Laws, Regulations & Annotations

Property Taxes Law Guide – Revision 2014
 

Revenue and Taxation Code

Division 2. Other Taxes

Part 18.5. Timber Yield Tax

CHAPTER 5. Determinations


Chapter 5. Determinations

Article 1. Returns and Payments

38401. Due date. The taxes imposed by this part are due and payable to the board quarterly on or before the last day of the month next succeeding each quarterly period in which the scaling date for the timber harvested occurs.

38402. Return. On or before the last day of the month following each calendar quarter, a return for the preceding quarterly period shall be filed with the board in such form as the board may prescribe. The return shall include the following information with respect to timber harvested by the timber owner in the preceding calendar quarter: the volume harvested and the number of Christmas trees cut; the quarter the timber was harvested and the quarter the Christmas trees were cut; the date or dates the timber was scaled; the species; and any other information deemed necessary by the board for the administration of this part. At the assessor's request, the board shall provide copies of these returns to the assessor of the county from which the timber was harvested.

History.—Stats. 1983, Ch. 1281, in effect September 30, 1983, deleted "according to each tax rate area, as assigned by the assessor pursuant to Section 4582.8 of the Public Resources Code" after "trees cut" in the second sentence, deleted the former third sentence, and substituted "the assessor's" for "his" after "At" in the third sentence.

38403. Filing return. The person required to file the return shall deliver the return together with a remittance of the amount of the tax due to the office of the board.

38404. Return periods. The board if it deems it necessary in order to insure payment to or facilitate the collection by the state of the amount of taxes, may require returns and payment of the amount of taxes for quarterly periods other than calendar quarters, or for other than quarterly periods.

38405. Extension of time. The board for good cause may extend for 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 adjusted annual rate established pursuant to Section 19521 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 June 1, 1982, substituted "adjusted annual rate established pursuant to Section 19269" for "rate of 1 percent per month, or fraction thereof, "after "interest at the" in the second paragraph. Stats. 1996, Ch. 1087, in effect January 1, 1997, substituted "Section 19521" for "Section 19269" after "established pursuant to".

Note.—Section 89 of Stats. 1982, Ch. 5 (First Extra Session) provided that the provisions of this act shall apply to all interest and additions to tax accruing on or after the effective date of this act.

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Article 2. Deficiency Determinations

38411. Deficiency determination. If the board is not satisfied with the return or returns of the tax or the amount of tax required to be paid to the state by any person, it may compute and determine the amount required to be paid upon the basis of the facts contained in the return or returns or upon the basis of any information within its possession or that may come into its possession. One or more deficiency determinations may be made of the amount due for one or for more than one period.

38412. Interest. The amount of the determination, exclusive of penalties, shall bear interest at the adjusted annual rate established pursuant to Section 19521 from the last day of the month following the quarterly period for which the amount or any portion thereof should have been returned until the date of payment.

History.—Stats. 1982, Ch. 5 (First Extra Session), in effect June 1, 1982, substituted "adjusted annual rate established pursuant to Section 19269" for "rate of 1 percent per month, or fraction thereof," after "interest at the". Stats. 1996, Ch. 1087, in effect January 1, 1997, substituted "Section 19521" for "Section 19269" after "established pursuant to".

Note.—Section 89 of Stats. 1982, Ch. 5 (First Extra Session) provided that the provisions of this act shall apply to all interest and additions to tax accruing on or after the effective date of this act.

38413. Offsets. In making a determination the board may offset overpayments for a period or periods, together with interest on the overpayments, against underpayments for another period or periods, against penalties, and against the interest on the underpayments. The interest on underpayments and overpayments shall be computed in the manner set forth in Sections 38451 and 38606.

38414. 10 percent penalty. If any part of the deficiency for which a deficiency determination is made is due to negligence or intentional disregard of this part or authorized rules and regulations, a penalty of 10 percent of the amount of the determination shall be added thereto.

38415. 25 percent penalty. If any part of the deficiency for which a deficiency determination is made is due to fraud or an intent to evade this part or authorized rules and regulations, a penalty of 25 percent of the amount of the determination shall be added thereto.

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38416. Notice of determination. [Repealed by Stats. 1987, Ch. 498, effective January 1, 1988.]

38416. Notice of determination. The board shall give to the person written notice of its determination. The notice shall be placed in a sealed envelope, with postage paid, addressed to the person 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 the United States Post Office, or a mailbox, subpost 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 it to the person to be served and service is 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.—Added by Stats. 1987, Ch. 498, in effect January 1, 1988.

