Laws, Regulations and Annotations

Search

Business Taxes Law Guide—Revision 2024

BTLG Table of Contents > Oil Spill Response, Prevention, and Administration Fees Law > Chapter 6 > entire chapter

Oil Spill Response, Prevention, and Administration Fees Law

Revenue and Taxation Code

Division 2. Other Taxes
Part 24. Oil Spill Response, Prevention, and Administration Fees

Chapter 6. Administration

Article 1. General Provisions

Article 2. The California Taxpayers' Bill of Rights


Article 1. General Provisions

46601. Enforcement by Board; rules and regulations. The board shall enforce this part and may prescribe, adopt, and enforce rules and regulations relating to the administration and enforcement of this part.

46602. Requirement to keep records. Every feepayer shall keep such records, receipts, invoices, and other pertinent papers in such form as the board may require.

46603. Examination of records. The board may make such examinations of the books and records of any feepayer as it may determine to be necessary in carrying out this part.

46604. Employees and representatives of Board. The board may employ accountants, auditors, investigators, and other expert and clerical assistance necessary to enforce its powers and perform its duties under this part.

46605. Certificate of notice. A certificate by the board or an employee of the board stating that a notice required by this part was given by mailing or personal service shall be prima facie evidence in any administrative or judicial proceeding of the fact and regularity of the mailing or personal service in accordance with any requirement of this part for the giving of a notice. Unless otherwise specifically required, any notice provided by this part to be mailed or served may be given either by mailing or by personal service in the manner provided for giving notice of a deficiency determination.

46606. Information confidential; tax preparer. (a) Except as otherwise provided by law, any person who is engaged in the business of preparing, or providing services in connection with the preparation of, returns under Chapter 3 (commencing with Section 46151), or any person who for compensation prepares any such return for any other person, and who knowingly or recklessly does either of the following, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars ($1,000) or imprisoned no more than one year, or both, together with the costs of prosecution:

(1) Discloses any information furnished to him or her for, or in connection with, the preparation of the return.

(2) Uses that information for any purpose other than to prepare, or assist in preparing, the return.

(b) Subdivision (a) shall not apply to disclosure of information if that disclosure is made pursuant to the person's consent or pursuant to a subpoena, court order, or other compulsory legal process.

History—Added by Stats. 2000, Ch. 1052 (AB 2898), in effect January 1, 2001.

46607. Board determines which accounts are eligible. (a) The board shall determine which feepayer's accounts are eligible for the managed audit program in a manner that is consistent with the efficient use of its auditing resources and the maximum effectiveness of the program.

(b) A feepayer is not required to participate in the managed audit program.

History—Added by Stats. 2014, Ch. 105 (AB 2009), in effect January 1, 2015.

46607.1. Eligibility. A feepayer's account is eligible for the managed audit program only if the feepayer meets all of the following criteria:

(a) The feepayer's business or activities involve few or no statutory exemptions.

(b) The feepayer's business or activities involve a single or a small number of clearly defined taxability or liability issues.

(c) The feepayer is subject to the fee imposed pursuant to Section 8670.40 or Section 8670.48 of the Government Code and agrees to participate in the managed audit program.

(d) The feepayer has the resources to comply with the managed audit instructions provided by the board.

History—Added by Stats. 2014, Ch. 105 (AB 2009), in effect June 20, 2014.

46607.2. Requirements for managed audit; information provided by feepayer. (a) If the board selects a feepayer's account for a managed audit, all of the following apply:

(1) The board shall identify all of the following:

(A) The audit period covered by the managed audit.

(B) The types of transactions or activities covered by the managed audit.

(C) The specific procedures that the feepayer is to follow in determining any liability.

(D) The records to be reviewed by the feepayer.

(E) The manner in which the types of transactions or activities are to be scheduled for review.

(F) The time period for completion of the managed audit.

(G) The time period for the payment of the liability and interest.

(H) Any other criteria that the board may require for completion of the managed audit.

(2) The feepayer shall:

(A) Examine its books and records to determine if it has any unreported liability for the audit period.

(B) Make available to the board for verification all computations and books and records examined pursuant to subparagraph (A).

(b) The information provided by the feepayer pursuant to paragraph (2) of subdivision (a) is the same information that is required for the completion of any other audit that the board may conduct.

History—Added by Stats. 2014, Ch. 105 (AB 2009), in effect June 20, 2014.

46607.3. Authority to examine records. Nothing in this article limits the Board's authority to examine the books and records of a feepayer under Section 46603.

History—Added by Stats. 2014, Ch. 105 (AB 2009), in effect June 20, 2014.

46607.4. Interest on liabilities. Upon completion of the managed audit and verification by the board, interest on any unpaid liability shall be computed at one-half the rate that would otherwise be imposed for liabilities covered by the audit period. Payment of the liabilities and interest shall be made within the time period specified by the board. If the requirements for the managed audit are not satisfied, the board may proceed to examine the records of the feepayer in a manner to be determined by the board under law.

History—Added by Stats. 2014, Ch. 105 (AB 2009), in effect June 20, 2014.

Article 2. The California Taxpayers' Bill of Rights*

* Added by Stats. 1995, Ch. 497, in effect January 1, 1996.

46611. Administration. The board shall administer this article. Unless the context indicates otherwise, the provisions of this article shall apply to this part.

46612. Taxpayers' Rights Advocate. (a) The board shall establish the position of the Taxpayers' Rights Advocate. The advocate or his or her designee shall be responsible for facilitating resolution of feepayer complaints and problems, including any feepayer complaints regarding unsatisfactory treatment of feepayers by board employees, and staying actions where feepayers have suffered or will suffer irreparable loss as the result of those actions. Applicable statutes of limitation shall be tolled during the pendency of a stay. Any penalties and interest that would otherwise accrue shall not be affected by the granting of a stay.

(b) The advocate shall report directly to the executive officer of the board.

