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A BILL TO BE ENTITLED
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AN ACT
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relating to the establishment of an independent agency to function |
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as a tax tribunal. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Amending Tax Code, Title 2, to add Chapter 114, |
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to read as follows: |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 114.001. SHORT TITLE. This chapter may be called the |
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Tax Tribunal Act. |
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Sec. 114.002. DEFINITIONS. As used in this Chapter: |
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(a) "Authorized representative" means: |
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(1) an attorney admitted to practice in this State, or |
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any other jurisdiction of the United States, including an attorney |
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who is a partner or member of, or is employed by, an accounting or |
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other professional services firm; |
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(2) an accountant licensed in this State or any other |
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jurisdiction of the United States; |
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(3) an enrolled agent authorized to practice before |
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the Internal Revenue Service; |
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(4) an officer, employee, partner or member of the |
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taxpayer; or |
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(5) any other person authorized in writing by the |
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taxpayer to represent it before the tribunal. |
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(b) "Tribunal" means the Tax Tribunal established by this |
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Chapter. |
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SUBCHAPTER B. ESTABLISHMENT, JUDGES, AND EMPLOYEES |
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Sec. 114.051. The Tax Tribunal. (a) There is hereby |
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established the Tax Tribunal. |
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(b) The tribunal is an independent agency. |
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(c) The tribunal shall officially exist on and after |
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September 1, 2013; however, the tribunal shall have the authority |
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to take any action prior to September 1, 2013 that is necessary for |
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the tribunal to properly exercise its powers on and after September |
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1, 2013. |
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Sec. 114.052. JUDGES. (a) The tribunal shall consist of at |
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least one judge. Additional judges may be appointed pursuant to |
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this section. |
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(b) Judges shall be appointed by the Governor for a term of |
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six years. If the tribunal has more than one judge, the initial |
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terms shall be staggered so that all judges' terms do not expire in |
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the same year. Under no circumstances shall a judge's initial term |
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exceed six years. |
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(c) Each judge shall receive an annual salary as provided in |
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section 659.012(a)(1) of the Government Code. |
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(d) Once appointed, each judge shall continue in office |
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until his or her term expires and until a successor has been |
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appointed. |
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(e) If, for any reason, a judge does not fulfill his or her |
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term, the Governor shall appoint a replacement judge, who will |
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complete the unexpired portion of the term. |
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(f) The Governor may remove a judge, after notice and an |
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opportunity to be heard, for neglect of duty, inability to perform |
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duties, malfeasance in office, or other good cause. |
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(g) A judge may disqualify or recuse himself or herself on |
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his or her own motion, or on the motion of any party, in any matter, |
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and shall be disqualified or recused as provided in the Texas Code |
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of Judicial Conduct and rules 18a and 18b of the Texas Rules of |
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Civil Procedure. |
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Sec. 114.053. QUALIFICATIONS OF JUDGES. (a) Each judge of |
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the tribunal shall: |
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(1) be a citizen of this State; and |
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(2) possess substantial knowledge of the tax law and |
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substantial experience representing taxpayers in tax cases. |
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(b) Each judge is subject to and shall follow the Texas Code |
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of Judicial Conduct. |
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(c) Each judge shall devote his or her full time during |
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business hours to the duties of his or her office. Each judge shall |
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not engage in any other gainful employment or business, nor hold |
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another office or position of profit in a government of this State, |
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any other State, or the United States. Notwithstanding these |
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prohibitions, a judge may own passive interests in business |
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entities and may earn income from incidental teaching, publishing, |
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or scholarly activities. |
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Sec. 114.054. CLERK, REPORTERS, AND OTHER EMPLOYEES. (a) |
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The tribunal shall appoint a clerk and a reporter, employ |
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additional personnel, and make such other expenditures, including |
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expenditures for libraries, publications, and equipment, as are |
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necessary to permit it to efficiently execute its functions. |
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(b) The reporter shall be appointed pursuant, and subject |
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to, the provisions of Section 52.021, Government Code. |
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(c) No employee of the tribunal shall act as attorney, |
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representative, or accountant for others in any matter involving |
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any tax imposed or levied by this State or political subdivision of |
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this State. |
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(d) In addition to the services of the official reporter, |
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the tribunal may contract the reporting of its proceedings and, in |
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the contract, fix the terms and conditions under which transcripts |
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will be supplied by the contractor to the tribunal and to other |
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persons and agencies. |
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SUBCHAPTER C. JURISDICTION AND VENUE |
