Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2013
 

Fee Collection Procedures Law

Chapter 5. Overpayments and Refunds


Chapter 5. Overpayments and Refunds

Article 1. Claim for Refund

55221. Credits and refunds. (a) If the board determines that any amount of the fee, penalty, or interest has been paid more than once or has been erroneously or illegally collected or computed, the board shall set forth that fact in its records and certify the amount collected in excess of what was legally due and the person from whom it was collected or by whom paid. The excess amount collected or paid shall be credited on any amounts then due from the person from whom the excess amount was collected or by whom it was paid under this part, and the balance shall be refunded to the person, or his or her successors, administrators, or executors.

(b) Any proposed determination by the board that is in excess of fifty thousand dollars ($50,000) shall be available as a public record for at least 10 days prior to the effective date of that determination.

History.—Stats. 1995, Ch. 555, in effect January 1, 1996, added subdivision letter (a), substituted "its records and certify" for "the records of the board and shall certify to the State Board of Control" after "that fact in" in the first sentence of, and substituted "The" for "If approved by the State Board of Control, the" before "excess amount collected" in the second sentence of, subdivision (a); completely rewrote the second paragraph which previously set a maximum threshold of $50,000 for which the board would not have to obtain the approval of the State Board of Control; and added subdivision (b).

55221.5. Excess fee reimbursement. When an amount represented by a feepayer subject to this part to a customer as constituting reimbursement for fees subject to this part is computed upon an amount that is not taxable or is in excess of the fee amount and is actually paid by the customer to the feepayer, the amount so paid shall be returned by the feepayer to the customer upon notification by the State Board of Equalization or the customer that the excess has been ascertained. If the feepayer fails or refuses to do so, the amount so paid, if knowingly or mistakenly computed by the feepayer upon an amount that is not subject to the fee or is in excess of the fee amount, shall be remitted by that feepayer to this state. Those amounts remitted to the state by the feepayer shall be credited by the board on any amounts due and payable from the feepayer which are subject to this part and are based on the same activity, and the balance, if any, shall constitute an obligation due from the feepayer to this state.

History.—Added by Stats. 1996, Ch. 1087, in effect January 1, 1997.

55222. Claim; limitation periods. (a) Except as provided in subdivision (b), no refund shall be approved by the board after three years from the due date of the payment for the period for which the overpayment was made, or, with respect to determinations made under Article 2 (commencing with Section 55061) of Chapter 3, after six months from the date the determinations have become final, or six months from the date of overpayment, whichever period expires later, unless a claim therefor is filed with the board within that period. No credit shall be approved by the board after the expiration of that period, unless a claim for credit is filed with the board within that period or unless the credit relates to a period for which a waiver is given pursuant to Section 55064.

(b) A refund may be approved by the board for any period for which a waiver is given under Section 55064 if a claim therefor is filed with the board before the expiration of the period agreed upon.

(c) Every claim for refund or credit shall be in writing and shall state the specific grounds upon which the claim is founded.

History.—Stats. 2001, Ch. 543 (SB 1185), substituted "after" for "within" and "from the date" for "after" in subdivision (a), effective January 1, 2002.

55222.1. Claim limitation period; financially disabled. (a) The limitation period specified in Section 55222 shall be suspended during any period of a person's life that the person is financially disabled.

(b) (1) For purposes of subdivision (a), a person is financially disabled if the person is unable to manage his or her financial affairs by reason of medically determinable physical or mental impairment of the person which can be expected to result in death or which has lasted or ran be expected to last for a continuous period of not less than 12 months. A person shall not be considered to have an impairment unless proof of the existence thereof is furnished in the form and manner as the board may require.

(2) A person shall not be treated as financially disabled during any period that the person's spouse or any other person is authorized to act on behalf of the person in financial matters.

(c) This section applies to periods of disability commencing before, on, or after the effective date of the act adding this section, but does not apply to any claim for refund that (without regard to this section) is barred by the operation or rule of law, including res judicata, as of the effective date of the act adding this section.

History.—Added by Stats. 2000, Ch. 1052 (AB 2898), in effect January 1, 2001.