46613. Education and information program. (a) The board shall develop and implement an education and information program directed at, but not limited to, all of the following groups:

(1) Fee payers newly registered with the board.

(2) Board audit and compliance staff.

(b) The education and information program shall include all of the following:

(1) A program of written communication with newly registered fee payers explaining in simplified terms their duties and responsibilities.

(2) Participation in seminars and similar programs organized by federal, state, and local agencies.

(3) Revision of fee payer educational materials currently produced by the board that explain the most common areas of fee payer nonconformance in simplified terms.

(4) Implementation of a continuing education program for audit and compliance personnel to include the application of new legislation to fee payer activities and areas of recurrent fee payer noncompliance or inconsistency of administration.

(c) Electronic media used pursuant to this section shall not represent the voice, picture, or name of members of the board or of the Controller.

History—Stats. 1999, Ch. 929 (AB 1638), in effect January 1, 2000, substituted "fee payer" for "feepayer" throughout the section and added "and compliance" after "program for audit" in paragraph (4) of subdivision (b).

46614. Annual hearing for taxpayer proposals. The board shall conduct an annual hearing before the full board where industry representatives and individual feepayers are allowed to present their proposals on changes to the Oil Spill Response, Prevention, and Administration Fee Law that may further improve voluntary compliance and the relationship between feepayers and government.

46615. Preparation of statements by board. The board shall prepare and publish brief but comprehensive statements in simple and nontechnical language that explain procedures, remedies, and the rights and obligations of the board and feepayers. As appropriate, statements shall be provided to feepayers with the initial notice of audit, the notice of proposed additional fees, any subsequent notice of fees due, or other substantive notices. Additionally, the board shall include this language for statements in the annual fee information bulletins that are mailed to feepayers.

46616. Limit on uses of revenue collected or assessed. (a) The total amount of revenue collected or assessed pursuant to this part shall not be used for any of the following:

(1) To evaluate individual officers or employees.

(2) To impose or suggest production quotas or goals.

(b) The board shall certify in its annual report submitted pursuant to Section 15616 of the Government Code that revenue collected or assessed is not used in a manner prohibited by subdivision (a).

46617. Evaluation of employee's contact with taxpayers. The board shall develop and implement a program that will evaluate an individual employee's or officer's performance with respect to his or her contact with feepayers. The development and implementation of the program shall be coordinated with the Taxpayers' Rights Advocate.

46618. Plan to timely resolve claims and petitions. The board shall, in cooperation with the Department of Fish and Game, the Taxpayers' Rights Advocate, and other interested feepayer-oriented groups, develop a plan to reduce the time required to resolve petitions for redetermination and claims for refunds. The plan shall include determination of standard timeframes and special review of cases that take more time than the appropriate standard timeframe.

46619. Procedures relating to review conferences. Procedures of the board, relating to appeals staff review conferences before a staff attorney or supervising tax auditor independent of the assessing department, shall include all of the following:

(a) Any conference shall be held at a reasonable time at a board office that is convenient to the feepayer.

(b) The conference may be recorded only if prior notice is given to the feepayer and the feepayer is entitled to receive a copy of the recording.

(c) The feepayer shall be informed prior to any conference that he or she has a right to have present at the conference his or her attorney, accountant, or other designated agent.

46620. Reimbursement to taxpayer. (a) Every fee payer is entitled to be reimbursed for any reasonable fees and expenses related to a hearing before the board if all of the following conditions are met:

(1) The fee payer files a claim for the fee and expenses with the board within one year of the date the decision of the board becomes final.

(2) The board, in its sole discretion, finds that the action taken by the board staff was unreasonable.

(3) The board decides that the fee payer be awarded a specific amount of fees and expenses related to the hearing, in an amount determined by the board in its sole discretion.

(b) To determine whether the board staff has been unreasonable, the board shall consider whether the board staff has established that its position was substantially justified.

(c) The amount of reimbursed fees and expenses shall be limited to the following:

(1) Fees and expenses incurred after the date of the notice of determination, jeopardy determination, or a claim for refund.

(2) If the board finds that the staff was unreasonable with respect to certain issues but reasonable with respect to other issues, the amount of reimbursed fees and expenses shall be limited to those that relate to the issues where the staff was unreasonable.

(d) Any proposed award by the board pursuant to this section shall be available as a public record for at least 10 days prior to the effective date of the award.

(e) The amendments to this section by the act adding this subdivision shall be operative for claims filed on or after January 1, 2000.

History—Stats. 1999, Ch. 929 (AB 1638), in effect January 1, 2000, added "within one year … board becomes final" after "with the board" in paragraph (1) of, and substituted "in an amount … its sole discretion" for "which shall be determined by the board" after "to the hearing," in paragraph (3) of, subdivision (a), substituted "board staff has … substantially justified" for "feepayer has established that the position of the board staff was not substantially justified" after "consider whether the" in subdivision (b), and added subdivision (e). Stats. 2000, Ch. 1052 (AB 2898), in effect January 1, 2001, substituted "the notice of determination, jeopardy determination, or a claim for refund" for "filing petitions for redetermination and claims for refund" after "incurred after the date of" in subdivision (c) paragraph (1).

46621. Investigation for nontax administration purposes. (a) An officer or employee of the board acting in connection with any law administered by the board shall not knowingly authorize, require, or conduct any investigation of, or surveillance over, any person for nonfee administration related purposes.

(b) Any person violating subdivision (a) shall be subject to disciplinary action in accordance with the State Civil Service Act, including dismissal from office or discharge from employment.

(c) This section shall not apply with respect to any otherwise lawful investigation concerning organized crime activities.

(d) The provisions of this section are not intended to prohibit, restrict, or prevent the exchange of information where the person is being investigated for multiple violations which include underground storage tank fee violations.

(e) For the purposes of this section:

(1) "Investigation" means any oral or written inquiry directed to any person, organization, or governmental agency.

(2) "Surveillance" means the monitoring of persons, places, or events by means of electronic interception, overt or covert observations, or photography, and the use of informants.

