Bill Text: TX HB2488 | 2013-2014 | 83rd Legislature | Introduced
Bill Title: Relating to the establishment of an independent agency to function as a tax tribunal.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2013-04-29 - Left pending in committee [HB2488 Detail]
Download: Texas-2013-HB2488-Introduced.html
By: Taylor | H.B. No. 2488 |
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relating to the establishment of an independent agency to function | ||
as a tax tribunal. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Amending Tax Code, Title 2, to add Chapter 114, | ||
to read as follows: | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 114.001. SHORT TITLE. This chapter may be called the | ||
Tax Tribunal Act. | ||
Sec. 114.002. DEFINITIONS. As used in this Chapter: | ||
(a) "Authorized representative" means: | ||
(1) an attorney admitted to practice in this State, or | ||
any other jurisdiction of the United States, including an attorney | ||
who is a partner or member of, or is employed by, an accounting or | ||
other professional services firm; | ||
(2) an accountant licensed in this State or any other | ||
jurisdiction of the United States; | ||
(3) an enrolled agent authorized to practice before | ||
the Internal Revenue Service; | ||
(4) an officer, employee, partner or member of the | ||
taxpayer; or | ||
(5) any other person authorized in writing by the | ||
taxpayer to represent it before the tribunal. | ||
(b) "Tribunal" means the Tax Tribunal established by this | ||
Chapter. | ||
SUBCHAPTER B. ESTABLISHMENT, JUDGES, AND EMPLOYEES | ||
Sec. 114.051. The Tax Tribunal. (a) There is hereby | ||
established the Tax Tribunal. | ||
(b) The tribunal is an independent agency. | ||
(c) The tribunal shall officially exist on and after | ||
September 1, 2013; however, the tribunal shall have the authority | ||
to take any action prior to September 1, 2013 that is necessary for | ||
the tribunal to properly exercise its powers on and after September | ||
1, 2013. | ||
Sec. 114.052. JUDGES. (a) The tribunal shall consist of at | ||
least one judge. Additional judges may be appointed pursuant to | ||
this section. | ||
(b) Judges shall be appointed by the Governor for a term of | ||
six years. If the tribunal has more than one judge, the initial | ||
terms shall be staggered so that all judges' terms do not expire in | ||
the same year. Under no circumstances shall a judge's initial term | ||
exceed six years. | ||
(c) Each judge shall receive an annual salary as provided in | ||
section 659.012(a)(1) of the Government Code. | ||
(d) Once appointed, each judge shall continue in office | ||
until his or her term expires and until a successor has been | ||
appointed. | ||
(e) If, for any reason, a judge does not fulfill his or her | ||
term, the Governor shall appoint a replacement judge, who will | ||
complete the unexpired portion of the term. | ||
(f) The Governor may remove a judge, after notice and an | ||
opportunity to be heard, for neglect of duty, inability to perform | ||
duties, malfeasance in office, or other good cause. | ||
(g) A judge may disqualify or recuse himself or herself on | ||
his or her own motion, or on the motion of any party, in any matter, | ||
and shall be disqualified or recused as provided in the Texas Code | ||
of Judicial Conduct and rules 18a and 18b of the Texas Rules of | ||
Civil Procedure. | ||
Sec. 114.053. QUALIFICATIONS OF JUDGES. (a) Each judge of | ||
the tribunal shall: | ||
(1) be a citizen of this State; and | ||
(2) possess substantial knowledge of the tax law and | ||
substantial experience representing taxpayers in tax cases. | ||
(b) Each judge is subject to and shall follow the Texas Code | ||
of Judicial Conduct. | ||
(c) Each judge shall devote his or her full time during | ||
business hours to the duties of his or her office. Each judge shall | ||
not engage in any other gainful employment or business, nor hold | ||
another office or position of profit in a government of this State, | ||
any other State, or the United States. Notwithstanding these | ||
prohibitions, a judge may own passive interests in business | ||
entities and may earn income from incidental teaching, publishing, | ||
or scholarly activities. | ||
Sec. 114.054. CLERK, REPORTERS, AND OTHER EMPLOYEES. (a) | ||
The tribunal shall appoint a clerk and a reporter, employ | ||
additional personnel, and make such other expenditures, including | ||
expenditures for libraries, publications, and equipment, as are | ||
necessary to permit it to efficiently execute its functions. | ||
(b) The reporter shall be appointed pursuant, and subject | ||
to, the provisions of Section 52.021, Government Code. | ||
(c) No employee of the tribunal shall act as attorney, | ||
representative, or accountant for others in any matter involving | ||
any tax imposed or levied by this State or political subdivision of | ||
