‘An Act To Restore the Maine Tax Appeals Process’

‘Emergency preamble. Whereas,  acts and resolves of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and

Whereas,  the Independent Appeals Office, created in Public Law 2011, chapter 439, is to assume the responsibility of overseeing state tax appeals on July 1, 2012; and

Whereas,  this Act eliminates the Independent Appeals Office and restores the state tax appeals process that was in place prior to enactment of Public Law 2011, chapter 439; and

Whereas,  in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,

Sec. 1. 36 MRSA §143, first ¶,  as amended by PL 2011, c. 439, §1 and affected by §12, is further amended to read:

The State Tax Assessor may compromise a tax liability arising under this Title upon the grounds of doubt as to liability or doubt as to collectibility, or both. Upon acceptance by the assessor of an offer in compromise, the liability of the taxpayer in question is conclusively settled and neither the taxpayer nor the assessor may reopen the case except by reason of falsification or concealment of assets by the taxpayer , fraud or mutual mistake of a material fact or if, in the opinion of the assessor, justice requires. The decision of the assessor to reject an offer in compromise is not subject to review under section 151. The assessor's authority to compromise a tax liability pursuant to this section is separate from and in addition to the assessor's authority to cancel or abate a tax liability pursuant to section 142.

Sec. 2. 36 MRSA §151,  as amended by PL 2011, c. 380, Pt. J, §5 and repealed and replaced by c. 439, §2 and affected by §12, is repealed and the following enacted in its place:

§ 151.  Review of decisions of State Tax Assessor

A person who is subject to an assessment by the State Tax Assessor or entitled by law to receive notice of a determination of the assessor and who is aggrieved by that action may request in writing, within 60 days after receipt of notice of the assessment or the determination, reconsideration by the assessor of the assessment or the determination. If a person who receives notice of an assessment does not request reconsideration of the assessment in writing within 60 days, the assessor may not reconsider the assessment pursuant to this section and no review is available in Superior Court regardless of whether the person subsequently makes payment and requests a refund.

If a request for reconsideration is filed within the specified time period, the assessor shall reconsider the assessment or the determination. If the petitioner has so requested in the petition, the assessor shall hold an informal conference with the petitioner to receive additional information and to hear arguments regarding the protested assessment or determination. The assessor shall give the petitioner 10 working days' notice of the time and place of the conference. The conference may be held with less than 10 working days' notice if a mutually convenient time and place can be arranged. The reconsideration, with or without an informal conference, is not an "adjudicatory proceeding" within the meaning of that term in the Maine Administrative Procedure Act. If the requested reconsideration involves a denial or deemed denial of a refund claim, a refund claim with respect to which a conference has been requested under section 5280 or an assessment that is paid in full or part and the assessor fails to mail to the taxpayer a decision on the reconsideration within 9 months after the reconsideration request was filed, the taxpayer may elect but is not obligated to deem the request for reconsideration denied. The taxpayer elects to deem the reconsideration denied by filing in Superior Court a petition for review of the deemed denial. The deemed denial constitutes final agency action and is subject to court review as otherwise provided in this section. The taxpayer may not make the deemed denial election after either the assessor's reconsideration decision has been received by the taxpayer or the expiration of 9 years following the filing of the reconsideration request, whichever occurs first. Notwithstanding any other provision of law, any claim for credit or refund of any tax imposed under this Title is deemed denied 10 years after it was filed if the claim has not previously been allowed or denied as final agency action. A deemed denial constitutes final agency action.

The assessor's decision on reconsideration must be mailed to the taxpayer or the taxpayer's designated representative by certified or registered mail and the decision must set forth briefly the assessor's findings of fact and the basis of decision in each case decided in whole or in part adversely to the taxpayer. The assessor's decision on reconsideration constitutes final agency action that is subject to review by the Superior Court in accordance with the Maine Administrative Procedure Act, except that Title 5, sections 11006 and 11007 do not apply. The Superior Court shall conduct a de novo hearing and make a de novo determination of the merits of the case. Either the taxpayer or the assessor may raise on appeal in Superior Court any facts, arguments or issues that relate to the assessor's decision on reconsideration, regardless of whether the facts, arguments or issues were raised during the reconsideration proceeding being appealed, as long as the facts, arguments or issues are not barred by any other provision of law. The court shall make its own determination as to all questions of fact or law, regardless of whether the questions of fact or law were raised during the reconsideration proceeding. The Superior Court shall enter such orders and decrees as the case may require. The burden of proof is on the taxpayer.

Sec. 3. 36 MRSA §151-B,  as enacted by PL 2011, c. 439, §3 and affected by §12, is repealed.

Sec. 4. PL 2011, c. 439, §9  is repealed.

Sec. 5. PL 2011, c. 439, §11  is repealed and the following enacted in its place:

Sec. 11. Cost administration. The Commissioner of Administrative and Financial Services shall manage the implementation of this Act to ensure that this Act is implemented within existing resources. The following principles govern costs associated with this Act.

1. The funding associated with the current taxpayer advocate of the Department of Administrative and Financial Services, Bureau of Revenue Services must be used to fund the new taxpayer advocate hired by the Commissioner of Administrative and Financial Services and the new taxpayer advocate must have the same salary range as the current taxpayer advocate. The commissioner shall take any steps necessary to ensure that the costs associated with the new taxpayer advocate do not exceed the costs associated with the current taxpayer advocate prior to enactment of this Act.

2. No additional positions within the Department of the Attorney General or the Department of Administrative and Financial Services, Bureau of Revenue Services may be created as a result of this Act.

Sec. 6. PL 2011, c. 439, §12  is amended to read:

Sec. 12. Effective date. This Act takes effect July 1, 2012, except that the Commissioner of Administrative and Financial Services is authorized to hire the Chief Appeals Officer pursuant to the Maine Revised Statutes, Title 36, section 151-B and the taxpayer advocate pursuant to the Maine Revised Statutes, Title 36, section 151-C prior to July 1, 2012 as long as those appointments do the appointment does not take effect until July 1, 2012.

Sec. 7. Appropriations and allocations. The following appropriations and allocations are made.

ADMINISTRATIVE AND FINANCIAL SERVICES, DEPARTMENT OF

Departmentwide - DAFS 0013

Initiative: Provides appropriations for the Personal Services and related All Other costs of one Staff Attorney - Taxpayer Advocate position within the Department of Administrative and Financial Services.

GENERAL FUND	2011-12	2012-13
POSITIONS - LEGISLATIVE COUNT	0.000	1.000
Personal Services	$0	$89,189
All Other	$0	$13,378
GENERAL FUND TOTAL	$0	$102,567

Revenue Services, Bureau of 0002

Initiative: Eliminates appropriations for the Personal Services and related All Other costs of one Staff Attorney - Taxpayer Advocate position within the Department of Administrative and Financial Services, Bureau of Revenue Services.

GENERAL FUND	2011-12	2012-13
POSITIONS - LEGISLATIVE COUNT	0.000	(1.000)
Personal Services	$0	($89,189)
All Other	$0	($13,378)
GENERAL FUND TOTAL	$0	($102,567)

ADMINISTRATIVE AND FINANCIAL SERVICES, DEPARTMENT OF
DEPARTMENT TOTALS	2011-12	2012-13
GENERAL FUND	$0	$0
DEPARTMENT TOTAL - ALL FUNDS	$0	$0

Emergency clause. In view of the emergency cited in the preamble, this legislation takes effect when approved.’