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Sec. 114.101. JURISDICTION. (a) The tribunal shall hear |
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all cases in relation to the collection, receipt, administration, |
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and enforcement of: |
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(1) a tax imposed under this title; and |
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(2) any other tax, fee, or other amount that the |
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comptroller is required to collect, receive, administer, or enforce |
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under a law not included in this title. |
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(b) Payment of the tax, penalty, or interest identified in a |
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deficiency determination under section 111.008 of the Tax Code is |
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not required to initiate a proceeding with the tribunal. |
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(c) The tribunal shall not have the power to determine the |
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constitutionality of the tax statutes or rules of this State. |
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Sec. 114.102. VENUE. (a) All hearings conducted by the |
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tribunal shall be at its offices in Austin, Texas. |
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Sec. 114.103. COMMENCEMENT OF PROCEEDINGS. (a) A taxpayer |
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may initiate a proceeding before the tribunal by filing a petition |
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on or before the expiration of 60 days following the date of the |
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comptroller's: |
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(1) deficiency determination issued pursuant to |
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section 111.008 of the Tax Code; |
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(2) denial of a refund claim filed pursuant to section |
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111.104 of the Tax Code; or |
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(3) other notice or demand assessing a tax, fee, |
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penalty, interest, or other amount administered by the comptroller. |
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(b) A petition filed under subsection (a) of this section |
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shall name the comptroller as respondent in his or her official |
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capacity, and be served on the comptroller in a manner prescribed by |
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rule 21a of the Texas Rules of Civil Procedure. |
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(c) The comptroller shall file its answer with the tribunal |
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no later than 30 days after service of the petition, and serve a |
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copy on the taxpayer and its representative, if any, in a manner |
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prescribed by rule 21a of the Texas Rules of Civil Procedure. |
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(d) The petition shall be in a form as prescribed by the |
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tribunal. |
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Sec. 114.104. NO ELECTION OF REMEDIES. (a) Filing a |
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petition under Tax Code section 114.103 does not prejudice a |
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taxpayer's right to file suit pursuant to the provisions of Chapter |
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112 of the Tax Code. |
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SUBCHAPTER D. DISCOVERY AND HEARINGS |
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Sec. 114.151. APPLICATION OF THE TEXAS RULES OF CIVIL |
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PROCEDURE. (a) Unless otherwise provided in this Act, the |
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provisions of the Texas Rules of Civil Procedure shall apply to all |
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aspects of proceedings before the tribunal; provided, however, that |
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the tribunal may, by rule or by order in a particular proceeding, |
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modify the Texas Rules of Civil Procedure to fairly and efficiently |
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resolve disputes between the parties. |
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Sec. 114.152. DISCOVERY; SUBPOENAS. (a) The parties to a |
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proceeding are entitled to the forms of discovery provided in rules |
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190 through 215 of the Texas Rules of Civil Procedure; however, the |
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parties to a proceeding shall make every effort to conduct |
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discovery by informal consultation or communication. |
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(b) A judge of the tribunal shall have the power to rule on |
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discovery matters presented by the parties to a proceeding. |
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(c) A judge or clerk of the tribunal, on the request of any |
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party to the proceeding, shall issue subpoenas requiring the |
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attendance of witnesses and giving of testimony and subpoenas |
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requiring the production of evidence or things. |
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(d) Any employee of the tribunal designated in writing for |
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such purpose by a tribunal judge may administer oaths. |
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(e) Any witness who is subpoenaed or whose deposition is |
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taken shall receive the same fees established in section 22.001 of |
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the Civil Practice and Remedies Code. |
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(f) A judge of the tribunal shall have the power granted to |
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the courts of this State under section 21.002 of the Government Code |
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to enforce compliance with a subpoena issued under this section. |
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Sec. 114.153. SUMMARY DISPOSITION. (a) Any party to a |
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proceeding may file a motion for summary disposition. |
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(b) The judge shall grant a motion for summary disposition |
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if the evidence before him or her establishes that there is no |
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genuine issue as to any material fact and that the moving party is |
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entitled to a decision in its favor as a matter of law. |
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(c) A movant shall file its motion for summary disposition |
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at least 30 days before the date of the hearing on the merits. The |
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motion must include: |
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(1) a separate statement that sets forth plainly and |
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concisely all material facts that the moving party contends are |
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undisputed; |
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(2) a clear and specific reference to the evidence |
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supporting the facts that the moving party contends are undisputed; |
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and |
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(3) copies the evidence supporting the facts that the |
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moving party contends are undisputed. |
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(d) The non-moving party may file a response within 14 days |
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of receipt of the motion for summary disposition. The response |
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must: |
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(1) include a separate statement |