this State. | ||
(d) In addition to the services of the official reporter, | ||
the tribunal may contract the reporting of its proceedings and, in | ||
the contract, fix the terms and conditions under which transcripts | ||
will be supplied by the contractor to the tribunal and to other | ||
persons and agencies. | ||
SUBCHAPTER C. JURISDICTION AND VENUE | ||
Sec. 114.101. JURISDICTION. (a) The tribunal shall hear | ||
all cases in relation to the collection, receipt, administration, | ||
and enforcement of: | ||
(1) a tax imposed under this title; and | ||
(2) any other tax, fee, or other amount that the | ||
comptroller is required to collect, receive, administer, or enforce | ||
under a law not included in this title. | ||
(b) Payment of the tax, penalty, or interest identified in a | ||
deficiency determination under section 111.008 of the Tax Code is | ||
not required to initiate a proceeding with the tribunal. | ||
(c) The tribunal shall not have the power to determine the | ||
constitutionality of the tax statutes or rules of this State. | ||
Sec. 114.102. VENUE. (a) All hearings conducted by the | ||
tribunal shall be at its offices in Austin, Texas. | ||
Sec. 114.103. COMMENCEMENT OF PROCEEDINGS. (a) A taxpayer | ||
may initiate a proceeding before the tribunal by filing a petition | ||
on or before the expiration of 60 days following the date of the | ||
comptroller's: | ||
(1) deficiency determination issued pursuant to | ||
section 111.008 of the Tax Code; | ||
(2) denial of a refund claim filed pursuant to section | ||
111.104 of the Tax Code; or | ||
(3) other notice or demand assessing a tax, fee, | ||
penalty, interest, or other amount administered by the comptroller. | ||
(b) A petition filed under subsection (a) of this section | ||
shall name the comptroller as respondent in his or her official | ||
capacity, and be served on the comptroller in a manner prescribed by | ||
rule 21a of the Texas Rules of Civil Procedure. | ||
(c) The comptroller shall file its answer with the tribunal | ||
no later than 30 days after service of the petition, and serve a | ||
copy on the taxpayer and its representative, if any, in a manner | ||
prescribed by rule 21a of the Texas Rules of Civil Procedure. | ||
(d) The petition shall be in a form as prescribed by the | ||
tribunal. | ||
Sec. 114.104. NO ELECTION OF REMEDIES. (a) Filing a | ||
petition under Tax Code section 114.103 does not prejudice a | ||
taxpayer's right to file suit pursuant to the provisions of Chapter | ||
112 of the Tax Code. | ||
SUBCHAPTER D. DISCOVERY AND HEARINGS | ||
Sec. 114.151. APPLICATION OF THE TEXAS RULES OF CIVIL | ||
PROCEDURE. (a) Unless otherwise provided in this Act, the | ||
provisions of the Texas Rules of Civil Procedure shall apply to all | ||
aspects of proceedings before the tribunal; provided, however, that | ||
the tribunal may, by rule or by order in a particular proceeding, | ||
modify the Texas Rules of Civil Procedure to fairly and efficiently | ||
resolve disputes between the parties. | ||
Sec. 114.152. DISCOVERY; SUBPOENAS. (a) The parties to a | ||
proceeding are entitled to the forms of discovery provided in rules | ||
190 through 215 of the Texas Rules of Civil Procedure; however, the | ||
parties to a proceeding shall make every effort to conduct | ||
discovery by informal consultation or communication. | ||
(b) A judge of the tribunal shall have the power to rule on | ||
discovery matters presented by the parties to a proceeding. | ||
(c) A judge or 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. | ||
(d) Any employee of the tribunal designated in writing for | ||
such purpose by a tribunal judge may administer oaths. | ||
(e) Any witness who is subpoenaed or whose deposition is | ||
taken shall receive the same fees established in section 22.001 of | ||
the Civil Practice and Remedies Code. | ||
(f) A judge of the tribunal shall have the power granted to | ||
the courts of this State under section 21.002 of the Government Code | ||
to enforce compliance with a subpoena issued under this section. | ||
Sec. 114.153. SUMMARY DISPOSITION. (a) Any party to a | ||
proceeding may file a motion for summary disposition. | ||
(b) The judge shall grant a motion for summary disposition | ||
if the evidence before him or her establishes that there is no | ||
genuine issue as to any material fact and that the moving party is | ||
entitled to a decision in its favor as a matter of law. | ||
(c) A movant shall file its motion for summary disposition | ||
at least 30 days before the date of the hearing on the merits. The | ||
motion must include: | ||
(1) a separate statement that sets forth plainly and | ||
concisely all material facts that the moving party contends are | ||
undisputed; | ||
(2) a clear and specific reference to the evidence | ||
supporting the facts that the moving party contends are undisputed; | ||
