House Bill 608

AN ACT TO AMEND SECTIONS 27-7-71, 27-13-43, 27-9-47 AND 27-7-315, MISSISSIPPI CODE OF 1972, TO REMOVE THE AUTHORITY OF THE CHAIRMAN OF THE TAX COMMISSION TO REVIEW HIS DECISIONS ON ISSUES OF INCOME TAX, CORPORATE TAX AND ESTATE TAX WHEN THE ISSUES ARE APPEALED; TO PROVIDE THAT THE BOARD OF REVIEW SHALL REVIEW DECISIONS PREVIOUSLY REVIEWED BY THE TAX COMMISSIONER; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 27-7-71, Mississippi Code of 1972, is amended as follows:

27-7-71. (1) A taxpayer who feels aggrieved at any action of the commissioner under Sections 27-7-49, 27-7-51 or 27-7-53, may appeal to the board of review, as legally constituted and authorized by Section 27-7-79, for a hearing in the matter within thirty (30) days from the date of said action. The board of review shall grant a hearing thereon at the earliest practical date. At said hearing, the board of review shall try the issues presented, according to law and the facts, and shall within thirty (30) days from the date of said hearing make a determination * * * and notify the taxpayer of its findings. Any overpayment of tax determined by the approved order of the board of review shall be credited, or refunded, to the taxpayer. Any tax deficiency, including any penalty and interest, determined by the approved order of the board of review shall be paid by the taxpayer within thirty (30) days from the date of notification to the taxpayer, and, if said sum is not paid within said thirty-day period, the commissioner shall proceed to collect same under the provisions of Sections 27-7-55 through 27-7-67 of this article; provided, that within said thirty-day period the taxpayer may appeal to the State Tax Commission from the decision of the board of review, as hereinafter set out.

(2) A taxpayer who feels aggrieved at any decision by the board of review, may appeal to the State Tax Commission by petition, in writing, within thirty (30) days from the date of said decision, for a hearing upon the action or decision of the board of review, in which petition said taxpayer shall set forth the reasons such hearing should be granted. The State Tax Commission shall promptly consider the petition, grant the hearing, and notify the petitioner of the time and place fixed for the hearing. In any hearing before the State Tax Commission, two (2) members constitute a quorum. At said hearing, the State Tax Commission shall try the issues presented, according to the law and the facts, and shall, as soon as practical thereafter, notify the taxpayer of its determination. Any overpayment of tax which the State Tax Commission may determine to have been paid shall be credited or refunded to the taxpayer. Any tax deficiency, including any penalty and interest, determined by the State Tax Commission shall be paid within thirty (30) days from the date of notification of the taxpayer, and if said sum is not paid within said thirty-day period, the State Tax Commission shall proceed to collect same under the provisions of Sections 27-7-55 through 27-7-67; provided that within said thirty-day period the taxpayer may appeal from the decision of the State Tax Commission as hereinafter set out.

SECTION 2. Section 27-13-43, Mississippi Code of 1972, is amended as follows:

27-13-43. (1) A taxpayer who feels aggrieved at any action of the commissioner under Sections 27-13-23 or 27-13-25, may appeal to the board of review, as legally constituted and authorized by Section 27-13-65, for a hearing in the matter within thirty (30) days from the date of said action. The board of review shall grant a hearing thereon at the earliest practical date. At said hearing, the board of review shall try the issues presented, according to law and the facts, and shall within thirty (30) days from the date of said hearing make a determination * * * and notify the taxpayer of its findings. Any overpayment of tax determined by the approved order of the board of review shall be credited, or refunded, to the taxpayer. Any tax deficiency, including any penalty and interest, determined by the approved order of the board of review shall be paid by the taxpayer within thirty (30) days from the date of notification to the taxpayer and if said sum is not paid within said thirty-day period, the commissioner shall proceed to collect same under the provisions of Sections 27-13-29 through 27-13-41 of this chapter; provided, that within said thirty-day period the taxpayer may appeal to the State Tax Commission from the decision of the board of review, as hereinafter set out.

(2) A taxpayer who feels aggrieved at any decision by the board of review, may appeal to the State Tax Commission by petition, in writing, within thirty (30) days from the date of said decision, for a hearing upon the action or decision of the board of review, in which petition said taxpayer shall set forth the reasons such hearing should be granted. The State Tax Commission shall promptly consider the petition, grant the hearing, and notify the petitioner of the time and place fixed for the hearing. In any hearing before the State Tax Commission, two (2) members constitute a quorum. At said hearing, the State Tax Commission shall try the issues presented, according to the law and the facts, and shall, as soon as practical thereafter, notify the taxpayer of its determination. Any overpayment of tax which the State Tax Commission may determine to have been paid shall be credited or refunded to the taxpayer. Any tax deficiency, including any penalty and interest, determined by the State Tax Commission shall be paid within thirty (30) days from the date of notification of the taxpayer, and if said sum is not paid within said thirty-day period, the State Tax Commission shall proceed to collect same under the provisions of Sections 27-13-29 through 27-13-41, provided that within said thirty-day period the taxpayer may appeal from the decision of the State Tax Commission as hereinafter set out.