46622. Settlement authority. (a) It is the intent of the Legislature that the department, its staff, and the Attorney General pursue settlements as authorized under this section with respect to fee matters in dispute that are the subject of protests, appeals, or refund claims, consistent with a reasonable evaluation of the costs and risks associated with litigation of these matters.

(b) (1) Except as provided in paragraph (2), no recommendation of settlement shall be submitted to the director for approval unless and until that recommendation has been submitted by the chief counsel to the Attorney General. Within 30 days of receiving that recommendation, the Attorney General shall review the recommendation and advise the chief counsel, in writing, of their conclusions as to whether the recommendation is reasonable from an overall perspective. The chief counsel shall, with each recommendation of settlement submitted to the director, also submit the Attorney General's written conclusions obtained pursuant to this paragraph.

(2) (A) A settlement of any civil fee matter in dispute involving a reduction of fee or penalties in settlement, the total of which reduction of fee and penalties in settlement does not exceed eleven thousand five hundred dollars ($11,500), may be approved by the director.

(B) Beginning on July 1, 2029, and each fifth fiscal year thereafter, the department shall adjust the amount specified in subparagraph (A) by increasing that amount by a percentage amount equal to the increase in the California Consumer Price Index, as calculated by the Department of Finance, with the resulting amount rounded to the nearest one hundred dollars ($100). The first adjustment pursuant to this subparagraph shall be a percentage amount equal to the increase in the California Consumer Price Index from January 1, 2024, to January 1, 2029. Subsequent fifth fiscal year adjustments shall cover subsequent five-year periods. The incremental change shall be added to the previously adjusted amount.

(c) Whenever a reduction of fee, or penalties, or total fees and penalties in settlement in excess of five hundred dollars ($500) is approved pursuant to this section, there shall be placed on file, for at least one year, in the office of the director of the department a public record with respect to that settlement. The public record shall include all of the following information:

(1) The name or names of the feepayers who are parties to the settlement.

(2) The total amount in dispute.

(3) The amount agreed to pursuant to the settlement.

(4) A summary of the reasons why the settlement is in the best interests of the State of California.

(5) (A) For any settlement approved by the director, except those settlements approved pursuant to paragraph (2) of subdivision (b), the Attorney General's conclusion as to whether the recommendation of settlement was reasonable from an overall perspective.

(B) The public record shall not include any information that relates to any trade secret, patent, process, style of work, apparatus, business secret, or organizational structure that, if disclosed, would adversely affect the feepayer or the national defense.

(d) The director shall not participate in the settlement of fee matters pursuant to this section, except as provided in subdivision (e).

(e) (1) Any recommendation of settlement shall be approved or disapproved by the director within 45 days of the submission of that recommendation to the director. Any recommendation for settlement that is not either approved or disapproved by the director within 45 days of the submission of that recommendation shall be deemed approved.

(2) Where the director disapproves a recommendation for settlement, at the discretion of the director and chief counsel, the matter shall be remanded to staff for further negotiation, and may be resubmitted to the director, in the same manner and subject to the same requirements as the initial submission.

(f) All settlements entered into pursuant to this section shall be final and nonappealable, except upon a showing of fraud or misrepresentation with respect to a material fact.

(g) The Legislature finds that it is essential for fiscal purposes that the settlement program authorized by this section be expeditiously implemented. Accordingly, Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code shall not apply to any determination, rule, notice, or guideline established or issued by the department in implementing and administering the settlement program authorized by this section.

(h) The amendments made to this section by the act adding this subdivision shall apply to any settlements approved on or after January 1, 2024.

History—Stats. 2003, Ch. 605 (SB 1060), in effect January 1, 2004, added ", for at least one year," after "placed on file" to subdivision (c) and substituted "disappproved" for "disapproved" in second sentence of subdivision (e). Stats. 2004, Ch. 183 (AB 3082), in effect January 1, 2005, substituted "disapproved" for "disappproved" in the second sentence of subdivision (e). Stats. 2006, Ch. 364 (AB 3076), in effect January 1, 2007, substituted "Except as provided in paragraph (3) and subject" for "Subject" before "to paragraph (2)" in paragraph (1) of, added ", itself," after "submitted to the board" in the first and third sentences of paragraph (2) of, and added paragraph (3) to subdivision (b); added ", or penalties, or total fees and penalties" after "a reduction of fee" in the first paragraph of, and substituted "For any settlement approved by the board, itself, the" for "The" before "Attorney General's conclusion" in the first sentence of paragraph (5) of subdivision (c); and added ", itself," after "disapproved by the board" in the second sentence of paragraph (1) of subdivision (e). Stats. 2023. Ch. 511 (SB 889) in effect January 1, 2024, substituted "department," for "State Board of Equalization" before "its staff" in subdivision (a); deleted paragraph (1) and renumbered paragraph (2) to (1) and paragraph (3) to (2)(A), substituted "Except as provided in paragraph (2), no recommendation" for "No recommendation" before "of settlement", substituted "director for approval" for "board, itself," after "submitted to" and deleted "executive director or" before "chief counsel" in the first sentence of new paragraph (1), substituted "advise the chief counsel," for "advise" before "in writing,", substituted "of their" for "the executive director or chief counsel of the board of his or her" before "conclusions" in the second sentence of new paragraph (2), deleted "executive director or" before "chief counsel" after "The", substituted "director," for "board, itself," before "also submit" in third sentence of new paragraph (1), substituted "eleven thousand five hundred dollars ($11,500)" for "five thousand dollars ($5,000)" after "exceed" and substituted "director." for "executive director and chief counsel, jointly. The executive director shall notify the board, itself, of any settlement approved pursuant to this paragraph." after "approved by the" in subparagraph (A) of new paragraph (2) and added new subparagraph (B) in subdivision (b); deleted "executive" before "director" and substituted "department" for "board" before "a public" in the first sentence, substituted "feepayer" for "fee payer" before "who" in paragraph (1), lettered first paragraph to subparagraph (A), substituted "director, except those settlements approved pursuant to paragraph (2) of subdivision (b)," for "board, itself," before "the Attorney" in new subparagraph (A), lettered second paragraph to subparagraph (B), substituted "feepayer" for "fee payer" after "affect the" in new subparagraph (B) in paragraph (5) of subdivision (c); substituted "director" for "members of the State Board of Equalization" after "The" in subdivision (d); substitute "director" for "board, itself," before "within", substitute "director." for "board." after "to the" in first sentence of paragraph (1), substitute "director" for "board" before "within" in second sentence of paragraph (1), deleted third sentence of paragraph (1), deleted first sentence of paragraph (2), substituted "director" for "board" before "disapproved", added "at the discretion of the director and chief counsel" after "settlement’, deleted "board" before "staff", substituted "director," for "board" before "in the same" and substituted "submission." for "submission, at the discretion of the executive director or chief counsel." after "initial" in former second sentence in paragraph (2) of subdivision (e); deleted subdivision (g) and (h); relettered subdivision (i) to (g) and added new subdivision (h).

