Senate Bill 1366c1

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    Florida Senate - 2000                           CS for SB 1366

    By the Committee on Fiscal Resource and Senator Klein





    314-1905-00

  1                      A bill to be entitled

  2         An act relating to tax administration; amending

  3         s. 120.80, F.S.; providing for the court to

  4         award attorney's fees and costs, as specified,

  5         when a taxpayer contests an assessment of tax,

  6         penalty, or interest or the denial of a refund

  7         with respect to any tax imposed under ch. 212,

  8         F.S., under the Administrative Procedure Act;

  9         amending s. 213.21, F.S.; specifying the time

10         period within which the Department of Revenue

11         shall issue a notice of decision when a

12         taxpayer contests such an assessment, penalty,

13         or interest or refund denial using informal

14         conference procedures; providing an effective

15         date.

16

17  Be It Enacted by the Legislature of the State of Florida:

18

19         Section 1.  Paragraph (b) of subsection (14) of section

20  120.80, Florida Statutes, is amended to read:

21         120.80  Exceptions and special requirements;

22  agencies.--

23         (14)  DEPARTMENT OF REVENUE.--

24         (b)  Taxpayer contest proceedings.--

25         1.  In any administrative proceeding brought pursuant

26  to this chapter as authorized by s. 72.011(1), the taxpayer

27  shall be designated the "petitioner" and the Department of

28  Revenue shall be designated the "respondent," except that for

29  actions contesting an assessment or denial of refund under

30  chapter 207, the Department of Highway Safety and Motor

31  Vehicles shall be designated the "respondent," and for actions

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    Florida Senate - 2000                           CS for SB 1366
    314-1905-00




  1  contesting an assessment or denial of refund under chapters

  2  210, 550, 561, 562, 563, 564, and 565, the Department of

  3  Business and Professional Regulation shall be designated the

  4  "respondent."

  5         2.  In any such administrative proceeding, the

  6  applicable department's burden of proof, except as otherwise

  7  specifically provided by general law, shall be limited to a

  8  showing that an assessment has been made against the taxpayer

  9  and the factual and legal grounds upon which the applicable

10  department made the assessment.

11         3.a.  Prior to filing a petition under this chapter,

12  the taxpayer shall pay to the applicable department the amount

13  of taxes, penalties, and accrued interest assessed by that

14  department which are not being contested by the taxpayer.

15  Failure to pay the uncontested amount shall result in the

16  dismissal of the action and imposition of an additional

17  penalty of 25 percent of the amount taxed.

18         b.  The requirements of s. 72.011(2) and (3)(a) are

19  jurisdictional for any action under this chapter to contest an

20  assessment or denial of refund by the Department of Revenue,

21  the Department of Highway Safety and Motor Vehicles, or the

22  Department of Business and Professional Regulation.

23         4.  Except as provided in s. 220.719, further

24  collection and enforcement of the contested amount of an

25  assessment for nonpayment or underpayment of any tax,

26  interest, or penalty shall be stayed beginning on the date a

27  petition is filed. Upon entry of a final order, an agency may

28  resume collection and enforcement action.

29         5.  The prevailing party, in a proceeding under ss.

30  120.569 and 120.57 authorized by s. 72.011(1), may recover all

31  legal costs incurred in such proceeding, including reasonable

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    Florida Senate - 2000                           CS for SB 1366
    314-1905-00




  1  attorney's fees, if the losing party fails to raise a

  2  justiciable issue of law or fact in its petition or response.

  3         6.  Upon review pursuant to s. 120.68 of final agency

  4  action concerning an assessment of tax, penalty, or interest

  5  with respect to a tax imposed under chapter 212, or the denial

  6  of a refund of any tax imposed under chapter 212, if the court

  7  finds that the Department of Revenue improperly rejected or

  8  modified a conclusion of law, the court may award reasonable

  9  attorney's fees and reasonable costs of the appeal to the

10  prevailing appellant.

11         Section 2.  Paragraph (d) is added to subsection (1) of

12  section 213.21, Florida Statutes, to read:

13         213.21  Informal conferences; compromises.--

14         (1)(a)  The Department of Revenue may adopt rules for

15  establishing informal conference procedures within the

16  department for resolution of disputes relating to assessment

17  of taxes, interest, and penalties and the denial of refunds,

18  and for informal hearings under ss. 120.569 and 120.57(2).

19         (b)  The statute of limitations upon the issuance of

20  final assessments shall be tolled during the period in which

21  the taxpayer is engaged in a procedure under this section.

22         (c)  During procedures under this section, the taxpayer

23  has the right to be represented at the taxpayer's cost and to

24  record procedures electronically or manually at the taxpayer's

25  cost.

26         (d)  Upon receipt of a notice of proposed assessment or

27  denial of a claim for refund, a taxpayer may initiate an

28  informal proceeding under this section by filing a timely

29  written protest with the department. The department shall

30  notify the taxpayer within 14 days after receipt of the

31  protest that it has been received by the department and the

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    Florida Senate - 2000                           CS for SB 1366
    314-1905-00




  1  date of its receipt. If a protest involves a dispute relating

  2  to an assessment of taxes, interest, or penalty imposed under

  3  chapter 212 or a denial of a refund claim related to taxes

  4  imposed under chapter 212, the department shall have 150 days

  5  following receipt of the taxpayer's written protest in which

  6  to issue a notice of decision. If the department does not

  7  issue its notice of decision within 150 days, interest will

  8  not accrue on any assessment that is the subject of the

  9  protest during the period beginning at the expiration of the

10  150 days and ending on the date the department issues its

11  notice of decision; however, that interest will continue to

12  accrue during that period if the reason for the department's

13  failure is a request by the taxpayer for an extension of time.

14  Any agreement by the department and the taxpayer concerning

15  mutual consent to an extension must be in writing and must

16  state whether or not interest will continue to accrue during

17  the extension period.

18         Section 3.  This act shall take effect upon becoming a

19  law.

20

21          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
22                             SB 1366

23

24  This committee substitute removes language that takes final
    order authority from the Department of Revenue in sales tax
25  cases and replaces it with a provision that awards attorneys
    fees in cases where the court finds that the department
26  improperly rejected or modified the conclusions of law in a
    recommended order issued by an administrative law judge.
27
    This bill also removed language requiring the department to
28  issue a notice of decision within 150 days of the filing of a
    protest in a sales tax assessment. It adds a provision that
29  stops accrual of additional interest on an assessment if the
    department does not issue a notice of decision within 150
30  days, unless the extension was at the request of the taxpayer.

31

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