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  By: Taylor H.B. No. 2488
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the establishment of an independent agency to function
  as a tax tribunal.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Amending Tax Code, Title 2, to add Chapter 114,
  to read as follows:
  SUBCHAPTER A.  GENERAL PROVISIONS
         Sec. 114.001.  SHORT TITLE. This chapter may be called the
  Tax Tribunal Act.
         Sec. 114.002.  DEFINITIONS. As used in this Chapter:
         (a)  "Authorized representative" means:
               (1)  an attorney admitted to practice in this State, or
  any other jurisdiction of the United States, including an attorney
  who is a partner or member of, or is employed by, an accounting or
  other professional services firm;
               (2)  an accountant licensed in this State or any other
  jurisdiction of the United States;
               (3)  an enrolled agent authorized to practice before
  the Internal Revenue Service;
               (4)  an officer, employee, partner or member of the
  taxpayer; or
               (5)  any other person authorized in writing by the
  taxpayer to represent it before the tribunal.
         (b)  "Tribunal" means the Tax Tribunal established by this
  Chapter.
  SUBCHAPTER B.  ESTABLISHMENT, JUDGES, AND EMPLOYEES
         Sec. 114.051.  The Tax Tribunal.  (a)  There is hereby
  established the Tax Tribunal.
         (b)  The tribunal is an independent agency.
         (c)  The tribunal shall officially exist on and after
  September 1, 2013; however, the tribunal shall have the authority
  to take any action prior to September 1, 2013 that is necessary for
  the tribunal to properly exercise its powers on and after September
  1, 2013.
         Sec. 114.052.  JUDGES.  (a)  The tribunal shall consist of at
  least one judge.  Additional judges may be appointed pursuant to
  this section.
         (b)  Judges shall be appointed by the Governor for a term of
  six years.  If the tribunal has more than one judge, the initial
  terms shall be staggered so that all judges' terms do not expire in
  the same year.  Under no circumstances shall a judge's initial term
  exceed six years.
         (c)  Each judge shall receive an annual salary as provided in
  section 659.012(a)(1) of the Government Code.
         (d)  Once appointed, each judge shall continue in office
  until his or her term expires and until a successor has been
  appointed.
         (e)  If, for any reason, a judge does not fulfill his or her
  term, the Governor shall appoint a replacement judge, who will
  complete the unexpired portion of the term.
         (f)  The Governor may remove a judge, after notice and an
  opportunity to be heard, for neglect of duty, inability to perform
  duties, malfeasance in office, or other good cause.
         (g)  A judge may disqualify or recuse himself or herself on
  his or her own motion, or on the motion of any party, in any matter,
  and shall be disqualified or recused as provided in the Texas Code
  of Judicial Conduct and rules 18a and 18b of the Texas Rules of
  Civil Procedure.
         Sec. 114.053.  QUALIFICATIONS OF JUDGES.  (a)  Each judge of
  the tribunal shall:
               (1)  be a citizen of this State; and
               (2)  possess substantial knowledge of the tax law and
  substantial experience representing taxpayers in tax cases.
         (b)  Each judge is subject to and shall follow the Texas Code
  of Judicial Conduct.
         (c)  Each judge shall devote his or her full time during
  business hours to the duties of his or her office.  Each judge shall
  not engage in any other gainful employment or business, nor hold
  another office or position of profit in a government of this State,
  any other State, or the United States. Notwithstanding these
  prohibitions, a judge may own passive interests in business
  entities and may earn income from incidental teaching, publishing,
  or scholarly activities.
         Sec. 114.054.  CLERK, REPORTERS, AND OTHER EMPLOYEES.  (a)
  The tribunal shall appoint a clerk and a reporter, employ
  additional personnel, and make such other expenditures, including
  expenditures for libraries, publications, and equipment, as are
  necessary to permit it to efficiently execute its functions.
         (b)  The reporter shall be appointed pursuant, and subject
  to, the provisions of Section 52.021, Government Code.
         (c)  No employee of the tribunal shall act as attorney,
  representative, or accountant for others in any matter involving
  any tax imposed or levied by this State or political subdivision of
  this State.
         (d)  In addition to the services of the official reporter,
  the tribunal may contract the reporting of its proceedings and, in
  the contract, fix the terms and conditions under which transcripts
  will be supplied by the contractor to the tribunal and to other
  persons and agencies.
