Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2014
 

Hazardous Substances Tax Law

CHAPTER 5. OVERPAYMENTS AND REFUNDS.


CHAPTER 5. OVERPAYMENTS AND REFUNDS.

Article 1. Claim for Refund

43451. Credits and refunds. If the board determines that any amount of tax, 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 the records of the board, certify the amount collected in excess of what was legally due and the person from whom it was collected or by whom paid, and credit the excess amount collected or paid 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. Any proposed determination by the board pursuant to this section with respect to an amount 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.—Added by Stats. 1981, Ch. 756, effective September 25, 1981. Stats. 1985, Ch. 591, effective January 1, 1986, substituted "fifteen" for "five" and "($15,000)" for "($5,000)" in the second paragraph. Stats. 1988, Ch. 1029, in effect January 1, 1989, substituted "fifty thousand dollars ($50,000)" for "fifteen thousand dollars ($15,000)" in the second paragraph. Stats. 1994, Ch. 726, in effect September 22, 1994, substituted", shall certify" for "and shall certify to the State Board of Control" after "records of the board"; substituted ", and credit" for ". If approved by the State Board of Control," after "by whom paid"; deleted "shall be credited" after "collected or paid"; added "Any proposed determination . . . of that determination." as the second sentence; and deleted the second paragraph which said: "However, in the case of a determination by the board that an amount not to exceed fifty thousand dollars ($50,000) was not required to be paid under this part, the board without obtaining the approval of the State Board of Control may credit the amount on any amounts then due and payable under this part from the person by whom the amount was paid and may refund the balance to the person or his or her successors, administrators, or executors."

43451.5. Excess fee reimbursement. When an amount represented by a person who is a feepayer under this part to a customer as constituting reimbursement for fees due under this part is computed upon an amount that is not subject to that fee or is in excess of that fee amount due and is actually paid by the customer to the person, the amount so paid shall be returned by the person to the customer upon notification by the State Board of Equalization or by the customer that the excess has been ascertained. If the person fails or refuses to do so, the amount so paid, if knowingly or mistakenly computed by the person upon an amount that is not subject to the fees or is in excess of the fees due, shall be remitted by that person to this state. Those amounts remitted to the state shall be credited by the board on any amounts due and payable under this part on the same activity from the person by whom it was paid to this state and the balance, if any, shall constitute an obligation due from the person to this state.

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

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43452. Claim; limitation period. (a) Except as provided in subdivisions (b), (e), and (f), no refund shall be approved by the board after three years from the date the taxes were due and payable for the period for which the overpayment was made, or, with respect to determinations made under Article 2 (commencing with Section 43201) of Chapter 3, after six months from the date the determinations become final, or after six months from the date of overpayment, whichever period expires later, unless a claim therefor is filed with the board within that period. Except as provided in subdivisions (e) and (f), 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 43204.

(b) A refund may be approved by the board for any period for which a waiver is given under Section 43204 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.

(d) No claim for refund of taxes paid under this part shall be accepted, considered, or approved by the board if the claim 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.

(e) Notwithstanding subdivision (a), the board may 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, grant a refund or apply a credit pursuant to Section 43451 for any amount of tax, penalty, or interest that has been overpaid concerning a fee imposed pursuant to Section 25205.2 of the Health and Safety Code, if the taxpayer has paid or is being assessed a fee imposed pursuant to Section 25205.5 of the Health and Safety Code for the same period and site.

(f) Notwithstanding subdivision (a), the board may, 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, grant a refund or apply a credit pursuant to Section 43451 for any amount of tax, penalty, or interest that has been overpaid concerning a fee imposed pursuant to Section 25205.5 of the Health and Safety Code, if the taxpayer has paid or is being assessed a fee imposed pursuant to Section 25205.2 of the Health and Safety Code for the same period and site.

(g) Any overpayment of the fee imposed by Section 25174.1 of the Health and Safety Code by a person submitting hazardous waste for disposal to a hazardous waste facility at which hazardous wastes are disposed who is required to collect the fee shall be credited or refunded by the state to the person who submitted the hazardous waste for disposal. However, if the facility has paid the amount to the board and establishes to the satisfaction of the board that it has not collected the amount from the person submitting the hazardous waste for disposal or has refunded the amount to that person, the overpayment may be credited or refunded by the state to the facility.

