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Business Taxes Law Guide – Revision 2024
 

California Department of Tax and Fee Administration

Title 18. Public Revenues
Division 5. California Department of Tax and Fee Administration

Chapter 1. Appeals

Article 6. Cigarette and Tobacco Products Licensing Act Appeals and Petitions for Recovery of Seized Cigarette and Tobacco Products

Rule 35058

35058. Petition for Release or Recovery of Seized Cigarette or Tobacco Products.

Reference: Sections 22974.3, 22978.2 and 22980.2, Business and Professions Code; Section 15570.54, Government Code; Sections 30436, 30437, 30438, 30439 and 30474.1, Revenue and Taxation Code.

(a) General. Notwithstanding any other provision in this chapter, the provisions of this regulation are applicable to a petition for recovery of seized cigarette or tobacco products.

(b) Petition. A person may seek recovery of cigarettes or tobacco products seized pursuant to the Cigarette and Tobacco Products Tax Law (pt. 13 of div. 2 of the Rev. and .Tax. Code) or the Cigarette and Tobacco Products Licensing Act of 2003 (div. 8.6 of the Bus. and Prof. Code) by filing a verified petition for release or recovery of seized cigarette or tobacco products within 20 days of the personal service or service by certified mail on that person of the notice of seizure and forfeiture or, if the person filing the petition was not served personally or by certified mail, within 20 days of the date of publication of the notice of seizure and forfeiture. A person filing such a petition is known as "taxpayer" for purposes of this chapter.

(1) The petition must state the taxpayer’s interest in the seized property, and request the release or recovery of the property on the ground that the property was erroneously or illegally seized. The taxpayer has the burden of proof by a preponderance of evidence to show that the property was erroneously or illegally seized.

(2) The taxpayer must sign the petition under penalty of perjury.

(3) The petition must be accompanied by all documentation, which may include written statements made under penalty of perjury, and all written argument that the taxpayer wishes to be considered in support of the petition.

(4) The petition must be filed as set forth in this subdivision, or as otherwise expressly provided on CDTFA’s website at www.cdtfa.ca.gov:

(A) By hand delivery to: Investigations and Special Operations Bureau, MIC 100, California Department of Tax and Fee Administration, 450 N Street, Sacramento, CA 95814.

(B) By mail addressed to: Investigations and Special Operations Bureau, MIC 100, California Department of Tax and Fee Administration P.O. Box 942879, Sacramento, CA 94279-0100.

(C) By facsimile to: (916) 327-5027.

(c) Failure to File Timely Petition. Where a petition for release or recovery of seized cigarette or tobacco products is not filed within 20 days of personal service or service by certified mail on any person of the notice of seizure and forfeiture, or, if applicable, within 20 days of the date of publication of that notice, the forfeiture to CDTFA of the cigarette or tobacco products identified in the notice of seizure and forfeiture is final.

(d) Consideration of Petition. Where a timely petition for release or recovery of seized cigarette or tobacco products is filed, the Investigations and Special Operations Bureau of CDTFA will consider the petition and any documentation and argument included with the petition to determine whether the petition should be granted.

(1) If the Investigations and Special Operations Bureau finds the petition should be granted, in whole or in part, it will promptly return the applicable property to the taxpayer.

(2) If the Investigations and Special Operations Bureau finds that the petition should be denied, in whole or in part, it will mail a letter to the taxpayer explaining the basis for that denial. The letter will also explain that the taxpayer may request review of the denial of the petition by filing a written request for appeals conference within 30 days, and also explain how the taxpayer may file that request.

(e) Request for Appeals Conference. A request for appeals conference must be in writing and state the specific grounds upon which the taxpayer contests the denial by the Investigations and Special Operations Bureau, must be signed by the taxpayer or by the taxpayer’s authorized representative and include that person’s telephone number, and must be filed in the same manner as provided in subdivision (b)(4) for the filing of the petition for release or recovery.

(f) Failure to File Timely Appeal of Decision. If the taxpayer does not file a timely request for appeals conference, the taxpayer has waived the right to appeal the findings of the Investigations and Special Operations Bureau, and the forfeiture to CDTFA of the property found by the Investigations and Special Operations Bureau as having been properly seized is final.

(g) Scheduling the Appeals Conference. When the taxpayer files a timely request for appeals conference, the Investigations and Special Operations Bureau will forward the appeal to the Appeals Bureau for the scheduling of an appeals conference.

(1) The Appeals Bureau will schedule an appeals conference, to be conducted by telephone, and will mail notice of the conference in accordance with regulation 35061.

(2) Upon the taxpayer’s request, the Appeals Bureau may reschedule the conference to be held within 30 days of the date specified in the notice of appeals conference. The conference may be scheduled for a later date only with the approval of the Assistant Chief Counsel of the Appeals Bureau, or his or her designee.

(h) Appeals Conference, Decision, and Finality. The provisions of regulation 35064 are applicable to the conduct of the appeals conference. The provisions of regulation 35065 are applicable to the contents, issuance, and finality of the decision of the Appeals Bureau, except that the letter described in subdivision (d) of regulation 35065 will explain, if applicable, that the taxpayer can appeal the decision by submitting an appeal to the Office of Tax Appeals within 30 days of the date of mailing of the Appeals Bureau letter. The provisions of regulation 35066 are not applicable to a Cigarette and Tobacco Products Licensing Act appeal. If the Appeals Bureau decision denies the petition, in whole or in part and the taxpayer does not file an appeal to the Office of Tax Appeals within 30 days of the mailing of the Appeals Bureau letter, the forfeiture to CDTFA of the property found by the Appeals Bureau as having been properly seized is final.

History—New regulation filed March 19, 2018, as an emergency; effective and operative March 19, 2018. Regulation refiled September 17, 2018, as an emergency; effective and operative September 17, 2018. Regulation refiled December 17, 2018, as an emergency; effective and operative December 17, 2018. Certificate of Compliance transmitted to OAL on February 20, 2019 and filed March 19, 2019.

Note.—Authority cited: Section 22971.2, Business and Professions Code; Sections 15570.40 and 15606, Government Code; Section 30451, Revenue and Taxation Code.