | ||
SECTION 4. Section 111.1042(b), Tax Code, is amended to | ||
read as follows: | ||
(b) An informal review under this section is not a hearing | ||
or contested case under Chapter 2001, Government Code, provided | ||
that an informal review of a refund claim is an administrative | ||
proceeding for purposes of this title. | ||
SECTION 5. Section 111.105(e), Tax Code, is amended to read | ||
as follows: | ||
(e) During the administrative hearing process, a person | ||
claiming a refund under Section 111.104 must submit documentation | ||
to enable the comptroller to verify the claim for refund. After | ||
discovery has been completed, the [ |
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notice of demand that all evidence to support the claim for refund | ||
must be produced before the expiration of a specified date in the | ||
notice. The specified date in the notice may not be earlier than | ||
180 days after the date of the notice [ |
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comptroller may not consider evidence produced after the specified | ||
date in the notice in an administrative hearing. The limitation | ||
provided by this subsection does not apply to a judicial proceeding | ||
filed in accordance with Chapter 112. | ||
SECTION 6. Section 111.107(a), Tax Code, is amended to read | ||
as follows: | ||
(a) Except as otherwise expressly provided, a person may | ||
request a refund or a credit or the comptroller may make a refund or | ||
issue a credit for the overpayment of a tax imposed by this title at | ||
any time before the expiration of the period during which the | ||
comptroller may assess a deficiency for the tax and not thereafter | ||
unless the refund or credit is requested: | ||
(1) under Subchapter B-1, [ |
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refund is made or the credit is issued under a court order; | ||
(2) under the provision of Section 111.104(c)(3) | ||
applicable to a refund claim filed after a jeopardy or deficiency | ||
determination becomes final; [ |
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(3) under Chapter 162, except Section 162.126(f), | ||
162.128(d), 162.228(f), or 162.230(d); or | ||
(4) without regard to the expiration of any period of | ||
limitation, at any time on or before the second anniversary of the | ||
date the comptroller issues a deficiency or jeopardy determination | ||
or the eighth anniversary of the date the tax was due, whichever is | ||
later, and the refund or credit is limited to the reporting periods | ||
for which the deficiency or jeopardy determination was issued. | ||
SECTION 7. Section 111.206, Tax Code, is amended by adding | ||
Subsection (c-1) and amending Subsection (d) to read as follows: | ||
(c-1) The comptroller's assessment or suit for collection | ||
authorized under this section shall be limited to the items and | ||
periods for which the final determination was issued. | ||
(d) If a final determination results in the taxpayer having | ||
overpaid the amount of tax due the state, the taxpayer may file a | ||
claim for refund with the comptroller for the amount of the | ||
overpayment before the first anniversary of the date the final | ||
determination becomes final. If the comptroller assesses tax by | ||
issuing a deficiency determination within the period provided by | ||
Subsection (c), the taxpayer may file a claim for refund for an | ||
amount of tax that has been found due in a deficiency determination | ||
before the 180th day after the deficiency determination becomes | ||
final[ |
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SECTION 8. Section 111.207, Tax Code, is amended to read as | ||
follows: | ||
Sec. 111.207. TOLLING OF LIMITATION PERIOD. (a) In | ||
determining the expiration date for a period when a tax imposed by | ||
this title may be assessed, collected, or refunded, the following | ||
periods are not considered: | ||
(1) the period following the date of a tax payment made | ||
under protest, but only if a lawsuit is timely filed in accordance | ||
with Chapter 112; | ||
(2) the period during which a judicial proceeding is | ||
pending in a court of competent jurisdiction to determine the | ||
amount of the tax due; | ||
(3) the period during which an administrative | ||
redetermination or refund proceeding [ |
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the comptroller; and | ||
(4) the period during which an indictment or | ||
information is pending for a felony offense related to the | ||
administration of the Tax Code against any taxpayer or any person | ||
personally liable or potentially personally liable for the payment | ||
of the tax under Section 111.0611. | ||
(b) [ |
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United States Code suspends the running of the period prescribed by | ||
any section of this title for the assessment or collection of any | ||