SECTION 3. Section 27-9-47, Mississippi Code of 1972, is amended as follows:

27-9-47. The executor may in writing apply to the board of review for revision of the tax assessed against the estate at any time within one (1) year from the date of the filing of the return or from the date of notice of the assessment of an additional tax. The board of review shall grant a hearing thereon and if, upon such hearing, the board of review shall determine that the tax is excessive or incorrect, the board of review shall resettle the same according to the law and the facts and adjust the computation of the tax accordingly. The board of review shall notify the executor in writing of its determination and shall refund to the executor the amount, if any, paid in excess of the tax found * * * to be due. If the executor has failed without good cause to file a return within the time prescribed by law or has filed a fraudulent return or having filed an incorrect return has failed after notice to file a proper return, the board of review shall not reduce the tax below the amount for which the executor has been found to be properly assessed.

If the executor is dissatisfied with the decision of the board of review he may apply in writing to the entire commission for a hearing, which hearing shall be granted as soon as practicable and at least two (2) members of the commission shall be present at said hearing and a determination of the tax liability shall be made by the commission in the same manner as provided for in the hearing before the board of review.

If the executor be dissatisfied with the decision of the commission he shall have the right to appeal to the Chancery Court of the First Judicial District of Hinds County, Mississippi, or the chancery court where the estate is being administered, by filing a bond with the chancery clerk in the amount of the tax assessed, including additional tax, interest and penalties, if any, and the estimated court costs, said bond to be made by a bonding company qualified to write bonds within the State of Mississippi, conditioned that any tax found due by the chancery court will be promptly paid. The trial on appeal shall be a trial de novo upon the question of the amount of the estate tax due upon the estate, if any, and said court shall hear and determine said matter in the same manner as any other case in said court and shall have the right either to affirm, abate or modify the assessment made by the commission.

If the executor be dissatisfied with the decision of the chancery court, he shall have the right to appeal from the decision of said court to the Supreme Court of the State of Mississippi upon the filing of an appeal bond conditioned as above set forth, which bond shall be made by some bonding company authorized to do business in this state. The chancellor may, in his discretion, permit the same bond to be used on appeal to the Supreme Court as was used on appeal from the commission to the chancery court, provided same is in sufficient amount. The executor desiring to appeal from the order of the commission may, if he so desires, pay the tax found to be due by the commission and sue for a refund thereof either in the Chancery Court of the First Judicial District of Hinds County, Mississippi, or in the chancery court of said county where the estate is being administered, in which instance a bond for court costs in at least the amount of Five Hundred Dollars ($500.00) shall be filed with the chancery clerk of said county and in the event that refund is ordered, said refund shall bear interest at the rate of six percent (6%) per annum from the date of payment by the taxpayer until said refund is made to him.

The commission shall have the same right of appeal from the chancery court to the supreme court as is afforded the executor, except that no appeal bond shall be required of the commission. All suits under this chapter shall be brought in the name of or against the commissioner.

SECTION 4. Section 27-7-315, Mississippi Code of 1972, is amended as follows:

27-7-315. If any overpayment of any tax, interest or penalty levied or provided for by Article 1 of this chapter, or in this article, is not refunded to the taxpayer as provided in Section 27-7-313 within six (6) months after the final date for filing returns as prescribed by law, the taxpayer may file a petition with the board of review for a hearing on the claim for refund. Within ten (10) days after the receipt of such petition, the board of review shall either (a) make refund as requested in the return filed by the taxpayer of the amount claimed by the taxpayer; or (b) set a time and place for such hearing and give notice thereof to the petitioner by registered or certified mail with return receipt requested. The date set for such hearing shall be not less than ten (10) days, nor more than thirty (30) days after notice thereof is given to the petitioner. If, after such hearing, the board of review shall determine that the petitioner is entitled to a refund as claimed in the return, the board of review shall refund to the petitioner the amount determined to be due. If, after such hearing, the board of review determines that the petitioner is not entitled to a refund for overpayment, the board of review shall so notify the petitioner by registered mail or by certified mail with return receipt requested.

If the petitioner is aggrieved by the decision of the board of review, he may appeal from the * * * decision for a rehearing before the State Tax Commission. Such appeal for a rehearing shall be made within thirty (30) days from the date of notice by the board of review, and the board of review shall set a time for such rehearing to be held no longer than thirty (30) days from the date of petitioner's request. The commission shall notify the petitioner of its decision within ten (10) days from the date of the rehearing. If the petitioner feels further aggrieved by the decision of the commission, he may appeal therefrom to the Chancery Court of Hinds County, or to the chancery court of the county of petitioner's residence, within thirty (30) days from the receipt of notice of the commission's decision. Further appeal may be taken by the petitioner or the commission from the chancery court to the Supreme Court in the same manner, as is provided by law for other cases.

If any overpayment of tax as reflected on a return or amended return filed, and verified by the commissioner or determined to be due by the commissioner or commission when no overpayment is shown on a return or amended return, is not refunded within ninety (90) days after the prescribed due date of the return, the date the return is filed, or the date the commissioner or commission determines a refund as being due when no overpayment is shown on a return or amended return, whichever is later, interest at the rate of one percent (1%) per month shall be allowed on such overpayment computed for the period after expiration of the ninety-day period provided herein to the date of payment.

SECTION 5. This act shall take effect and be in force from and after July 1, 2005.