46623. Release of levy. (a) The California Department of Tax and Fee Administration shall release any levy or notice to withhold issued pursuant to this part on any property in the event the expense of the sale process exceeds the liability for which the levy is made.

(b) (1) (A) The Taxpayers' Rights Advocate may order the release of any levy or notice to withhold issued pursuant to this part or, within 90 days from the receipt of the funds pursuant to a levy or the notice to withhold, may order the return of any amount up to two thousand three hundred dollars ($2,300) of moneys received, upon his or her finding that the levy or notice to withhold threatens the health or welfare of the feepayer or his or her spouse and dependents.

(B) The amount the Taxpayers' Rights Advocate may return to each taxpayer subject to a levy or notice to withhold, is limited to two thousand three hundred dollars ($2,300), or the adjusted amount as specified in paragraph (2), in any monthly period.

(C) The Taxpayers' Rights Advocate may order amounts returned in the case of a seizure of property as a result of a jeopardy determination, subject to the amounts set or adjusted pursuant to this section and if the ultimate collection of the amount due is no longer in jeopardy.

(2) (A) The California Department of Tax and Fee Administration shall adjust the two-thousand-three-hundred-dollar ($2,300) amount specified in paragraph (1) as follows:

(i) On or before March 1, 2016, and on or before March 1 each year thereafter, the California Department of Tax and Fee Administration shall multiply the amount applicable for the current fiscal year by the inflation factor adjustment calculated based on the percentage change in the Consumer Price Index, as recorded by the California Department of Industrial Relations for the most recent year available, and the formula set forth in paragraph (2) of subdivision (h) of Section 17041. The resulting amount will be the applicable amount for the succeeding fiscal year only when the applicable amount computed is equal to or exceeds a new operative threshold, as defined in subparagraph (B).

(ii) When the applicable amount equals or exceeds an operative threshold specified in subparagraph (B), the resulting applicable amount, rounded to the nearest multiple of one hundred dollars ($100), shall be operative for purposes of paragraph (1) beginning July 1 of the succeeding fiscal year.

(B) For purposes of this paragraph, "operative threshold" means an amount that exceeds by at least one hundred dollars ($100) the greater of either the amount specified in paragraph (1) or the amount computed pursuant to subparagraph (A) as the operative adjustment to the amount specified in paragraph (1).

(c) The California Department of Tax and Fee Administration shall not sell any seized property until it has first notified the taxpayer in writing of the exemptions from levy under Chapter 4 (commencing with Section 703.010) of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure.

(d) Except as provided in subparagraph (C) of paragraph (1) of subdivision (b), this section shall not apply to the seizure of any property as a result of a jeopardy determination.

History—Added by Stats. 1995, Ch. 497 (SB 722), in effect January 1, 1996. Stats. 2015, Ch. 789 (AB 1277), in effect January 1, 2016, redesignated former subdivision (b) as (b)(1)(A), substituted "two thousand three hundred dollars ($2,300)" for "one thousand five hundred dollars ($1,500)" after "any amount up to" in, added subparagraphs (B) and (C) to paragraph (1) in, and added paragraph (2) in subdivision (b); substituted "Except as provided in subparagraph (C) of paragraph (1) of subdivision (b), this" for "This", and substituted "determination" for "assessment" in subdivision (d). Stats. 2018, Ch. 181 (SB 1507), in effect January 1, 2019, deleted "release or" in paragraph (b)(1)(B), and substituted "California Department of Tax and Fee Administration" for "board" in subdivisions (a), (b), and (c).

46623.5. Return of property. (a) Except in any case where the board finds collection of the fee to be in jeopardy, if any property has been levied upon, the property or the proceeds from the sale of the property shall be returned to the fee payer if the board determines any one of the following:

(1) The levy on the property was not in accordance with the law.

(2) The fee payer has entered into and is in compliance with an installment payment agreement pursuant to Section 46464 to satisfy the fee liability for which the levy was imposed, unless that or another agreement allows for the levy.

(3) The return of the property will facilitate the collection of the fee liability or will be in the best interest of the state and the fee payer.

(b) Property returned under paragraphs (1) and (2) of subdivision (a) is subject to the provisions of Section 46625.

History—Added by Stats. 1999, Ch. 929 (AB 1638), in effect January 1, 2000.

46624. Exemption from levy. Exemptions from levy under Chapter 4 (commencing with Section 703.010) of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure shall be adjusted for purposes of enforcing the collection of debts under this part to reflect changes in the California Consumer Price Index whenever the change is more than 5 percent higher than any previous adjustment.

