50156. The board shall administer this article. Unless the context
indicates otherwise, the provisions of this article shall apply to
this part.
50156.1. (a) The board shall establish the position of the
Taxpayers' Rights Advocate. The advocate or his or her designee shall
be responsible for facilitating resolution of fee payer complaints
and problems, including any fee payer complaints regarding
unsatisfactory treatment of fee payers by board employees, and
staying actions where fee payers have suffered or will suffer
irreparable loss as the result of those actions. Applicable statutes
of limitation shall be tolled during the pendency of a stay. Any
penalties and interest that would otherwise accrue shall not be
affected by the granting of a stay.
(b) The advocate shall report directly to the executive officer of
the board.
50156.18. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final fee liability in
which the reduction of the fee is seven thousand five hundred dollars
($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in the fee
in excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of the fee is in excess
of seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 26 (commencing with
Section 50101), or related interest, additions to the fee, penalties,
or other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the feepayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(e) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(f) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the feepayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the feepayer.
(g) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable feepayer shall
not relieve the other feepayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(h) Whenever a compromise of the fee or penalties or total fees
and penalties in excess of five hundred dollars ($500) is approved,
there shall be placed on file for a least one year in the office of
the executive director of the board a public record with respect to
that compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Chapter 8 of Article 2 (commencing with Section 50156).
No list shall be prepared and no releases distributed by the board
in connection with these statements.
(i) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(j) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison, or
both, together with the costs of investigation and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the feepayer or other person
liable in respect of the fee.
(k) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(l) This section shall become operative on January 1, 2013.
50156.2. (a) The board shall develop and implement an education and
information program directed at, but not limited to, all of the
following groups:
(1) Fee payers newly registered with the board.
(2) Board audit and compliance staff.
(b) The education and information program shall include all of the
following:
(1) A program of written communication with newly registered fee
payers explaining in simplified terms their duties and
responsibilities.
(2) Participation in seminars and similar programs organized by
federal, state, and local agencies.
(3) Revision of fee payer educational materials currently produced
by the board that explain the most common areas of fee payer
nonconformance in simplified terms.
(4) Implementation of a continuing education program for audit and
compliance personnel to include the application of new legislation
to fee payer activities, and areas of recurrent fee payer
noncompliance or inconsistency of administration.
(c) Electronic media used to comply with this section shall not
represent the voice, picture, or name of members of the board or the
Controller.
50156.3. The board shall conduct an annual hearing before the full
board where industry representatives and individual fee payers are
allowed to present their proposals on changes to the Underground
Storage Tank Maintenance Fee Law which may further improve voluntary
compliance and the relationship between fee payers and government.
50156.4. The board shall prepare and publish brief but
comprehensive statements in simple and nontechnical language that
explain procedures, remedies, and the rights and obligations of the
board and fee payers. As appropriate, statements shall be provided to
fee payers with the initial notice of audit, the notice of proposed
additional fees, any subsequent notice of fees due, or other
substantive notices. Additionally, the board shall include this
language for statements in the annual fee information bulletins that
are mailed to taxpayers.
50156.5. (a) The total amount of revenue collected or assessed
pursuant to this part shall not be used for any of the following:
(1) To evaluate individual officers or employees.
(2) To impose or suggest production quotas or goals, other than
quotas or goals with respect to accounts receivable.
(b) The board shall certify in its annual report submitted
pursuant to Section 15616 of the Government Code that revenue
collected or assessed is not used in a manner prohibited by
subdivision (a).
(c) Nothing in this section shall prohibit the setting of goals
and the evaluation of performance with respect to productivity and
the efficient use of time.
50156.6. The board shall develop and implement a program that will
evaluate an individual employee's or officer's performance with
respect to his or her contact with fee payers. The development and
implementation of the program shall be coordinated with the Taxpayers'
Rights Advocate.
50156.7. The board shall, in cooperation with the State Water
Resources Control Board, the Taxpayers' Rights Advocate, and other
interested taxpayer-oriented groups, develop a plan to reduce the
time required to resolve petitions for redetermination and claims for
refunds. The plan shall include determination of standard timeframes
and special review of cases that take more time than the appropriate
standard timeframe.
50156.8. Procedures of the board, relating to appeals staff review
conferences before a staff attorney or supervising tax auditor
independent of the assessing department, shall include all of the
following:
(a) Any conference shall be held at a reasonable time at a board
office that is convenient to the fee payer.
(b) The conference may be recorded only if prior notice is given
to the fee payer and the fee payer is entitled to receive a copy of
the recording.
(c) The fee payer shall be informed prior to any conference that
he or she has a right to have present at the conference his or her
attorney, accountant, or other designated agent.
50156.9. (a) Every fee payer is entitled to be reimbursed for any
reasonable fees and expenses related to a hearing before the board if
all of the following conditions are met:
(1) The fee payer files a claim for the fee and expenses with the
board within one year of the date the decision of the board becomes
final.
(2) The board, in its sole discretion, finds that the action taken
by the board staff was unreasonable.
(3) The board decides that the fee payer be awarded a specific
amount of fees and expenses related to the hearing, in an amount
determined by the board in its sole discretion.
(b) To determine whether the board staff has been unreasonable,
the board shall consider whether the board staff has established that
its position was substantially justified.
(c) The amount of reimbursed fees and expenses shall be limited to
the following:
(1) Fees and expenses incurred after the date of the notice of
determination, jeopardy determination, or a claim for refunds.
(2) If the board finds that the staff was unreasonable with
respect to certain issues but reasonable with respect to other
issues, the amount of reimbursed fees and expenses shall be limited
to those that relate to the issues where the staff was unreasonable.
(d) Any proposed award by the board pursuant to subdivision (a)
shall be available as a public record for at least 10 days prior to
the effective date of the award.
(e) The amendments to this section by the act adding this
subdivision shall be operative for claims filed on or after January
1, 2000.
50156.10. (a) An officer or employee of the board acting in
connection with any law administered by the board shall not knowingly
authorize, require, or conduct any investigation of, or surveillance
over, any person for nontax administration related purposes.
(b) Any person violating subdivision (a) shall be subject to
disciplinary action in accordance with the State Civil Service Act,
including dismissal from office or discharge from employment.
(c) This section shall not apply with respect to any otherwise
lawful investigation concerning organized crime activities.
(d) The provisions of this section are not intended to prohibit,
restrict, or prevent the exchange of information where the person is
being investigated for multiple violations that include underground
storage tank fee violations.
(e) For the purposes of this section:
(1) "Investigation" means any oral or written inquiry directed to
any person, organization, or governmental agency.
(2) "Surveillance" means the monitoring of persons, places, or
events by means of electronic interception, overt or covert
observations, or photography, and the use of informants.
50156.11. (a) It is the intent of the Legislature that the State
Board of Equalization, its staff, and the Attorney General pursue
settlements as authorized under this section with respect to fee
matters in dispute that are the subject of protests, appeals, or
refund claims, consistent with a reasonable evaluation of the costs
and risks associated with litigation of these matters.
(b) (1) Except as provided in paragraph (3) and subject to
paragraph (2), the executive director or chief counsel, if authorized
by the executive director, of the board may recommend to the State
Board of Equalization, itself, a settlement of any fee matter in
dispute.
(2) No recommendation of settlement shall be submitted to the
board, itself, unless and until that recommendation has been
submitted by the executive director or chief counsel to the Attorney
General. Within 30 days of receiving that recommendation, the
Attorney General shall review the recommendation and advise, in
writing, the executive director or chief counsel of the board of his
or her conclusions as to whether the recommendation is reasonable
from an overall perspective. The executive director or chief counsel
shall, with each recommendation of settlement submitted to the board,
itself, also submit the Attorney General's written conclusions
obtained pursuant to this paragraph.
(3) A settlement of any civil fee matter in dispute involving a
reduction of fee or penalties in settlement, the total of which
reduction of fee and penalties in settlement does not exceed five
thousand dollars ($5,000), may be approved by the executive director
and chief counsel, jointly. The executive director shall notify the
board, itself, of any settlement approved pursuant to this paragraph.
