Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2014
 

Hazardous Substances Tax Law

CHAPTER 3. DETERMINATIONS.


CHAPTER 3. DETERMINATIONS.

Article 1. Returns and Payments

43151. Monthly returns. (a) The fee imposed pursuant to Section 25174.1 of the Health and Safety Code, which is a tax collected and administered under Section 43051, is due and payable to the board monthly on or before the last day of the third calendar month following the end of the calendar month for which the fee is due. Each taxpayer shall, on or before the last day of the third calendar month following the end of the calendar month for which the fee is due, make out a tax return for the calendar month, in the form as prescribed by the board, which may include, but not be limited to, electronic media in accordance with subdivision (c). The taxpayer shall deliver the return, together with a remittance of the amount of fee due, to the office of the board on or before the last day of the third calendar month following the end of the calendar month for which the fee is due. Returns shall be authenticated in a form or pursuant to methods as may be prescribed by the board.

(b) With the approval of the board, a taxpayer who has more than one facility subject to the taxes collected and administered under this chapter, may file a combined tax return covering operations at more than one, or all, of those facilities.

(c) The form required to be submitted by the taxpayer pursuant to this section shall show, for the taxpayer and for each person from whom the taxpayer accepted hazardous waste for disposal, all of the following:

(1) The total amount of hazardous waste subject to the tax and the amount of the tax for the period covered by the return.

(2) The amount of hazardous waste disposed during the tax period that is in each of the fee categories described in Section 25174.6 of the Health and Safety Code, and the amount of disposal fees paid for each of those categories.

(3) The amount of hazardous waste received for disposal by the taxpayer's facility or facilities that is exempt from the payment of disposal fees pursuant to Section 25174.7 of the Health and Safety Code, including a copy of any written documentation provided for any shipment or shipments of hazardous waste received by a facility.

(4) The amount of RCRA hazardous waste which is treated by the taxpayer so that the waste is considered to be non-RCRA hazardous waste for purposes of the disposal fee, pursuant to paragraph (2) of subdivision (b) of Section 25174.6.

(d) (1) Each taxpayer shall maintain records documenting all of the following information for each person who has submitted hazardous waste for disposal by the taxpayer during each calendar month and shall make those records available for review and inspection at the request of the board or the department:

(A) The tonnage of hazardous waste submitted for disposal.

(B) The type of hazardous waste disposed as specified by Section 25174.6 of the Health and Safety Code, including both of the following:

(i) Any characterization of the hazardous waste made by the person submitting the hazardous waste for disposal.

(ii) Any other documentation which the taxpayer maintains regarding the type of hazardous waste disposed to land.

(C) Any representation made by the person submitting the hazardous waste regarding any exemptions that may be applicable to the payment of disposal fees.

(D) For any RCRA hazardous waste which is treated by the taxpayer so that the waste is considered to be non-RCRA hazardous waste for purposes of the disposal fee, pursuant to paragraph (2) of subdivision (b) of Section 25174.6, all of the following information:

(i) The tonnage and type of hazardous waste.

(ii) The method or methods used to treat the hazardous waste.

(iii) Operating records documenting the treatment activity.

(iv) Representative and statistical waste sampling and analysis data demonstrating that the waste is no longer RCRA hazardous waste at the time of disposal.

(2) If the hazardous wastes submitted for disposal were accompanied by a manifest, the information specified in paragraph (1) shall be maintained by manifest number for each calendar month.

History.—Stats. 1982, Ch. 496, in effect July 12, 1982, substituted "collected . . . under" for "imposed by" before "Section" in the first sentence of, substituted "the" for "such" before "form," deleted "is" before "prescribed," and substituted "any" for "such" before "other" and "that" for "as" after "information" in the second sentence of, the first paragraph; and, added the second and third paragraphs. Stats. 1985, Ch. 20, effective March 29, 1985, substituted "quarterly" for "monthly" after "Section 43051 are due and payable to the board", substituted "the" for "each" after "on or before the 15th day of" in the first paragraph, added "following the quarterly period for which the tax is due" at the end of the first sentence, substituted "the" for "each" in the second sentence of the first paragraph after "on or before the 15th day of", added "following the quarterly period for which the tax is due", in the second sentence of the first paragraph, substituted "quarterly period" for "calendar month" after "shall make out a tax return for the preceding" in the first paragraph, added "following the quarterly period for which the tax is due" at the end of the first paragraph, substituted "1985" for "1982" at the end of the section referring to the date the section becomes operative. Stats. 1988, Ch. 1376, in effect September 26, 1988, deleted ''taxes" after "The" and added "fee . . . tax" in the first sentence of, substituted "last" for "15th" before "day" in the first sentence of, the first paragraph. Substituted "last" for "15th" before "day" in the second sentence of, added "and solid waste" after "waste" in the second sentence of, and substituted "each" for "the" in the second sentence of, the first paragraph. Substituted "last" for "15th" in the last sentence of the first paragraph. Stats. 1989, Ch. 1032, in effect September 29, 1989, substituted "25174.1" for "25174" in the first sentence of the first paragraph and deleted "hazardous waste" after "or all, of those" in the last sentence of the second paragraph. Stats. 1990, Ch. 1268, in effect September 25, 1990, but operative January 1, 1991, substituted "is" for "are" after "43051", deleted "and solid waste" after "hazardous waste" and substituted "the" for "each" before "tax" in the second sentence, deleted "hazardous waste" before "facility" in the second paragraph, and deleted third paragraph which stated, "This section shall become operative July 1, 1985." Stats. 1995, Ch. 638, in effect January 1, 1996, substituted "quarterly" for "monthly", inserted "third" before "calendar month", and substituted "end of the calendar month" for "quarterly period" in the first sentence. Inserted "third" before "calendar month", substituted "end of the calendar month" for "quarterly period", substituted "calendar month" for "quarterly period", and substituted "in accordance with subdivision (c)" for "showing the total amount of hazardous waste subject to the tax, the amount of tax for the period covered by the return, and any other information the board deems necessary" in the second sentence. Substituted "fee" for "tax", inserted "third calendar" before "month" and substituted "for which the fee is due" for "following the quarterly period for which the tax is due" in the third sentence. Adds "The form required . . . for each calendar month." Stats. 2002, Ch. 459 (AB 1936), in effect January 1, 2003, substituted "in the form . . . electronic media" for "in the form prescribed by the board" after "calendar month," in the second sentence of, and added the fourth sentence to, subdivision (a).

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Text of section operative January 1, 1996

43152. Consolidated statement. (a) The board shall establish and annually submit to each generator of hazardous waste a consolidated statement of fees required to be paid by the generator to the board pursuant to Sections 25205.2, 25205.5, 25205.6, and 25205.9 of the Health and Safety Code.

