41095. (a) Any person who fails to pay any surcharge to the state
or any amount of surcharge required to be collected and paid to the
state, except amounts of determinations made by the board under
Article 3 (commencing with Section 41070) or Article 4 (commencing
with Section 41080), within the time required shall pay a penalty of
10 percent of the surcharge or amount of the surcharge or ten dollars
($10), whichever is greater, in addition to the surcharge or amount
of surcharge, plus interest at the modified adjusted rate per month,
or fraction thereof, established pursuant to Section 6591.5, from the
date on which the surcharge or the amount of surcharge required to
be collected became due and payable to the state until the date of
payment.
(b) Any person who fails to file a return in accordance with the
due date set forth in Section 41052 or the due date established by
the board in accordance with Section 41052.1, shall pay a penalty of
10 percent of the amount of the surcharge with respect to the period
for which the return is required, or ten dollars ($10), whichever is
greater.
(c) The penalties imposed by this section shall be limited to
either 10 percent of the surcharge for which the return is required
for any one return, or ten dollars ($10), whichever is greater.
41095.5. (a) If the board finds, taking into account all facts and
circumstances, that it is inequitable to compute interest at the
modified adjusted rate per month or fraction thereof, as defined in
subdivision (b) of Section 6591.5, interest shall be computed at the
modified adjusted daily rate from the date on which the surcharge was
due until the date of payment, if all of the following occur:
(1) The payment of the surcharge was made one business day after
the date the surcharge was due.
(2) The person was granted relief from all penalties that applied
to that payment of the surcharge.
(3) The person files a request for an oral hearing before the
board.
(b) For purposes of this section, "modified adjusted daily rate"
means the modified adjusted rate per annum as defined in subdivision
(a) of Section 6591.5 determined on a daily basis by dividing the
modified adjusted rate per annum by 365.
(c) For purposes of this section, "board" means the members of the
State Board of Equalization meeting as a public body.
(d) For purposes of this section, "business day" means any day
other than a Saturday, Sunday, or any day designated as a state
holiday.
(e) This section shall not apply to any payment made pursuant to a
deficiency determination, or a determination where no return has
been filed.
(f) This section shall only apply to electronic payments of
surcharges.
(g) This section shall be operative only until January 1, 2016.
41096. (a) If the board finds that a person's failure to make a
timely return or payment is due to reasonable cause and circumstances
beyond the person's control, and occurred notwithstanding the
exercise of ordinary care and the absence of willful neglect, the
person may be relieved of the penalty provided by Sections 41060,
41080, 41090, and 41095.
(b) Except as provided in subdivision (c), any person seeking to
be relieved of the penalty shall file with the board a statement
under penalty of perjury setting forth the facts upon which he or she
bases his or her claim for relief.
(c) The board shall establish criteria that provide for efficient
resolution of requests for relief pursuant to this section.
41097. If the board finds that a person's failure to make a timely
return or payment was due to a disaster, and occurred notwithstanding
the exercise of ordinary care and the absence of willful neglect,
the person may be relieved of the interest provided by Sections
41054, 41060, 41082, and 41095.
Any person seeking to be relieved of the interest shall file with
the board a statement under penalty of perjury setting forth the
facts upon which he or she bases his or her claim for relief.
41097.5. (a) The board, in its discretion, may relieve all or any
part of the interest imposed on a person by this part where the
failure to pay tax is due in whole or in part to an unreasonable
error or delay by an employee of the board acting in his or her
official capacity.
(b) For purposes of this section, an error or delay shall be
deemed to have occurred only if no significant aspect of the error or
delay is attributable to an act of, or a failure to act by, the
taxpayer.
(c) Any person seeking relief under this section shall file with
the board a statement under penalty of perjury setting forth the
facts on which the claim for relief is based and any other
information which the board may require.
(d) The board may grant relief only for interest imposed on tax
liabilities that arise during taxable periods commencing on or after
January 1, 2000.
41098. (a) If the board finds that a person's failure to make a
timely return or payment is due to the person's reasonable reliance
on written advice from the board, the person may be relieved of the
surcharge imposed by this part and any penalty or interest added
thereto.