(c) Whenever a reduction of fees, or penalties, or total fees and
penalties in settlement in excess of five hundred dollars ($500) is
approved pursuant to this section, there shall be placed on file, for
at least one year, in the office of the executive director of the
board a public record with respect to that settlement. The public
record shall include all of the following information:
(1) The name or names of the fee payers who are parties to the
settlement.
(2) The total amount in dispute.
(3) The amount agreed to pursuant to the settlement.
(4) A summary of the reasons why the settlement is in the best
interests of the State of California.
(5) For any settlement approved by the board, itself, the Attorney
General's conclusion as to whether the recommendation of settlement
was reasonable from an overall perspective.
The public record shall not include any information that relates
to any trade secret, patent, process, style of work, apparatus,
business secret, or organizational structure that, if disclosed,
would adversely affect the fee payer or the national defense.
(d) The members of the State Board of Equalization shall not
participate in the settlement of fee matters pursuant to this
section, except as provided in subdivision (e).
(e) (1) Any recommendation for settlement shall be approved or
disapproved by the board, itself, within 45 days of the submission of
that recommendation to the board. Any recommendation for settlement
that is not either approved or disapproved by the board, itself,
within 45 days of the submission of that recommendation shall be
deemed approved. Upon approval of a recommendation for settlement,
the matter shall be referred back to the executive director or chief
counsel in accordance with the decision of the board.
(2) Disapproval of a recommendation for settlement shall be made
only by a majority vote of the board. Where the board disapproves a
recommendation for settlement, the matter shall be remanded to board
staff for further negotiation, and may be resubmitted to the board,
in the same manner and subject to the same requirements as the
initial submission, at the discretion of the executive director or
chief counsel.
(f) All settlements entered into pursuant to this section shall be
final and nonappealable, except upon a showing of fraud or
misrepresentation with respect to a material fact.
(g) Any proceedings undertaken by the board itself pursuant to a
settlement as described in this section shall be conducted in a
closed session or sessions.
(h) This section shall apply only to fee matters in dispute on or
after the effective date of the act adding this subdivision.
(i) The Legislature finds that it is essential for fiscal purposes
that the settlement program authorized by this section be
expeditiously implemented. Accordingly, Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code shall not apply to any determination, rule, notice, or guideline
established or issued by the board in implementing and administering
the settlement program authorized by this section.
50156.12. (a) The board shall release any levy or notice to
withhold issued pursuant to this part on any property in the event
that the expense of the sale process exceeds the liability for which
the levy is made.
(b) The Taxpayers' Rights Advocate may order the release of any
levy or notice to withhold issued pursuant to this part or, within 90
days from the receipt of funds pursuant to a levy or notice to
withhold, order the return of any amount up to one thousand five
hundred dollars ($1,500) of moneys received, upon his or her finding
that the levy or notice to withhold threatens the health or welfare
of the feepayer or his or her spouse and dependents or family.
(c) The board shall not sell any seized property until it has
first notified the fee payer in writing of the exemptions from levy
under Chapter 4 (commencing with Section 703.010) of Division 2 of
Title 9 of Part 2 of the Code of Civil Procedure.
(d) This section shall not apply to the seizure of any property as
a result of a jeopardy assessment.
50156.13. Exemptions from levy under Chapter 4 (commencing with
Section 703.010) of Division 2 of Title 9 of Part 2 of the Code of
Civil Procedure shall be adjusted for purposes of enforcing the
collection of debts under this part to reflect changes in the
California Consumer Price Index whenever the change is more than 5
percent higher than any previous adjustment.
50156.14. (a) A feepayer may file a claim with the board for
reimbursement of bank charges and any other reasonable third-party
check charge fees incurred by the taxpayer as the direct result of an
erroneous levy or notice to withhold by the board. Bank and
third-party charges include a financial institution's or third party'
s customary charge for complying with the levy or notice to withhold
instructions and reasonable charges for overdrafts that are a direct
consequence of the erroneous levy or notice to withhold. The charges
are those paid to the feepayer and not waived for reimbursement by
the financial institution or third party. Each claimant applying for
reimbursement shall file a claim with the board that shall be in a
form as may be prescribed by the board. In order for the board to
grant a claim, the board shall determine that both of the following
conditions have been satisfied:
(1) The erroneous levy or notice to withhold was caused by board
error.
(2) Prior to the levy or notice to withhold, the feepayer
responded to all contacts by the board and provided the board with
any requested information or documentation sufficient to establish
the feepayer's position. This provision may be waived by the board
for reasonable cause.
(b) Claims pursuant to this section shall be filed within 90 days
from the date of the levy or notice to withhold. Within 30 days from
the date the claim is received, the board shall respond to the claim.
If the board denies the claim, the feepayer shall be notified in
writing of the reason or reasons for the denial of the claim.
50156.15. (a) At least 30 days prior to the filing or recording of
liens under Chapter 14 (commencing with Section 7150) or Chapter 14.5
(commencing with Section 7220) of Division 7 of Title 1 of the
Government Code, the board shall mail to the fee payer a preliminary
notice. The notice shall specify the statutory authority of the board
for filing or recording the lien, indicate the earliest date on
which the lien may be filed or recorded, and state the remedies
available to the fee payer to prevent the filing or recording of the
lien. In the event fee liens are filed for the same liability in
multiple counties, only one preliminary notice shall be sent.
(b) The preliminary notice required by this section shall not be
required with respect to jeopardy determinations issued under Article
4 (commencing with Section 50120.1) of Chapter 3.
(c) If the board determines that the filing of a lien was in
error, it shall mail a release to the fee payer and the entity
recording the lien as soon as possible, but no later than seven days,
after this determination and receipt of lien recording information.
The release shall contain a statement that the lien was filed in
error. In the event the erroneous lien is obstructing a lawful
transaction, the board shall immediately issue a release of lien to
the fee payer and the entity recording the lien.
(d) When the board releases a lien that has been erroneously
filed, notice of that release shall be mailed to the fee payer and,
upon the request of the fee payer, a copy of the release shall be
mailed to the major credit reporting companies in the county where
the lien was filed.
(e) The board may release or subordinate a lien if the board
determines that the release or subordination will facilitate the
collection of the fee liability or will be in the best interest of
the state and the fee payer.
50156.16. (a) If any officer or employee of the board recklessly
disregards board-published procedures, a fee payer aggrieved by that
action or omission may bring an action for damages against the State
of California in superior court.
(b) In any action brought under subdivision (a), upon finding of
liability on the part of the State of California, the state shall be
liable to the plaintiff in an amount equal to the sum of all of the
following:
(1) Actual and direct monetary damages sustained by the plaintiff
as a result of the actions or omissions.
(2) Reasonable litigation costs including any of the following:
(A) Reasonable court costs.
(B) Prevailing market rates for the kind or quality of services
furnished in connection with any of the following:
(i) The reasonable expenses of expert witnesses in connection with
the civil proceeding, except that no expert witness shall be
compensated at a rate in excess of the highest rate of compensation
for expert witnesses paid by the State of California.
(ii) The reasonable cost of any study, analysis, engineering
report, test, or project that is found by the court to be necessary
for the preparation of the party's case.
(iii) Reasonable fees paid or incurred for the services of
attorneys in connection with the civil proceeding, except that those
fees shall not be in excess of seventy-five dollars ($75) per hour
unless the court determines that an increase in the cost of living or
a special factor, such as the limited availability of qualified
attorneys for the proceeding, justifies a higher rate.
(c) In the awarding of damages under subdivision (b), the court
shall take into consideration the negligence or omissions, if any, on
the part of the plaintiff that contributed to the damages.
(d) Whenever it appears to the court that the fee payer's position
in the proceeding brought under subdivision (a) is frivolous, the
court may impose a penalty against the plaintiff in an amount not to
exceed ten thousand dollars ($10,000). A penalty so imposed shall be
paid upon notice and demand from the board and shall be collected as
a tax imposed under this part.
50156.17. (a) Except in any case where the board finds collection
of the fee to be in jeopardy, if any property has been levied upon,
the property or the proceeds from the sale of the property shall be
returned to the fee payer if the board determines any one of the
following:
(1) The levy on the property was not in accordance with the law.