46625. Claim for reimbursement of bank charges by taxpayer.(a) A feepayer may file a claim with the board for reimbursement of bank charges and any other reasonable third-party check charge fees that are incurred by the feepayer as the direct result of an erroneous levy or notice to withhold, erroneous processing action, or erroneous collection action by the board. Bank and third-party charges include a financial institution's or third party's customary charge for complying with either a levy or instructions in a notice to withhold, and reasonable charges for overdrafts that are a direct consequence of the erroneous levy or notice to withhold, erroneous processing action, or erroneous collection action. Bank charges include only those charges that are paid by the feepayer and not waived or reimbursed by the financial institution or third party. Each claimant applying for reimbursement pursuant to this section shall file a claim with the board that shall be in the form as may be prescribed by the board. The board shall not grant a claim unless it determines that both of the following conditions have been satisfied:

(1) The erroneous levy or notice to withhold, erroneous processing action, or erroneous collection action was caused by board error.

(2) Prior to the erroneous levy or notice to withhold, erroneous processing action, or erroneous collection action the feepayer responded to all contacts by the board and provided the board with any requested information or documentation sufficient to establish the feepayer's position. This provision may be waived by the board for reasonable cause.

(b) Claims pursuant to this section shall be filed within 90 days from the date the bank and third-party charges were incurred by the feepayer. The board shall respond to a claim filed pursuant to this section within 30 days of receipt. If the board denies a claim, the feepayer shall be notified in writing of the reason or reasons for denial.

History—Stats. 2001, Ch. 543 (SB 1185), added "and any other … check charge fees" after "of bank charges" in subdivision (a), added "and third party" prior to "charges include a" in subdivision (a), added "or third party's" after "a financial institution's" in subdivision (a), added "or third party" after "the financial institution" in subdivision (a), effective January 1, 2002. Stats. 2013, Ch. 253 (SB 442), in effect January 1, 2014, added ", erroneous processing action, or erroneous collection action" after "erroneous levy or notice to withhold" throughout the section; substituted "or reimbursed" for "for reimbursement" after "feepayer and not waived" in, substituted "was caused by" for "resulted from" after ", or erroneous collection action" in paragraph (1) of, and added "erroneous" after "Prior to the" and deleted "that was" after "documentation" in the first sentence of paragraph (2) of, and substituted "This provision" for "The requirement of this paragraph" in the last sentence of paragraph (2) of, subdivision (a); substituted "the bank and third-party charges were incurred by the feepayer" for "of the levy or notice to withhold that is asserted to be erroneous" after "90 days from the date" in the first sentence of, and substituted "feepayer" for "taxpayer" after "denies a claim, the" in the third sentence of, subdivision (b).

46626. Preliminary notice to taxpayer prior to lien. (a) At least 30 days prior to the filing or recording of a lien pursuant to either Chapter 14 (commencing with Section 7150) or Chapter 14.5 (commencing with Section 7220) of Division 7 of Title 1 of the Government Code, the department shall mail to the fee payer a preliminary notice of lien. The notice shall specify the department’s statutory authority for filing or recording the lien, the earliest date on which the lien may be filed or recorded, and the remedies available to the fee payer to prevent the filing or recording of the lien. In the event liens are filed for the same liability in multiple counties, only one preliminary notice shall be sent.

(b) The preliminary notice required by this section shall not apply to jeopardy determinations issued under Article 4 (commencing with Section 46301) of Chapter 3.

(c) If the department determines that a lien was recorded in error, it shall mail a release to the fee payer and the entity that recorded the lien as soon as possible, but in no event later than seven days after this determination and the receipt of lien recording information. The release shall contain a statement that the lien was filed in error. In the event the erroneously recorded lien is obstructing a lawful transaction, the department shall immediately issue a release of lien to the fee payer and the entity that recorded the lien.

(d) Upon issuing a release pursuant to subdivision (c), notice of that release shall be mailed to the taxpayer. Upon the request of the taxpayer, a copy of the release shall be mailed to the major credit reporting companies in the county where the lien was recorded.

(e) (1) The department may release or subordinate a lien if the department determines any of the following:

(A) Release or subordination will facilitate the collection of the fee liability.

(B) Release or subordination will be in the best interest of the state and the fee payer.

(C) Release or subordination will be in the best interest of the state and another person that is not the taxpayer but that holds an interest with the taxpayer in the property that is subject to the lien.

(2) The amendments added to this subdivision do not constitute a change in, and are declaratory of, existing law.

History—Stats. 1999, Ch. 929 (AB 1638), in effect January 1, 2000, substituted "fee payer" for "feepayer" throughout the section and added subdivision (e). Stats. 2022, Ch. 474 (SB 1496), in effect January 1, 2023, substituted "department" for "board" throughout the section; renumbered paragraph to (1), substituted "any of" for "that" after "determines", substituted "following:" for "release" after "the", added "(A) Release" before "or subordination", substituted "." for "or" after "liability", added "(B) Release or subordination" before "will be", added subparagraph (C) to paragraph (1) and added paragraph (2) in subdivision (e).

46627. Disregard by board employee or officer. (a) If any officer or employee of the board recklessly disregards board-published procedures, a feepayer aggrieved by that action or omission may bring an action for damages against the State of California in superior court.

(b) In any action brought under subdivision (a), upon finding of liability on the part of the State of California, the state shall be liable to the plaintiff in an amount equal to the sum of all of the following:

(1) Actual and direct monetary damages sustained by the plaintiff as a result of the actions or omissions.

(2) Reasonable litigation costs including any of the following:

(A) Reasonable court costs.

(B) Based on prevailing market rates for the kind or quality of services furnished in connection with any of the following:

(i) The reasonable expenses of expert witnesses in connection with the civil proceeding, except that no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the State of California.

(ii) The reasonable cost of any study, analysis, engineering report, test, or project that is found by the court to be necessary for the preparation of the party's case.

(iii) Reasonable fees paid or incurred for the services of attorneys in connection with the civil proceeding, except that those fees shall not be in excess of seventy-five dollars ($75) per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceeding, justifies a higher rate.

(c) In the awarding of damages under subdivision (b), the court shall take into consideration the negligence or omissions, if any, on the part of the plaintiff which contributed to the damages.