tax imposed by this title until the bankruptcy case is dismissed or | ||
closed. After the case is dismissed or closed, the running of the | ||
period resumes until finally expired. | ||
(c) In determining the expiration date for filing a refund | ||
claim for a tax imposed by this title, the period during which an | ||
administrative proceeding is pending before the comptroller or the | ||
State Office of Administrative Hearings for the same period and | ||
type of tax is not considered. | ||
SECTION 9. Chapter 112, Tax Code, is amended by adding | ||
Subchapter B-1 to read as follows: | ||
SUBCHAPTER B-1. SUITS TO CONTEND PAYMENT OF ANY TAX OR FEE COLLECTED | ||
BY COMPTROLLER | ||
Sec. 112.071. APPLICABILITY. This subchapter applies to | ||
any lawsuit to contend the payment of any tax or fee imposed by this | ||
title or collected by the comptroller under any law, including a | ||
local tax collected by the comptroller. | ||
Sec. 112.072. PAYMENT UNDER PROTEST NOT REQUIRED. (a) A | ||
person may not be required to pay a disputed tax under protest as a | ||
prerequisite to filing a lawsuit contending any tax or fee imposed | ||
by this title or collected by the comptroller under any law, | ||
including a local tax collected by the comptroller. | ||
(b) A person may not be required to pay a disputed tax as a | ||
prerequisite to an appeal. | ||
Sec. 112.073. NOTICE OF TAX ABATEMENT. (a) A person who | ||
wishes to file a lawsuit under this subchapter must first file a | ||
notice of tax abatement with the comptroller. | ||
(b) Abatement of the tax may not be refused, provided that | ||
the taxpayer satisfies the requirements of this subchapter and | ||
timely files a lawsuit. | ||
(c) The notice of tax abatement must be in writing on a form | ||
approved by the comptroller. | ||
(d) The notice of tax abatement must be filed with the | ||
comptroller within the period stated in Section 111.104(c)(3) for | ||
the filing of a refund claim. | ||
(e) A statement of the grounds that states fully and in | ||
detail each reason for contending the tax or fee that is the subject | ||
of the notice of tax abatement must accompany the notice of tax | ||
abatement. | ||
Sec. 112.074. LIMITATIONS. (a) Except as provided by | ||
Subsection (b), a suit under this subchapter must be filed before | ||
the 91st day after the date the notice of tax abatement was filed, | ||
or the suit is barred. | ||
(b) For the tax imposed under Chapter 171 for a regular | ||
annual period, if an extension is granted to the taxpayer under | ||
Section 171.202(c) for filing the report and the taxpayer files the | ||
report on or before the last date of the extension period, the | ||
notice of abatement of the tax required by this subchapter may be | ||
filed with the report to cover the entire amount of tax paid for the | ||
period, and the suit for the recovery of the entire amount of tax | ||
paid for the period may be filed before the 91st day after the date | ||
the report is filed. | ||
Sec. 112.075. CLASS ACTIONS. (a) This subchapter applies | ||
to a class action. | ||
(b) For purposes of this section, a class action includes a | ||
suit brought under this subchapter by at least two persons who have | ||
filed a notice of tax abatement as required by this subchapter. | ||
(c) In a class action brought under this subchapter, all | ||
taxpayers who are within the same class as the persons bringing the | ||
suit, who are represented in the class action, and who have abated | ||
payment of the disputed tax under this section are not required to | ||
file separate suits, but are entitled to and are governed by the | ||
decision rendered in the class action. | ||
Sec. 112.076. SUIT AGAINST PUBLIC OFFICIALS. A suit under | ||
this subchapter must be brought against the public officials | ||
charged with the duty of collecting the tax or fee, the comptroller, | ||
and the attorney general. | ||
Sec. 112.077. COPY OF WRITTEN STATEMENT OF GROUNDS. A copy | ||
of the written statement of grounds as originally filed with the | ||
notice of tax abatement must be attached to the original petition | ||
filed by the person contending the tax or fee with the court and to | ||
the copies of the original petition served on the comptroller, the | ||
attorney general, and the public official charged with the duty of | ||
collecting the tax or fee. | ||
Sec. 112.078. TRIAL DE NOVO. The trial of the issues in a | ||
lawsuit under this subchapter is de novo. | ||
SECTION 10. Subchapter C, Chapter 112, Tax Code, is amended | ||
by adding Section 112.10101 to read as follows: | ||
Sec. 112.10101. REQUIREMENTS BEFORE INJUNCTION. (a) An | ||
action for a restraining order or injunction that prohibits the | ||
assessment or collection of a tax or fee imposed by this title or | ||
collected by the comptroller under any law, including a local tax | ||
collected by the comptroller, or a statutory penalty assessed for | ||