(2) The fee payer has entered into and is in compliance with an
installment payment agreement pursuant to Section 50138.6 to satisfy
the fee liability for which the levy was imposed, unless that or
another agreement allows for the levy.
(3) The return of the property will facilitate the collection of
the fee liability or will be in the best interest of the state and
the fee payer.
(b) Property returned under paragraphs (1) and (2) of subdivision
(a) is subject to the provisions of Section 50156.14.
50156.18. (a) (1) Beginning January 1, 2003, the executive director
and chief counsel of the board, or their delegates, may compromise
any final fee liability in which the reduction of the fee is seven
thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in the fee
in excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of the fee is in excess
of seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 26 (commencing with
Section 50101), or related interest, additions to the fee, penalties,
or other amounts assessed under this part.
(c) (1) Offers in compromise shall be considered only for
liabilities that were generated from a business that has been
discontinued or transferred, where the feepayer making the offer no
longer has a controlling interest or association with the transferred
business or has a controlling interest or association with a similar
type of business as the transferred or discontinued business.
(2) Notwithstanding paragraph (1), a qualified final fee liability
may be compromised regardless of whether the business has been
discontinued or transferred or whether the feepayer has a controlling
interest or association with a similar type of business as the
transferred or discontinued business. All other provisions of this
section that apply to a final fee liability shall also apply to a
qualified final fee liability, and no compromise shall be made under
this subdivision unless all other requirements of this section are
met. For purposes of this subdivision, a "qualified final fee
liability" means that part of a final fee liability, including
related interest, additions to fee, penalties, or other amounts
assessed under this part, arising from a transaction or transactions
in which the board finds no evidence that the owner of the
underground storage tank collected underground storage tank
maintenance fee reimbursement from the operator of the underground
storage tank or other person and which was determined against the
feepayer under Article 2 (commencing with Section 50113) or Article 3
(commencing with Section 50114) of Chapter 3.
(3) A qualified final fee liability may not be compromised with
any of the following:
(A) A feepayer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the feepayer is making the offer.
(B) A business that was transferred by a feepayer who previously
received a compromise under paragraph (2) and who has a controlling
interest or association with the transferred business, when the
liability for which the offer is made is attributable to a
transaction or transactions substantially similar to the transaction
or transactions for which the feepayer's liability was previously
compromised.
(C) A business in which a feepayer who previously received a
compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the feepayer
received the compromise, when the liability of the business making
the offer arose from a transaction or transactions substantially
similar to the transaction or transactions for which the feepayer's
liability was previously compromised.
(d) The board may, in its discretion, enter into a written
agreement which permits the feepayer to pay the compromise in
installments for a period not exceeding one year. The agreement may
provide that such installments shall be paid by electronic funds
transfers or any other means to facilitate the payment of each
installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) may be required to enter into any collateral
agreement that is deemed necessary for the protection of the
interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the feepayer has sufficient annual income during
the succeeding five-year period. The board shall establish criteria
for determining "sufficient annual income" for purposes of this
subdivision.
(g) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) shall file and pay by the due date all
subsequently required underground storage tank maintenance fee
returns for a five-year period from the date the liability is
compromised, or until the feepayer is no longer required to file
underground storage tank maintenance fee returns, whichever period is
earlier.
(h) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(i) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(j) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the feepayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the feepayer.
(k) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable feepayer shall
not relieve the other feepayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(l) Whenever a compromise of the fee or penalties or total fees
and penalties in excess of five hundred dollars ($500) is approved,
there shall be placed on file for at least one year in the office of
the executive director of the board a public record with respect to
that compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Chapter 8 of Article 2 (commencing with Section 50156).
No list shall be prepared and no releases distributed by the board
in connection with these statements.
(m) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(n) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison, or
both, together with the costs of investigation and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the feepayer or other person
liable in respect of the fee.
(o) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(p) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
50156. The board shall administer this article. Unless the context
indicates otherwise, the provisions of this article shall apply to
this part.
50156.1. (a) The board shall establish the position of the
Taxpayers' Rights Advocate. The advocate or his or her designee shall
be responsible for facilitating resolution of fee payer complaints
and problems, including any fee payer complaints regarding
unsatisfactory treatment of fee payers by board employees, and
staying actions where fee payers have suffered or will suffer
irreparable loss as the result of those actions. Applicable statutes
of limitation shall be tolled during the pendency of a stay. Any
penalties and interest that would otherwise accrue shall not be
affected by the granting of a stay.
(b) The advocate shall report directly to the executive officer of
the board.
50156.18. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final fee liability in
which the reduction of the fee is seven thousand five hundred dollars
($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in the fee
in excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of the fee is in excess
of seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 26 (commencing with
Section 50101), or related interest, additions to the fee, penalties,
or other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the feepayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(e) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(f) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the feepayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the feepayer.
(g) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable feepayer shall
not relieve the other feepayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(h) Whenever a compromise of the fee or penalties or total fees
and penalties in excess of five hundred dollars ($500) is approved,
there shall be placed on file for a least one year in the office of
the executive director of the board a public record with respect to
that compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Chapter 8 of Article 2 (commencing with Section 50156).
No list shall be prepared and no releases distributed by the board
in connection with these statements.
(i) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(j) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison, or
both, together with the costs of investigation and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the feepayer or other person
liable in respect of the fee.
(k) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(l) This section shall become operative on January 1, 2013.
50156.2. (a) The board shall develop and implement an education and
information program directed at, but not limited to, all of the
following groups:
(1) Fee payers newly registered with the board.
(2) Board audit and compliance staff.
(b) The education and information program shall include all of the
following:
(1) A program of written communication with newly registered fee
payers explaining in simplified terms their duties and
responsibilities.
(2) Participation in seminars and similar programs organized by
federal, state, and local agencies.
(3) Revision of fee payer educational materials currently produced
by the board that explain the most common areas of fee payer
nonconformance in simplified terms.
(4) Implementation of a continuing education program for audit and
compliance personnel to include the application of new legislation
to fee payer activities, and areas of recurrent fee payer
noncompliance or inconsistency of administration.
(c) Electronic media used to comply with this section shall not
represent the voice, picture, or name of members of the board or the
Controller.
50156.3. The board shall conduct an annual hearing before the full
board where industry representatives and individual fee payers are
allowed to present their proposals on changes to the Underground
Storage Tank Maintenance Fee Law which may further improve voluntary
compliance and the relationship between fee payers and government.
50156.4. The board shall prepare and publish brief but
comprehensive statements in simple and nontechnical language that
explain procedures, remedies, and the rights and obligations of the
board and fee payers. As appropriate, statements shall be provided to
fee payers with the initial notice of audit, the notice of proposed
additional fees, any subsequent notice of fees due, or other
substantive notices. Additionally, the board shall include this
language for statements in the annual fee information bulletins that
are mailed to taxpayers.
50156.5. (a) The total amount of revenue collected or assessed
pursuant to this part shall not be used for any of the following:
(1) To evaluate individual officers or employees.
(2) To impose or suggest production quotas or goals, other than
quotas or goals with respect to accounts receivable.
(b) The board shall certify in its annual report submitted
pursuant to Section 15616 of the Government Code that revenue
collected or assessed is not used in a manner prohibited by
subdivision (a).
(c) Nothing in this section shall prohibit the setting of goals
and the evaluation of performance with respect to productivity and
the efficient use of time.
50156.6. The board shall develop and implement a program that will
evaluate an individual employee's or officer's performance with
respect to his or her contact with fee payers. The development and
implementation of the program shall be coordinated with the Taxpayers'
Rights Advocate.
50156.7. The board shall, in cooperation with the State Water
Resources Control Board, the Taxpayers' Rights Advocate, and other
interested taxpayer-oriented groups, develop a plan to reduce the
time required to resolve petitions for redetermination and claims for
refunds. The plan shall include determination of standard timeframes
and special review of cases that take more time than the appropriate
standard timeframe.