and | ||
(3) copies the evidence supporting the facts that the | ||
moving party contends are undisputed. | ||
(d) The non-moving party may file a response within 14 days | ||
of receipt of the motion for summary disposition. The response | ||
must: | ||
(1) include a separate statement | ||
(A) addressing each of the material facts that | ||
the moving party contends are undisputed; and | ||
(B) indicating whether the non-moving party | ||
agrees or disagrees that the facts are undisputed; | ||
(2) plainly and concisely set forth any other material | ||
facts that the non-moving party contends are disputed; | ||
(3) clearly and specifically refer to evidence | ||
supporting the material facts that the non-moving party contends | ||
are disputed; and | ||
(4) object to the form of the motion and to the | ||
evidence. | ||
(e) The moving party may file a response within 7 days of | ||
receipt of the non-moving party's response. The reply must include | ||
objections to the form of the response and to the evidence. | ||
Sec. 114.154. HEARINGS. (a) Hearings before the tribunal | ||
shall be de novo. | ||
(b) Hearings are confidential and are not open to the | ||
public. | ||
(c) Unless provided otherwise in this Act or in rules | ||
promulgated by the tribunal, hearings shall be conducted according | ||
to the Texas Rules of Civil Procedure governing nonjury civil cases | ||
in the district courts of this State. | ||
(d) The tribunal shall take evidence, conduct hearings, | ||
rule on motions, and issue final decisions. | ||
(e) The rules of evidence as applied in a nonjury civil case | ||
in a district court of this State shall apply to a proceeding before | ||
the tribunal except that evidence inadmissible under those rules | ||
may be admitted, at the discretion of the judge, if the evidence is: | ||
(1) necessary to ascertain facts not reasonably | ||
susceptible of proof under those rules; | ||
(2) not precluded by statute; and | ||
(3) of a type on which a reasonably prudent person | ||
commonly relies in the conduct of the person's affairs. | ||
(f) Testimony may be given only on oath or affirmation. | ||
(g) In the case of an issue of fact: | ||
(1) the burden of proof is on the comptroller: | ||
(A) by a preponderance of the evidence, if the | ||
issue is whether the suspension or revocation of a license is | ||
warranted; or | ||
(B) by clear and convincing evidence, if the | ||
issue is whether the imposition of additional penalty for willful | ||
or fraudulent failure to pay tax is warranted; | ||
(2) the burden of proof is on the taxpayer: | ||
(A) by a preponderance of the evidence, if | ||
contesting an action, or proposed action, of the comptroller; or | ||
(B) by clear and convincing evidence, if claiming | ||
a transaction is exempt from taxation. | ||
SUBCHAPTER E. DECISIONS | ||
Sec. 114.201. AUTHORITY. (a) A decision by a judge of the | ||
tribunal shall be deemed to be the decision of the tribunal. | ||
Sec. 114.202. DECISION TO BE IN WRITING. (a) The tribunal | ||
shall render its decision in writing, including a concise statement | ||
of the facts found and the conclusions of law reached. All | ||
decisions shall grant such relief, invoke such remedies, and issue | ||
such orders as the tribunal deems appropriate to carry out its | ||
orders and decisions. The tribunal shall promptly mail a notice of | ||
its decision to the taxpayer and the comptroller. | ||
(b) The tribunal shall render its decision no later than 90 | ||
days after the submission of the last brief filed subsequent to the | ||
completion of the hearing or, if briefs are not submitted, then no | ||
later than 90 days after completion of the hearing. The tribunal | ||
may extend the 90 day period, for good cause, up to 30 additional | ||
days. | ||
(c) If the tribunal fails to render its decision by the | ||
applicable deadlines established in subsection (b) of this section, | ||
the tribunal is deemed to have ruled against the taxpayer on all | ||
issues. | ||
(d) The tribunal's decision shall finally decide the | ||
matters in controversy, unless the taxpayer timely appeals the | ||
decision as provided in section 114.251 of this Act. | ||
(e) The tribunal shall adhere to the principle of stare | ||
decisis. The tribunal'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 the tribunal in | ||
subsequent cases involving similar facts, unless the tribunal's | ||
interpretation or application conflicts with that of a district or | ||
appellate court or the tribunal provides satisfactory reasons for | ||
departing from prior precedent. | ||
(f) A decision of the tribunal shall become final 45 days | ||
after the issuance of a notice of decision or 45 days after the | ||
tribunal fails to issue a decision as provided in section | ||
141.202(c). | ||
Sec. 114.203. PUBLICATION OF DECISIONS; CONFIDENTIALITY. | ||
