§237-40  Limitation period.  (a) General rule.  The amount of excise taxes imposed by this chapter shall beassessed or levied within three years after the annual return was filed, orwithin three years of the due date prescribed for the filing of the return,whichever is later, and no proceeding in court without assessment for thecollection of any of the taxes shall be begun after the expiration of theperiod.  Where the assessment of the tax imposed by this chapter has been madewithin the period of limitation applicable thereto, the tax may be collected bylevy or by a proceeding in court under chapter 231; provided that the levy ismade or the proceeding was begun within fifteen years after the assessment ofthe tax.  For any tax that has been assessed prior to July 1, 2009, the levy orproceeding shall be barred after June 30, 2024.

Notwithstanding any otherprovision to the contrary in this section, the limitation on collection afterassessment in this section shall be suspended for the period:

(1)  The taxpayer agrees tosuspend the period;

(2)  The assets of the taxpayerare in control or custody of a court in any proceeding before any court of theUnited States or any state, and for six months thereafter;

(3)  An offer in compromiseunder section 231-3(10) is pending; and

(4)  During which the taxpayeris outside the State if the period of absence is for a continuous period of atleast six months; provided that if at the time of the taxpayer's return to theState the period of limitations on collection after assessment would expirebefore the expiration of six months from the date of the taxpayer's return, theperiod shall not expire before the expiration of the six months.

(b)  Exceptions.  In the case of a false orfraudulent return with intent to evade tax, or of a failure to file the annualreturn, the tax may be assessed or levied at any time; provided that the burdenof proof with respect to the issues of falsity or fraud and intent to evade taxshall be upon the State.

(c)  Extension by agreement.  Where, before theexpiration of the period prescribed in subsection (a) or (d), both thedepartment of taxation and the taxpayer have consented in writing to theassessment or levy of the tax after the date fixed by subsection (a) or thecredit or refund of the tax after the date fixed by subsection (d), the tax maybe assessed or levied or the overpayment, if any, may be credited or refundedat any time prior to the expiration of the period agreed upon.  The period soagreed upon may be extended by subsequent agreements in writing made before theexpiration of the period previously agreed upon.

(d)  Refunds.  No credit or refund shall beallowed for any tax imposed by this chapter, unless a claim for such credit orrefund shall be filed as follows:

(1)  If an annual return is timely filed, or is filedwithin three years after the date prescribed for filing the annual return, thenthe credit or refund shall be claimed within three years after the date theannual return was filed or the date prescribed for filing the annual return,whichever is later.

(2)  If an annual return is not filed, or is filedmore than three years after the date prescribed for filing the annual return, aclaim for credit or refund shall be filed within:

(A)  Three years after the payment of the tax;or

(B)  Three years after the date prescribed forthe filing of the annual return,

whichever is later.

Paragraphs (1) and (2) are mutually exclusive.  Thelimitation shall not apply to a credit or refund pursuant to an appeal providedfor by section 237-42. [L 1943, c 140, §2; RL 1945, §5471; RL 1955, §117-35; amL Sp 1957, c 1, §29; am L Sp 1959 2d, c 1, §16; HRS §237-40; am L 1969, c 274,§3; am L 1971, c 9, §2; am L 1983, c 103, §1; am L 1992, c 104, §1; am L 1993,c 257, §2; am L 2009, c 166, §7]

 

Note

 

  Applicability of 2009 amendment. L 2009, c 166, §27.

 

Cross References

 

  Suspension of limitation period during bankruptcyproceedings, see §231-3.5.

 

Case Notes

 

  No discovery tolling period applies to tax statutes.  69 H.515, 750 P.2d 81.