50156.8. Procedures of the board, relating to appeals staff review
conferences before a staff attorney or supervising tax auditor
independent of the assessing department, shall include all of the
following:
(a) Any conference shall be held at a reasonable time at a board
office that is convenient to the fee payer.
(b) The conference may be recorded only if prior notice is given
to the fee payer and the fee payer is entitled to receive a copy of
the recording.
(c) The fee payer shall be informed prior to any conference that
he or she has a right to have present at the conference his or her
attorney, accountant, or other designated agent.
50156.9. (a) Every fee payer is entitled to be reimbursed for any
reasonable fees and expenses related to a hearing before the board if
all of the following conditions are met:
(1) The fee payer files a claim for the fee and expenses with the
board within one year of the date the decision of the board becomes
final.
(2) The board, in its sole discretion, finds that the action taken
by the board staff was unreasonable.
(3) The board decides that the fee payer be awarded a specific
amount of fees and expenses related to the hearing, in an amount
determined by the board in its sole discretion.
(b) To determine whether the board staff has been unreasonable,
the board shall consider whether the board staff has established that
its position was substantially justified.
(c) The amount of reimbursed fees and expenses shall be limited to
the following:
(1) Fees and expenses incurred after the date of the notice of
determination, jeopardy determination, or a claim for refunds.
(2) If the board finds that the staff was unreasonable with
respect to certain issues but reasonable with respect to other
issues, the amount of reimbursed fees and expenses shall be limited
to those that relate to the issues where the staff was unreasonable.
(d) Any proposed award by the board pursuant to subdivision (a)
shall be available as a public record for at least 10 days prior to
the effective date of the award.
(e) The amendments to this section by the act adding this
subdivision shall be operative for claims filed on or after January
1, 2000.
50156.10. (a) An officer or employee of the board acting in
connection with any law administered by the board shall not knowingly
authorize, require, or conduct any investigation of, or surveillance
over, any person for nontax administration related purposes.
(b) Any person violating subdivision (a) shall be subject to
disciplinary action in accordance with the State Civil Service Act,
including dismissal from office or discharge from employment.
(c) This section shall not apply with respect to any otherwise
lawful investigation concerning organized crime activities.
(d) The provisions of this section are not intended to prohibit,
restrict, or prevent the exchange of information where the person is
being investigated for multiple violations that include underground
storage tank fee violations.
(e) For the purposes of this section:
(1) "Investigation" means any oral or written inquiry directed to
any person, organization, or governmental agency.
(2) "Surveillance" means the monitoring of persons, places, or
events by means of electronic interception, overt or covert
observations, or photography, and the use of informants.
50156.11. (a) It is the intent of the Legislature that the State
Board of Equalization, its staff, and the Attorney General pursue
settlements as authorized under this section with respect to fee
matters in dispute that are the subject of protests, appeals, or
refund claims, consistent with a reasonable evaluation of the costs
and risks associated with litigation of these matters.
(b) (1) Except as provided in paragraph (3) and subject to
paragraph (2), the executive director or chief counsel, if authorized
by the executive director, of the board may recommend to the State
Board of Equalization, itself, a settlement of any fee matter in
dispute.
(2) No recommendation of settlement shall be submitted to the
board, itself, unless and until that recommendation has been
submitted by the executive director or chief counsel to the Attorney
General. Within 30 days of receiving that recommendation, the
Attorney General shall review the recommendation and advise, in
writing, the executive director or chief counsel of the board of his
or her conclusions as to whether the recommendation is reasonable
from an overall perspective. The executive director or chief counsel
shall, with each recommendation of settlement submitted to the board,
itself, also submit the Attorney General's written conclusions
obtained pursuant to this paragraph.
(3) A settlement of any civil fee matter in dispute involving a
reduction of fee or penalties in settlement, the total of which
reduction of fee and penalties in settlement does not exceed five
thousand dollars ($5,000), may be approved by the executive director
and chief counsel, jointly. The executive director shall notify the
board, itself, of any settlement approved pursuant to this paragraph.
(c) Whenever a reduction of fees, or penalties, or total fees and
penalties in settlement in excess of five hundred dollars ($500) is
approved pursuant to this section, there shall be placed on file, for
at least one year, in the office of the executive director of the
board a public record with respect to that settlement. The public
record shall include all of the following information:
(1) The name or names of the fee payers who are parties to the
settlement.
(2) The total amount in dispute.
(3) The amount agreed to pursuant to the settlement.
(4) A summary of the reasons why the settlement is in the best
interests of the State of California.
(5) For any settlement approved by the board, itself, the Attorney
General's conclusion as to whether the recommendation of settlement
was reasonable from an overall perspective.
The public record shall not include any information that relates
to any trade secret, patent, process, style of work, apparatus,
business secret, or organizational structure that, if disclosed,
would adversely affect the fee payer or the national defense.
(d) The members of the State Board of Equalization shall not
participate in the settlement of fee matters pursuant to this
section, except as provided in subdivision (e).
(e) (1) Any recommendation for settlement shall be approved or
disapproved by the board, itself, within 45 days of the submission of
that recommendation to the board. Any recommendation for settlement
that is not either approved or disapproved by the board, itself,
within 45 days of the submission of that recommendation shall be
deemed approved. Upon approval of a recommendation for settlement,
the matter shall be referred back to the executive director or chief
counsel in accordance with the decision of the board.
(2) Disapproval of a recommendation for settlement shall be made
only by a majority vote of the board. Where the board disapproves a
recommendation for settlement, the matter shall be remanded to board
staff for further negotiation, and may be resubmitted to the board,
in the same manner and subject to the same requirements as the
initial submission, at the discretion of the executive director or
chief counsel.
(f) All settlements entered into pursuant to this section shall be
final and nonappealable, except upon a showing of fraud or
misrepresentation with respect to a material fact.
(g) Any proceedings undertaken by the board itself pursuant to a
settlement as described in this section shall be conducted in a
closed session or sessions.
(h) This section shall apply only to fee matters in dispute on or
after the effective date of the act adding this subdivision.
(i) The Legislature finds that it is essential for fiscal purposes
that the settlement program authorized by this section be
expeditiously implemented. Accordingly, Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code shall not apply to any determination, rule, notice, or guideline
established or issued by the board in implementing and administering
the settlement program authorized by this section.
50156.12. (a) The board shall release any levy or notice to
withhold issued pursuant to this part on any property in the event
that the expense of the sale process exceeds the liability for which
the levy is made.
(b) The Taxpayers' Rights Advocate may order the release of any
levy or notice to withhold issued pursuant to this part or, within 90
days from the receipt of funds pursuant to a levy or notice to
withhold, order the return of any amount up to one thousand five
hundred dollars ($1,500) of moneys received, upon his or her finding
that the levy or notice to withhold threatens the health or welfare
of the feepayer or his or her spouse and dependents or family.
(c) The board shall not sell any seized property until it has
first notified the fee payer in writing of the exemptions from levy
under Chapter 4 (commencing with Section 703.010) of Division 2 of
Title 9 of Part 2 of the Code of Civil Procedure.
(d) This section shall not apply to the seizure of any property as
a result of a jeopardy assessment.
50156.13. Exemptions from levy under Chapter 4 (commencing with
Section 703.010) of Division 2 of Title 9 of Part 2 of the Code of
Civil Procedure shall be adjusted for purposes of enforcing the
collection of debts under this part to reflect changes in the
California Consumer Price Index whenever the change is more than 5
percent higher than any previous adjustment.
50156.14. (a) A feepayer may file a claim with the board for
reimbursement of bank charges and any other reasonable third-party
check charge fees incurred by the taxpayer as the direct result of an
erroneous levy or notice to withhold by the board. Bank and
third-party charges include a financial institution's or third party'
s customary charge for complying with the levy or notice to withhold
instructions and reasonable charges for overdrafts that are a direct
consequence of the erroneous levy or notice to withhold. The charges
are those paid to the feepayer and not waived for reimbursement by
the financial institution or third party. Each claimant applying for
reimbursement shall file a claim with the board that shall be in a
form as may be prescribed by the board. In order for the board to
grant a claim, the board shall determine that both of the following
conditions have been satisfied:
(1) The erroneous levy or notice to withhold was caused by board
error.