  SUBCHAPTER C.  JURISDICTION AND VENUE
         Sec. 114.101.  JURISDICTION.  (a)  The tribunal shall hear
  all cases in relation to the collection, receipt, administration,
  and enforcement of:
               (1)  a tax imposed under this title; and
               (2)  any other tax, fee, or other amount that the
  comptroller is required to collect, receive, administer, or enforce
  under a law not included in this title.
         (b)  Payment of the tax, penalty, or interest identified in a
  deficiency determination under section 111.008 of the Tax Code is
  not required to initiate a proceeding with the tribunal.
         (c)  The tribunal shall not have the power to determine the
  constitutionality of the tax statutes or rules of this State.
         Sec. 114.102.  VENUE.  (a)  All hearings conducted by the
  tribunal shall be at its offices in Austin, Texas.
         Sec. 114.103.  COMMENCEMENT OF PROCEEDINGS.  (a)  A taxpayer
  may initiate a proceeding before the tribunal by filing a petition
  on or before the expiration of 60 days following the date of the
  comptroller's:
               (1)  deficiency determination issued pursuant to
  section 111.008 of the Tax Code;
               (2)  denial of a refund claim filed pursuant to section
  111.104 of the Tax Code; or
               (3)  other notice or demand assessing a tax, fee,
  penalty, interest, or other amount administered by the comptroller.
         (b)  A petition filed under subsection (a) of this section
  shall name the comptroller as respondent in his or her official
  capacity, and be served on the comptroller in a manner prescribed by
  rule 21a of the Texas Rules of Civil Procedure.
         (c)  The comptroller shall file its answer with the tribunal
  no later than 30 days after service of the petition, and serve a
  copy on the taxpayer and its representative, if any, in a manner
  prescribed by rule 21a of the Texas Rules of Civil Procedure.
         (d)  The petition shall be in a form as prescribed by the
  tribunal.
         Sec. 114.104.  NO ELECTION OF REMEDIES.  (a)  Filing a
  petition under Tax Code section 114.103 does not prejudice a
  taxpayer's right to file suit pursuant to the provisions of Chapter
  112 of the Tax Code.
  SUBCHAPTER D.  DISCOVERY AND HEARINGS
         Sec. 114.151.  APPLICATION OF THE TEXAS RULES OF CIVIL
  PROCEDURE.  (a)  Unless otherwise provided in this Act, the
  provisions of the Texas Rules of Civil Procedure shall apply to all
  aspects of proceedings before the tribunal; provided, however, that
  the tribunal may, by rule or by order in a particular proceeding,
  modify the Texas Rules of Civil Procedure to fairly and efficiently
  resolve disputes between the parties.
         Sec. 114.152.  DISCOVERY; SUBPOENAS.  (a)  The parties to a
  proceeding are entitled to the forms of discovery provided in rules
  190 through 215 of the Texas Rules of Civil Procedure; however, the
  parties to a proceeding shall make every effort to conduct
  discovery by informal consultation or communication.
         (b)  A judge of the tribunal shall have the power to rule on
  discovery matters presented by the parties to a proceeding.
         (c)  A judge or clerk of the tribunal, on the request of any
  party to the proceeding, shall issue subpoenas requiring the
  attendance of witnesses and giving of testimony and subpoenas
  requiring the production of evidence or things.
         (d)  Any employee of the tribunal designated in writing for
  such purpose by a tribunal judge may administer oaths.
         (e)  Any witness who is subpoenaed or whose deposition is
  taken shall receive the same fees established in section 22.001 of
  the Civil Practice and Remedies Code.
         (f)  A judge of the tribunal shall have the power granted to
  the courts of this State under section 21.002 of the Government Code
  to enforce compliance with a subpoena issued under this section.
         Sec. 114.153.  SUMMARY DISPOSITION.  (a)  Any party to a
  proceeding may file a motion for summary disposition.
         (b)  The judge shall grant a motion for summary disposition
  if the evidence before him or her establishes that there is no
  genuine issue as to any material fact and that the moving party is
  entitled to a decision in its favor as a matter of law.
         (c)  A movant shall file its motion for summary disposition
  at least 30 days before the date of the hearing on the merits. The
  motion must include:
               (1)  a separate statement that sets forth plainly and
  concisely all material facts that the moving party contends are
  undisputed;
               (2)  a clear and specific reference to the evidence
  supporting the facts that the moving party contends are undisputed;
  and
               (3)  copies the evidence supporting the facts that the
  moving party contends are undisputed.