(b) Notwithstanding any other provision of law, any return or other document that is required to be submitted by a generator of hazardous waste to the board in connection with the payment of any fee specified in subdivision (a) shall instead be submitted together with the consolidated statement made pursuant to subdivision (a).

43152.5. Dates due and payable; remittance. [Repealed by Stats. 1995, Ch. 637, in effect January 1, 1996.]

43152.6. Fee; due and payable. [Stats. 1991, Ch. 1123 (SB 194), effective October 14, 1991, operative until July 1, 1991, and repealed, operative July 1, 1991, by its own terms.]

43152.6. Fee; due and payable. (a) The fee imposed pursuant to Section 25205.2 of the Health and Safety Code which is collected and administered under Section 43053 of this code is due and payable to the board annually on or before the last day of the second month following the end of the calendar year.

(b) Every operator of a facility subject to the fee imposed pursuant to Section 25205.2 of the Health and Safety Code shall file an annual return in the form as prescribed by the board, which may include, but not be limited to, electronic media and pay the proper amount of fee due. Returns shall be authenticated in a form or pursuant to methods as may be prescribed by the board.

(c) For purposes of subdivision (a), except as provided in subdivision (d), the operator of a facility shall pay the applicable fee based on the type and size of the facility, as specified in Sections 25205.1 and 25205.4 of the Health and Safety Code. The board shall credit the prepayment of the fee made pursuant to Section 43152.12 against the amount due with the annual return.

(d) Notwithstanding subdivision (c), the fee for the 1991 reporting period, which is from July 1, 1991, to December 31, 1991, inclusive, is 50 percent of the fee specified in Section 25205.4 of the Health and Safety Code, based on the type and size of the facility, as specified in Section 25205.4 of the Health and Safety Code.

History.—Added by Stats. 1991, Ch. 1123, in effect October 14, 1991, operative July 1, 1991. Stats. 1995, Ch. 637, in effect January 1, 1996, added "second" before "month" in subdivision (a). Stats. 2002, Ch. 459 (AB 1936), in effect January 1, 2003, substituted "in the form . . . electronic media" for "on the forms provided by the board" after "annual return" in the first sentence of, and added the second sentence to, subdivision (b).

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43152.7. Fee; due and payable. (a) The fee imposed pursuant to Section 25205.5 of the Health and Safety Code which is collected and administered under Section 43053 is due and payable on the last day of the second month following the end of the calendar year.

(b) Every generator subject to the fee imposed pursuant to Section 25205.5 of the Health and Safety Code shall file an annual return in the form as prescribed by the board, which may include, but not be limited to, electronic media and pay the proper amount of fee due. The board shall credit the prepayment made pursuant to Section 43152.15 against the amount due with the annual return. Returns shall be authenticated in a form or pursuant to methods as may be prescribed by the board.

(c) The fee imposed by Section 25205.5 of the Health and Safety Code shall be offset by any fees paid by the generator for the preceding calendar year for a local hazardous waste management program conducted by a local agency pursuant to a memorandum of understanding with the department. The amount of the credit provided under this subdivision shall not exceed an amount equal to the fees paid to the local agency or the generator fee due under Section 25205.5 of the Health and Safety Code, whichever is less. The credit for local fees paid shall not include fees required under Chapter 6.7 (commencing with Section 25280) or Chapter 6.95 (commencing with Section 25500) of Division 20 of the Health and Safety Code.

History.—Added by Stats. 1988, Ch. 1376, in effect September 26, 1988. Stats. 1993, Ch. 1145, in effect January 1, 1994, deleted "as a tax" after "and administered" in subdivision (a); substituted "fee" for "tax" after "subject to the" in subdivision (b); and substituted "for" for "during" after "generator" in subdivision (c). Stats. 1995, Ch. 637, in effect January 1, 1996, added "second" before "month" in subdivision (a); substituted "generator" for "operator" after "every", and added "The board...the annual return" after "due" in subdivision (b). Stats. 2002, Ch. 459 (AB 1936), in effect January 1, 2003, deleted ", on forms prescribed by the board," after "Safety Code shall", added "in the form . . . electronic media" after "annual return" in the first sentence of, and added the third sentence to, subdivision (b).

43152.8. Notification by the department. (a) The department shall notify the board of the occurrence of any of the following:

(1) The issuance of a hazardous waste facilities permit or grant of interim status to any facility operator, who has not previously been granted interim status, within 30 days after the facility permit or grant of interim status is issued.

(2) When any facility changes size category pursuant to Section 25205.4 of the Health and Safety Code.

(b) This section shall become operative July 1, 1991.

History.—Added by Stats. 1991, Ch. 1123, in effect October 14, 1991.

43152.9. Fee; due and payable. (a) The fee imposed pursuant to Section 25205.6 of the Health and Safety Code, which is collected and administered under Section 43054, is due and payable on the last day of the second month following the end of the calendar year.

(b) Every corporation, limited liability company, limited partnership, limited liability partnership, general partnership, and sole proprietorship subject to the fee imposed pursuant to Section 25205.6 of the Health and Safety Code shall file an annual return in the form as prescribed by the board, which may include, but not be limited to, electronic media and pay the proper amount of fee due. Returns shall be authenticated in a form or pursuant to methods as may be prescribed by the board.

History.—Added by Stats. 1989, Ch. 269, in effect August 3, 1989. Stats. 2001, Ch. 251 (AB 1123), substituted "43054" for "43053" in subdivision (a), effective January 1, 2002. Stats. 2002, Ch. 459 (AB 1936), in effect January 1, 2003, deleted ", on forms prescribed by the board," after "Safety Code shall", and added "in the form . . . electronic media" after "annual return" in the first sentence of, and added the second sentence to, subdivision (b). Stats. 2006, Ch. 364 (AB 3076), in effect January 1, 2007, added ", limited liability company . . . sole proprietorship" after "Every corporation" in the first sentence of subdivision (b).

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43152.10. Fees; due and payable. The fees imposed pursuant to Sections 25205.7, 25205.8, 25205.14, 25221, and 25343 of the Health and Safety Code, which are collected and administered under Section 43053 and 43054, are due and payable within 30 days after the date of assessment and the feepayer shall deliver a remittance of the amount of the assessed fee to the office of the board within that 30-day period, except as provided in subdivision (e) of Section 25205.14 of the Health and Safety Code.

History.—Added by Stats. 1989, Ch. 269, in effect August 3, 1989. Stats. 1989, Ch. 1032, in effect September 29, 1989, added "and 43054". Stats. 1991, Ch. 1123, in effect October 14, 1991, added "25221" after "25205.8"; and substituted "25343" for "25347.6". Stats. 1993, Ch. 411, in effect September 21, 1993, added "25205.14" after "25205.8," and added ", except as . . . Safety Code" after "30-day period".