38417. Limitations; deficiency determinations. Except in the case of fraud, intent to evade this part or authorized rules and regulations, or failure to make a return, every notice of a deficiency determination shall be mailed within three years after the last day of the calendar month following the quarterly period for which the amount is proposed to be determined or within three years after the return is filed, whichever period expires the later. In the case of failure to make a return, every notice of determination shall be mailed within eight years after the last day of the calendar month following the quarterly period for which the amount is proposed to be determined.

38418. Limitations; deficiency determination; 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.

38419. Waiver. If before the expiration of the time prescribed in Section 38417 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

38421. Determination; failure to file return. If any person fails to make a return, the board shall make an estimate of the amount of the total timber harvested by the person and the immediate harvest value of that timber. The estimate shall be made for the period or periods in respect to which the person failed to make a return and shall be based upon any information which is in the board's possession or may come into its possession. Upon the basis of this estimate the board shall compute and determine the amount required to be paid to the state, adding to the sum thus arrived at a penalty equal to 10 percent thereof. One or more determinations may be made for one or for more than one period. When a person discontinues activities subject to the tax, a determination may be made at any time thereafter, within the periods specified in Section 38417, as to liability arising out of the person's activities subject to the tax, irrespective of whether the determination is issued prior to the due date of the liability as otherwise specified in this part.

History.—Stats. 1981, Ch. 714, in effect January 1, 1982, substituted "into" for "in" in the second sentence.

38422. Offsets. In making a determination the board may offset overpayments for a period or periods, together with interest on the overpayments, against underpayments for another period or periods, against penalties, and against the interest on the underpayments. The interest on underpayments and overpayments shall be computed in the manner set forth in Sections 38451 and 38606.

38423. Interest. The amount of the determination, exclusive of penalties, shall bear interest at the adjusted annual rate established pursuant to Section 19521 from the last day of the month following the quarterly period for which the amount or any portion thereof should have been returned until the date of payment.

History.—Stats. 1982, Ch. 5 (First Extra Session), in effect June 1, 1982, substituted "adjusted annual rate established pursuant to Section 19269" for "rate of 1 percent per month, or fraction thereof," after "interest at the". Stats. 1996, Ch. 1087, in effect January 1, 1997, substituted "Section 19521" for "Section 19269" after "established pursuant to".

Note.—Section 89 of Stats. 1982, Ch. 5 (First Extra Session) provided that the provisions of this act shall apply to all interest and additions to tax accruing on or after the effective date of this act.

38424. Penalties. If the failure of any person to file a return is due to fraud or an intent to evade this part or rules and regulations, a penalty of 25 percent of the amount required to be paid by the person, exclusive of penalties, shall be added thereto in addition to the 10 percent penalty provided in Section 38421.

38425. Notice of determination. Promptly after making its determination the board shall give to the person written notice of the estimate, determination, and penalty, the notice to be served personally or by mail in the manner prescribed for service of notice of a deficiency determination.

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Article 4. Jeopardy Determinations

38431. Jeopardy determination. If the board believes that the collection of any tax or any amount of tax required to be collected and paid to the state or of any determination will be jeopardized by delay, it shall thereupon make a determination of the tax or amount of tax required to be collected, noting that fact upon the determination. The amount determined is immediately due and payable.

38432. Interest and penalty. If the amount specified in the determination is not paid within 10 days after service of notice thereof upon the person against whom the determination is made, the amount becomes final at the expiration of the 10 days, and the delinquency penalty and the interest provided in Section 38451 shall attach to the amount of the tax or the amount of the tax required to be collected, unless a petition for redetermination is filed within the 10 days.

History.—Stats. 1987, Ch. 498, in effect January 1, 1988, deleted "unless a petition for redetermination is filed within the 10 days," after "the 10 days,", and added ", unless a petition for redetermination is filed within the 10 days" after "collected" in the first sentence.

38433. Petition for redetermination; security. The person against whom a jeopardy determination is made may petition for the redetermination thereof pursuant to Article 5 of this chapter. He shall, however, file the petition for redetermination with the board within 10 days after the service upon him of notice of the determination. The person shall also within the 10-day period deposit with the board such security as it may deem necessary to insure compliance with this part. The security may be sold by the board in the manner prescribed by Section 38501.

38434. Service of notice. Any notice required by this article shall be served personally or by mail in the manner prescribed for service of notice of a deficiency determination.