(2) Prior to the levy or notice to withhold, the feepayer
responded to all contacts by the board and provided the board with
any requested information or documentation sufficient to establish
the feepayer's position. This provision may be waived by the board
for reasonable cause.
(b) Claims pursuant to this section shall be filed within 90 days
from the date of the levy or notice to withhold. Within 30 days from
the date the claim is received, the board shall respond to the claim.
If the board denies the claim, the feepayer shall be notified in
writing of the reason or reasons for the denial of the claim.
50156.15. (a) At least 30 days prior to the filing or recording of
liens under Chapter 14 (commencing with Section 7150) or Chapter 14.5
(commencing with Section 7220) of Division 7 of Title 1 of the
Government Code, the board shall mail to the fee payer a preliminary
notice. The notice shall specify the statutory authority of the board
for filing or recording the lien, indicate the earliest date on
which the lien may be filed or recorded, and state the remedies
available to the fee payer to prevent the filing or recording of the
lien. In the event fee liens are filed for the same liability in
multiple counties, only one preliminary notice shall be sent.
(b) The preliminary notice required by this section shall not be
required with respect to jeopardy determinations issued under Article
4 (commencing with Section 50120.1) of Chapter 3.
(c) If the board determines that the filing of a lien was in
error, it shall mail a release to the fee payer and the entity
recording the lien as soon as possible, but no later than seven days,
after this determination and receipt of lien recording information.
The release shall contain a statement that the lien was filed in
error. In the event the erroneous lien is obstructing a lawful
transaction, the board shall immediately issue a release of lien to
the fee payer and the entity recording the lien.
(d) When the board releases a lien that has been erroneously
filed, notice of that release shall be mailed to the fee payer and,
upon the request of the fee payer, a copy of the release shall be
mailed to the major credit reporting companies in the county where
the lien was filed.
(e) The board may release or subordinate a lien if the board
determines that the release or subordination will facilitate the
collection of the fee liability or will be in the best interest of
the state and the fee payer.
50156.16. (a) If any officer or employee of the board recklessly
disregards board-published procedures, a fee payer aggrieved by that
action or omission may bring an action for damages against the State
of California in superior court.
(b) In any action brought under subdivision (a), upon finding of
liability on the part of the State of California, the state shall be
liable to the plaintiff in an amount equal to the sum of all of the
following:
(1) Actual and direct monetary damages sustained by the plaintiff
as a result of the actions or omissions.
(2) Reasonable litigation costs including any of the following:
(A) Reasonable court costs.
(B) Prevailing market rates for the kind or quality of services
furnished in connection with any of the following:
(i) The reasonable expenses of expert witnesses in connection with
the civil proceeding, except that no expert witness shall be
compensated at a rate in excess of the highest rate of compensation
for expert witnesses paid by the State of California.
(ii) The reasonable cost of any study, analysis, engineering
report, test, or project that is found by the court to be necessary
for the preparation of the party's case.
(iii) Reasonable fees paid or incurred for the services of
attorneys in connection with the civil proceeding, except that those
fees shall not be in excess of seventy-five dollars ($75) per hour
unless the court determines that an increase in the cost of living or
a special factor, such as the limited availability of qualified
attorneys for the proceeding, justifies a higher rate.
(c) In the awarding of damages under subdivision (b), the court
shall take into consideration the negligence or omissions, if any, on
the part of the plaintiff that contributed to the damages.
(d) Whenever it appears to the court that the fee payer's position
in the proceeding brought under subdivision (a) is frivolous, the
court may impose a penalty against the plaintiff in an amount not to
exceed ten thousand dollars ($10,000). A penalty so imposed shall be
paid upon notice and demand from the board and shall be collected as
a tax imposed under this part.
50156.17. (a) Except in any case where the board finds collection
of the fee to be in jeopardy, if any property has been levied upon,
the property or the proceeds from the sale of the property shall be
returned to the fee payer if the board determines any one of the
following:
(1) The levy on the property was not in accordance with the law.
(2) The fee payer has entered into and is in compliance with an
installment payment agreement pursuant to Section 50138.6 to satisfy
the fee liability for which the levy was imposed, unless that or
another agreement allows for the levy.
(3) The return of the property will facilitate the collection of
the fee liability or will be in the best interest of the state and
the fee payer.
(b) Property returned under paragraphs (1) and (2) of subdivision
(a) is subject to the provisions of Section 50156.14.
50156.18. (a) (1) Beginning January 1, 2003, the executive director
and chief counsel of the board, or their delegates, may compromise
any final fee liability in which the reduction of the fee is seven
thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in the fee
in excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of the fee is in excess
of seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 26 (commencing with
Section 50101), or related interest, additions to the fee, penalties,
or other amounts assessed under this part.
(c) (1) Offers in compromise shall be considered only for
liabilities that were generated from a business that has been
discontinued or transferred, where the feepayer making the offer no
longer has a controlling interest or association with the transferred
business or has a controlling interest or association with a similar
type of business as the transferred or discontinued business.
(2) Notwithstanding paragraph (1), a qualified final fee liability
may be compromised regardless of whether the business has been
discontinued or transferred or whether the feepayer has a controlling
interest or association with a similar type of business as the
transferred or discontinued business. All other provisions of this
section that apply to a final fee liability shall also apply to a
qualified final fee liability, and no compromise shall be made under
this subdivision unless all other requirements of this section are
met. For purposes of this subdivision, a "qualified final fee
liability" means that part of a final fee liability, including
related interest, additions to fee, penalties, or other amounts
assessed under this part, arising from a transaction or transactions
in which the board finds no evidence that the owner of the
underground storage tank collected underground storage tank
maintenance fee reimbursement from the operator of the underground
storage tank or other person and which was determined against the
feepayer under Article 2 (commencing with Section 50113) or Article 3
(commencing with Section 50114) of Chapter 3.
(3) A qualified final fee liability may not be compromised with
any of the following:
(A) A feepayer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the feepayer is making the offer.
(B) A business that was transferred by a feepayer who previously
received a compromise under paragraph (2) and who has a controlling
interest or association with the transferred business, when the
liability for which the offer is made is attributable to a
transaction or transactions substantially similar to the transaction
or transactions for which the feepayer's liability was previously
compromised.
(C) A business in which a feepayer who previously received a
compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the feepayer
received the compromise, when the liability of the business making
the offer arose from a transaction or transactions substantially
similar to the transaction or transactions for which the feepayer's
liability was previously compromised.
(d) The board may, in its discretion, enter into a written
agreement which permits the feepayer to pay the compromise in
installments for a period not exceeding one year. The agreement may
provide that such installments shall be paid by electronic funds
transfers or any other means to facilitate the payment of each
installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) may be required to enter into any collateral
agreement that is deemed necessary for the protection of the
interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the feepayer has sufficient annual income during
the succeeding five-year period. The board shall establish criteria
for determining "sufficient annual income" for purposes of this
subdivision.
(g) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) shall file and pay by the due date all
subsequently required underground storage tank maintenance fee
returns for a five-year period from the date the liability is
compromised, or until the feepayer is no longer required to file
underground storage tank maintenance fee returns, whichever period is
earlier.
(h) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(i) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(j) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the feepayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the feepayer.
(k) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable feepayer shall
not relieve the other feepayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(l) Whenever a compromise of the fee or penalties or total fees
and penalties in excess of five hundred dollars ($500) is approved,
there shall be placed on file for at least one year in the office of
the executive director of the board a public record with respect to
that compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Chapter 8 of Article 2 (commencing with Section 50156).
No list shall be prepared and no releases distributed by the board
in connection with these statements.
(m) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(n) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison, or
both, together with the costs of investigation and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the feepayer or other person
liable in respect of the fee.
(o) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(p) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
50156. The board shall administer this article. Unless the context
indicates otherwise, the provisions of this article shall apply to
this part.