43152.11. Surcharge; due and payable. (a) The surcharge imposed pursuant to Section 25205.9 of the Health and Safety Code, which is collected and administered under Section 43055, is due and payable to the board on the last day of the second month following the end of the calendar year.

(b) The surcharge shall be incorporated into the return form prescribed by the board, which every operator subject to the fee imposed by Section 25205.5 of the Health and Safety Code is required to file and pay annually, in accordance with Section 43152.7. The surcharge shall be in addition to the fee imposed by Section 25205.5 of the Health and Safety Code.

(c) The surcharge imposed by Section 25205.9 of the Health and Safety Code shall be offset by any fees paid by the generator during the preceding calendar year for a local hazardous waste management program conducted by a local agency pursuant to a memorandum of understanding with the department. The offset provided for under this subdivision shall be allowed to the same extent as the offset provided in subdivision (c) of Section 43152.7.

History.—Added by Stats. 1993, Ch. 411, in effect September 21, 1993. Stats. 1993, Ch. 1113, in effect January 1, 1994, added "and pay" after "to file" in the first sentence of subdivision (b). Stats. 1995, Ch. 637, in effect January 1, 1996, inserted "second" before "month" in the first sentence of subdivision (a).

43152.12. Fee; due and payable. (a) In addition to the requirements imposed pursuant to Section 43152.6, every operator of a facility subject to the fee specified in Section 25205.2 of the Health and Safety Code shall make two prepayments of the fee to the board, which are due and payable on or before the last day of February and the last day of August of each calendar year. Each prepayment shall be accompanied by a prepayment return in a form prescribed by the board.

(b) For purposes of subdivision (a), the amount of each prepayment shall be not less than 50 percent of the applicable fee imposed on the facility, based on the facility's type and size, as stated on the hazardous waste facilities permit, interim status document, or Part A application, or as specified in Sections 25205.1 and 25205.4 of the Health and Safety Code.

(c) The board shall credit the amount of the prepayment against the amount of the fee due and payable for the reporting period in which the prepayments are due.

(d) Any person required to make a prepayment pursuant to this section who fails to make a prepayment by the due dates specified in subdivision (a) shall also pay the penalties and interest in accordance with Section 43155.

History.—Added by Stats. 1991, Ch. 1123, in effect October 14, 1991. Stats. 1995, Ch. 637, in effect January 1, 1996, substitutes "two" for "a" before the word "prepayment" and "prepayment" is changed to "prepayments", "are" is substituted for "is", and the words "the last day of February and the last day of August" are substituted for "April 25" in the first sentence. In the second sentence, "Each" is substituted for "The". In the third sentence, "each" is substituted for "the" before the word "prepayment" and the words "stated on the hazardous waste . . . the Health and Safety Code" is substituted for the words "specified in Sections 25205.1 . . . prepayment is due". In the fourth sentence, the word "prepayment" is changed to "prepayments" and "is" is changed to "are". In the fifth sentence, "April 25" is changed to "the due dates specified in subdivision (a)." The sixth sentence is deleted. Stats. 2000, Ch. 923 (AB 2894), effective January 1, 2001, substituted "Section 43155" for "Sections 43155 and 43156" after "in accordance with" of subdivision (d).

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43152.13. Fee; due and payable. (a) The fee imposed pursuant to Section 105190 of the Health and Safety Code, which is collected and administered under Section 43056, is due and payable on the last day of the second month following the end of the calendar year.

(b) Every employer subject to the fee imposed pursuant to Section 105190 of the Health and Safety Code shall in the form as prescribed by the board, which may include, but not be limited to, electronic media file an annual return and pay the proper amount of fee due. Returns shall be authenticated in a form or pursuant to methods as may be prescribed by the board.

History.—Added by Stats. 1991, Ch. 798, in effect January 1, 1992. Stats. 1996, Ch. 720, in effect January 1, 1997, substituted "105190" for "429.14" after "pursuant to Section" in both subdivisions (a) and (b). Stats. 2002, Ch. 459 (AB 1936), in effect January 1, 2003, substituted "in the form . . . electronic media" for "on forms prescribed by the board," after "Safety Code shall", in the first sentence of, and added the second sentence to, subdivision (b).

43152.14. Fee; due and payable. The fee imposed pursuant to Section 105310 of the Health and Safety Code, that is collected and administered under Section 43057, is due and payable on or before April 1 of each year for the previous calendar year.

History.—Added by Stats. 1991, Ch. 799, in effect January 1, 1992. Stats. 1996, Ch. 1023, in effect September 29, 1996, substituted "105310" for "327.7" after "pursuant to Section" and substituted "that" for "which" after "and Safety Code,". Stats. 2002, Ch. 459 (AB 1936), in effect January 1, 2003, added the second and third sentences. Stats. 2004, Ch. 527 (SB 1881), in effect January 1, 2005, deleted last sentence.

43152.15. Prepayment of consolidated fees. (a) In addition to the requirements imposed pursuant to Sections 43152.7 and 43152.11, every generator subject to the fees specified in Sections 25205.5 and 25205.9 of the Health and Safety Code shall make a prepayment of the fee by site to the board which is due and payable on or before the last day of August of each calendar year. The prepayment shall be accompanied by a prepayment return in a form prescribed by the board.

(b) For purposes of subdivision (a), the amount of the prepayment shall be not less than either of the following:

(1) One hundred percent of the applicable fee imposed on the generator, based on the generator's fee category as specified in Section 25205.5 of the Health and Safety Code for the total volume of hazardous waste generated by site during the period January 1 to June 30, inclusive, of the current calendar year in which the prepayment is due. The prepayment may be offset by fees paid by the generator for a local hazardous waste management program conducted by a local agency pursuant to a memorandum of understanding with the department which includes the following:

(A) The local fees are paid for the current calendar year for which the prepayment is due or the local fees are paid for the preceding calendar year, if fees have not been paid for the current year.

(B) The offset is subject to the limitations and requirements specified in subdivision (c) of Section 43152.7.

(2) Fifty percent of the generator fee liability paid to the board by site for the preceding calendar year provided the generator paid a generator fee liability to the board for the preceding calendar year for that site.

(c) The board shall credit the amount of the prepayment against the amount of the fee due and payable for the calendar year in which the prepayment is due.

(d) Notwithstanding any other provision in this section, the prepayment of a generator fee shall not be required for any amount due that is less than five hundred dollars ($500), or for any other amount due if the board determines that prepayment is not in the best economic interest of the program.