(b) For purposes of this section, a person's failure to make a
timely return or payment shall be considered to be due to reasonable
reliance on written advice from the board, only if the board finds
that all of the following conditions are satisfied:
(1) The person requested in writing that the board advise him or
her whether a particular activity or transaction is subject to the
surcharge under this part. The specific facts and circumstances of
the activity or transaction shall be fully described in the request.
(2) The board responded in writing to the person regarding the
written request for advice, stating whether or not the described
activity or transaction is subject to the surcharge, or stating the
conditions under which the activity or transaction is subject to the
surcharge.
(3) The liability for surcharges applied to a particular activity
or transaction which occurred before either of the following:
(A) Before the board rescinded or modified the advice so given, by
sending written notice to the person of rescinded or modified
advice.
(B) Before a change in statutory or constitutional law, a change
in the board's regulations, or a final decision of a court, which
renders the board's earlier written advice no longer valid.
(c) Any person seeking relief under this section shall file with
the board all of the following:
(1) A copy of the person's written request to the board and a copy
of the board's written advice.
(2) A statement under penalty of perjury setting forth the facts
on which the claim for relief is based.
(3) Any other information which the board may require.
(d) Only the person making the written request shall be entitled
to rely on the board's written advice to that person.
41099. (a) Under regulations prescribed by the board, if:
(1) A surcharge liability under this part was understated by a
failure to file a return required to be filed under this part, by the
omission of an amount properly includable therein, or by erroneous
deductions or credits claimed on a return, and the understatement of
surcharge liability is attributable to one spouse; or any amount of
the surcharge reported on a return was unpaid and the nonpayment of
the reported surcharge liability is attributable to one spouse.
(2) The other spouse establishes that he or she did not know of,
and had no reason to know of, that understatement or nonpayment.
(3) Taking into account whether the other spouse significantly
benefited directly or indirectly from the understatement or the
nonpayment and taking into account all other facts and circumstances,
it is inequitable to hold the other spouse liable for the deficiency
in surcharge attributable to that understatement or nonpayment, then
the other spouse shall be relieved of liability for the surcharge,
including interest, penalties, and other amounts, to the extent that
the liability is attributable to that understatement or nonpayment of
the surcharge.
(b) For purposes of this section, the determination of the spouse
to whom items of understatement or nonpayment are attributable shall
be made without regard to community property laws.
(c) This section shall apply to all calendar months, quarters, or
years subject to the provisions of this part, but shall not apply to
a calendar month, quarter, or year that is more than five years from
the final date on the board-issued determination, five years from the
return due date for nonpayment on a return, or one year from the
first contact with the spouse making a claim under this section; or
that has been closed by res judicata, whichever is later.
(d) For purposes of paragraph (2) of subdivision (a), "reason to
know" means whether a reasonably prudent person would have had reason
to know of the understatement or nonpayment.
(e) For purposes of this section, with respect to a failure to
file a return or an omission of an item from the return,
"attributable to one spouse" may be determined by whether a spouse
rendered substantial service as a service supplier of intrastate
telephone communication services to service users or as a user of
intrastate telephone communication services to which the
understatement is attributable. If neither spouse rendered
substantial services as a service supplier or as a service user, then
the attribution of applicable items of understatement shall be
treated as community property. An erroneous deduction or credit shall
be attributable to the spouse who caused that deduction or credit to
be entered on the return.
(f) Under procedures prescribed by the board, if, taking into
account all the facts and circumstances, it is inequitable to hold
the other spouse liable for an unpaid surcharge or deficiency, or any
portion of either, attributable to any item for which relief is not
available under subdivision (a), the board may relieve the other
spouse of that liability.
(g) For purposes of this section, registered domestic partners, as
defined in Section 297 of the Family Code, have the same rights,
protections, and benefits as provided by this section, and are
subject to the same responsibilities, obligations, and duties as
imposed by this section, as are granted to and imposed upon spouses.
(h) The relief provided by this section shall apply retroactively
to liabilities arising prior to January 1, 2008.
