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SENATE BILL NO. 46
INTRODUCED BY C. SWYSGOOD
AN ACT GENERALLY REVISING AND CLARIFYING THE SETTLEMENT AUTHORITY AND PROCEDURE OF STATE AGENCIES; PROVIDING FOR THE RECORDING AND USE OF SETTLEMENT PROCEEDS; CLARIFYING THAT A SETTLEMENT BY THE DEPARTMENT OF REVENUE MAY NOT BIND A FUTURE LEGISLATURE; AMENDING SECTIONS 2-4-603, 15-1-211, AND 18-1-413, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 2-4-603, MCA, is amended to read:
"2-4-603. Informal disposition and hearings -- waiver of administrative proceedings -- recording and use of settlement proceeds. (1) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default. Unless otherwise provided by law, if a stipulation, agreed settlement, consent order, or default results in a settlement involving an agency or the state, the settlement proceeds, including cash or other assets, whether received by the state or a third party, must be recorded in the account or fund in which the penalty, fine, or other payment would be recorded if the contested case had proceeded to final decision. If there is no account or fund designated for recording of a fine, penalty, or payment in the type of action, then the settlement must be recorded in the general fund. The provisions of this section do not apply to the portions of a settlement negotiated on behalf of or paid to a party other than the state.
(2) Except as otherwise provided, parties to a contested case may jointly waive in writing a formal proceeding under this part. The parties may then utilize informal proceedings under 2-4-604. Parties to contested case proceedings held under Title 37 or under any other provision relating to licensure to pursue a profession or occupation may not waive formal proceedings.
(3) If a contested case does not involve a disputed issue of material fact, parties may jointly stipulate in writing to waive
contested case proceedings and may directly petition the district court for judicial review pursuant to 2-4-702. The petition
shall must contain an agreed statement of facts and a statement of the legal issues or contentions of the parties upon which
the court, together with the additions it may consider necessary to fully present the issues, may make its decision."
Section 2. Section 15-1-211, MCA, is amended to read:
"15-1-211. Uniform tax review procedure -- notice -- appeal. (1) The department of revenue shall provide a uniform tax review procedure for all taxpayers, except as provided in subsection (1)(a).
(a) The tax review procedure described in this section applies to all taxes administered by the department and to all issues arising from the administration of taxes, except inheritance taxes, estate taxes, property taxes, and the issue of whether an employer-employee relationship existed between the taxpayer and individuals subjecting the taxpayer to the requirements of chapter 30, part 2, or whether the employment relationship was that of an independent contractor. The procedure applies to any revised assessment of centrally assessed property taxed pursuant to chapter 23.
(b) The term "taxpayers", as used in this section, includes all persons determined by the department to have a potential tax liability.
(2) (a) If the department determines that a request for a refund should be denied in whole or part, it shall notify the taxpayer of the determination. If the department determines that a person has failed to pay a sufficient tax, interest, or penalty, it shall provide the taxpayer with notice. The notice stops the running of any applicable statute of limitations regarding the assessment of the tax.
(b) A notice under this section must clearly state:
(i) the reasons for the department's determination that a refund is not due or that tax plus interest and penalty, if any, are due;
(ii) the taxpayer's right to a review by the department, the taxpayer's right to appeal after a final department decision, and the taxpayer's right to a review of determinations by the department of labor and industry and board of labor appeals of whether an employer-employee relationship existed between the taxpayer and certain individuals or whether the employment relationship was that of an independent contractor;
(iii) that failure to notify the department within 30 days will result in a forfeiture of the taxpayer's right to contest the department's determination under this section or to file an appeal with the state tax appeal board;
(iv) that the taxpayer has 30 days to either notify the department in writing that the taxpayer does not agree with an assessment or pay the amount assessed;
(v) that a warrant for distraint placing a lien on the taxpayer's property may be issued unless the taxpayer notifies the department that the taxpayer disagrees with an assessment or pays within 30 days; and
(vi) that the notice stops the running of the statute of limitations regarding the assessment of the tax.
(3) (a) A taxpayer shall notify the department, in writing, that the taxpayer objects to the determination within 30 days from the date that the notice is mailed. The notification by the taxpayer is not required to specify the reasons for the disagreement or be in any particular form unless the taxpayer is objecting to a determination that an employer-employee relationship existed between the taxpayer and individuals, subjecting the taxpayer to the requirements of chapter 30, part 2. If the taxpayer does not notify the department within 30 days:
(i) an assessment becomes final and the assessed tax, plus any interest and penalty, must be paid;
(ii) the taxpayer waives any further right to review under this section or to appeal to the state tax appeal board; and
(iii) a warrant for distraint may be issued without further opportunity to be heard on the assessment.