the failure to pay the tax or fee may not be brought against the | ||
public official charged with the duty of collecting the tax or fee | ||
or a representative of the public official unless the applicant for | ||
the order or injunction first: | ||
(1) files with the attorney general not later than the | ||
fifth day before the date the action is filed a statement of the | ||
grounds on which the order or injunction is sought; and | ||
(2) files with the comptroller a written notice of | ||
abatement of tax on a form approved by the comptroller. | ||
(b) A person may not be required to pay a disputed tax or fee | ||
under protest or post a bond to guarantee the payment of any | ||
disputed tax or fee as a prerequisite to filing an action under this | ||
section. | ||
SECTION 11. Section 112.1011(a), Tax Code, is amended to | ||
read as follows: | ||
(a) A court may not issue a restraining order or consider | ||
the issuance of an injunction that prohibits the assessment or | ||
collection of an amount described by Section 112.10101(a) | ||
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demonstrates that: | ||
(1) irreparable injury will result to the applicant if | ||
the order or injunction is not granted; | ||
(2) no other adequate remedy is available to the | ||
applicant; and | ||
(3) the applicant has a reasonable possibility of | ||
prevailing on the merits of the claim. | ||
SECTION 12. Section 112.108, Tax Code, is amended to read as | ||
follows: | ||
Sec. 112.108. OTHER ACTIONS PROHIBITED. Except for a | ||
restraining order or injunction issued as provided by this | ||
subchapter, a court may not issue a restraining order, injunction, | ||
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requiring the payment of taxes or fees into the registry or custody | ||
of the court, or other similar legal or equitable relief against the | ||
state or a state agency relating to the applicability, assessment, | ||
collection, or constitutionality of a tax or fee covered by this | ||
subchapter or the amount of the tax or fee due[ |
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required by the circumstances. A grant of declaratory relief | ||
against the state or a state agency shall not entitle the winning | ||
party to recover attorney fees. | ||
SECTION 13. Section 151.508, Tax Code, is amended to read as | ||
follows: | ||
Sec. 151.508. OFFSETS. In making a determination, the | ||
comptroller shall [ |
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periods against an underpayment, penalty, and interest accrued on | ||
the underpayment for the same period or one or more other periods, | ||
provided the taxpayer may elect not to accept the offset. Any | ||
interest accrued on the overpayment shall be included in the | ||
offset. | ||
SECTION 14. Section 151.511(c), Tax Code, is amended to | ||
read as follows: | ||
(c) If an additional claim is asserted, the petitioner is | ||
entitled to a 90-day [ |
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the petitioner to obtain and present evidence applicable to the | ||
items on which the additional claim is based. | ||
SECTION 15. Section 403.202(a), Government Code, is amended | ||
to read as follows: | ||
(a) If a person who is required to pay to any department of | ||
the state government an occupation, excise, gross receipts, | ||
franchise, license, or privilege tax or fee, other than a tax or fee | ||
to which Subchapter B-1 [ |
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or other amount imposed under Subtitle A, Title 4, Labor Code, | ||
contends that the tax or fee is unlawful or that the department may | ||
not legally demand or collect the tax or fee, the person shall pay | ||
the amount claimed by the state, and if the person intends to bring | ||
suit under this subchapter, the person must submit with the payment | ||
a protest. | ||
SECTION 16. The following provisions of the Tax Code are | ||
repealed: | ||
(1) Section 111.1042(d); | ||
(2) Section 111.107(b); | ||
(3) Subchapter B, Chapter 112; | ||
(4) Section 112.101; and | ||
(5) Section 112.104. | ||
SECTION 17. (a) This Act applies only to a claim for a | ||
refund made on or after the effective date of this Act, without | ||
regard to whether the taxes that are the subject of the claim were | ||
due before, on, or after that date. | ||
(b) This Act, including Subchapter B-1, Chapter 112, Tax | ||
Code, as added by this Act, and Section 112.10101, Tax Code, as | ||
added by this Act, applies only to a lawsuit or action filed on or | ||
after the effective date of this Act. A lawsuit or action filed | ||
before the effective date of this Act is governed by the law | ||
applicable to the lawsuit or action immediately before the | ||
effective date of this Act, and that law is continued in effect for | ||
that purpose. | ||
SECTION 18. This Act takes effect September 1, 2013. |