50156.1. (a) The board shall establish the position of the
Taxpayers' Rights Advocate. The advocate or his or her designee shall
be responsible for facilitating resolution of fee payer complaints
and problems, including any fee payer complaints regarding
unsatisfactory treatment of fee payers by board employees, and
staying actions where fee payers have suffered or will suffer
irreparable loss as the result of those actions. Applicable statutes
of limitation shall be tolled during the pendency of a stay. Any
penalties and interest that would otherwise accrue shall not be
affected by the granting of a stay.
(b) The advocate shall report directly to the executive officer of
the board.
50156.18. (a) (1) The executive director and chief counsel of the
board, or their delegates, may compromise any final fee liability in
which the reduction of the fee is seven thousand five hundred dollars
($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in the fee
in excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of the fee is in excess
of seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 26 (commencing with
Section 50101), or related interest, additions to the fee, penalties,
or other amounts assessed under this part.
(c) Offers in compromise shall be considered only for liabilities
that were generated from a business that has been discontinued or
transferred, where the feepayer making the offer no longer has a
controlling interest or association with the transferred business or
has a controlling interest or association with a similar type of
business as the transferred or discontinued business.
(d) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(e) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(f) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the feepayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the feepayer.
(g) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable feepayer shall
not relieve the other feepayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(h) Whenever a compromise of the fee or penalties or total fees
and penalties in excess of five hundred dollars ($500) is approved,
there shall be placed on file for a least one year in the office of
the executive director of the board a public record with respect to
that compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Chapter 8 of Article 2 (commencing with Section 50156).
No list shall be prepared and no releases distributed by the board
in connection with these statements.
(i) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(j) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison, or
both, together with the costs of investigation and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the feepayer or other person
liable in respect of the fee.
(k) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(l) This section shall become operative on January 1, 2013.
50156.2. (a) The board shall develop and implement an education and
information program directed at, but not limited to, all of the
following groups:
(1) Fee payers newly registered with the board.
(2) Board audit and compliance staff.
(b) The education and information program shall include all of the
following:
(1) A program of written communication with newly registered fee
payers explaining in simplified terms their duties and
responsibilities.
(2) Participation in seminars and similar programs organized by
federal, state, and local agencies.
(3) Revision of fee payer educational materials currently produced
by the board that explain the most common areas of fee payer
nonconformance in simplified terms.
(4) Implementation of a continuing education program for audit and
compliance personnel to include the application of new legislation
to fee payer activities, and areas of recurrent fee payer
noncompliance or inconsistency of administration.
(c) Electronic media used to comply with this section shall not
represent the voice, picture, or name of members of the board or the
Controller.
50156.3. The board shall conduct an annual hearing before the full
board where industry representatives and individual fee payers are
allowed to present their proposals on changes to the Underground
Storage Tank Maintenance Fee Law which may further improve voluntary
compliance and the relationship between fee payers and government.
50156.4. The board shall prepare and publish brief but
comprehensive statements in simple and nontechnical language that
explain procedures, remedies, and the rights and obligations of the
board and fee payers. As appropriate, statements shall be provided to
fee payers with the initial notice of audit, the notice of proposed
additional fees, any subsequent notice of fees due, or other
substantive notices. Additionally, the board shall include this
language for statements in the annual fee information bulletins that
are mailed to taxpayers.
50156.5. (a) The total amount of revenue collected or assessed
pursuant to this part shall not be used for any of the following:
(1) To evaluate individual officers or employees.
(2) To impose or suggest production quotas or goals, other than
quotas or goals with respect to accounts receivable.
(b) The board shall certify in its annual report submitted
pursuant to Section 15616 of the Government Code that revenue
collected or assessed is not used in a manner prohibited by
subdivision (a).
(c) Nothing in this section shall prohibit the setting of goals
and the evaluation of performance with respect to productivity and
the efficient use of time.
50156.6. The board shall develop and implement a program that will
evaluate an individual employee's or officer's performance with
respect to his or her contact with fee payers. The development and
implementation of the program shall be coordinated with the Taxpayers'
Rights Advocate.
50156.7. The board shall, in cooperation with the State Water
Resources Control Board, the Taxpayers' Rights Advocate, and other
interested taxpayer-oriented groups, develop a plan to reduce the
time required to resolve petitions for redetermination and claims for
refunds. The plan shall include determination of standard timeframes
and special review of cases that take more time than the appropriate
standard timeframe.
50156.8. Procedures of the board, relating to appeals staff review
conferences before a staff attorney or supervising tax auditor
independent of the assessing department, shall include all of the
following:
(a) Any conference shall be held at a reasonable time at a board
office that is convenient to the fee payer.
(b) The conference may be recorded only if prior notice is given
to the fee payer and the fee payer is entitled to receive a copy of
the recording.
(c) The fee payer shall be informed prior to any conference that
he or she has a right to have present at the conference his or her
attorney, accountant, or other designated agent.
50156.9. (a) Every fee payer is entitled to be reimbursed for any
reasonable fees and expenses related to a hearing before the board if
all of the following conditions are met:
(1) The fee payer files a claim for the fee and expenses with the
board within one year of the date the decision of the board becomes
final.
(2) The board, in its sole discretion, finds that the action taken
by the board staff was unreasonable.
(3) The board decides that the fee payer be awarded a specific
amount of fees and expenses related to the hearing, in an amount
determined by the board in its sole discretion.
(b) To determine whether the board staff has been unreasonable,
the board shall consider whether the board staff has established that
its position was substantially justified.
(c) The amount of reimbursed fees and expenses shall be limited to
the following:
(1) Fees and expenses incurred after the date of the notice of
determination, jeopardy determination, or a claim for refunds.
(2) If the board finds that the staff was unreasonable with
respect to certain issues but reasonable with respect to other
issues, the amount of reimbursed fees and expenses shall be limited
to those that relate to the issues where the staff was unreasonable.
(d) Any proposed award by the board pursuant to subdivision (a)
shall be available as a public record for at least 10 days prior to
the effective date of the award.
(e) The amendments to this section by the act adding this
subdivision shall be operative for claims filed on or after January
1, 2000.
50156.10. (a) An officer or employee of the board acting in
connection with any law administered by the board shall not knowingly
authorize, require, or conduct any investigation of, or surveillance
over, any person for nontax administration related purposes.
(b) Any person violating subdivision (a) shall be subject to
disciplinary action in accordance with the State Civil Service Act,
including dismissal from office or discharge from employment.
(c) This section shall not apply with respect to any otherwise
lawful investigation concerning organized crime activities.
(d) The provisions of this section are not intended to prohibit,
restrict, or prevent the exchange of information where the person is
being investigated for multiple violations that include underground
storage tank fee violations.
(e) For the purposes of this section:
(1) "Investigation" means any oral or written inquiry directed to
any person, organization, or governmental agency.
(2) "Surveillance" means the monitoring of persons, places, or
events by means of electronic interception, overt or covert
observations, or photography, and the use of informants.
50156.11. (a) It is the intent of the Legislature that the State
Board of Equalization, its staff, and the Attorney General pursue
settlements as authorized under this section with respect to fee
matters in dispute that are the subject of protests, appeals, or
refund claims, consistent with a reasonable evaluation of the costs
and risks associated with litigation of these matters.
(b) (1) Except as provided in paragraph (3) and subject to
paragraph (2), the executive director or chief counsel, if authorized
by the executive director, of the board may recommend to the State
Board of Equalization, itself, a settlement of any fee matter in
dispute.
(2) No recommendation of settlement shall be submitted to the
board, itself, unless and until that recommendation has been
submitted by the executive director or chief counsel to the Attorney
General. Within 30 days of receiving that recommendation, the
Attorney General shall review the recommendation and advise, in
writing, the executive director or chief counsel of the board of his
or her conclusions as to whether the recommendation is reasonable
from an overall perspective. The executive director or chief counsel
shall, with each recommendation of settlement submitted to the board,
itself, also submit the Attorney General's written conclusions
obtained pursuant to this paragraph.
(3) A settlement of any civil fee matter in dispute involving a
reduction of fee or penalties in settlement, the total of which
reduction of fee and penalties in settlement does not exceed five
thousand dollars ($5,000), may be approved by the executive director
and chief counsel, jointly. The executive director shall notify the
board, itself, of any settlement approved pursuant to this paragraph.
