§431:7-203  Administrative refunds.  (a)  If any person has paid to the commissioner
any tax, fee, or other charge in error or in excess of that which the person is
lawfully obligated to pay under this code, the commissioner, upon written
request made by the person to the commissioner within the time set forth in
section 431:7-204.6, shall authorize a refund thereof out of the compliance
resolution fund, except that a tax refund shall be payable out of the general
fund, by submitting a voucher therefor to the comptroller subject to the
following limitations:



(1)  No recourse may be had except under section 40-35
or by appeal for refunds of taxes paid pursuant to an assessment by the
commissioner; provided that if the assessment by the commissioner contains clerical
errors, transposition of figures, typographical errors, and errors in
calculation or if there is an illegal or erroneous assessment because the
assessment is not in accordance with this code, the refund procedures in
subsection (a) shall apply; and



(2)  No refund or overpayment credit shall be made
unless the original payment of the tax was due to the law having been
interpreted or applied with respect to the taxpayer concerned differently than
with respect to taxpayers generally.



As to all
tax payments for which a refund or credit is not authorized by this subsection
(including, without prejudice to the generality of the foregoing, cases of
unconstitutionality), the remedies provided by appeal or under section 40-35
are exclusive.



(b)  Where a taxpayer is entitled to a refund,
the taxpayer, at the taxpayer's election, may apply the amount of the refund as
an overpayment credit to taxes subsequently accruing under this code.



(c)  This subsection shall apply to a refund
for an overpayment of tax.



(1)  If the tax return as filed by a taxpayer shows
the amount already paid, whether or not on the basis of installments, exceeds
the amount determined to be the correct amount of the tax due, and the taxpayer
requests a refund of the overpayment, the amount of overpayment together with
interest, if any, shall be refunded in the manner provided in subsection (a). 
The interest shall be allowed and paid at the rate of two-thirds of one per
cent for each calendar month or fraction thereof, beginning with the first
calendar day after the due date of the return or, if the return is filed after
the prescribed due date, the first month following the month the return is
received, and continuing until the date that the commissioner approves the
refund voucher.  If the commissioner approves the refund voucher within ninety
days from the due date or the date the return is received, whichever is later,
and the comptroller of the State sends the taxpayer a refund warrant within
forty-five days from the date of the commissioner's approval, no interest on
the overpayment will be allowed or paid.  However, if either the commissioner
or the comptroller exceeds the time allowed herein, interest will be computed
from the first calendar day after the due date of the return or from the first
month following the month the return is received by the commissioner if the
return is filed after the prescribed due date, until the date that the
comptroller sends the refund warrant to the taxpayer.



(2)  If any overpayment of taxes results or arises
from



(A)  The taxpayer filing an amended return, or
from



(B)  A determination made by the commissioner
and such overpayment is not shown on the original return as filed by the
taxpayer, interest on the overpayment shall be allowed and paid from the first
calendar day after the due date of the original return or, if the original
return is filed after the prescribed due date, the first month following the
month the return is received, to the date that the commissioner signs the
refund voucher.  If the comptroller does not send the refund warrant to the
taxpayer within forty-five days after the commissioner's approval, interest
will continue until the date that the comptroller sends the refund warrant to
the taxpayer.



(3)  In the case of credit, interest shall be allowed
and paid from the first calendar day after the due date of the return, the
first month following the month the return is received by the commissioner, or
the date of payment, whichever is later, to the date the credit is taken; provided
that the commissioner may make a refund of any credit to a taxpayer where the
taxpayer has no underpayment against which to apply the credit. [L 1987, c 347,
pt of §2; am L 1992, c 236, §7; am L 1999, c 163, §15; am L 2000, c 162, §1 and
c 182, §6; am L 2002, c 39, §12]



 



Case Notes



 



  As agencies may not pass upon the
constitutionality of statutes, had insurers initially brought a claim under
this section, insurance commissioner, as an administrative officer, would have
been powerless to declare fees imposed on insurers pursuant to this section
unconstitutional or to provide a refund on that basis; thus, as there were no
remedies for insurers' constitutional claims under this section, circuit court
did not lack subject matter jurisdiction by virtue of insurers' failure to
exhaust their administrative remedies under this section.  120 H. 51, 201 P.3d
564.



  Where subsection (a) did not establish a true
available administrative remedy for challenging the constitutionality of the
insurance division's assessments against insurers, trial court did not err in
rejecting State's failure-to-exhaust defense.  117 H. 454 (App.), 184 P.3d 769.