41095. (a) Any person who fails to pay any surcharge to the state
or any amount of surcharge required to be collected and paid to the
state, except amounts of determinations made by the board under
Article 3 (commencing with Section 41070) or Article 4 (commencing
with Section 41080), within the time required shall pay a penalty of
10 percent of the surcharge or amount of the surcharge or ten dollars
($10), whichever is greater, in addition to the surcharge or amount
of surcharge, plus interest at the modified adjusted rate per month,
or fraction thereof, established pursuant to Section 6591.5, from the
date on which the surcharge or the amount of surcharge required to
be collected became due and payable to the state until the date of
payment.
(b) Any person who fails to file a return in accordance with the
due date set forth in Section 41052 or the due date established by
the board in accordance with Section 41052.1, shall pay a penalty of
10 percent of the amount of the surcharge with respect to the period
for which the return is required, or ten dollars ($10), whichever is
greater.
(c) The penalties imposed by this section shall be limited to
either 10 percent of the surcharge for which the return is required
for any one return, or ten dollars ($10), whichever is greater.
41095.5. (a) If the board finds, taking into account all facts and
circumstances, that it is inequitable to compute interest at the
modified adjusted rate per month or fraction thereof, as defined in
subdivision (b) of Section 6591.5, interest shall be computed at the
modified adjusted daily rate from the date on which the surcharge was
due until the date of payment, if all of the following occur:
(1) The payment of the surcharge was made one business day after
the date the surcharge was due.
(2) The person was granted relief from all penalties that applied
to that payment of the surcharge.
(3) The person files a request for an oral hearing before the
board.
(b) For purposes of this section, "modified adjusted daily rate"
means the modified adjusted rate per annum as defined in subdivision
(a) of Section 6591.5 determined on a daily basis by dividing the
modified adjusted rate per annum by 365.
(c) For purposes of this section, "board" means the members of the
State Board of Equalization meeting as a public body.
(d) For purposes of this section, "business day" means any day
other than a Saturday, Sunday, or any day designated as a state
holiday.
(e) This section shall not apply to any payment made pursuant to a
deficiency determination, or a determination where no return has
been filed.
(f) This section shall only apply to electronic payments of
surcharges.
(g) This section shall be operative only until January 1, 2016.
41096. (a) If the board finds that a person's failure to make a
timely return or payment is due to reasonable cause and circumstances
beyond the person's control, and occurred notwithstanding the
exercise of ordinary care and the absence of willful neglect, the
person may be relieved of the penalty provided by Sections 41060,
41080, 41090, and 41095.
(b) Except as provided in subdivision (c), any person seeking to
be relieved of the penalty shall file with the board a statement
under penalty of perjury setting forth the facts upon which he or she
bases his or her claim for relief.
(c) The board shall establish criteria that provide for efficient
resolution of requests for relief pursuant to this section.
41097. If the board finds that a person's failure to make a timely
return or payment was due to a disaster, and occurred notwithstanding
the exercise of ordinary care and the absence of willful neglect,
the person may be relieved of the interest provided by Sections
41054, 41060, 41082, and 41095.
Any person seeking to be relieved of the interest shall file with
the board a statement under penalty of perjury setting forth the
facts upon which he or she bases his or her claim for relief.
41097.5. (a) The board, in its discretion, may relieve all or any
part of the interest imposed on a person by this part where the
failure to pay tax is due in whole or in part to an unreasonable
error or delay by an employee of the board acting in his or her
official capacity.
(b) For purposes of this section, an error or delay shall be
deemed to have occurred only if no significant aspect of the error or
delay is attributable to an act of, or a failure to act by, the
taxpayer.
(c) Any person seeking relief under this section shall file with
the board a statement under penalty of perjury setting forth the
facts on which the claim for relief is based and any other
information which the board may require.
(d) The board may grant relief only for interest imposed on tax
liabilities that arise during taxable periods commencing on or after
January 1, 2000.
41098. (a) If the board finds that a person's failure to make a
timely return or payment is due to the person's reasonable reliance
on written advice from the board, the person may be relieved of the
surcharge imposed by this part and any penalty or interest added
thereto.