(d) Whenever it appears to the court that the feepayer's position in the proceeding brought under subdivision (a) is frivolous, the court may impose a penalty against the plaintiff in an amount not to exceed ten thousand dollars ($10,000). A penalty so imposed shall be paid upon notice and demand from the board and shall be collected as a fee imposed under this part.

Text of Section Operative January 1, 2023

46628. Offers in compromise. (a) Beginning on January 1, 2007, the director of the department, or their delegates, may compromise any final fee liability.

(b) For purposes of this section, "a final fee liability" means any final fee liability arising under Part 24 (commencing with Section 46001), or related interest, additions to fees, penalties, or other amounts assessed under this part.

(c) (1) Offers in compromise shall be considered only for liabilities that were generated from a business that has been discontinued or transferred, where the feepayer making the offer no longer has a controlling interest or association with the transferred business or has a controlling interest or association with a similar type of business as the transferred or discontinued business.

(2) Notwithstanding paragraph (1), a qualified final fee liability may be compromised regardless of whether the business has been discontinued or transferred or whether the feepayer has a controlling interest or association with a similar type of business as the transferred or discontinued business. All other provisions of this section that apply to a final fee liability shall also apply to a qualified final fee liability, and a compromise shall not be made under this subdivision unless all other requirements of this section are met. For purposes of this subdivision, a "qualified final fee liability" means any of the following:

(A) That part of a final fee liability, including related interest, additions to fees, penalties, or other amounts assessed under this part, arising from a transaction or transactions in which the department finds no evidence that the marine terminal operator or operator of a pipeline collected the oil spill prevention and administration fee from the owner of the petroleum products or crude oil or other person and which was determined against the feepayer under Article 2 (commencing with Section 46201), Article 3 (commencing with Section 46251), or Article 5 (commencing with Section 46351) of Chapter 3.

(B) A final fee liability, including related interest, additions to fees, penalties, or other amounts assessed under this part, arising under Article 6 (commencing with Section 46451) of Chapter 4.

(C) That part of a final fee liability, including related interest, additions to fees, penalties, or other amounts assessed under this part, determined under Article 2 (commencing with Section 46201), Article 3 (commencing with Section 46251), and Article 5 (commencing with Section 46351) of Chapter 3 against an owner of crude oil or petroleum products that is not required to register with the department under Article 2 (commencing with Section 46101) of Chapter 2.

(3) A qualified final fee liability may not be compromised with any of the following:

(A) A feepayer who previously received a compromise under paragraph (2) for a liability, or a part thereof, arising from a transaction or transactions that are substantially similar to the transaction or transactions attributable to the liability for which the feepayer is making the offer.

(B) A business that was transferred by a feepayer who previously received a compromise under paragraph (2) and who has a controlling interest or association with the transferred business, when the liability for which the offer is made is attributable to a transaction or transactions substantially similar to the transaction or transactions for which the feepayer's liability was previously compromised.

(C) A business in which a feepayer who previously received a compromise under paragraph (2) has a controlling interest or association with a similar type of business for which the feepayer received the compromise, when the liability of the business making the offer arose from a transaction or transactions substantially similar to the transaction or transactions for which the feepayer's liability was previously compromised.

(d) The department may, in its discretion, enter into a written agreement that permits the feepayer to pay the compromise in installments for a period not exceeding one year. The agreement may provide that such installments shall be paid by electronic funds transfers or any other means to facilitate the payment of each installment.

(e) A feepayer that has received a compromise under paragraph (2) of subdivision (c) may be required to enter into any collateral agreement that is deemed necessary for the protection of the interests of the state. A collateral agreement may include a provision that allows the department to reestablish the liability, or any portion thereof, if the feepayer has sufficient annual income during the succeeding five-year period. The department shall establish criteria for determining "sufficient annual income" for purposes of this subdivision.

(f) A feepayer that has received a compromise under paragraph (2) of subdivision (c) shall file and pay by the due date all subsequently required oil spill prevention and administration fee returns for a five-year period from the date the liability is compromised, or until the feepayer is no longer required to file oil spill prevention and administration fee returns, whichever period is earlier.

(g) Offers in compromise shall not be considered where the feepayer has been convicted of felony tax evasion under this part during the liability period.

(h) For amounts to be compromised under this section, the following conditions shall exist:

(1) The feepayer shall establish that:

(A) The amount offered in payment is the most that can be expected to be paid or collected from the feepayer’s present assets or income.

(B) The feepayer does not have reasonable prospects of acquiring increased income or assets that would enable the feepayer to satisfy a greater amount of the liability than the amount offered, within a reasonable period of time.

(2) The department shall have determined that acceptance of the compromise is in the best interest of the state.

(i) A determination by the department that it would not be in the best interest of the state to accept an offer in compromise in satisfaction of a final fee liability shall not be subject to administrative appeal or judicial review.

(j) (1) Offers for liabilities with a fraud or evasion penalty shall require a minimum offer of the unpaid fee and fraud or evasion penalty.

(2) The minimum offer may be waived if it can be shown that the feepayer making the offer was not the person responsible for perpetrating the fraud or evasion. This authorization to waive only applies to partnership accounts where the intent to commit fraud or evasion can be clearly attributed to a partner of the feepayer.

(k) When an offer in compromise is either accepted or rejected, or the terms and conditions of a compromise agreement are fulfilled, the department shall notify the feepayer in writing. In the event an offer is rejected, the amount posted will either be applied to the liability or refunded, at the discretion of the feepayer.

(l) When more than one feepayer is liable for the debt, such as with spouses or partnerships or other business combinations, including, but not limited to, feepayers who are liable through dual determination or successor's liability, the acceptance of an offer in compromise from one liable feepayer shall reduce the amount of the liability of the other feepayers by the amount of the accepted offer.

(m) Whenever a compromise of fees or penalties or total fees and penalties in excess of five hundred dollars ($500) is approved, there shall be placed on file for at least one year in the office of the director of the department a public record with respect to that compromise. The public record shall include all of the following information:

(1) The name of the feepayer.