(e) Any person required to make a prepayment pursuant to this section who fails to make a prepayment by the due date specified in subdivision (a) shall also pay penalties and interest in accordance with Section 43155.

History.—Added by Stats. 1995, Ch. 637, effective January 1, 1996. Stats. 1996, Ch. 226, in effect July 22, 1996, added subdivision (d) and relettered former subdivision (d) as (e). Stats. 2000, Ch. 923 (AB 2894), effective January 1, 2001, substituted "Section 43155" for "Sections 43155 and 43156" after "in accordance with" of subdivision (e).

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Text of section operative July 1, 1998

43152.16. Refunds. (a) The board shall issue refunds, if directed to do so by the department, upon making the certification specified in subdivision (d), for some, or all, of the fees imposed pursuant to Sections 25205.5 and 25205.9 of the Health and Safety Code, for hazardous waste generated in 1997.

(b) The board may issue a refund only to a generator who received a credit pursuant to Section 43152.7 or 43152.11 for fees paid for hazardous waste generated in 1996.

(c) The refund made to a generator pursuant to this section shall not exceed the generator's credit for hazardous waste generated in 1996, or exceed the generator's fee paid to a certified unified program agency in 1997, whichever amount is less.

(d) The board may issue refunds pursuant to this section only if the department certifies that funds for these refunds are available.

History.—Added by Stats. 1997, Ch. 870 (SB 660), in effect January 1, 1998, but operative July 1, 1998.

43153. Returns; other than periods specified. The board, if it deems it necessary in order to facilitate the administration of this part, may require returns and payments specified under Section 43151 to be made for periods longer than quarterly.

History.—Added by Stats. 1985, Ch. 20, effective March 29, 1985.

43154. Extensions. The board for good cause may extend, for a period of time not to exceed one month, the time for making any return or paying any amount required to be paid under this part. The extension may be granted at any time provided a request therefor is filed with the board within or prior to the period for which the extension may be granted.

Any person to whom an extension is granted shall pay, in addition to the tax, interest at the modified adjusted rate per month, or fraction thereof, established pursuant to Section 6591.5, from the date on which the tax would have been due without the extension until the date of payment.

History.—Stats. 1982, Ch. 5, First Extra Session, in effect May 27, 1982, substituted "adjusted . . . 1926" for "rate . . . thereof" before "from" in the second paragraph. Stats. 1984, Ch. 1020, operative July 1, 1985, added "modified" before "adjusted", deleted "annual" before "rate", added "per month, or fraction thereof" before "established", and substituted "Section 6591.5" for "Section 19269."

43155. Penalties for late payment. (a) Any person who fails to pay any tax or prepayment, except amounts of determinations made by the board under Article 2 (commencing with Section 43201), within the time required shall pay a penalty of 10 percent of the tax or prepayment, plus interest at the modified adjusted rate per month, or fraction thereof, established pursuant to Section 6591.5, from the date on which the tax or the amount of tax required to be collected became due and payable to the state until the date of payment.

(b) Any person who fails to file a return or prepayment with the board in accordance with this part within the time prescribed for the filing of a return or prepayment, a penalty of 10 percent of the amount of the tax or prepayment shall be added thereto on account of the delinquency.

(c) The penalties imposed by this section shall be limited to a maximum of 10 percent of the taxes for which the return or prepayment is required for any one return or prepayment.

History.—Added by Stats. 1991, Ch. 1123, in effect October 14, 1991. Stats. 2000, Ch. 923 (AB 2894), effective January 1, 2001, substituted "Any person who . . . date of payment" for "If the tax . . . of the delinquency" of subdivision (a), substituted "Any person who . . . of the delinquency" for "This section shall become operative on July 1, 1991." of subdivision (b), added subdivision (c).

43155.5. Interest; daily basis. (a) If the board finds, taking into account all facts and circumstances, that it is inequitable to compute interest at the modified adjusted rate per month or fraction thereof, as defined in subdivision (b) of Section 6591.5, interest shall be computed at the modified adjusted daily rate from the date on which the tax or prepayment was due until the date of payment, if all of the following occur:

(1) The payment of tax or the prepayment was made one business day after the date the tax or prepayment was due.

(2) The person was granted relief from all penalties that applied to that payment of tax or prepayment.

(3) The person files a request for an oral hearing before the board.

(b) For purposes of this section, "modified adjusted daily rate" means the modified adjusted rate per annum as defined in subdivision (a) of Section 6591.5 determined on a daily basis by dividing the modified adjusted rate per annum by 365.

(c) For purposes of this section, "board" means the members of the State Board of Equalization meeting as a public body.

(d) For purposes of this section, "business day" means any day other than a Saturday, Sunday, or any day designated as a state holiday.

(e) This section shall not apply to any payment made pursuant to a deficiency determination, a determination where no report or return has been filed, or a jeopardy determination issued by the board.

(f) This section shall only apply to electronic payments or prepayments of taxes.

(g) This section shall be operative only until January 1, 2016.

History.—Added by Stats. 2010, Ch. 316 (SB 1028), in effect January 1, 2011.

Note.—Sec. 1, Stats. 2010, Ch. 316 (SB 1028) provides the following: "It is the intent of the Legislature that California's penalty and interest provisions foster and maintain the current high level of compliance, provide appropriate costs and sanctions for noncompliance, and provide a reasonable and administrable degree of latitude for individual taxpayer circumstances and errors. It is the intent of the Legislature in enacting this act, that the State Board of Equalization strictly and narrowly apply its provisions on a case-by-case basis and only in special circumstances."

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43156. Interest. (a) All taxes or prepayments not paid on the date when due and payable shall bear interest at the modified adjusted rate per month, or fraction thereof, established pursuant to Section 6591.5, from and after that date until paid.

(b) This section shall become operative July 1, 1991.

History.—Added by Stats. 1991, Ch. 1123, in effective October 14, 1991. Stats 2000, Ch. 923 (AB 2894), effective January 1, 2001, repealed section.

43157. Excusable delay. (a) If the board finds that a person's failure to make a timely return, prepayment, or payment is due to reasonable cause and circumstances beyond the person's control, and occurred notwithstanding the exercise of ordinary care and the absence of willful neglect, the person may be relieved of the penalty provided by Sections 43155, 43170, and 43306.

(b) Except as provided in subdivision (c), any person seeking to be relieved of the penalty shall file with the board a statement, under penalty of perjury, setting forth the facts upon which he or she bases his or her claim for relief.

(c) The board shall establish criteria that provide for efficient resolution of requests for relief pursuant to this section.