(b) For purposes of this section, a person's failure to make a
timely return or payment shall be considered to be due to reasonable
reliance on written advice from the board, only if the board finds
that all of the following conditions are satisfied:
(1) The person requested in writing that the board advise him or
her whether a particular activity or transaction is subject to the
surcharge under this part. The specific facts and circumstances of
the activity or transaction shall be fully described in the request.
(2) The board responded in writing to the person regarding the
written request for advice, stating whether or not the described
activity or transaction is subject to the surcharge, or stating the
conditions under which the activity or transaction is subject to the
surcharge.
(3) The liability for surcharges applied to a particular activity
or transaction which occurred before either of the following:
(A) Before the board rescinded or modified the advice so given, by
sending written notice to the person of rescinded or modified
advice.
(B) Before a change in statutory or constitutional law, a change
in the board's regulations, or a final decision of a court, which
renders the board's earlier written advice no longer valid.
(c) Any person seeking relief under this section shall file with
the board all of the following:
(1) A copy of the person's written request to the board and a copy
of the board's written advice.
(2) A statement under penalty of perjury setting forth the facts
on which the claim for relief is based.
(3) Any other information which the board may require.
(d) Only the person making the written request shall be entitled
to rely on the board's written advice to that person.
41099. (a) Under regulations prescribed by the board, if:
(1) A surcharge liability under this part was understated by a
failure to file a return required to be filed under this part, by the
omission of an amount properly includable therein, or by erroneous
deductions or credits claimed on a return, and the understatement of
surcharge liability is attributable to one spouse; or any amount of
the surcharge reported on a return was unpaid and the nonpayment of
the reported surcharge liability is attributable to one spouse.
(2) The other spouse establishes that he or she did not know of,
and had no reason to know of, that understatement or nonpayment.
(3) Taking into account whether the other spouse significantly
benefited directly or indirectly from the understatement or the
nonpayment and taking into account all other facts and circumstances,
it is inequitable to hold the other spouse liable for the deficiency
in surcharge attributable to that understatement or nonpayment, then
the other spouse shall be relieved of liability for the surcharge,
including interest, penalties, and other amounts, to the extent that
the liability is attributable to that understatement or nonpayment of
the surcharge.
(b) For purposes of this section, the determination of the spouse
to whom items of understatement or nonpayment are attributable shall
be made without regard to community property laws.
(c) This section shall apply to all calendar months, quarters, or
years subject to the provisions of this part, but shall not apply to
a calendar month, quarter, or year that is more than five years from
the final date on the board-issued determination, five years from the
return due date for nonpayment on a return, or one year from the
first contact with the spouse making a claim under this section; or
that has been closed by res judicata, whichever is later.
(d) For purposes of paragraph (2) of subdivision (a), "reason to
know" means whether a reasonably prudent person would have had reason
to know of the understatement or nonpayment.
(e) For purposes of this section, with respect to a failure to
file a return or an omission of an item from the return,
"attributable to one spouse" may be determined by whether a spouse
rendered substantial service as a service supplier of intrastate
telephone communication services to service users or as a user of
intrastate telephone communication services to which the
understatement is attributable. If neither spouse rendered
substantial services as a service supplier or as a service user, then
the attribution of applicable items of understatement shall be
treated as community property. An erroneous deduction or credit shall
be attributable to the spouse who caused that deduction or credit to
be entered on the return.
(f) Under procedures prescribed by the board, if, taking into
account all the facts and circumstances, it is inequitable to hold
the other spouse liable for an unpaid surcharge or deficiency, or any
portion of either, attributable to any item for which relief is not
available under subdivision (a), the board may relieve the other
spouse of that liability.
(g) For purposes of this section, registered domestic partners, as
defined in Section 297 of the Family Code, have the same rights,
protections, and benefits as provided by this section, and are
subject to the same responsibilities, obligations, and duties as
imposed by this section, as are granted to and imposed upon spouses.
(h) The relief provided by this section shall apply retroactively
to liabilities arising prior to January 1, 2008.
