§431:7-203  Administrative refunds.  (a)  If any person has paid to the commissionerany tax, fee, or other charge in error or in excess of that which the person islawfully obligated to pay under this code, the commissioner, upon writtenrequest made by the person to the commissioner within the time set forth insection 431:7-204.6, shall authorize a refund thereof out of the complianceresolution fund, except that a tax refund shall be payable out of the generalfund, by submitting a voucher therefor to the comptroller subject to thefollowing limitations:

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

(2)  No refund or overpayment credit shall be madeunless the original payment of the tax was due to the law having beeninterpreted or applied with respect to the taxpayer concerned differently thanwith respect to taxpayers generally.

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

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

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

(1)  If the tax return as filed by a taxpayer showsthe amount already paid, whether or not on the basis of installments, exceedsthe amount determined to be the correct amount of the tax due, and the taxpayerrequests a refund of the overpayment, the amount of overpayment together withinterest, 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 percent for each calendar month or fraction thereof, beginning with the firstcalendar day after the due date of the return or, if the return is filed afterthe prescribed due date, the first month following the month the return isreceived, and continuing until the date that the commissioner approves therefund voucher.  If the commissioner approves the refund voucher within ninetydays 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 withinforty-five days from the date of the commissioner's approval, no interest onthe overpayment will be allowed or paid.  However, if either the commissioneror the comptroller exceeds the time allowed herein, interest will be computedfrom the first calendar day after the due date of the return or from the firstmonth following the month the return is received by the commissioner if thereturn is filed after the prescribed due date, until the date that thecomptroller sends the refund warrant to the taxpayer.

(2)  If any overpayment of taxes results or arisesfrom

(A)  The taxpayer filing an amended return, orfrom

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

(3)  In the case of credit, interest shall be allowedand paid from the first calendar day after the due date of the return, thefirst month following the month the return is received by the commissioner, orthe date of payment, whichever is later, to the date the credit is taken; providedthat the commissioner may make a refund of any credit to a taxpayer where thetaxpayer 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 andc 182, §6; am L 2002, c 39, §12]

 

Case Notes

 

  As agencies may not pass upon theconstitutionality of statutes, had insurers initially brought a claim underthis section, insurance commissioner, as an administrative officer, would havebeen powerless to declare fees imposed on insurers pursuant to this sectionunconstitutional or to provide a refund on that basis; thus, as there were noremedies for insurers' constitutional claims under this section, circuit courtdid not lack subject matter jurisdiction by virtue of insurers' failure toexhaust their administrative remedies under this section.  120 H. 51, 201 P.3d564.

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