MISSISSIPPI LEGISLATURE
2005 Regular Session
To: Finance
By: Senator(s) Robertson
AN ACT TO PROVIDE FOR THE HEARING OF APPEALS FROM ASSESSMENTS OF CERTAIN TAXES, DENIALS OF REFUND CLAIMS AND DENIALS OF WAIVERS OF TAG PENALTIES BY THE STATE TAX COMMISSION; TO PROVIDE FOR THE HEARING OF APPEALS FROM THE SUSPENSION, SURRENDER, SEIZURE OR REVOCATION OF CERTAIN PERMITS, TAGS OR TITLES ISSUED BY THE STATE TAX COMMISSION; TO PROVIDE FOR THE HEARING OF APPEALS FROM DENIALS OF REQUESTS FOR CERTAIN PERMITS, TAGS OR TITLES ISSUED OR APPROVED BY THE STATE TAX COMMISSION; TO PROVIDE FOR THE APPOINTMENT OF HEARING OFFICERS AND THE CREATION OF A BOARD OF REVIEW TO HEAR APPEALS; TO PROVIDE OPERATING PROCEDURES FOR HEARING OFFICERS AND THE BOARD OF REVIEW; TO PROVIDE THE TIME WITHIN WHICH APPEALS MUST BE MADE; TO PROVIDE THE MANNER IN WHICH SUCH APPEALS MUST BE MADE; TO PROVIDE FOR APPEALS FROM DECISIONS OF HEARING OFFICERS AND THE BOARD OF REVIEW TO THE STATE TAX COMMISSION; TO PROVIDE FOR APPEALS FROM DECISIONS OF THE STATE TAX COMMISSION; TO PROVIDE THE STANDARDS OF REVIEW OF SUCH APPEALS; TO PROHIBIT THE DISCLOSURE OF INFORMATION IN THE POSSESSION OF THE COMMISSION AND TO PROVIDE EXCEPTIONS TO SUCH PROHIBITION; TO EXEMPT CERTAIN RECORDS IN THE FILES OF THE STATE TAX COMMISSION FROM THE MISSISSIPPI PUBLIC RECORDS ACT OF 1983; TO EXEMPT CERTAIN MEETINGS AND DELIBERATIONS OF THE STATE TAX COMMISSION AND HEARING OFFICERS AND THE BOARD OF REVIEW OF THE STATE TAX COMMISSION FROM THE OPEN MEETINGS LAW; TO EXCLUDE FROM THE PROVISIONS OF THIS ACT FUNCTIONS OF THE STATE TAX COMMISSION THAT RELATE TO AD VALOREM TAXATION, THE LOCAL OPTION ALCOHOLIC BEVERAGE LAW AND THE MISSISSIPPI NATIVE WINE LAW OF 1976; TO AMEND SECTIONS 25-41-3, 27-7-51, 27-7-53, 27-7-55, 27-7-79, 27-7-315, 27-7-317, 27-9-49, 27-13-23, 27-13-25, 27-13-29, 27-13-65, 27-19-48, 27-19-73, 27-55-535, 27-57-19, 27-65-57, 27-69-9, 27-73-1, 67-3-29, 67-3-59 AND 75-23-25, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND SECTION 27-65-27, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE CHAIRMAN OF THE STATE TAX COMMISSION TO REFUSE TO ISSUE TO OR REVOKE THE PERMIT TO ENGAGE IN BUSINESS UNDER THE SALES TAX LAW OF ANY PERSON WHO HAS NOT SATISFIED ALL FINALLY DETERMINED TAX LIABILITIES TO THE STATE OF MISSISSIPPI; TO AMEND SECTION 25-43-1.102, MISSISSIPPI CODE OF 1972, TO REMOVE AN EXEMPTION THAT EXPIRES ON JULY 1, 2005, FROM THE DEFINITION OF THE TERM "AGENCY" UNDER THE ADMINISTRATIVE PROCEDURES LAW; TO AMEND SECTION 25-43-2.103, MISSISSIPPI CODE OF 1972, TO MAKE IT CLEAR THAT AGENCIES MAY PROVIDE INFORMAL RESPONSES TO INQUIRIES AND THAT SUCH REPONSES SHALL NOT BE CONSIDERED DECLARATORY OPINIONS UNDER THE ADMINISTRATIVE PROCEDURES LAW; TO REPEAL SECTIONS 27-3-29, 27-7-71, 27-7-73, 27-9-47, 27-13-43, 27-13-45, 27-19-337, 27-55-41, 27-55-549, 27-57-29, 27-59-43, 27-59-317, 27-61-35, 27-65-45, 27-65-47, 27-65-49, 27-67-23, 27-67-25, 27-67-27, 27-69-43 AND 63-21-61, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR APPEALS FROM CERTAIN ACTIONS OF THE STATE TAX COMMISSION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. As used in Sections 1 through 10 of this act:
(a) "Agency" means the commissioner acting directly or through his duly authorized officers, agents, representatives and employees, to perform duties and powers prescribed by the laws of this state to be performed by the Chairman of the State Tax Commission, the Commissioner of Revenue or the State Tax Commission, except as provided in Section 27-3-31 for those matters with respect to which the chairman and associate commissioners of the State Tax Commission act collectively as a commission.