41095. (a) Any person who fails to pay any surcharge to the state
or any amount of surcharge required to be collected and paid to the
state, except amounts of determinations made by the board under
Article 3 (commencing with Section 41070) or Article 4 (commencing
with Section 41080), within the time required shall pay a penalty of
10 percent of the surcharge or amount of the surcharge or ten dollars
($10), whichever is greater, in addition to the surcharge or amount
of surcharge, plus interest at the modified adjusted rate per month,
or fraction thereof, established pursuant to Section 6591.5, from the
date on which the surcharge or the amount of surcharge required to
be collected became due and payable to the state until the date of
payment.
(b) Any person who fails to file a return in accordance with the
due date set forth in Section 41052 or the due date established by
the board in accordance with Section 41052.1, shall pay a penalty of
10 percent of the amount of the surcharge with respect to the period
for which the return is required, or ten dollars ($10), whichever is
greater.
(c) The penalties imposed by this section shall be limited to
either 10 percent of the surcharge for which the return is required
for any one return, or ten dollars ($10), whichever is greater.
41095.5. (a) If the board finds, taking into account all facts and
circumstances, that it is inequitable to compute interest at the
modified adjusted rate per month or fraction thereof, as defined in
subdivision (b) of Section 6591.5, interest shall be computed at the
modified adjusted daily rate from the date on which the surcharge was
due until the date of payment, if all of the following occur:
(1) The payment of the surcharge was made one business day after
the date the surcharge was due.
(2) The person was granted relief from all penalties that applied
to that payment of the surcharge.
(3) The person files a request for an oral hearing before the
board.
(b) For purposes of this section, "modified adjusted daily rate"
means the modified adjusted rate per annum as defined in subdivision
(a) of Section 6591.5 determined on a daily basis by dividing the
modified adjusted rate per annum by 365.
(c) For purposes of this section, "board" means the members of the
State Board of Equalization meeting as a public body.
(d) For purposes of this section, "business day" means any day
other than a Saturday, Sunday, or any day designated as a state
holiday.
(e) This section shall not apply to any payment made pursuant to a
deficiency determination, or a determination where no return has
been filed.
(f) This section shall only apply to electronic payments of
surcharges.
(g) This section shall be operative only until January 1, 2016.
41096. (a) If the board finds that a person's failure to make a
timely return or payment is due to reasonable cause and circumstances
beyond the person's control, and occurred notwithstanding the
exercise of ordinary care and the absence of willful neglect, the
person may be relieved of the penalty provided by Sections 41060,
41080, 41090, and 41095.
(b) Except as provided in subdivision (c), any person seeking to
be relieved of the penalty shall file with the board a statement
under penalty of perjury setting forth the facts upon which he or she
bases his or her claim for relief.
(c) The board shall establish criteria that provide for efficient
resolution of requests for relief pursuant to this section.
41097. If the board finds that a person's failure to make a timely
return or payment was due to a disaster, and occurred notwithstanding
the exercise of ordinary care and the absence of willful neglect,
the person may be relieved of the interest provided by Sections
41054, 41060, 41082, and 41095.
Any person seeking to be relieved of the interest shall file with
the board a statement under penalty of perjury setting forth the
facts upon which he or she bases his or her claim for relief.
41097.5. (a) The board, in its discretion, may relieve all or any
part of the interest imposed on a person by this part where the
failure to pay tax is due in whole or in part to an unreasonable
error or delay by an employee of the board acting in his or her
official capacity.
(b) For purposes of this section, an error or delay shall be
deemed to have occurred only if no significant aspect of the error or
delay is attributable to an act of, or a failure to act by, the
taxpayer.
(c) Any person seeking relief under this section shall file with
the board a statement under penalty of perjury setting forth the
facts on which the claim for relief is based and any other
information which the board may require.
(d) The board may grant relief only for interest imposed on tax
liabilities that arise during taxable periods commencing on or after
January 1, 2000.
41098. (a) If the board finds that a person's failure to make a
timely return or payment is due to the person's reasonable reliance
on written advice from the board, the person may be relieved of the
surcharge imposed by this part and any penalty or interest added
thereto.