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55222.2. Claim limitation period; overpayments from levies or liens. Notwithstanding Section 55222, a refund of an overpayment of any fee, penalty, or interest collected by the board by means of levy, through the use of liens, or by other enforcement procedures, shall be approved if a claim for a refund is filed within three years of the date of an overpayment.

History.—Added by Stats. 2006, Ch. 364 (AB 3076), in effect January 1, 2007.

55223. Effects of failure to file claim. Failure to file a claim within the time prescribed in this article constitutes a waiver of all demands against the state on account of the overpayment.

55224. Notice of action on claim. Within 30 days after disallowing any claim, in whole or in part, the board shall serve written notice of its action on the claimant pursuant to Section 55061.

55225. Interest on overpayments. Interest shall be computed, allowed, and paid upon any overpayment of any amount of fee at the modified adjusted rate per month established pursuant to Section 6591.5, from the first day of the monthly period following the period during which the overpayment was made. For purposes of this section, "monthly period" means the period commencing on the day after the due date of the payment and continuing through the same date in the immediately following month. In addition, a refund or credit shall be made of any interest imposed upon the claimant with respect to the amount being refunded or credited.

The interest shall be paid as follows:

(a) In the case of a refund, to the last day of the monthly period following the date upon which the claimant, if he or she has not already filed a claim, is notified by the board that a claim may be filed or the date upon which the claim is approved by the board, whichever date is earlier.

(b) In the case of a credit, to the same date as to that to which interest is computed on the fee or amount against which the credit is applied.

History.—Stats. 1996, Ch. 1087, in effect January 1, 1997, substituted "monthly period following the period" for "calendar month following the month" after "day of the" in the first sentence of, added "For purposes of . . . immediately following month." as the second sentence of, the first paragraph and substituted "last day of the monthly period" for "15th day of the calendar month" after "refund, to the" in, and deleted "or the date upon which the claim is certified to the State Board of Control, whichever date is earlier" after "may be filed" in, subdivision (a). Stats. 1997, Ch. 620 (SB 1102), in effect January 1, 1998, added ", if he or she has not already filed a claim," after "which the claimant" and added "or the date . . . date is earlier" after "may be filed" in subdivision (a).

55226. Interest disallowed for intentional or careless overpayments. (a) If the board determines that any overpayment has been made intentionally or by reason of carelessness, it shall not allow any interest thereon.

(b) If any person who has filed a claim for refund requests the board to defer action on the claim, the board, as a condition to deferring action, may require the claimant to waive interest for the period during which the person requests the board to defer action on the claim.

History.—Stats. 1998, Ch. 420 (SB 2230), in effect January 1, 1999, added subdivision designation "(a)" and added subdivision (b).

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Article 2. Suit for Refund

55242. Necessity of refund claim. No suit or proceeding shall be maintained in any court for the recovery of any amount alleged to have been erroneously or illegally assessed or collected unless a claim for refund or credit has been duly filed.

55243. Action for refund; limitation. Within 90 days after the mailing of the notice of the board's action upon a claim for refund or credit, the claimant may bring an action against the board on the grounds set forth in the claim in a court of competent jurisdiction in the County of Sacramento for the recovery of the whole or any part of the amount with respect to which the claim has been disallowed.

55244. Effect of failure to timely mail notice of action. If the board fails to mail notice of action on a claim within six months after the claim is filed, the claimant may, prior to the mailing of notice by the board, consider the claim disallowed and bring an action against the board on the grounds set forth in the claim for the recovery of the whole or any part of the amount claimed as an overpayment.

55245. Effect of failure to timely bring suit. Failure to bring suit or action within the time specified in this article constitutes a waiver of all demands against the state on account of any alleged overpayments.

55246. Disposition of amount of judgment. If judgment is rendered for the plaintiff, the amount of the judgment shall first be credited on any fee due from the plaintiff, and the balance shall be refunded to the plaintiff.

55247. Interest allowed on judgment. In any judgment, interest shall be allowed at the modified adjusted rate per annum established for overpayments pursuant to Section 6591.5, upon the amount found to have been illegally collected from the date of payment of the amount to the date of allowance of credit on account of the judgment, or to a date preceding the date of the refund warrant by not more than 30 days, the date to be determined by the board.