(c) Whenever a reduction of fees, or penalties, or total fees and
penalties in settlement in excess of five hundred dollars ($500) is
approved pursuant to this section, there shall be placed on file, for
at least one year, in the office of the executive director of the
board a public record with respect to that settlement. The public
record shall include all of the following information:
(1) The name or names of the fee payers who are parties to the
settlement.
(2) The total amount in dispute.
(3) The amount agreed to pursuant to the settlement.
(4) A summary of the reasons why the settlement is in the best
interests of the State of California.
(5) For any settlement approved by the board, itself, the Attorney
General's conclusion as to whether the recommendation of settlement
was reasonable from an overall perspective.
The public record shall not include any information that relates
to any trade secret, patent, process, style of work, apparatus,
business secret, or organizational structure that, if disclosed,
would adversely affect the fee payer or the national defense.
(d) The members of the State Board of Equalization shall not
participate in the settlement of fee matters pursuant to this
section, except as provided in subdivision (e).
(e) (1) Any recommendation for settlement shall be approved or
disapproved by the board, itself, within 45 days of the submission of
that recommendation to the board. Any recommendation for settlement
that is not either approved or disapproved by the board, itself,
within 45 days of the submission of that recommendation shall be
deemed approved. Upon approval of a recommendation for settlement,
the matter shall be referred back to the executive director or chief
counsel in accordance with the decision of the board.
(2) Disapproval of a recommendation for settlement shall be made
only by a majority vote of the board. Where the board disapproves a
recommendation for settlement, the matter shall be remanded to board
staff for further negotiation, and may be resubmitted to the board,
in the same manner and subject to the same requirements as the
initial submission, at the discretion of the executive director or
chief counsel.
(f) All settlements entered into pursuant to this section shall be
final and nonappealable, except upon a showing of fraud or
misrepresentation with respect to a material fact.
(g) Any proceedings undertaken by the board itself pursuant to a
settlement as described in this section shall be conducted in a
closed session or sessions.
(h) This section shall apply only to fee matters in dispute on or
after the effective date of the act adding this subdivision.
(i) The Legislature finds that it is essential for fiscal purposes
that the settlement program authorized by this section be
expeditiously implemented. Accordingly, Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code shall not apply to any determination, rule, notice, or guideline
established or issued by the board in implementing and administering
the settlement program authorized by this section.
50156.12. (a) The board shall release any levy or notice to
withhold issued pursuant to this part on any property in the event
that the expense of the sale process exceeds the liability for which
the levy is made.
(b) The Taxpayers' Rights Advocate may order the release of any
levy or notice to withhold issued pursuant to this part or, within 90
days from the receipt of funds pursuant to a levy or notice to
withhold, order the return of any amount up to one thousand five
hundred dollars ($1,500) of moneys received, upon his or her finding
that the levy or notice to withhold threatens the health or welfare
of the feepayer or his or her spouse and dependents or family.
(c) The board shall not sell any seized property until it has
first notified the fee payer in writing of the exemptions from levy
under Chapter 4 (commencing with Section 703.010) of Division 2 of
Title 9 of Part 2 of the Code of Civil Procedure.
(d) This section shall not apply to the seizure of any property as
a result of a jeopardy assessment.
50156.13. Exemptions from levy under Chapter 4 (commencing with
Section 703.010) of Division 2 of Title 9 of Part 2 of the Code of
Civil Procedure shall be adjusted for purposes of enforcing the
collection of debts under this part to reflect changes in the
California Consumer Price Index whenever the change is more than 5
percent higher than any previous adjustment.
50156.14. (a) A feepayer may file a claim with the board for
reimbursement of bank charges and any other reasonable third-party
check charge fees incurred by the taxpayer as the direct result of an
erroneous levy or notice to withhold by the board. Bank and
third-party charges include a financial institution's or third party'
s customary charge for complying with the levy or notice to withhold
instructions and reasonable charges for overdrafts that are a direct
consequence of the erroneous levy or notice to withhold. The charges
are those paid to the feepayer and not waived for reimbursement by
the financial institution or third party. Each claimant applying for
reimbursement shall file a claim with the board that shall be in a
form as may be prescribed by the board. In order for the board to
grant a claim, the board shall determine that both of the following
conditions have been satisfied:
(1) The erroneous levy or notice to withhold was caused by board
error.
(2) Prior to the levy or notice to withhold, the feepayer
responded to all contacts by the board and provided the board with
any requested information or documentation sufficient to establish
the feepayer's position. This provision may be waived by the board
for reasonable cause.
(b) Claims pursuant to this section shall be filed within 90 days
from the date of the levy or notice to withhold. Within 30 days from
the date the claim is received, the board shall respond to the claim.
If the board denies the claim, the feepayer shall be notified in
writing of the reason or reasons for the denial of the claim.
50156.15. (a) At least 30 days prior to the filing or recording of
liens under Chapter 14 (commencing with Section 7150) or Chapter 14.5
(commencing with Section 7220) of Division 7 of Title 1 of the
Government Code, the board shall mail to the fee payer a preliminary
notice. The notice shall specify the statutory authority of the board
for filing or recording the lien, indicate the earliest date on
which the lien may be filed or recorded, and state the remedies
available to the fee payer to prevent the filing or recording of the
lien. In the event fee liens are filed for the same liability in
multiple counties, only one preliminary notice shall be sent.
(b) The preliminary notice required by this section shall not be
required with respect to jeopardy determinations issued under Article
4 (commencing with Section 50120.1) of Chapter 3.
(c) If the board determines that the filing of a lien was in
error, it shall mail a release to the fee payer and the entity
recording the lien as soon as possible, but no later than seven days,
after this determination and receipt of lien recording information.
The release shall contain a statement that the lien was filed in
error. In the event the erroneous lien is obstructing a lawful
transaction, the board shall immediately issue a release of lien to
the fee payer and the entity recording the lien.
(d) When the board releases a lien that has been erroneously
filed, notice of that release shall be mailed to the fee payer and,
upon the request of the fee payer, a copy of the release shall be
mailed to the major credit reporting companies in the county where
the lien was filed.
(e) The board may release or subordinate a lien if the board
determines that the release or subordination will facilitate the
collection of the fee liability or will be in the best interest of
the state and the fee payer.
50156.16. (a) If any officer or employee of the board recklessly
disregards board-published procedures, a fee payer aggrieved by that
action or omission may bring an action for damages against the State
of California in superior court.
(b) In any action brought under subdivision (a), upon finding of
liability on the part of the State of California, the state shall be
liable to the plaintiff in an amount equal to the sum of all of the
following:
(1) Actual and direct monetary damages sustained by the plaintiff
as a result of the actions or omissions.
(2) Reasonable litigation costs including any of the following:
(A) Reasonable court costs.
(B) Prevailing market rates for the kind or quality of services
furnished in connection with any of the following:
(i) The reasonable expenses of expert witnesses in connection with
the civil proceeding, except that no expert witness shall be
compensated at a rate in excess of the highest rate of compensation
for expert witnesses paid by the State of California.
(ii) The reasonable cost of any study, analysis, engineering
report, test, or project that is found by the court to be necessary
for the preparation of the party's case.
(iii) Reasonable fees paid or incurred for the services of
attorneys in connection with the civil proceeding, except that those
fees shall not be in excess of seventy-five dollars ($75) per hour
unless the court determines that an increase in the cost of living or
a special factor, such as the limited availability of qualified
attorneys for the proceeding, justifies a higher rate.
(c) In the awarding of damages under subdivision (b), the court
shall take into consideration the negligence or omissions, if any, on
the part of the plaintiff that contributed to the damages.
(d) Whenever it appears to the court that the fee payer's position
in the proceeding brought under subdivision (a) is frivolous, the
court may impose a penalty against the plaintiff in an amount not to
exceed ten thousand dollars ($10,000). A penalty so imposed shall be
paid upon notice and demand from the board and shall be collected as
a tax imposed under this part.
50156.17. (a) Except in any case where the board finds collection
of the fee to be in jeopardy, if any property has been levied upon,
the property or the proceeds from the sale of the property shall be
returned to the fee payer if the board determines any one of the
following:
(1) The levy on the property was not in accordance with the law.