         (d)  The non-moving party may file a response within 14 days
  of receipt of the motion for summary disposition.  The response
  must:
               (1)  include a separate statement
                     (A)  addressing each of the material facts that
  the moving party contends are undisputed; and
                     (B)  indicating whether the non-moving party
  agrees or disagrees that the facts are undisputed;
               (2)  plainly and concisely set forth any other material
  facts that the non-moving party contends are disputed;
               (3)  clearly and specifically refer to evidence
  supporting the material facts that the non-moving party contends
  are disputed; and
               (4)  object to the form of the motion and to the
  evidence.
         (e)  The moving party may file a response within 7 days of
  receipt of the non-moving party's response.  The reply must include
  objections to the form of the response and to the evidence.
         Sec. 114.154.  HEARINGS.  (a)  Hearings before the tribunal
  shall be de novo.
         (b)  Hearings are confidential and are not open to the
  public.
         (c)  Unless provided otherwise in this Act or in rules
  promulgated by the tribunal, hearings shall be conducted according
  to the Texas Rules of Civil Procedure governing nonjury civil cases
  in the district courts of this State.
         (d)  The tribunal shall take evidence, conduct hearings,
  rule on motions, and issue final decisions.
         (e)  The rules of evidence as applied in a nonjury civil case
  in a district court of this State shall apply to a proceeding before
  the tribunal except that evidence inadmissible under those rules
  may be admitted, at the discretion of the judge, if the evidence is:
               (1)  necessary to ascertain facts not reasonably
  susceptible of proof under those rules;
               (2)  not precluded by statute; and
               (3)  of a type on which a reasonably prudent person
  commonly relies in the conduct of the person's affairs.
         (f)  Testimony may be given only on oath or affirmation.
         (g)  In the case of an issue of fact:
               (1)  the burden of proof is on the comptroller:
                     (A)  by a preponderance of the evidence, if the
  issue is whether the suspension or revocation of a license is
  warranted; or
                     (B)  by clear and convincing evidence, if the
  issue is whether the imposition of additional penalty for willful
  or fraudulent failure to pay tax is warranted;
               (2)  the burden of proof is on the taxpayer:
                     (A)  by a preponderance of the evidence, if
  contesting an action, or proposed action, of the comptroller; or
                     (B)  by clear and convincing evidence, if claiming
  a transaction is exempt from taxation.
  SUBCHAPTER E.  DECISIONS
         Sec. 114.201.  AUTHORITY.  (a)  A decision by a judge of the
  tribunal shall be deemed to be the decision of the tribunal.
         Sec. 114.202.  DECISION TO BE IN WRITING.  (a)  The tribunal
  shall render its decision in writing, including a concise statement
  of the facts found and the conclusions of law reached.  All
  decisions shall grant such relief, invoke such remedies, and issue
  such orders as the tribunal deems appropriate to carry out its
  orders and decisions.  The tribunal shall promptly mail a notice of
  its decision to the taxpayer and the comptroller.
         (b)  The tribunal shall render its decision no later than 90
  days after the submission of the last brief filed subsequent to the
  completion of the hearing or, if briefs are not submitted, then no
  later than 90 days after completion of the hearing.  The tribunal
  may extend the 90 day period, for good cause, up to 30 additional
  days.
         (c)  If the tribunal fails to render its decision by the
  applicable deadlines established in subsection (b) of this section,
  the tribunal is deemed to have ruled against the taxpayer on all
  issues.
         (d)  The tribunal's decision shall finally decide the
  matters in controversy, unless the taxpayer timely appeals the
  decision as provided in section 114.251 of this Act.
         (e)  The tribunal shall adhere to the principle of stare
  decisis.  The tribunal's interpretation of a tax statute subject to
  contest in one case shall be followed by the tribunal in subsequent
  cases involving the same statute, and its application of a statute
  to the facts of one case shall be followed by the tribunal in
  subsequent cases involving similar facts, unless the tribunal's
  interpretation or application conflicts with that of a district or
  appellate court or the tribunal provides satisfactory reasons for
  departing from prior precedent.
         (f)  A decision of the tribunal shall become final 45 days
  after the issuance of a notice of decision or 45 days after the
  tribunal fails to issue a decision as provided in section
  141.202(c).
         Sec. 114.203.  PUBLICATION OF DECISIONS; CONFIDENTIALITY.  
  (a)  A final decision of the tribunal shall be indexed and published
  in print or electronic form as the tribunal deems best adapted for
  public convenience.
         (b)  A published final decision shall comply with the
  confidentiality provisions of section 114.352 of this Act.