History.—Stats. 1982, Ch. 496, in effect July 12, 1982, substituted "last" for "15th" before "day", deleted "Article 3 . . . 43350" before "of Chapter" and substituted "that" for "such" before the third "period" in the first sentence of, and substituted "that" for "such" before each "period" in the second sentence of, subdivision (a); and, substituted "shall" for "must" after "waste" in the second sentence of subdivision (d). Stats. 1988, Ch. 1029, in effect January 1, 1989, substituted "date the taxes were due and payable for" for "last day of the calendar month following the close of", "after six months" for "within six months", and "from the date the determinations" for "after the determinations" in first sentence. Stats. 1992, Ch. 852, in effect September 21, 1992, added "or after six months from the date of overpayments," after "become final" in subsection (a). Stats. 1995, Ch. 630, in effect January 1, 1996, adds "(e) Notwithstanding subdivision . . . the same period and site". Stats. 1998, Ch. 350 (SB 2231), in effect January 1, 1999, added subdivision (g).

43452.1. Claim limitation period; financially disabled. (a) The limitation period specified in Section 43452 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 can 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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43452.2. Claim limitation period; overpayments from levies or liens. Notwithstanding Section 43452, a refund of an overpayment of any tax, 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.

43453. 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.

43454. 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, such service to be made as provided by Section 43201.

43455. Interest. Interest shall be computed, allowed, and paid upon any overpayment of any amount of tax 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 the purposes of this section, "monthly period" means the month commencing on the day after the due date of the payment through the same date as the due date in each successive 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 that to which interest is computed on the tax or amount against which the credit is applied.

History.—Stats. 1982, Ch. 5, First Extra Session, in effect May 27, 1982, substituted "adjusted . . . 19269" for "rate . . . month" before "from" in the first paragraph. Stats. 1984, Ch. 1020, operative July 1, 1985, added "modified" before "adjusted", deleted "annual" before "rate", added "per month" before "established" and substituted "Section 6591.5" for "Section 19269". Stats. 1992, Ch. 1336, in effect January 1, 1993, substituted "first day of . . . In addition, a" for "due date of the return for the period for which the overpayment was made, but no" after "from the" in the first paragraph. Stats. 1996, Ch. 320, in effect January 1, 1997, 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, substituted "last day of the monthly period" for "15th day of the calendar month" after "refund, to the", 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).

43456. Disallowance of interest. (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

43471. Enjoining collection forbidden. No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against this state or against any office of the state to prevent or enjoin the collection of any tax sought to be collected.

43472. 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.

43473. Action for refund. 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.

43474. When refund claim not acted upon. 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.

43475. Action for refund; limitation. 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.

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43476. Disposition of amount of judgment. If judgment is rendered for the plaintiff, the amount of the judgment shall first be credited on any taxes due from the plaintiff, and the balance shall be refunded to the plaintiff.

43477. Interest. In any judgment, interest shall be allowed at the modified adjusted rate per annum established 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.

History.—Stats. 1982, Ch. 5, First Extra Session, in effect May 27, 1982, substituted "adjusted . . . 19269" for "rate . . . annum" before "upon." Stats. 1984, Ch. 1020, operative July 1, 1985, added "modified" before "adjusted", deleted "annual" before "rate", added "per annum" before "established" and substituted "Section 6591.5" for "Section 19269."

43478. 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 tax paid when the action is brought by or in the name of an assignee of the taxpayer paying the tax or by any person other than the person who has paid the tax.

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

History.—Stats. 1982, Ch. 496, in effect July 12, 1982, added the second paragraph.

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Article 3. Recovery of Erroneous Refunds

43481. Recovery of erroneous refunds. (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 43201) or Article 5 (commencing with Section 43350) 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.

43482. Place of trial. In any action brought pursuant to subdivision (a) of Section 43481, 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.

43483. Rules of procedure, etc. The Attorney General shall prosecute any action brought pursuant to subdivision (a) of Section 43481, 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.

43484. Interest on erroneous refunds. (a) Notwithstanding any other provision of this part, if the board finds that neither the person liable for payment of tax 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 43481, 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 43481 on or after January 1, 2000.

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

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Article 4. Cancellations

43491. Cancellation of determination. 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. Any proposed determination by the board pursuant to this section with respect to an amount 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.—Added by Stats. 1981, Ch. 756, effective September 25, 1981. Stats. 1985, Ch. 591, effective January 1, 1986, substituted "fifteen" for "five" and "($15,000)" for "($5,000)" in the first sentence of the section, substituted "fifteen" for "five" and "($15,000)" for "($5,000)" in the last sentence of the section. Stats. 1988, Ch. 1029, in effect January 1, 1989, substituted "fifty thousand dollars ($50,000)" for "fifteen thousand dollars ($15,000)" in the first and third sentences. Stats. 1994, Ch. 726, in effect September 22, 1994, 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 substituted "Any proposed determination . . . of that determination." for "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."

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