(b) "Board of review" means the board of review of the State Tax Commission as appointed by the commissioner under Section 2 of this act, and also means a panel of the board of review when an appeal is considered by a panel of the board of review instead of the board of review en banc.
(c) "Commissioner" means the Chairman of the State Tax Commission.
(d) "Commission" means the State Tax Commission as created under Section 27-3-1 when the members thereof sit collectively to hear appeals from a hearing officer or from the board of review as provided in Sections 1 through 10 of this act.
(e) "Denial" means the final decision of the staff of the agency to deny the claim, request for waiver or application being considered. In this context, staff of the agency does not include the board of review or the commission. "Denial" does not mean the act of returning or refusing to consider a claim, request for waiver or application for permit, title or tag by the staff of the agency due to a lack of information and/or documentation unless the return or refusal is in response to a representation by the person who filed the claim, request for waiver or application in issue that information and/or documentation indicated by the staff of the agency to be lacking cannot or will not be provided.
(f) "Designated representative" means an individual who represents a person in an administrative appeal before a hearing officer of the agency, before the board of review or before the commission.
(g) "Last known address" when referring to the mailing of a notice of intent to suspend, revoke or to order the surrender and/or seizure of the permit, tag or title or to the mailing of a denial of permit, tag or title, means the last mailing address of the person being sent the notice as it appears on the record of the agency in regard to the permit, tag or title in issue. All other references to "last known address" in Sections 1 through 10 of this act mean the official mailing address that the hearing officer, the board of review or the commission secretary has for the addressee in their file on the administrative appeal in which the document or item is being mailed to the addressee. The addressee is presumed to have received any document or item mailed to his official mailing address. The commissioner, by regulation, shall prescribe the procedure for establishing an official mailing address in the administrative appeal process and the procedure for changing the official mailing address. It is the responsibility of the addressee to make sure that his official mailing address is correct.
(h) "Mail," "mailed" or "mailing" means placing the document or item referred to in First Class United States mail, postage prepaid, addressed to the person to whom the document or item is to be sent at the last known address of that person. Where a person is represented in an administrative appeal before a hearing officer, the board of review or the commission by a designated representative, the terms "mail," "mailed" or "mailing" when referring to sending a document or item to that person shall also mean placing the document or item referred to in First Class United States mail, postage prepaid, to the last known address of that person's designated representative. Mailing to the designated representative of a taxpayer, permittee, tag holder or title interest holder shall constitute mailing and notice to the taxpayer, permittee, tag holder or title interest holder.
(i) "Permit" means a type of license or permit that the agency is authorized to issue, suspend or revoke, such as a sales tax permit, a beer permit, a tobacco permit, a dealer license, or designated agent status, but does not include any type of permit issued under the Local Option Alcoholic Beverage Control Law, Section 67-1-1 et seq. or under the Mississippi Native Wine Law of 1976, Section 67-5-1 et seq.
(j) "Permittee" means a person holding a permit, applying for a permit or renewing a permit.
(k) "Person" means a natural person, partnership, limited partnership, corporation, limited liability company, estate, trust, association, joint venture, other legal entity or other group or combination acting as a unit, and includes the plural as well as the singular in number. "Person" includes the state, county, municipal, other political subdivision and any agency, institution or instrumentality thereof, but only when used in the context of a taxpayer, permittee, tag holder or title interest holder.
(l) "Refund claim" means a claim made in writing by a taxpayer and received by the agency wherein the taxpayer indicates that he overpaid taxes to the agency and requests a refund of the overpayment and/or a credit against current or future taxes for the overpayment.
(m) "Resident" when used to describe a taxpayer or petitioner, means a natural person whose residence and place of abode is within the State of Mississippi.
(n) "Tag" means a type of license tag or plate for a motor vehicle or trailer that the agency is authorized under the Mississippi Motor Vehicle Privilege Tax Law, Sections 27-19-1 et seq., or under the Motor Vehicle Dealer Tag Permit Law, Sections 27-19-301 et seq., to issue or approve before issuance, but does not include other types of license tags or plates issued by the county tax collectors except for personalized license tags and only to the extent that the agency determines under Section 27-19-48 that a personalized license tag applied for is considered obscene, slandering, insulting or vulgar in ordinary usage or demands the surrender or orders the seizure of the tag where issued in error.
(o) "Tag holder" means the person in whose name a tag is registered or the person applying for a tag.
(p) "Tag penalty" means the penalties imposed under Sections 27-19-63 and 27-51-43 for any delinquency in the payment of motor vehicle privilege tax and ad valorem tax on a motor vehicle which can be waived by the agency for good reason shown. Pursuant to Section 27-51-103, imposition of this ad valorem tag penalty at the maximum rate of twenty-five percent (25%) also results in ineligibility for the credit against motor vehicle ad valorem taxes provided by that statute. Waiver of the twenty-five percent (25%) delinquency penalty by the agency under Section 27-51-43 shall reinstate credit eligibility.