         (c)  A published final decision shall not include the
  following types of information:
               (1)  identity of the taxpayer and its employees;
               (2)  taxpayer identification numbers;
               (3)  trade secrets;
               (4)  intellectual property; or
               (5)  any other type of information that could possibly
  identify the taxpayer.
  SUBCHAPTER F.  APPEALS
         Sec. 114.251.  DE NOVO APPEAL TO THE DISTRICT COURT.  (a) A
  taxpayer may appeal a final decision of the tribunal to the district
  courts of Travis County pursuant to Chapter 112 of the Tax Code.
         (b)  The appeal under this section is de novo.
         (c)  A taxpayer must appeal a final decision of the tribunal
  on or before the expiration of 30 days after the date the decision
  becomes final under section 114.202(f) of this Act.
  SUBCHAPTER G.  REPRESENTATION
         Sec. 114.301.  REPRESENTATIVES.  (a)  The comptroller shall
  be represented by its general counsel in all proceedings before the
  tribunal.
         (b)  A taxpayer may represent itself, or may appear through
  its authorized representative in all proceedings before the
  tribunal.
         Sec. 114.302.  PRACTICE OF LAW.  (a)  Under no circumstance
  shall representation of a taxpayer before the tribunal be
  considered the practice of law.
  SUBCHAPTER H.  MISCELLANEOUS PROVISIONS
         Sec. 114.351.  RULES AND FORMS.  (a)  The tribunal is
  authorized to promulgate and adopt all reasonable rules and forms
  as may be necessary or appropriate to carry out the intent and
  purposes of this Act.
         (b)  Rules shall be adopted in accordance with the rulemaking
  procedures of Chapter 2001 of the Government Code.
         Sec. 114.352.  CONFIDENTIALITY.  All information received by
  the tribunal as a result of a hearing conducted under the provisions
  of this Act shall be confidential as provided in section 111.006 of
  the Tax Code, and is not subject to disclosure under Chapter 552 of
  the Government Code.
         SECTION 2.  Section 111.00455, Tax Code, is amended to read
  as follows:
         Sec. 111.00455.  CONTESTED CASES CONDUCTED BY TAX TRIBUNAL.
  [TAX DIVISION OF STATE OFFICE OF ADMINISTRATIVE HEARINGS.]  (a)  The
  tribunal [tax division of the State Office of Administrative
  Hearings] shall conduct any contested case hearing as provided by
  Chapter 114, [2003.101,] Tax [Government] Code, in relation to the
  collection, receipt, administration, and enforcement of:
               (1)  a tax imposed under this title; and
               (2)  any other tax, fee, or other amount that the
  comptroller is required to collect, receive, administer, or enforce
  under a law not included in this title.
         (b)  The following are not contested cases under Subsection
  (a) and Chapter 114, [Section, 2003.101,] Tax [Government] Code:
               (1)  a show cause hearing or any hearing not related to
  the collection, receipt, administration, or enforcement of the
  amount of a tax or fee imposed, or the penalty or interest
  associated with that amount, except for a hearing under Section
  151.157(f), 151.1575(d), 151.712(g), 154.1142, or 155.0592;
               (2)  a property value study hearing under Subchapter M,
  Chapter 403, Government Code;
               (3)  a hearing in which the issue relates to:
                     (A)  Chapters 72-75, Property Code;
                     (B)  forfeiture of a right to do business;
                     (C)  a certificate of authority;
                     (D)  articles of incorporation;
                     (E)  a penalty imposed under Section 151.703(d);
                     (F)  the refusal or failure to settle under
  Section 111.101; or
                     (G)  a request for or revocation of an exemption
  from taxation; and
               (4)  any other hearing not related to the collection,
  receipt, administration, or enforcement of the amount of a tax or
  fee imposed, or the penalty or interest associated with that
  amount.
         (c)  A reference in law to the comptroller that relates to
  the performance of a contested case hearing described by Subsection
  (a) means the tribunal. [tax division of the State Office of
  Administrative Hearings.]
         SECTION 3.  Section 111.105(a), Tax Code, is amended to read
  as follows:
         Sec. 111.105.  TAX REFUND: HEARING.  (a)  A person claiming a
  refund under Section 111.104 is entitled to a hearing on the claim
  if the person requests a hearing on or before the 60th [30th] day
  after the date the comptroller issues a letter denying the claim for
  refund. The person is entitled to 20 days' notice of the time and
  place of the hearing.
         SECTION 4.  Subchapter D, Chapter 2003, Government Code, is
  repealed.
         SECTION 5.  This Act takes effect September 1, 2013.