(2) The amount of unpaid fees and related penalties, additions to fees, interest, or other amounts involved.

(3) The amount offered.

(4) A summary of the reason why the compromise is in the best interest of the state.

The public record shall not include any information that relates to any trade secrets, patent, process, style of work, apparatus, business secret, or organizational structure, that if disclosed, would adversely affect the feepayer or violate the confidentiality provisions of Section 46751. A list shall not be prepared and releases shall not be distributed by the department in connection with these statements.

(n) A compromise made under this section may be rescinded, all compromised liabilities may be reestablished, without regard to any statute of limitations that otherwise may be applicable, and no portion of the amount offered in compromise refunded, if either of the following occurs:

(1) The department determines that a person did any of the following acts regarding the making of the offer:

(A) Concealed from the department property belonging to the estate of a feepayer or other person liable for the fee.

(B) Received, withheld, destroyed, mutilated, or falsified a book, document, or record or made a false statement, relating to the estate or financial condition of the feepayer or other person liable for the fee.

(2) The feepayer fails to comply with any of the terms and conditions relative to the offer.

(o) A person who, in connection with an offer or compromise under this section, or offer of that compromise to enter into that agreement, willfully does either of the following shall be guilty of a felony and, upon conviction, shall be fined not more than fifty thousand dollars ($50,000) or imprisoned pursuant to subdivision (h) of Section 1170 of the Penal Code, or both, together with the costs of investigation and prosecution:

(1) Conceals from an officer or employee of this state property belonging to the estate of a feepayer or other person liable in respect of the fee.

(2) Receives, withholds, destroys, mutilates, or falsifies a book, document, or record, or makes a false statement, relating to the estate or financial condition of the feepayer or other person liable in respect of the fee.

(p) For purposes of this section, "person" means the feepayer, a member of the feepayer's family, a corporation, agent, fiduciary, or representative of, or another individual or entity acting on behalf of, the feepayer, or another corporation or entity owned or controlled by the feepayer, directly or indirectly, or that owns or controls the feepayer, directly or indirectly.

(q) This section shall remain in effect only until January 1, 2028, and as of that date is repealed.

History—Added by Stats. 2006, Ch. 364 (AB 3076), in effect January 1, 2007. Stats. 2008, Ch. 222 (AB 2047), in effect January 1, 2009, redesignated former subdivision "(c)" to be "(c)(1)" and added paragraphs (2) and (3) in subdivision (c); added subdivisions (d), (e), (f), and (g); relettered former subdivisions (d), (e), (f), (g), (h), (i), (j), (k), (l), (m) as (h), (i), (j), (k), (l), (m), (n), (o), (p), (q) respectively; added subdivision (r); and substituted "feepayer" for "fee payer" throughout the section. Stats. 2011, Ch. 15 (AB 109), in effect April 4, 2011, operative October 1, 2011, substituted "pursuant to subdivision (h) of Section 1170 of the Penal Code" for "in the state prison" after "($50,000) or imprisoned" in subdivision (p). Stats. 2012, Ch. 285 (SB 1548), in effect January 1, 2013, substituted "A" for "Any" or "an" for "any" throughout the section; substituted "a" for "no" after "final fee liability, and" and added "not" after "compromise shall" in paragraph (2) of subdivision (c); substituted "fees" for "fee" after "additions to" in subparagraphs (2)(A), (2)(B), and (2)(C) in subdivision (c); substituted "46751" for "40175" and revised the last sentence in the last paragraph of subdivision (n); deleted "any" after "from the board" in subparagraph (1)(A) of subdivision (o); deleted "any" after "employee of this state" in paragraph (1) of subdivision (p); substituted "another" for "any other" in subdivision (q); and substituted "2018" for "2013" in subdivision (r). Stats. 2017, Ch. 272 (AB 525), in effect January 1, 2018, substituted "2023" for "2018" after "until January 1," and deleted ", unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date" after "date is repealed" in subdivision (r). Stats. 2022, Ch. 474 (SB 1496), in effect January 1, 2023, substituted "department" for "board" throughout the section; deleted "executive" before "director", deleted "and chief counsel" after "director", deleted "where the reduction of fees is seven thousand five hundred dollars ($7,500) or less" after "liability", and deleted paragraphs (2) and (3) from subdivision (a); substituted "Section" for "section" after "(commencing with" in subparagraph (2)(C) in subdivision (c); substituted "that" for " which" after "agreement" in subdivision (d); deleted "executive" before "director" in first paragraph of former subdivision (n); substituted "an" for "a" before "offer" and "an" for "a" before "officer" in former subdivision (p) and (p)(1) respectively; substituted "2028" for "2023" after "January 1," in former subdivision (r); deleted subdivision (e) and relettered former subdivisions (f), (g) (h), (i), (j), (k), (l), (m), (n), (o), (p), (q) and (r) as (e), (f), (g) (h), (i), (j), (k), (l), (m), (n), (o), (p), and (q).

Text of Section Operative January 1, 2028

46628. Offers in compromise. (a) The director of the department, or their delegates, may compromise any final fee liability.

(b) For purposes of this section, "a final fee liability" means any final fee liability arising under Part 24 (commencing with Section 46001), or related interest, additions to fees, penalties, or other amounts assessed under this part.

(c) Offers in compromise shall be considered only for liabilities that were generated from a business that has been discontinued or transferred, where the feepayer making the offer no longer has a controlling interest or association with the transferred business or has a controlling interest or association with a similar type of business as the transferred or discontinued business.

(d) Offers in compromise shall not be considered where the feepayer has been convicted of felony tax evasion under this part during the liability period.

(e) For amounts to be compromised under this section, the following conditions shall exist:

(1) The feepayer shall establish that:

(A) The amount offered in payment is the most that can be expected to be paid or collected from the feepayer's present assets or income.