History.—Stats. 1989, Ch. 768, in effect January 1, 1990, substituted "43306" for "43251". Stats. 2000, Ch. 1052 (AB 2898), effective January 1, 2001, re-numbered first sentence as subdivision (a), re-numbered second sentence as subdivision (b), added "prepayment" after "a timely return" in subdivision (a), substituted "43155, 43170, and 43306" for "43155 and 43306" in subdivision (a), added "Except as provided in subdivision (c)," before "any person seeking" in subdivision (b), added subdivision (c).

43158. Relief from interest due to disaster. If the board finds that a person's failure to make a timely return or payment was due to disaster, and occurred notwithstanding the exercise of ordinary care and the absence of willful neglect, the person may be relieved of interest provided for by Sections 43154, 43155, 43170, and 43201. Any person seeking to be relieved of interest shall file with the board a statement under penalty of perjury setting forth the facts upon which he or she bases his or her claim for relief.

History.—Added by Stats. 1989, Ch. 14, First Extraordinary Session, in effect November 7, 1989. Stats. 2000, Ch. 923 (AB 2894), effective January 1, 2001, substituted "43155, 43170" for "43156" of the first sentence.

43158.5. Relief of interest. (a) The board, in its discretion, may relieve all or any part of the interest imposed on a person by this part where the failure to pay fees is due in whole or in part to an unreasonable error or delay by an employee of the board acting in his or her official capacity.

(b) For purposes of this section, an error or delay shall be deemed to have occurred only if no significant aspect of the error or delay is attributable to an act of, or a failure to act by, the taxpayer.

(c) Any person seeking relief under this section shall file with the board a statement under penalty of perjury setting forth the facts on which the claim for relief is based and any other information which the board may require.

(d) The board may grant relief only for interest imposed on tax liabilities that arise during taxable periods commencing on or after January 1, 2000.

History.—Added by Stats. 1999, Ch. 929 (AB 1638), in effect January 1, 2000. Stats. 2001, Ch. 251 (AB 1123), substituted "this part" for "Section 43156 and . . . not made timely," in subdivision (a), effective January 1, 2002.

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43159. Reasonable reliance on written advice; relief of tax, interest and penalty. (a) If the board finds that a person's failure to make a timely return or payment is due to the person's reasonable reliance on written advice from the board, the person may be relieved of the taxes imposed or administered under this part and any penalty or interest added thereto.

(b) For purposes of this section, a person's failure to make a timely return or payment shall be considered to be due to reasonable reliance on written advice from the board, only if the board finds that all of the following conditions are satisfied:

(1) The person requested in writing that the board advise him or her whether a particular activity or transaction is subject to tax under this part. The specific facts and circumstances of the activity or transaction shall be fully described in the request.

(2) The board responded in writing to the person regarding the written request for advice, stating whether or not the described activity or transaction is subject to tax, or stating the conditions under which the activity or transaction is subject to tax.

(3) The liability for taxes applied to a particular activity or transaction which occurred before either of the following:

(A) Before the board rescinded or modified the advice so given, by sending written notice to the person of rescinded or modified advice.

(B) Before a change in statutory or constitutional law, a change in the board's regulations, or a final decision of a court, which renders the board's earlier written advice no longer valid.

(c) Any person seeking relief under this section shall file with the board all of the following:

(1) A copy of the person's written request to the board and a copy of the board's written advice.

(2) A statement under penalty of perjury setting forth the facts on which the claim for relief is based.

(3) Any other information which the board may require.

(d) Only the person making the written request shall be entitled to rely on the board's written advice to that person.

History.—Added by Stats. 1990, Ch. 987, in effect January 1, 1991.

43159.1. Relief of spouse; tax. (a) Under regulations prescribed by the board, except for a fee imposed pursuant to Section 105310 of the Health and Safety Code, if:

(1) A tax liability under this part was understated by a failure to file a return required to be filed under this part, by the omission of an amount properly includable therein, or by erroneous deductions or credits claimed on a return, and the understatement of tax liability is attributable to one spouse; or any amount of the tax reported on a return was unpaid and the nonpayment of the reported tax liability is attributable to one spouse.

(2) The other spouse establishes that he or she did not know of, and had no reason to know of, that understatement or nonpayment.

(3) Taking into account whether or not the other spouse significantly benefited directly or indirectly from the understatement or the nonpayment and taking into account all other facts and circumstances, it is inequitable to hold the other spouse liable for the deficiency in tax attributable to that understatement or nonpayment, then the other spouse shall be relieved of liability for tax (including interest, penalties, and other amounts) to the extent that the liability is attributable to that understatement or nonpayment of tax.

(b) For purposes of this section, the determination of the spouse to whom items of understatement or nonpayment are attributable shall be made without regard to community property laws.

(c) This section shall apply to all calendar months or years subject to the provisions of this part, but shall not apply to any calendar month or year that is more than five years from the final date on the board-issued determination, five years from the return due date for nonpayment on a return, or one year from the first contact with the spouse making a claim under this section; or that has been closed by res judicata, whichever is later.

(d) For purposes of paragraph (2) of subdivision (a), "reason to know" means whether or not a reasonably prudent person would have had reason to know of the understatement or nonpayment.

(e) For purposes of this section, with respect to a failure to file a return or an omission of an item from the return, "attributable to one spouse" may be determined by whether a spouse rendered substantial service as a taxpayer with respect to the taxes administered under this part to which the understatement is attributable. If neither spouse rendered substantial services as a taxpayer, then the attribution of applicable items of understatement shall be treated as community property. An erroneous deduction or credit shall be attributable to the spouse who caused that deduction or credit to be entered on the return.

(f) Under procedures prescribed by the board, if, taking into account all the facts and circumstances, it is inequitable to hold the other spouse liable for any unpaid tax or any deficiency (or any portion of either) attributable to any item for which relief is not available under subdivision (a), the board may relieve the other spouse of that liability.

(g) For purposes of this section, registered domestic partners, as defined in Section 297 of the Family Code, have the same rights, protections, and benefits as provided by this section, and are subject to the same responsibilities, obligations, and duties as imposed by this section, as are granted to and imposed upon spouses.

(h) The relief provided by this section shall apply retroactively to liabilities arising prior to the effective date of this section.

History.—Added by Stats. 2007, Ch. 342 (AB 1748), in effect January 1, 2008.

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43159.2. Relief of spouse; fee due on determination. (a) Under regulations prescribed by the board, with respect to a fee imposed pursuant to Section 105310 of the Health and Safety Code, if:

(1) A fee liability due on a notice of determination or other billing document for collection of the fee under this part was unpaid and the nonpayment of the fee liability is attributable to one spouse.

(2) The other spouse establishes that he or she did not know of, and had no reason to know of, that nonpayment.