(b) For purposes of this section, a person's failure to make a
timely return or payment shall be considered to be due to reasonable
reliance on written advice from the board, only if the board finds
that all of the following conditions are satisfied:
(1) The person requested in writing that the board advise him or
her whether a particular activity or transaction is subject to the
surcharge under this part. The specific facts and circumstances of
the activity or transaction shall be fully described in the request.
(2) The board responded in writing to the person regarding the
written request for advice, stating whether or not the described
activity or transaction is subject to the surcharge, or stating the
conditions under which the activity or transaction is subject to the
surcharge.
(3) The liability for surcharges applied to a particular activity
or transaction which occurred before either of the following:
(A) Before the board rescinded or modified the advice so given, by
sending written notice to the person of rescinded or modified
advice.
(B) Before a change in statutory or constitutional law, a change
in the board's regulations, or a final decision of a court, which
renders the board's earlier written advice no longer valid.
(c) Any person seeking relief under this section shall file with
the board all of the following:
(1) A copy of the person's written request to the board and a copy
of the board's written advice.
(2) A statement under penalty of perjury setting forth the facts
on which the claim for relief is based.
(3) Any other information which the board may require.
(d) Only the person making the written request shall be entitled
to rely on the board's written advice to that person.
41099. (a) Under regulations prescribed by the board, if:
(1) A surcharge liability under this part was understated by a
failure to file a return required to be filed under this part, by the
omission of an amount properly includable therein, or by erroneous
deductions or credits claimed on a return, and the understatement of
surcharge liability is attributable to one spouse; or any amount of
the surcharge reported on a return was unpaid and the nonpayment of
the reported surcharge liability is attributable to one spouse.
(2) The other spouse establishes that he or she did not know of,
and had no reason to know of, that understatement or nonpayment.
(3) Taking into account whether the other spouse significantly
benefited directly or indirectly from the understatement or the
nonpayment and taking into account all other facts and circumstances,
it is inequitable to hold the other spouse liable for the deficiency
in surcharge attributable to that understatement or nonpayment, then
the other spouse shall be relieved of liability for the surcharge,
including interest, penalties, and other amounts, to the extent that
the liability is attributable to that understatement or nonpayment of
the surcharge.
(b) For purposes of this section, the determination of the spouse
to whom items of understatement or nonpayment are attributable shall
be made without regard to community property laws.
(c) This section shall apply to all calendar months, quarters, or
years subject to the provisions of this part, but shall not apply to
a calendar month, quarter, or year that is more than five years from
the final date on the board-issued determination, five years from the
return due date for nonpayment on a return, or one year from the
first contact with the spouse making a claim under this section; or
that has been closed by res judicata, whichever is later.
(d) For purposes of paragraph (2) of subdivision (a), "reason to
know" means whether a reasonably prudent person would have had reason
to know of the understatement or nonpayment.
(e) For purposes of this section, with respect to a failure to
file a return or an omission of an item from the return,
"attributable to one spouse" may be determined by whether a spouse
rendered substantial service as a service supplier of intrastate
telephone communication services to service users or as a user of
intrastate telephone communication services to which the
understatement is attributable. If neither spouse rendered
substantial services as a service supplier or as a service user, then
the attribution of applicable items of understatement shall be
treated as community property. An erroneous deduction or credit shall
be attributable to the spouse who caused that deduction or credit to
be entered on the return.
(f) Under procedures prescribed by the board, if, taking into
account all the facts and circumstances, it is inequitable to hold
the other spouse liable for an unpaid surcharge or deficiency, or any
portion of either, attributable to any item for which relief is not
available under subdivision (a), the board may relieve the other
spouse of that liability.
(g) For purposes of this section, registered domestic partners, as
defined in Section 297 of the Family Code, have the same rights,
protections, and benefits as provided by this section, and are
subject to the same responsibilities, obligations, and duties as
imposed by this section, as are granted to and imposed upon spouses.
(h) The relief provided by this section shall apply retroactively
to liabilities arising prior to January 1, 2008.