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(A) addressing each of the material facts that |
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the moving party contends are undisputed; and |
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(B) indicating whether the non-moving party |
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agrees or disagrees that the facts are undisputed; |
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(2) plainly and concisely set forth any other material |
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facts that the non-moving party contends are disputed; |
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(3) clearly and specifically refer to evidence |
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supporting the material facts that the non-moving party contends |
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are disputed; and |
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(4) object to the form of the motion and to the |
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evidence. |
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(e) The moving party may file a response within 7 days of |
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receipt of the non-moving party's response. The reply must include |
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objections to the form of the response and to the evidence. |
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Sec. 114.154. HEARINGS. (a) Hearings before the tribunal |
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shall be de novo. |
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(b) Hearings are confidential and are not open to the |
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public. |
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(c) Unless provided otherwise in this Act or in rules |
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promulgated by the tribunal, hearings shall be conducted according |
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to the Texas Rules of Civil Procedure governing nonjury civil cases |
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in the district courts of this State. |
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(d) The tribunal shall take evidence, conduct hearings, |
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rule on motions, and issue final decisions. |
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(e) The rules of evidence as applied in a nonjury civil case |
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in a district court of this State shall apply to a proceeding before |
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the tribunal except that evidence inadmissible under those rules |
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may be admitted, at the discretion of the judge, if the evidence is: |
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(1) necessary to ascertain facts not reasonably |
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susceptible of proof under those rules; |
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(2) not precluded by statute; and |
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(3) of a type on which a reasonably prudent person |
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commonly relies in the conduct of the person's affairs. |
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(f) Testimony may be given only on oath or affirmation. |
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(g) In the case of an issue of fact: |
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(1) the burden of proof is on the comptroller: |
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(A) by a preponderance of the evidence, if the |
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issue is whether the suspension or revocation of a license is |
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warranted; or |
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(B) by clear and convincing evidence, if the |
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issue is whether the imposition of additional penalty for willful |
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or fraudulent failure to pay tax is warranted; |
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(2) the burden of proof is on the taxpayer: |
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(A) by a preponderance of the evidence, if |
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contesting an action, or proposed action, of the comptroller; or |
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(B) by clear and convincing evidence, if claiming |
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a transaction is exempt from taxation. |
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SUBCHAPTER E. DECISIONS |
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Sec. 114.201. AUTHORITY. (a) A decision by a judge of the |
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tribunal shall be deemed to be the decision of the tribunal. |
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Sec. 114.202. DECISION TO BE IN WRITING. (a) The tribunal |
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shall render its decision in writing, including a concise statement |
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of the facts found and the conclusions of law reached. All |
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decisions shall grant such relief, invoke such remedies, and issue |
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such orders as the tribunal deems appropriate to carry out its |
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orders and decisions. The tribunal shall promptly mail a notice of |
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its decision to the taxpayer and the comptroller. |
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(b) The tribunal shall render its decision no later than 90 |
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days after the submission of the last brief filed subsequent to the |
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completion of the hearing or, if briefs are not submitted, then no |
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later than 90 days after completion of the hearing. The tribunal |
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may extend the 90 day period, for good cause, up to 30 additional |
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days. |
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(c) If the tribunal fails to render its decision by the |
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applicable deadlines established in subsection (b) of this section, |
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the tribunal is deemed to have ruled against the taxpayer on all |
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issues. |
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(d) The tribunal's decision shall finally decide the |
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matters in controversy, unless the taxpayer timely appeals the |
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decision as provided in section 114.251 of this Act. |
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(e) The tribunal shall adhere to the principle of stare |
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decisis. The tribunal's interpretation of a tax statute subject to |
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contest in one case shall be followed by the tribunal in subsequent |
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cases involving the same statute, and its application of a statute |
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to the facts of one case shall be followed by the tribunal in |
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subsequent cases involving similar facts, unless the tribunal's |
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interpretation or application conflicts with that of a district or |
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appellate court or the tribunal provides satisfactory reasons for |
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departing from prior precedent. |
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(f) A decision of the tribunal shall become final 45 days |
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after the issuance of a notice of decision or 45 days after the |
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tribunal fails to issue a decision as provided in section |
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141.202(c). |
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Sec. 114.203. PUBLICATION OF DECISIONS; CONFIDENTIALITY. |
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(a) A final decision of the tribunal shall be indexed and published |
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in print or electronic form as the tribunal deems best adapted for |
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public convenience. |