(3) Taking into account whether or not the other spouse significantly benefited directly or indirectly from the nonpayment and taking into account all other facts and circumstances, it is inequitable to hold the other spouse liable for the deficiency in the fee attributable to that nonpayment, then the other spouse shall be relieved of liability for the fee (including interest, penalties, and other amounts) to the extent that the liability is attributable to that nonpayment of the fee.

(b) For purposes of this section, the determination of the spouse to whom items of nonpayment are attributable shall be made without regard to community property laws.

(c) This section shall apply to all calendar years subject to the provisions of this part, but shall not apply to any calendar year that is more than five years from the final date on the board-issued determination or other similar billing document for collection of the fee, five years from the due date for payment on the billing, or one year from the first contact with the spouse making a claim under this section; or that has been closed by res judicata, whichever is later.

(d) For purposes of paragraph (2) of subdivision (a), "reason to know" means whether or not a reasonably prudent person would have had reason to know of the understatement or nonpayment.

(e) For purposes of this section, with respect to a failure to pay a notice of determination or similar billing document for collection of the fee, "attributable to one spouse" may be determined by whether a spouse rendered substantial service as a feepayer with respect to a fee imposed under Section 105310 of the Health and Safety Code to which the nonpayment is attributable. If neither spouse rendered substantial services as a feepayer, then the attribution of the nonpayment shall be treated as community property.

(f) Under procedures prescribed by the board, if, taking into account all the facts and circumstances, it is inequitable to hold the other spouse liable for any unpaid fee or any deficiency (or any portion of either) attributable to any item for which relief is not available under subdivision (a), the board may relieve the other spouse of that liability.

(g) For purposes of this section, registered domestic partners, as defined in Section 297 of the Family Code, have the same rights, protections, and benefits as provided by this section, and are subject to the same responsibilities, obligations, and duties as imposed by this section, as are granted to and imposed upon spouses.

(h) The relief provided by this section shall apply retroactively to liabilities arising prior to the effective date of this section.

History.—Added by Stats. 2007, Ch. 342 (AB 1748), in effect January 1, 2008.

43160. Filing of closing returns. Every person who is required to file the returns and make the payments specified in Section 43151, 43152.6, 43152.7, 43152.9, 43152.11, 43152.13, 43152.14, or 43153 shall, upon transfer or discontinuance of operations, file closing returns on forms prescribed by the board. The closing returns shall be due and payable on the last day of the month following the end of the quarterly period in which the transfer or discontinuance takes place.

History.—Added by Stats. 1992, Ch. 852, in effect September 21, 1992. Stats. 1994, Ch. 903, in effect January 1, 1995, renumbered the section which was formerly numbered 43158.

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Article 1.1. Payment by Electronic Funds Transfer

43170. Electronic funds transfer payments. (a) Any person whose estimated tax liability under this part averages twenty thousand dollars ($20,000) or more per month, as determined by the board pursuant to methods of calculation prescribed by the board, shall remit amounts due by an electronic funds transfer under procedures prescribed by the board.

(b) Any person whose estimated tax liability under this part averages less than twenty thousand dollars ($20,000) per month may elect to remit amounts due by electronic funds transfer with the approval of the board.

(c) Any person remitting amounts due pursuant to subdivision (a) or (b) shall perform electronic funds transfer in compliance with the due dates set forth in Article 1 (commencing with Section 43151). Payment is deemed complete on the date the electronic funds transfer is initiated if settlement to the state's demand account occurs on or before the banking day following the date the transfer is initiated. If settlement to the state's demand account does not occur on or before the banking day following the date the transfer is initiated, payment is deemed to occur on the date settlement occurs.

(d) Any person remitting taxes by electronic funds transfer shall, on or before the due date of the remittance, file a return for the preceding reporting period in the form and manner prescribed by the board. Any person who fails to timely file the required return shall pay a penalty of 10 percent of the amount of taxes, exclusive of prepayments, with respect to the period for which the return is required.

(e) Any person required to remit taxes pursuant to this article who remits those taxes by means other than appropriate electronic funds transfer shall pay a penalty of 10 percent of the taxes incorrectly remitted.

(f) Any person who fails to pay any tax to the state or any amount of tax required to be collected and paid to the state, except amounts of determinations made by the board under Article 2 (commencing with Section 43201), within the time required shall pay a penalty of 10 percent of the tax or amount of tax, in addition to the tax or amount of tax, plus interest at the modified adjusted rate per month, or fraction thereof, established pursuant to Section 6591.5, from the date on which the tax or amount of tax required to be collected became due and payable to the state until the date of payment.

(g) In determining whether a person's estimated tax liability averages twenty thousand dollars ($20,000) or more per month, the board may consider tax returns filed pursuant to this part and any other information in the board's possession.

(h) The penalties imposed by subdivisions (d), (e), and (f) shall be limited to a maximum of 10 percent of the taxes due for any one return or prepayment. Any person remitting taxes by electronic funds transfer shall be subject to the penalties under this section and not Section 43155.

(i) The board shall promulgate regulations pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code for purposes of implementing this section.

History.—Added by Stats. 2000, Ch. 923 (AB 2894), in effect January 1, 2001. Stats. 2005, Ch. 519 (AB 1765), in effect October 4, 2005, operative January 1, 2006, deleted the former last sentence of subdivision (b) which provided "The election shall be operative for a minimum of one year."

43171. Relief of penalty. If the board finds that a person's failure to make payment by an appropriate electronic funds transfer in accordance with board procedures is due to reasonable cause and circumstances beyond the person's control, and occurred notwithstanding the exercise of ordinary care and in the absence of willful neglect, that person shall be relieved of the penalty provided in subdivision (e) of Section 43170. Any person seeking to be relieved of the penalty shall file with the board a statement under penalty of perjury setting forth the facts upon which he or she bases his or her claim for relief.

History.—Added by Stats. 2000, Ch. 923 (AB 2894), in effect January 1, 2001.

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43172. Definitions. (a) "Electronic funds transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, that is initiated through an electronic terminal, telephonic instrument, or computer or magnetic tape, so as to order, instruct, or authorize a financial institution to debit or credit an account. Electronic funds transfers shall be accomplished by an automated clearinghouse debit, an automated clearinghouse credit, or by Federal Reserve Wire Transfer (Fedwire).

(b) "Automated clearinghouse" means any federal reserve bank, or an organization established in agreement with the National Automated Clearing House Association, that operates as a clearinghouse for transmitting or receiving entries between banks or bank accounts and which authorizes an electronic transfer of funds between these banks or bank accounts.

(c) "Automated clearinghouse debit" means a transaction in which the state, through its designated depository bank, originates an automated clearinghouse transaction debiting the person's bank account and crediting the state's bank account for the amount of tax. Banking costs incurred for the automated clearinghouse debit transaction shall be paid by the state.