38435. Request for administrative hearing. In accordance with those 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. No security need be posted to file the application and to obtain this hearing. However, if the person does not deposit within the 10-day period prescribed in Section 38433, 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 the sale of property seized after issuance of the jeopardy determination. Upon a showing of good cause for failure to file a timely application for an administrative hearing, the board may allow a filing of this application and grant the person an administrative hearing. The filing of an application pursuant to this section shall not affect provisions of Section 38432 relating to the finality date of the determination or to penalty or interest.

History.—Added by Stats. 1987, Ch. 498, in effect January 1, 1988.

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Article 5. Redeterminations

38441. Petition for redetermination. Any person against whom a determination is made under Articles 2 or 3 of this chapter or any person directly interested may petition for a redetermination within 30 days after service upon the person of notice thereof. If a petition for redetermination is not filed within the 30-day period, the determination becomes final at the expiration of the period.

38442. 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.

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38443. Oral hearing. If a petition for redetermination is filed within the 30-day period, the board shall reconsider the determination and, if the person has so requested in his petition, shall grant the person an oral hearing and shall give him 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.

38444. 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 penalty imposed by Section 38415 or Section 38424 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 last day of the calendar month following the quarterly period for which the increase is asserted.

38445. Finality date of order or decision. The order or decision of the board upon a petition for redetermination becomes final 30 days after service upon the petitioner of notice thereof.

38446. Due date of determination; penalty. All determinations made by the board under Articles 2 or 3 of this chapter are due and payable at the time they become final. If they are not paid when due and payable, a penalty of 10 percent of the amount of the determination, exclusive of interest and penalties, shall be added thereto.

38447. Service of notice. Any notice required by this article shall be served personally or by mail in the manner prescribed for service of notice of a deficiency determination.

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Article 6. Interest and Penalties

38451. Interest and penalties. 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 Articles 2 or 3 of this chapter, within the time required shall pay a penalty of 10 percent of the tax or amount of the tax, in addition to the tax or the amount of tax, plus interest at the adjusted annual rate established pursuant to Section 19521 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.

History.—Stats. 1982, Ch. 5 (First Extra Session), in effect June 1, 1982, substituted "adjusted annual rate established pursuant to Section 19269" for "rate of 1 percent per month, or fraction thereof," after "interest at the". Stats. 1996, Ch. 1087, in effect January 1, 1997, substituted "or the amount" for "or amount" after "in addition to the tax", and substituted "Section 19521" for "Section 19269" after "established pursuant to".

Note.—Section 89 of Stats. 1982, Ch. 5 (First Extra Session) provided that the provisions of this act shall apply to all interest and additions to tax accruing on or after the effective date of this act.

38452. Excusable delay. (a) If the board finds that a person's failure to make a timely return 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 38421 and 38451.

(b) Except as otherwise 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 provides for efficient resolution of requests for relief pursuant to this section.

History.—Stats. 2000, Ch. 1052 (AB 2898), in effect January 1, 2001, designated the former first paragraph as subdivision (a); designated the former second paragraph as subdivision (b) and added "Except as otherwise provided in subdivision (c)," before "any person" and substituted "he or she bases his or her" for "he bases his" after "upon which" in the first sentence therein; and added subdivision (c).

38453. Excusable delay due to disaster. If the board finds that a person's failure to make a timely return or payment was due to a disaster, and occurred notwithstanding the exercise of ordinary care and the absence of willful neglect, the person may be relieved of the interest provided by Sections 38405, 38423, and 38451.

Any person seeking to be relieved of the interest shall file with the board a statement under penalty of perjury setting forth the facts upon which he bases his claim for relief.

History—Added by Stats. 1981, Ch. 947, in effect January 1, 1982.

38454. Reasonable reliance on written advice; relief of tax, penalty and interest. (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 by 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 the 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.

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38454.5. Innocent spouse relief. (a) Under regulations prescribed by the board, 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 quarters subject to the provisions of this part, but shall not apply to any calendar quarter 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 timber owner who harvests timber or causes it to be harvested, is first to acquire title to felled or downed timber from an exempt person or agency, or without authorization, harvests or causes to be harvested timber owned by another to which the understatement is attributable. If neither spouse rendered substantial services as a timber owner, 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.

38455. Error or delay by board employee; interest relief. (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 tax 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 the person filed a timely report and 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), in effect January 1, 2002, substituted "this part" for "Sections 38412, 38423, 38432, and 38451" after "person by" in the first sentence of subdivision (a).

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