(B) The feepayer does not have reasonable prospects of acquiring increased income or assets that would enable the feepayer to satisfy a greater amount of the liability than the amount offered, within a reasonable period of time.

(2) The department shall have determined that acceptance of the compromise is in the best interest of the state.

(f) A determination by the department that it would not be in the best interest of the state to accept an offer in compromise in satisfaction of a final fee liability shall not be subject to administrative appeal or judicial review.

(g) (1) Offers for liabilities with a fraud or evasion penalty shall require a minimum offer of the unpaid fee and fraud or evasion penalty.

(2) The minimum offer may be waived if it can be shown that the feepayer making the offer was not the person responsible for perpetrating the fraud or evasion. This authorization to waive only applies to partnership accounts where the intent to commit fraud or evasion can be clearly attributed to a partner of the feepayer.

(h) When an offer in compromise is either accepted or rejected, or the terms and conditions of a compromise agreement are fulfilled, the department shall notify the feepayer in writing. In the event an offer is rejected, the amount posted will either be applied to the liability or refunded, at the discretion of the feepayer.

(i) When more than one feepayer is liable for the debt, such as with spouses or partnerships or other business combinations, including, but not limited to, feepayers who are liable through dual determination or successor's liability, the acceptance of an offer in compromise from one liable feepayer shall reduce the amount of the liability of the other feepayers by the amount of the accepted offer.

(j) Whenever a compromise of fees or penalties or total fees and penalties in excess of five hundred dollars ($500) is approved, there shall be placed on file for at least one year in the office of the director of the department a public record with respect to that compromise. The public record shall include all of the following information:

(1) The name of the feepayer.

(2) The amount of unpaid fees and related penalties, additions to fees, interest, or other amounts involved.

(3) The amount offered.

(4) A summary of the reason why the compromise is in the best interest of the state.

The public record shall not include any information that relates to any trade secrets, patent, process, style of work, apparatus, business secret, or organizational structure, that if disclosed, would adversely affect the feepayer or violate the confidentiality provisions of Section 40175. A list shall not be prepared and releases shall not be distributed by the department in connection with these statements.

(k) A compromise made under this section may be rescinded, all compromised liabilities may be reestablished, without regard to any statute of limitations that otherwise may be applicable, and no portion of the amount offered in compromise refunded, if either of the following occurs:

(1) The department determines that a person did any of the following acts regarding the making of the offer:

(A) Concealed from the department property belonging to the estate of a feepayer or other person liable for the fee.

(B) Received, withheld, destroyed, mutilated, or falsified a book, document, or record, or made a false statement, relating to the estate or financial condition of the feepayer or other person liable for the fee.

(2) The feepayer fails to comply with any of the terms and conditions relative to the offer.

(l) A person who, in connection with an offer or compromise under this section, or offer of that compromise to enter into that agreement, willfully does either of the following shall be guilty of a felony and, upon conviction, shall be fined not more than fifty thousand dollars ($50,000) or imprisoned pursuant to subdivision (h) of Section 1170 of the Penal Code, or both, together with the costs of investigation and prosecution:

(1) Conceals from an officer or employee of this state property belonging to the estate of a feepayer or other person liable in respect of the fee.

(2) Receives, withholds, destroys, mutilates, or falsifies a book, document, or record, or makes a false statement, relating to the estate or financial condition of the feepayer or other person liable in respect of the fee.

(m) For purposes of this section, "person" means the feepayer, a member of the feepayer's family, a corporation, agent, fiduciary, or representative of, or another individual or entity acting on behalf of, the feepayer, or another corporation or entity owned or controlled by the feepayer, directly or indirectly, or that owns or controls the feepayer, directly or indirectly.

(n) This section shall become operative on January 1, 2028.

History—Added by Stats. 2008, Ch. 222 (AB 2047), in effect January 1, 2009, operative January 1, 2013. Stats. 2011, Ch. 15 (AB 109), in effect April 4, 2011, operative October 1, 2011, substituted "pursuant to subdivision (h) of Section 1170 of the Penal Code" for "in the state prison" after "($50,000) or imprisoned" in subdivision (l). Stats. 2012, Ch. 285 (SB 1548), in effect January 1, 2013, substituted "A" for "Any" or "an" for "any" throughout the section; revised the last sentence in the last paragraph of subdivision (j); deleted "any" after "from the board" in subparagraph (1)(A) of subdivision (k); deleted "any" after "employee of this state" in paragraph (1) of subdivision (l); substituted "another" for "any other" in subdivision (m); and substituted "2018" for "2013" in subdivision (n). Stats. 2017, Ch. 272 (AB 525), in effect January 1, 2018, added a comma after "or record" in subdivision (k)(1)(B); and substituted "2023" for "2018" after "January 1," in subdivision (n). Stats. 2022, Ch. 474 (SB 1496), in effect January 1, 2023, substituted "department" for "board" throughout the section; deleted "executive" before "director", deleted "and chief counsel" after "director", deleted "where the reduction of fees is seven thousand five hundred dollars ($7,500) or less" after "liability", and deleted paragraphs (2) and (3) from subdivision (a); deleted "executive" before "director" in first paragraph of subdivision (j); and substituted "2028" for "2023" after "January 1," in subdivision (n)

Note.—SEC 1 of Stats 2011, Ch. 15 (AB 109), in effect April 4, 2011, states: "This act is titled and may be cited as the 2011 Realignment Legislation addressing public safety."

Note.—SEC 636 of Stats 2011, Ch. 15 (AB 109) in effect April 4, 2011, states: "This act will become operative no earlier than July 1, 2011, and only upon creation of a community corrections grant program to assist in implementing this act and upon an appropriation to fund the grant program."

Note.—The Community Corrections Grant Program referred to in SEC 636 of Stats. 2011, Ch. 15 (AB 109), as amended by SEC 68 of Stats. 2011, Ch. 39 (AB 117), was created by SEC 3 of Stats. 2011, Ch. 40 (AB 118), operative October 1, 2011.