(d) "Automated clearinghouse credit" means an automated clearinghouse transaction in which the person through his or her own bank, originates an entry crediting the state's bank account and debiting his or her own bank account. Banking costs incurred for the automated clearinghouse credit transaction charged to the state shall be paid by the person originating the credit.

(e) "Fedwire transfer" means any transaction originated by a person and utilizing the national electronic payment system to transfer funds through the federal reserve banks, when that person debits his or her own bank account and credits the state's bank account. Electronic funds transfers pursuant to Section 43170 may be made by Fedwire only if payment cannot, for good cause, be made according to subdivision (a), and the use of Fedwire is preapproved by the board. Banking costs incurred for the Fedwire transaction charged to the person and to the state shall be paid by the person originating the transaction.

History.—Added by Stats. 2000, Ch. 923 (AB 2894), in effect January 1, 2001.

43173. Electronic filing. (a) Any return, declaration, statement, or other document required to be made under this part that is filed using electronic media shall be filed and authenticated pursuant to any method or form the board may prescribe.

(b) Notwithstanding any other law, any return declaration, statement, or other document otherwise required to be signed that is filed by the taxpayer using electronic media in a form as required by the board shall be deemed to be a signed, valid original document, including upon reproduction to paper form by the board.

(c) Electronic media includes, but is not limited to, computer modem, magnetic media, optical disk, facsimile machine, or telephone.

History.—Added by Stats. 2002, Ch. 459 (AB 1936), in effect January 1, 2003.

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Article 2. Deficiency Determinations

43201. Deficiency determination; notice of determination. (a) If the board is dissatisfied with the return or report filed or the amount of tax paid to the state by any taxpayer, or if no return or report has been filed or no payment or payments of the taxes have been made to the state by a taxpayer, the board may compute and determine the amount to be paid, based upon any information available to it. In addition, where the board is authorized to collect a tax for another state agency, the board may issue a notice of determination or similar billing document for collection of the tax. One or more additional determinations may be made of the amount of tax due for one, or for more than one, period. The amount of tax so determined shall bear interest at the modified adjusted rate per month, or fraction thereof, established pursuant to Section 6591.5, from the date the amount of the tax, or any portion thereof, became due and payable until the date of payment. In making a determination, the board may offset overpayments for a period or periods against underpayments for another period or periods and against the interest and penalties on the underpayments.

(b) If any part of the deficiency for which a determination of an additional amount due is found to have been occasioned by negligence or intentional disregard of this part or authorized regulations, a penalty of 10 percent of the amount of the determination shall be added, plus interest as provided above.

(c) If any part of the deficiency for which a determination of an additional amount due is found to be occasioned by fraud or an intent to evade this part or authorized regulations, a penalty of 25 percent of the amount of the determination shall be added, plus interest as provided in subdivision (a).

(d) The board shall give to the taxpayer written notice of its determination. The notice shall be placed in a sealed envelope, with postage paid, addressed to the taxpayer at his or her address as it appears in the records of the board. The giving of notice shall be deemed complete at the time of the deposit of the notice in a United States Post Office, or a mailbox, sub-post office, substation or mail chute, or other facility regularly maintained or provided by the United States Postal Service without extension of time for any reason. In lieu of mailing, a notice may be served personally by delivering to the person to be served, and service shall be deemed complete at the time of delivery. Personal service to a corporation may be made by delivery of a notice to any person designated in the Code of Civil Procedure to be served for the corporation with summons and complaint in a civil action.

History.—Stats. 1982, Ch. 5, First Extra Session, in effect May 27, 1982, substituted "adjusted . . . 19269" for "rate . . . thereof" before "from" in the third sentence. Stats. 1982, Ch. 496, in effect July 12, 1982, added "(a)" before "If" in, substituted "report" for "returns" before "filed" in, added "or if . . . a taxpayer" after "any taxpayer" in, and substituted "the board" for "it" before "may" in, the first sentence of, substituted "rate . . . thereof" for "adjusted . . . 19269" before "from" in, and "became due and payable" for "should have been reported" before "until" in, the second sentence of, new subdivision (a); added "(b) before the fourth sentence; substituted "regulations" for "rules" after "authorized" in new subdivision (b); added "(c)" before the fifth sentence; substituted "regulations" for "rules" after "authorized" and "in subdivision (a)" for "above" after "provided" in new subdivision (c); added "(d)" before the sixth sentence; and, substituted "a" for "the" board "United" in the third sentence of new subdivision (d). Stats. 1982, Ch. 1589, in effect January 1983, substituted "adjusted . . . 19269" for "rate . . . thereof" in the third sentence of subdivision (a). Stats. 1984, Ch. 1020, operative July 1, 1985, added "modified" before "adjusted", deleted "annual" before "rate", added "per month or fraction thereof" before "established", and substituted "Section 6591.5" for "Section 19269". Stats. 2004, Ch. 527 (SB 1881), in effect January 1, 2005, added second sentence providing "In addition, where . . . of the tax" to subdivision (a), deleted "is made" after "additional amount due" in subdivisions (b) and (c).

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43202. Limitations; deficiency determinations. (a) Except in the case of fraud, intent to evade this part, authorized rules and regulations, or failure to make a return, every notice of a determination of an additional amount due shall be given within three years after the date when the amount should have been paid or the return was due, or within three years after the return was filed, whichever period expires later. In the case of failure to make a return, the notice of determination shall be mailed within eight years after the date the report or return was due.

(b) The limitation specified in subdivision (a) shall not apply to a liability for the fee imposed pursuant to Section 25205.5 of the Health and Safety Code which is proposed to be determined with respect to a taxpayer if a notice of determination for the fee imposed pursuant to Section 25205.2 of the Health and Safety Code has been given pursuant to Section 43201 or 43350 for the same period and site, or with respect to a taxpayer that has paid the fee imposed by Section 25205.2 of the Health and Safety Code for the same period and site. The notice of determination with respect to the fee imposed pursuant to Section 25205.5 of the Health and Safety Code shall be given within 90 days from the date of final board action or final judicial action, whichever is later, concerning liability for the fee imposed pursuant to Section 25205.2 of the Health and Safety Code.

(c) The limitation specified in subdivision (a) shall not apply to a liability for the fee imposed pursuant to Section 25205.2 of the Health and Safety Code which is proposed to be determined with respect to a taxpayer if a notice of determination for the fee imposed pursuant to Section 25205.5 of the Health and Safety Code has been given pursuant to Section 43201 or 43350 for the same period and site, or with respect to a taxpayer that has paid the fee imposed by Section 25205.5 of the Health and Safety Code for the same period and site. The notice of determination with respect to the fee imposed pursuant to Section 25205.2 of the Health and Safety Code shall be given within 90 days from the date of final board action or final judicial action, whichever is later, concerning liability for the fee imposed pursuant to Section 25205.5 of the Health and Safety Code.

