Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2014
 

Tax on Insurers Law

Chapter 8. Taxpayer's Suits.



Chapter 8. Taxpayer's Suits.

13101. 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 officer of the State to prevent or enjoin the assessment or collection under this part of any tax or any amount of tax required to be collected.

History.—Stats. 1961, p. 1992, operative January 1, 1962, repealed former Section 13101, which defined "taxes," and added the present Section 13101.

13102. 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 in accordance with Article 2 of Chapter 7 of this part.

History.—Stats. 1961, p. 1992, operative January 1, 1962, repealed former Section 13102, which permitted an action for recovery of tax paid on a void assessment, and added the present Section 13102.

Grounds not raised.—Grounds not raised in insurer's claim for refund may not be raised in suit for refund. American Alliance Ins. Co. v. State Board of Equalization (1982) 134 Cal.App.3d 601.

13103. Suit for refund; limitation. Within 90 days after the mailing of the notice of the board's action upon a claim for refund or credit, the claimant may bring an action against the board on the grounds set forth in the claim in a court of competent jurisdiction in any county or city and county in the State in which the Attorney General has an office for the recovery of the whole or any part of the amount with respect to which the claim has been disallowed. The Attorney General shall defend the action.

History.—Stats. 1961, p. 1992, operative January 1, 1962, repealed former Section 13103, which provided a period of limitation to April 1st of the calendar year following the year in which the taxes are due, and added the present Section 13103.

13104. When refund claim not acted upon. If the board fails to mail notice of its action on a claim for refund or credit within six months after the claim is filed with the board, the claimant may, prior to mailing of notice by the board of its action on the claim, 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.

History.—Stats. 1961, p. 1992, operative January 1, 1962, repealed former Section 13104, which required payment under protest prior to suit, and added the present Section 13104.

13105. Failure to bring suit within time. Failure to bring a suit or an action within the time specified constitutes a waiver of all demands against the State on account of an alleged overpayment.

History.—Stats. 1961, p. 1992, operative January 1, 1962, repealed former Section 13105, which provided for filing copies of the protest with the board and the Insurance Commissioner, and added the present Section 13105.

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13106. Disposition of judgment. If judgment is rendered for the plaintiff, the amount of the judgment shall first be credited on any taxes due and payable from the plaintiff. The balance of the judgment shall be refunded to the plaintiff.

History.—Stats. 1961, p. 1993, operative January 1, 1962, repealed former Section 13106, which provided that payment under protest was not voluntary, and added the present Section 13106.

13107. Interest. In any judgment, interest shall be allowed, subject to the same limitations as are prescribed by Section 12984, 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 Controller.

History.—Stats. 1961, p. 1993, operative January 1, 1962, repealed former Section 13107, which provided that an action might be brought only upon the grounds stated in the protest, and added the present Section 13107. Stats. 1975, Ch. 661, operative to interest accruing on or after January 1, 1976, substituted "12 percent" for "6 percent." 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".

Text of section operative through June 30, 2012

13108. Judgment for assignee forbidden. (a) A judgment shall not be rendered in favor of the plaintiff when the action is brought by or in the name of an assignee of the insurer paying the tax, interest, or penalties, or by any person other than the insurer or Medi-Cal managed care plan that has paid the tax, interest, or penalties.

(b) This section shall become inoperative on July 1, 2012, and, as of January 1, 2013, is repealed, unless a later enacted statute, that becomes operative on or before July 1, 2012, deletes or extends the dates on which it becomes inoperative and is repealed.

History.—Stats. 1959, p. 1895, in effect April 1, 1959, added the words "interest or penalties" after each word "tax" in the former Section 13113. Stats. 1961, p. 1993, operative January 1, 1962, repealed former Section 13108, which provided for service of summons, and renumbered former Section 13113 as the present Section 13108. Stats. 2009, Ch. 157 (AB 1422), in effect September 22, 2009, designated the first sentence as subdivision (a) and added "or Medi-Cal managed care plan" after "person other than the insurer" in subdivision (a); and added subdivision (b). Stats. 2010, Ch. 717 (SB 853), in effect October 19, 2010, deleted former subdivision (b) which provided that "This section shall remain in effect only until January 1, 2011, and as of that date is repealed." and added the new subdivision (b). Stats. 2011, Ch. 11x1 (ABx1 21), in effect September 16, 2011, substituted "2012" for "2011" after "inoperative on July 1,", substituted "2013" for "2012" after "as of January 1,", substituted "July" for "January" after "operative on or before" in subdivision (b).deletion

13108. Judgment for assignee forbidden. [Repealed by Stats. 2013, Ch. 33 (SB 78) in effect June 27, 2013.]

TEXT OF SECTION OPERATIVE JULY 1, 2012, THROUGH JUNE 30, 2013

13108. Judgment for assignee forbidden. (a) A judgment shall not be rendered in favor of the plaintiff when the action is brought by or in the name of an assignee of the insurer or Medi-Cal managed care plan paying the tax, interest, or penalties, or by any person other than the insurer or Medi-Cal managed care plan that has paid the tax, interest, or penalties.

(b) This section shall be operative on July 1, 2012, and become inoperative on July 1, 2013. As of January 1, 2015, this section shall be repealed.

History.—Added by Stats., 2013, Ch. 33 (SB 78), in effect June 27, 2013, but operative July 1, 2012.

TEXT OF SECTION OPERATIVE JULY 1, 2013

13108. Judgment for assignee forbidden. (a) A judgment shall not be rendered in favor of the plaintiff when the action is brought by or in the name of an assignee of the insurer paying the tax, interest, or penalties, or by any person other than the insurer that has paid the tax, interest, or penalties.

(b) This section shall become operative on July 1, 2013.

History.—Added by Stats., 2013, Ch. 33 (SB 78), in effect June 27, 2013, but operative July 1, 2013.

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