(2) The fee payer has entered into and is in compliance with an
installment payment agreement pursuant to Section 50138.6 to satisfy
the fee liability for which the levy was imposed, unless that or
another agreement allows for the levy.
(3) The return of the property will facilitate the collection of
the fee liability or will be in the best interest of the state and
the fee payer.
(b) Property returned under paragraphs (1) and (2) of subdivision
(a) is subject to the provisions of Section 50156.14.
50156.18. (a) (1) Beginning January 1, 2003, the executive director
and chief counsel of the board, or their delegates, may compromise
any final fee liability in which the reduction of the fee is seven
thousand five hundred dollars ($7,500) or less.
(2) Except as provided in paragraph (3), the board, upon
recommendation by its executive director and chief counsel, jointly,
may compromise a final fee liability involving a reduction in the fee
in excess of seven thousand five hundred dollars ($7,500). Any
recommendation for approval of an offer in compromise that is not
either approved or disapproved within 45 days of the submission of
the recommendation shall be deemed approved.
(3) The board, itself, may by resolution delegate to the executive
director and the chief counsel, jointly, the authority to compromise
a final fee liability in which the reduction of the fee is in excess
of seven thousand five hundred dollars ($7,500), but less than ten
thousand dollars ($10,000).
(b) For purposes of this section, "a final fee liability" means
any final fee liability arising under Part 26 (commencing with
Section 50101), or related interest, additions to the fee, penalties,
or other amounts assessed under this part.
(c) (1) Offers in compromise shall be considered only for
liabilities that were generated from a business that has been
discontinued or transferred, where the feepayer making the offer no
longer has a controlling interest or association with the transferred
business or has a controlling interest or association with a similar
type of business as the transferred or discontinued business.
(2) Notwithstanding paragraph (1), a qualified final fee liability
may be compromised regardless of whether the business has been
discontinued or transferred or whether the feepayer has a controlling
interest or association with a similar type of business as the
transferred or discontinued business. All other provisions of this
section that apply to a final fee liability shall also apply to a
qualified final fee liability, and no compromise shall be made under
this subdivision unless all other requirements of this section are
met. For purposes of this subdivision, a "qualified final fee
liability" means that part of a final fee liability, including
related interest, additions to fee, penalties, or other amounts
assessed under this part, arising from a transaction or transactions
in which the board finds no evidence that the owner of the
underground storage tank collected underground storage tank
maintenance fee reimbursement from the operator of the underground
storage tank or other person and which was determined against the
feepayer under Article 2 (commencing with Section 50113) or Article 3
(commencing with Section 50114) of Chapter 3.
(3) A qualified final fee liability may not be compromised with
any of the following:
(A) A feepayer who previously received a compromise under
paragraph (2) for a liability, or a part thereof, arising from a
transaction or transactions that are substantially similar to the
transaction or transactions attributable to the liability for which
the feepayer is making the offer.
(B) A business that was transferred by a feepayer who previously
received a compromise under paragraph (2) and who has a controlling
interest or association with the transferred business, when the
liability for which the offer is made is attributable to a
transaction or transactions substantially similar to the transaction
or transactions for which the feepayer's liability was previously
compromised.
(C) A business in which a feepayer who previously received a
compromise under paragraph (2) has a controlling interest or
association with a similar type of business for which the feepayer
received the compromise, when the liability of the business making
the offer arose from a transaction or transactions substantially
similar to the transaction or transactions for which the feepayer's
liability was previously compromised.
(d) The board may, in its discretion, enter into a written
agreement which permits the feepayer to pay the compromise in
installments for a period not exceeding one year. The agreement may
provide that such installments shall be paid by electronic funds
transfers or any other means to facilitate the payment of each
installment.
(e) Except for any recommendation for approval as specified in
subdivision (a), the members of the State Board of Equalization shall
not participate in any offer in compromise matters pursuant to this
section.
(f) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) may be required to enter into any collateral
agreement that is deemed necessary for the protection of the
interests of the state. A collateral agreement may include a
provision that allows the board to reestablish the liability, or any
portion thereof, if the feepayer has sufficient annual income during
the succeeding five-year period. The board shall establish criteria
for determining "sufficient annual income" for purposes of this
subdivision.
(g) A feepayer that has received a compromise under paragraph (2)
of subdivision (c) shall file and pay by the due date all
subsequently required underground storage tank maintenance fee
returns for a five-year period from the date the liability is
compromised, or until the feepayer is no longer required to file
underground storage tank maintenance fee returns, whichever period is
earlier.
(h) For amounts to be compromised under this section, the
following conditions shall exist:
(1) The feepayer shall establish that:
(A) The amount offered in payment is the most that can be expected
to be paid or collected from the feepayer's present assets or
income.
(B) The feepayer does not have reasonable prospects of acquiring
increased income or assets that would enable the feepayer to satisfy
a greater amount of the liability than the amount offered, within a
reasonable period of time.
(2) The board shall have determined that acceptance of the
compromise is in the best interest of the state.
(i) A determination by the board that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of a final fee liability shall not be subject to
administrative appeal or judicial review.
(j) When an offer in compromise is either accepted or rejected, or
the terms and conditions of a compromise agreement are fulfilled,
the board shall notify the feepayer in writing. In the event an offer
is rejected, the amount posted will either be applied to the
liability or refunded, at the discretion of the feepayer.
(k) When more than one feepayer is liable for the debt, such as
with spouses or partnerships or other business combinations, the
acceptance of an offer in compromise from one liable feepayer shall
not relieve the other feepayers from paying the entire liability.
However, the amount of the liability shall be reduced by the amount
of the accepted offer.
(l) Whenever a compromise of the fee or penalties or total fees
and penalties in excess of five hundred dollars ($500) is approved,
there shall be placed on file for at least one year in the office of
the executive director of the board a public record with respect to
that compromise. The public record shall include all of the following
information:
(1) The name of the feepayer.
(2) The amount of unpaid fees and related penalties, additions to
fees, interest, or other amounts involved.
(3) The amount offered.
(4) A summary of the reason why the compromise is in the best
interest of the state.
The public record shall not include any information that relates
to any trade secrets, patent, process, style of work, apparatus,
business secret, or organizational structure, that if disclosed,
would adversely affect the feepayer or violate the confidentiality
provisions of Chapter 8 of Article 2 (commencing with Section 50156).
No list shall be prepared and no releases distributed by the board
in connection with these statements.
(m) Any compromise made under this section may be rescinded, all
compromised liabilities may be reestablished (without regard to any
statute of limitations that otherwise may be applicable), and no
portion of the amount offered in compromise refunded, if either of
the following occurs:
(1) The board determines that any person did any of the following
acts regarding the making of the offer:
(A) Concealed from the board any property belonging to the estate
of any feepayer or other person liable for the fee.
(B) Received, withheld, destroyed, mutilated, or falsified any
book, document, or record or made any false statement, relating to
the estate or financial condition of the feepayer or other person
liable for the fee.
(2) The feepayer fails to comply with any of the terms and
conditions relative to the offer.
(n) Any person who, in connection with any offer or compromise
under this section, or offer of that compromise to enter into that
agreement, willfully does either of the following shall be guilty of
a felony and, upon conviction, shall be fined not more than fifty
thousand dollars ($50,000) or imprisoned in the state prison, or
both, together with the costs of investigation and prosecution:
(1) Conceals from any officer or employee of this state any
property belonging to the estate of a feepayer or other person liable
in respect of the fee.
(2) Receives, withholds, destroys, mutilates, or falsifies any
book, document, or record, or makes any false statement, relating to
the estate or financial condition of the feepayer or other person
liable in respect of the fee.
(o) For purposes of this section, "person" means the feepayer, any
member of the feepayer's family, any corporation, agent, fiduciary,
or representative of, or any other individual or entity acting on
behalf of, the feepayer, or any other corporation or entity owned or
controlled by the feepayer, directly or indirectly, or that owns or
controls the feepayer, directly or indirectly.
(p) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