History.—Stats. 1988, Ch. 1029, in effect January 1, 1989, substituted "paid" for "returned" in the first sentence, added "report or" before "return" in last sentence. Stats. 1993, Ch. 1113, in effect January 1, 1994, added "or the return . . . expires later" after "been paid". Stats. 1995, Ch. 630, in effect January 1, 1996, added "(b) The limitation specified . . . of the Health and Safety Code".

43203. Limitations; deficiency determinations; decedent. In the case of a deficiency arising under this part during the lifetime of a decedent, a notice of deficiency determination shall be mailed within four months after written request therefor, in the form required by the board, by the fiduciary of the estate or trust or by any other person liable for the tax or any portion thereof.

43204. Waiver. If before the expiration of the time prescribed in Section 43202 for the mailing of a notice of deficiency determination the taxpayer has consented in writing to the mailing of the notice after such time, the notice may be mailed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.

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Article 3. Determinations If No Return Made*

* Article 3 was repealed by Stats. 1982, Ch. 496, in effect July 12, 1982.

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Article 4. Redeterminations

43301. Petition for redetermination. Any person from whom an amount is determined to be due under Article 2 (commencing with Section 43201), or any person directly interested, may petition for a redetermination thereof within 30 days after service upon him or her of notice of the determination. If a petition for redetermination is not filed within the 30-day period, the amount determined to be due becomes final at the expiration thereof.

No petition for redetermination of taxes determined under this part shall be accepted or considered by the board if the petition is founded upon the grounds that the director has improperly or erroneously determined that any substance is a hazardous or extremely hazardous waste. Any appeal of a determination that a substance is a hazardous or extremely hazardous waste shall be made to the director.

History.—Stats. 1982, Ch. 496, in effect July 12, 1982, deleted "or Article . . . 43251)" after "43201)" and extended the period for petition from 30 days to 60 days. Stats. 1984, Ch. 1707, substituted "30 days" for "60 days" and "30-day period" for "60-day period" in the first paragraph.

43302. Form and content of petition. Every petition for redetermination shall be in writing and shall state the specific grounds upon which the petition is founded. The petition may be amended to state additional grounds at any time prior to the date on which the board issues its order or decision upon the petition for redetermination.

43303. Oral hearing. If a petition for redetermination is filed within the 30-day period, the board shall reconsider the amount determined to be due, and, if the person has so requested in his or her petition, the board shall grant him or her an oral hearing and shall give him or her 10 days' notice of the time and place of the hearing. The board may continue the hearing from time to time as may be necessary.

History.—Stats. 1982, Ch. 496, in effect July 12, 1982, substituted "60-day" for "30-day" before "period" in the first sentence. Stats. 1984, Ch. 1707, in effect January 1, 1984, substituted "30-day period" for "60-day period" before "the board" in the first sentence.

43304. Decrease or increase of determination. The board may decrease or increase the amount of the determination before it becomes final, but the amount may be increased only if a claim for the increase is asserted by the board at or before the hearing. Unless the 25 percent penalty imposed by Section 43201 or 43251 applies to the amount of the determination as originally made or as increased, the claim for increase must be asserted within eight years after the date the return for the period for which the increase is asserted was due.

43305. Finality date of order or decision. The order or decision of the board upon a petition for redetermination shall become final 30 days after service upon the petitioner of notice thereof.

43306. Due date of determination; penalty. All amounts determined to be due by the board under Article 2 (commencing with Section 43201) are due and payable at the time they become final, and, if not paid when due and payable, a penalty of 10 percent of the amount determined to be due shall be added to the amount due and payable.

History.—Stats. 1982, Ch. 496, in effect July 12, 1982, deleted "or Article . . . 43251)" after "43201)," deleted "there . . . thereto" before "a penalty" and added "shall . . . payable" after "to be due."

43307. Service of notice. Any notice required by this article shall be served personally or by mail in the same manner as prescribed for service of notice by Section 43201.

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Article 5. Jeopardy Determinations

43350. Jeopardy determinations. If the board believes that the collection of any amount of tax will be jeopardized by delay, it shall thereupon make a determination of the amount of tax due, noting that fact upon the determination, and the amount of tax shall be immediately due and payable. If the amount of the tax, interest, and penalty specified in the jeopardy determination is not paid, or a petition for redetermination is not filed, within 10 days after the service upon the taxpayer of notice of the determination, the determination becomes final, and the delinquency penalty and interest provided in Section 43155 shall attach to the amount of tax specified therein.

History.—Stats. 2004, Ch. 527 (SB 1881), in effect January 1, 2005, substituted "Section 43155" for "Sections 43155 and 43156" in the last sentence.

43351. Petition for redetermination; security. The taxpayer against whom a jeopardy determination is made may file a petition for the redetermination thereof, pursuant to Article 4 (commencing with Section 43301), with the board within 10 days after the service upon the taxpayer of notice of the determination, but he or she shall, within the 10-day period, deposit with the board such security as it deems necessary to insure compliance with the provisions of this part. The security may be sold by the board at public sale if it becomes necessary in order to recover any amount due under this part. Notice of the sale may be served upon the person who deposited the security personally or by mail in the same manner as prescribed for service of notice by Section 43201. Upon any such sale, the surplus, if any, above the amount due under this part shall be returned to the person who deposited the security.

43352. Administrative hearing. In accordance with such rules and regulations as the board may prescribe, the person against whom a jeopardy determination is made may apply for an administrative hearing for one or more of the following purposes:

(a) To establish that the determination is excessive.

(b) To establish that the sale of property that may be seized after issuance of the jeopardy determination, or any part thereof, shall be delayed pending the administrative hearing because the sale would result in irreparable injury to the person.

(c) To request the release of all or a part of the property to the person.

(d) To request a stay of collection activities.

The application shall be filed within 30 days after service of the notice of jeopardy determination and shall be in writing and state the specific factual and legal grounds upon which it is founded. The person shall not be required to post any security in order to file the application and to obtain the hearing. However, if the person does not deposit, within the 10-day period prescribed in Section 43351, such security as the board may deem necessary to ensure compliance with this part, the filing of the application shall not operate as a stay of collection activities, except sale of property seized after issuance of the jeopardy determination. Upon a showing of good cause for failure to file a timely application for administrative hearing, the board may allow a filing of the application and grant the person an administrative hearing. The filing of an application pursuant to this section shall not affect the provisions of Section 43350 relating to the finality date of the determination or to penalty or interest.

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