SRC-PNG H.B. 2543 76(R)   BILL ANALYSIS


Senate Research Center   H.B. 2543
By: McCall (Armbrister)
Administration
5/11/1999
Engrossed


DIGEST 

The Tax Code does not clearly state the standards to be used when
deliberating a penalty waiver request by a taxpayer in either an audit or
non-audit situation, or in taking a filing position with respect to a tax
report.  Section 111.061, Tax Code, imposes a mandatory penalty on tax
underpayments that do not exceed 10 percent of the tax owed to the
comptroller of public accounts (comptroller). However, if the taxpayer
exercised "reasonable diligence" to comply with the tax laws, a waiver of
the penalty is available under Section 111.103, Tax Code.  There is no
statutory definition of "reasonable diligence" to guide the taxpayer.   

A taxpayer is required regularly to file a tax return contemporaneous with,
or prior to, the Texas court's final resolution of a tax issue involving
another taxpayer.  The taxpayer is forced to choose between a conservative
filing position that may result in an overpayment of taxes without any
interest available for an overpayment, and an aggressive filing position
that will automatically result in penalties and interest.  Historically,
the comptroller has not considered this taxpayer dilemma when deliberating
penalty waiver requests.  A taxpayer may have a reasonable interpretation
of the statute, regulation, or policy that differs from the comptroller's
interpretation.  The taxpayer should not be penalized for taking such a
position if there is appropriate authority for the position taken, or in
the instance in which a taxpayer has limited authority, the position is
fully disclosed on the return. This bill would define "reasonable
diligence" to include a "substantial authority" standard similar to the
federal standard contained in the U.S. Internal Revenue Code, and would
provide for adequate disclosure of the relevant facts affecting an item's
tax treatment in the tax return or report, similar to the federal
disclosure standards in the U.S. Internal Revenue Code. 

PURPOSE

As proposed, H.B. 2543 defines "reasonable diligence" to include a
"substantial authority" standard similar to the federal standard contained
in the U.S. Internal Revenue Code, and provides for adequate disclosure of
the relevant facts affecting an item's tax treatment in the tax return or
report, similar to the federal disclosure standards in the U.S. Internal
Revenue Code. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 11.103, Tax Code, by adding Subsections (b) and
(c), to provide that a taxpayer exercises reasonable diligence to comply
with the provisions of this title in relation to a tax item when the
taxpayer acts in good faith with respect to that item and substantial
authority for the tax treatment of that item by the taxpayer existed at the
time the claim is settled, or the taxpayer adequately discloses the
relevant facts affecting the item's tax treatment in the report or in a
statement attached to the report and there is a reasonable basis for that
tax treatment.  Defines "substantial authority" and "reasonable basis." 

SECTION 2. (a) Effective date: The first day of the first calendar quarter
beginning on or after the earliest date that it may take effect under
Section 39, Article III, Texas Constitution. 

(b) Makes application of this Act prospective.

SECTION 3. Emergency clause.