55248. Judgment for assignee forbidden. A judgment shall not be rendered in favor of the plaintiff in any action brought against the board to recover any fee paid when the action is brought by or in the name of an assignee of the feepayer paying the fee or by any person other than the person who has paid the fee.

As used in this section, "assignee" does not include a person who has acquired the business of the feepayer which gave rise to the fee and who is thereby a successor in interest to the feepayer.

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Article 3. Recover of Erroneous Refunds

55261. Erroneous refunds; actions. (a) The Controller may recover any refund or part thereof that is erroneously made, and any credit or part thereof that is erroneously allowed, in an action brought in a court of competent jurisdiction in the County of Sacramento in the name of the people of the State of California.

(b) As an alternative to subdivision (a), the board may recover any refund or part thereof that is erroneously made, and any credit or part thereof that is erroneously allowed. In recovering any erroneous refund or credit, the board may, in its discretion, issue a deficiency determination in accordance with Article 2 (commencing with Section 55061) or Article 4 (commencing with Section 55101) of Chapter 3. Except in the case of fraud, the deficiency determination shall be made by the board within three years from the date of the Controller's warrant or date of credit.

History.—Stats. 1998, Ch. 609 (SB 2232), in effect January 1, 1999, added subdivision designation "(a)", substituted "that" for "which" after "or part thereof", and deleted ", and the action shall be tried in the County of Sacramento unless the court, with the consent of the Attorney General, orders a change of place of trial. The Attorney General shall prosecute the action, and the provisions of the Code of Civil Procedure relating to service of summons, pleadings, proofs, trials, and appeals are applicable to the proceedings" after "State of California" in subdivision (a), and added subdivision (b).

Note.—Sec. 61, of Stats. 1998, Ch. 609 (SB 2232), effective January 1, 1999, states: It is the intent of the Legislature in enacting those provisions of this act that allow the State Board of Equalization to recover refunds administratively that no increase in taxpayer costs result from taxpayer compliance with these provisions.

55262. Place of trial. In any action brought pursuant to subdivision (a) of Section 55261, the court may, with the consent of the Attorney General, order a change in the place of trial.

History.—Added by Stats. 1998, Ch. 609 (SB 2232), in effect January 1, 1999.

55262. Interest on erroneous refunds. (a) Notwithstanding any other provision of this part, if the board finds that neither the person liable for payment of fees nor any party related to that person has in any way caused an erroneous refund for which an action for recovery is provided under Section 55261, no interest shall be imposed on the amount of that erroneous refund until 30 days after the date on which the board mails a notice of determination for repayment of the erroneous refund to the person. The act of filing a claim for refund shall not be considered as causing the erroneous refund.

(b) This section shall be operative for any action for recovery under Section 55261 on or after January 1, 2000.

History.—Added by Stats. 1999, Ch. 929 (AB 1638), in effect January 1, 2000.

55263. Rules of procedure. The Attorney General shall prosecute any action brought pursuant to subdivision (a) of Section 55263, and the provisions of the Code of Civil Procedure relating to service of summons, pleadings, proof, trials, and appeals shall apply to the proceedings.

History.—Added by Stats. 1998, Ch. 609 (SB 2232), in effect January 1, 1999.

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Article 4. Cancellations

55281. Cancellation of determinations. (a) If any amount has been illegally determined, either by the person filing the return or by the board, the board shall certify the amount determined to be in excess of the amount legally due and the person against whom the determination was made and authorize the cancellation of the amount upon the records of the board.

(b) Any proposed determination by the board that is in excess of fifty thousand dollars ($50,000) shall be available as a public record for at least 10 days prior to the effective date of that determination.

History.—Stats. 1995, Ch. 555, in effect January 1, 1996, added subdivision letter (a), deleted "in excess of fifty thousand dollars ($50,000)" after "If any amount", deleted "to the State Board of Control" after "board shall certify", substituted "and" for ". If the State Board of Control approves, it shall" after "determination was made", and deleted "If an amount not exceeding fifty thousand dollars ($50,000) has been illegally determined, either by the person filing a return or by the board, the board, without certifying this fact to the State Board of Control, shall authorize the cancellation of the amount upon the records of the board." as the third sentence, in subdivision (a); and added subdivision (b).