(a) A final decision of the tribunal shall be indexed and published | ||
in print or electronic form as the tribunal deems best adapted for | ||
public convenience. | ||
(b) A published final decision shall comply with the | ||
confidentiality provisions of section 114.352 of this Act. | ||
(c) A published final decision shall not include the | ||
following types of information: | ||
(1) identity of the taxpayer and its employees; | ||
(2) taxpayer identification numbers; | ||
(3) trade secrets; | ||
(4) intellectual property; or | ||
(5) any other type of information that could possibly | ||
identify the taxpayer. | ||
SUBCHAPTER F. APPEALS | ||
Sec. 114.251. DE NOVO APPEAL TO THE DISTRICT COURT. (a) A | ||
taxpayer may appeal a final decision of the tribunal to the district | ||
courts of Travis County pursuant to Chapter 112 of the Tax Code. | ||
(b) The appeal under this section is de novo. | ||
(c) A taxpayer must appeal a final decision of the tribunal | ||
on or before the expiration of 30 days after the date the decision | ||
becomes final under section 114.202(f) of this Act. | ||
SUBCHAPTER G. REPRESENTATION | ||
Sec. 114.301. REPRESENTATIVES. (a) The comptroller shall | ||
be represented by its general counsel in all proceedings before the | ||
tribunal. | ||
(b) A taxpayer may represent itself, or may appear through | ||
its authorized representative in all proceedings before the | ||
tribunal. | ||
Sec. 114.302. PRACTICE OF LAW. (a) Under no circumstance | ||
shall representation of a taxpayer before the tribunal be | ||
considered the practice of law. | ||
SUBCHAPTER H. MISCELLANEOUS PROVISIONS | ||
Sec. 114.351. RULES AND FORMS. (a) The tribunal is | ||
authorized to promulgate and adopt all reasonable rules and forms | ||
as may be necessary or appropriate to carry out the intent and | ||
purposes of this Act. | ||
(b) Rules shall be adopted in accordance with the rulemaking | ||
procedures of Chapter 2001 of the Government Code. | ||
Sec. 114.352. CONFIDENTIALITY. All information received by | ||
the tribunal as a result of a hearing conducted under the provisions | ||
of this Act shall be confidential as provided in section 111.006 of | ||
the Tax Code, and is not subject to disclosure under Chapter 552 of | ||
the Government Code. | ||
SECTION 2. Section 111.00455, Tax Code, is amended to read | ||
as follows: | ||
Sec. 111.00455. CONTESTED CASES CONDUCTED BY TAX TRIBUNAL. | ||
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tribunal [ |
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Chapter 114, [ |
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collection, receipt, administration, and enforcement of: | ||
(1) a tax imposed under this title; and | ||
(2) any other tax, fee, or other amount that the | ||
comptroller is required to collect, receive, administer, or enforce | ||
under a law not included in this title. | ||
(b) The following are not contested cases under Subsection | ||
(a) and Chapter 114, [ |
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(1) a show cause hearing or any hearing not related to | ||
the collection, receipt, administration, or enforcement of the | ||
amount of a tax or fee imposed, or the penalty or interest | ||
associated with that amount, except for a hearing under Section | ||
151.157(f), 151.1575(d), 151.712(g), 154.1142, or 155.0592; | ||
(2) a property value study hearing under Subchapter M, | ||
Chapter 403, Government Code; | ||
(3) a hearing in which the issue relates to: | ||
(A) Chapters 72-75, Property Code; | ||
(B) forfeiture of a right to do business; | ||
(C) a certificate of authority; | ||
(D) articles of incorporation; | ||
(E) a penalty imposed under Section 151.703(d); | ||
(F) the refusal or failure to settle under | ||
Section 111.101; or | ||
(G) a request for or revocation of an exemption | ||
from taxation; and | ||
(4) any other hearing not related to the collection, | ||
receipt, administration, or enforcement of the amount of a tax or | ||
fee imposed, or the penalty or interest associated with that | ||
amount. | ||
(c) A reference in law to the comptroller that relates to | ||
the performance of a contested case hearing described by Subsection | ||
(a) means the tribunal. [ |
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SECTION 3. Section 111.105(a), Tax Code, is amended to read | ||
as follows: | ||
Sec. 111.105. TAX REFUND: HEARING. (a) A person claiming a | ||
refund under Section 111.104 is entitled to a hearing on the claim | ||
if the person requests a hearing on or before the 60th [ |
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after the date the comptroller issues a letter denying the claim for | ||
refund. The person is entitled to 20 days' notice of the time and | ||
place of the hearing. | ||
SECTION 4. Subchapter D, Chapter 2003, Government Code, is | ||
repealed. | ||
SECTION 5. This Act takes effect September 1, 2013. |