Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2018

Hazardous Substances Tax Annotations

Determination, Claims, and Statute Of Limitations

Activity Fee

The Board billed a company for an activity fee, which was later reduced based on a subsequent decision by the DTSC and legislative changes. However, since the event which triggered the application of the fee occurred before the original determination was issued, the feepayer was required to pay interest on the reduced fee, beginning 30 days after the date of the original assessment. 4/04/96.

Activity Fee Determination

The Board issues billings for activity fees imposed by Health and Safety Code sections 25205.7 and 25205.8 [note: section 25205.8 was repealed operative July 1, 1998.] as notices of determination in order to provide the feepayer an opportunity to challenge the billing by filing a petition for redetermination, rather than having to pay the fee and file a claim for refund. Pursuant to Revenue and Taxation Code section 43152.10, the activity fees are due within 30 days of the date of assessment (the date of the notice of determination), and interest begins to accrue if the fees are not paid within that time, whether or not a petition for redetermination is filed. 9/21/90. (Am 2003-1).

DTSC Settlement Agreements

A settlement agreement between a feepayer and DTSC provided that the feepayer would apply for a variance from DTSC's closure requirements within one year of the signing of the agreement, and that the feepayer could void the agreement if DTSC denied the variance. The Board will not initiate any adjustment of the feepayer's liability in the Board's records until the agreement can no longer be voided by either the DTSC or the feepayer. All terms of a settlement agreement must be met before the original assessment or return payment can be adjusted to reflect the final agreement. 2/06/96.

Errors on Notice of Determination

A notice of determination was issued which contained an incorrect Environmental Protection Agency number and the headquarters address of the feepayer rather than the facility address. The notice of determination is valid and need not be canceled and reissued. The basic legal requirement is that the feepayer receive sufficient notice as to the facility to which the determination applies. The feepayer operated only one hazardous waste facility and was well aware of the basis for issuing the determination. 9/7/90.

Facility Fee Determinations—Interest on Prepayment

The statute of limitations for issuing a notice of determination concerning a facility fee prepayment begins on the date that the annual fee was due at the end of the year. If a deficiency determination for a facility fee prepayment issues within three years from the due date of the prepayment, interest on the prepayment begins to accrue as of the due date of the prepayment. However, if the Board is relying on the statutory period which begins to run on the due date of the annual fee at the end of the year, interest begins to accrue as of that date. 5/17/95.

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Facility Fee Statute of Limitations

The statute of limitations for issuing a notice of determination for the annual facility fee for a specific reporting period runs from the due date of the second installment or final payment of the fee for that reporting period (Revenue and Taxation Code section 43202). The requirement for installment payments does not render the fee a semi-annual fee. 11/6/93. (Am 2003-1). (Note: effective January 1, 1996, Revenue and Taxation Code section 43152.12 requires two prepayments, in addition to the final return.)

Interest Accrual

Interest begins to accrue on the date that payments are due as provided by statute, not on the date of the notice of determination. 10/25/94.

Relief from Interest

The assessment of interest on the underpayment of hazardous waste fees is mandatory. A feepayer's bankruptcy is not the type of disaster contemplated by the Legislature when it adopted Revenue and Taxation Code section 43158, which allows the Board to grant relief from interest when the failure to timely file a return is due to a disaster. 7/7/95.

Second Claim Based on New Grounds

A feepayer who discovers a new basis for filing a claim for refund (such as newly-enacted legislation or a recently decided court case), may file a claim for refund on that basis within 90 days from the date the Board rejects the feepayer's earlier claim for refund. The Board will rescind the earlier denial, and consider the new claim. 5/24/94.

Settlement Stipulation

A settlement agreement negotiated by the Attorney General on behalf of the Department of Health Services which is silent as to the matter of fees and penalties related to payment of fees, and to which the Board was not a party, does not preclude the Board from collecting such fees and penalties. 12/19/94.

Statute of Limitations for Facility Fee Determination

The statute of limitations for issuing a determination for the hazardous waste facility fee applies regardless of whether the Board sent a facility fee return to the facility operator. 12/13/95.

Statute of Limitations Not Tolled During Settlement Negotiations

The statute of limitations was not tolled while the feepayer engaged in negotiations with the Attorney General concerning an enforcement action taken by the Attorney General on behalf of the Department of Toxic Substances Control, even though the result of those negotiations included an agreement that the fee was not due. 3/4/92.

Tolling of the Statute of Limitations for Refund Claims

Since the law provides that the Board shall not accept, consider or approve a claim for refund if it is founded upon the grounds that the Director of the Department of Toxic Substances Control (DTSC) has improperly or erroneously determined that a substance is a hazardous waste (Revenue and Taxation Code section 43452(d)), the statute of limitations is tolled for refund claims and petitions for redetermination during the period in which a feepayer is pursuing an appeal through DTSC. However the feepayer must have acted in a timely manner in requesting DTSC to reconsider its position that the waste is hazardous. 6/26/92A.

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