(b) (i) A taxpayer who notifies the department pursuant to subsection (3)(a) that the taxpayer disagrees with a tax assessment shall present the objections, the reasons for the objections, and any other information to the administrator of the division that administers the tax or to the administrator's designee within 60 days after the notice referred to in subsection (3)(a) is mailed. The reasons for objections may be provided in writing, by telephone, or, if requested by the taxpayer, at an informal conference. An informal conference is not subject to the Montana Administrative Procedure Act.
(ii) An objection received by the department pursuant to subsection (3)(a) stating that the taxpayer disagrees with the department's determination that an employer-employee relationship existed between the taxpayer and certain individuals, subjecting the taxpayer to the requirements of chapter 30, part 2, must be referred to the department of labor and industry for appeal procedures pursuant to 39-51-2402 and 39-51-2410.
(c) Within 60 days after the taxpayer has presented the taxpayer's objections, as provided in subsection (3)(b), the administrator or a designee shall issue a written decision addressing the taxpayer's objections and describing the reasons for the determination. The administrator's decision must also clearly set forth the taxpayer's review rights. The administrator's decision must be provided to the taxpayer and the director of revenue.
(4) (a) A taxpayer shall notify the department in writing that the taxpayer objects to the administrator's decision within 30 days from the date that the decision is mailed, or the taxpayer may appeal to the state tax appeal board as provided in subsection (6). If an objection is not made within 30 days, the administrator's decision and any assessment become final. By failing to object, the taxpayer waives any further right to review or appeal and a warrant for distraint may be issued without further opportunity to be heard on the assessment.
(b) Except as provided in subsection (6), a taxpayer who objects to the administrator's decision pursuant to subsection (4)(a) shall present the taxpayer's objections, the reasons for the objections, and any other information to the director of revenue or the director's designee within 60 days after the notice referred to in subsection (4)(a) is mailed. The director or the designee may consider written information, hold a telephone conference, or conduct an informal conference, none of which are subject to the Montana Administrative Procedure Act.
(c) Within 60 days after the taxpayer has presented the objections, the director or the designee shall issue a written decision addressing the objections and describing the reasons for the decision. The director's or the designee's decision is the final decision and assessment of the department.
(5) The taxpayer shall pay the assessment within 30 days after being mailed a copy of the final decision and assessment unless an appeal is filed with the state tax appeal board. If an appeal with the board is filed within 30 days after the final decision is mailed, payment is not due until final resolution by the board or, if further appeals are filed, by the appropriate court. However, any interest required by law must continue to accrue.
(6) (a) A taxpayer who validly objects to the administrator's decision may elect to file an appeal with the state tax appeal board. The appeal must be filed within 30 days after mailing an objection to the administrator's decision. If an appeal is filed, the administrator's decision is the final decision of the department.
(b) If the director notifies the board within 30 days after an appeal is filed that the director has not had an opportunity to review the administrator's decision and the director believes that a review may be helpful in resolving the controversy, the board shall stay the appeal for a time that the board considers reasonable, not to exceed 90 days except by the mutual consent of both parties. The taxpayer shall provide the taxpayer's objections and reasons for the objections to the director so that the director or the director's designee may review the controversy and issue a decision within the period of the stay granted by the board. If the taxpayer is dissatisfied with the director's or the designee's decision, the stay must be lifted and the appeal resumed.
(7) The time limits in this section must be applied and interpreted as provided in Rule 6 of the Montana Rules of Civil Procedure, including additional time for mailing. Any time limit may be extended by mutual consent of the department and the taxpayer. The department shall consent to all reasonable requests for extension of deadlines.
(8) (a) (i) The director of revenue or the director's designee is authorized to enter into an agreement with any taxpayer relating to the taxpayer's liability with respect to a tax administered by the department for any taxable period.
(ii) The director or the director's designee has no authority to bind a future legislature through the terms of an agreement.
An Subject to subsection (8)(a)(ii), an agreement under the provisions of subsection (8)(a)(i) is final and conclusive,
and, except upon a showing of fraud, malfeasance, or misrepresentation of a material fact:
(i) the agreement may not be reopened as to matters agreed upon or be modified by any officer, employee, or agent of this state; and
(ii) in any suit, action, or proceeding under the agreement or any determination, assessment, collection, payment, abatement, refund, or credit made in accordance with the agreement, the agreement may not be annulled, modified, set aside, or disregarded."
Section 3. Section 18-1-413, MCA, is amended to read:
"18-1-413. Litigation -- compromise. The attorney general
shall have has full charge of such litigation under this part
on behalf of the state of Montana. He The attorney general is authorized to arbitrate, compromise, or settle any claim
cognizable under this part after the institution of any suit thereon under this part, with the approval of the court in which
said the suit is pending. The provisions of 2-4-603(1) apply to any arbitration, compromise, or settlement made pursuant to
Section 4. Effective date. [This act] is effective on passage and approval.
Section 5. Applicability. [This act] applies to any arbitration, compromise, or settlement of actions entered into on or after [the effective date of this act].
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Latest Version of SB 46 (SB0046.ENR)
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