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(b) A published final decision shall comply with the |
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confidentiality provisions of section 114.352 of this Act. |
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(c) A published final decision shall not include the |
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following types of information: |
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(1) identity of the taxpayer and its employees; |
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(2) taxpayer identification numbers; |
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(3) trade secrets; |
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(4) intellectual property; or |
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(5) any other type of information that could possibly |
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identify the taxpayer. |
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SUBCHAPTER F. APPEALS |
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Sec. 114.251. DE NOVO APPEAL TO THE DISTRICT COURT. (a) A |
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taxpayer may appeal a final decision of the tribunal to the district |
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courts of Travis County pursuant to Chapter 112 of the Tax Code. |
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(b) The appeal under this section is de novo. |
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(c) A taxpayer must appeal a final decision of the tribunal |
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on or before the expiration of 30 days after the date the decision |
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becomes final under section 114.202(f) of this Act. |
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SUBCHAPTER G. REPRESENTATION |
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Sec. 114.301. REPRESENTATIVES. (a) The comptroller shall |
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be represented by its general counsel in all proceedings before the |
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tribunal. |
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(b) A taxpayer may represent itself, or may appear through |
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its authorized representative in all proceedings before the |
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tribunal. |
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Sec. 114.302. PRACTICE OF LAW. (a) Under no circumstance |
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shall representation of a taxpayer before the tribunal be |
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considered the practice of law. |
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SUBCHAPTER H. MISCELLANEOUS PROVISIONS |
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Sec. 114.351. RULES AND FORMS. (a) The tribunal is |
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authorized to promulgate and adopt all reasonable rules and forms |
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as may be necessary or appropriate to carry out the intent and |
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purposes of this Act. |
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(b) Rules shall be adopted in accordance with the rulemaking |
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procedures of Chapter 2001 of the Government Code. |
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Sec. 114.352. CONFIDENTIALITY. All information received by |
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the tribunal as a result of a hearing conducted under the provisions |
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of this Act shall be confidential as provided in section 111.006 of |
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the Tax Code, and is not subject to disclosure under Chapter 552 of |
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the Government Code. |
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SECTION 2. Section 111.00455, Tax Code, is amended to read |
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as follows: |
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Sec. 111.00455. CONTESTED CASES CONDUCTED BY TAX TRIBUNAL. |
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[TAX DIVISION OF STATE OFFICE OF ADMINISTRATIVE HEARINGS.] (a) The |
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tribunal [tax division of the State Office of Administrative
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Hearings] shall conduct any contested case hearing as provided by |
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Chapter 114, [2003.101,] Tax [Government] Code, in relation to the |
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collection, receipt, administration, and enforcement of: |
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(1) a tax imposed under this title; and |
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(2) any other tax, fee, or other amount that the |
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comptroller is required to collect, receive, administer, or enforce |
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under a law not included in this title. |
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(b) The following are not contested cases under Subsection |
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(a) and Chapter 114, [Section, 2003.101,] Tax [Government] Code: |
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(1) a show cause hearing or any hearing not related to |
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the collection, receipt, administration, or enforcement of the |
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amount of a tax or fee imposed, or the penalty or interest |
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associated with that amount, except for a hearing under Section |
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151.157(f), 151.1575(d), 151.712(g), 154.1142, or 155.0592; |
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(2) a property value study hearing under Subchapter M, |
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Chapter 403, Government Code; |
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(3) a hearing in which the issue relates to: |
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(A) Chapters 72-75, Property Code; |
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(B) forfeiture of a right to do business; |
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(C) a certificate of authority; |
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(D) articles of incorporation; |
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(E) a penalty imposed under Section 151.703(d); |
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(F) the refusal or failure to settle under |
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Section 111.101; or |
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(G) a request for or revocation of an exemption |
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from taxation; and |
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(4) any other hearing not related to the collection, |
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receipt, administration, or enforcement of the amount of a tax or |
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fee imposed, or the penalty or interest associated with that |
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amount. |
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(c) A reference in law to the comptroller that relates to |
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the performance of a contested case hearing described by Subsection |
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(a) means the tribunal. [tax division of the State Office of
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Administrative Hearings.] |
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SECTION 3. Section 111.105(a), Tax Code, is amended to read |
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as follows: |
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Sec. 111.105. TAX REFUND: HEARING. (a) A person claiming a |
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refund under Section 111.104 is entitled to a hearing on the claim |
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if the person requests a hearing on or before the 60th [30th] day |
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after the date the comptroller issues a letter denying the claim for |
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refund. The person is entitled to 20 days' notice of the time and |
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place of the hearing. |
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SECTION 4. Subchapter D, Chapter 2003, Government Code, is |
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repealed. |
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SECTION 5. This Act takes effect September 1, 2013. |