(q) "Tax" means a tax, fee, penalty and/or interest which the agency is required by either general law or by local and private law to administer, assess and collect.
(r) "Taxpayer" means a person who is liable for or paid any tax to the agency.
(s) "Title" means a title to a motor vehicle or manufactured housing issued by the agency under the Mississippi Motor Vehicle Title Law, Section 63-21-1 et seq.
(t) "Title interest holder" shall mean the owner or lienholder in a motor vehicle or manufactured housing as indicated on a title issued by the agency or as indicated on an application to the agency for the issuance of a title.
SECTION 2. (1) There is hereby created a board of review within the agency to conduct the duties assigned to it in Sections 1 through 10 of this act and any other responsibility as assigned by the commissioner. The board of review shall be composed of qualified employees of the agency appointed to the board by the commissioner. The commissioner shall determine the number of members on the board of review and may increase or decrease this number as needed. The commissioner is authorized to remove and/or replace a member of the board of review with or without cause.
(2) The board of review may perform its duties and responsibilities en banc or in panels of not less than three (3) members. When an appeal or other matter is considered by a panel, only the members on that panel may deliberate and vote on the appeal or matter being considered. The decision of a panel shall be deemed the final decision of the board of review. Nothing in this section shall prevent a member of the board of review from attending and/or participating in a hearing on an appeal being conducted before a panel on which he is not a member.
(3) No business shall be transacted by either the board of review en banc or by a panel of the board of review without the presence of a quorum. Three (3) members shall constitute a quorum for both the board of review and a panel of the board of review.
(4) The commissioner shall designate one (1) member of the board of review to be the chairman of the board of review. The chairman of the board of review shall preside at any meeting or hearing of the board of review en banc and at any meeting or hearing of a panel of the board of review where he is a member of that panel. In case of the absence of the chairman of the board of review at a meeting or hearing of the board of review en banc or in the case of a meeting or hearings of a panel of which he is not a member, the chairman of the board of review shall designate another member of the board of review to preside at the meeting or hearing. If circumstances do not permit such designation prior to the meeting or hearing being convened, the member of the board of review with the most tenure on the board of review shall preside. The presiding officer of a meeting or hearing of the board of review en banc or of a panel of the board of review, shall be responsible for the taking of minutes of such meeting or hearing.
SECTION 3. (1) Any taxpayer aggrieved by an assessment of tax by the agency, by the agency's denial of a refund claim, or by the denial of a waiver of tag penalty, and who wishes to contest the action of the agency shall, within thirty (30) days from the date of the action, file an appeal in writing with the board of review requesting a hearing and correction of the contested action specifying in detail the relief requested and any other information that might be required by regulation.
(2) Upon receipt of a timely written appeal from a tax assessment, refund claim denial or denial of waiver of a tag penalty, a hearing shall be scheduled before the board of review unless it is determined that the relief requested in the written appeal should be granted without a hearing. A notice of the hearing shall be mailed to the taxpayer advising the taxpayer of the date, time and location of the hearing. The taxpayer or his designated representative shall attend the hearing unless a request is made to, and granted by, the board of review to allow the taxpayer to submit his position in writing or by electronic transmission in lieu of attendance. Failure of the taxpayer or his designated representative to attend a hearing or to submit his position in writing or by electronic transmission by the date specified by the board of review or by the hearing date, if no date was specified, shall constitute a withdrawal of the appeal.
(3) At a hearing before the board of review on a tax assessment, denial of refund claim, or denial of waiver of a tag penalty, the board of review shall try the issues presented, according to law and the facts and within the guidelines established by regulation. The hearing before the board of review shall be informal and no official transcript will be made of the hearing. At the earliest practical date after the hearing, the members of the board of review that heard the appeal shall make a determination on the matter presented and notify the taxpayer of its findings by mailing a copy of its order to the taxpayer. If the order involves the appeal of a denial of a waiver of tag penalty, a copy of the order shall also be mailed to the tax collector that imposed the penalty. If in the order the board of review orders the taxpayer to pay a tax assessment, the taxpayer shall, within thirty (30) days from the date of the order, pay the amount ordered to be paid or appeal the order of the board of review to the commission. After the thirty-day period, if the tax determined by the board of review to be due is not paid and an appeal from the order of the board of review is not made to the commission, the agency shall proceed to collect the tax assessment as determined by the board of review.
(4) Any taxpayer aggrieved by an order of the board of review affirming a tax assessment, the denial of a refund claim, or the denial of a waiver of tag penalty, and who wishes to contest the order shall, within thirty (30) days from the date of the order of the board of review being contested, file an appeal to the commission. The appeal shall be in writing and shall request a hearing and reversal or modification of the order of the board of review, specify in detail the relief requested and contain any other information that might be required by regulation, and be filed with the commission secretary. Failure to timely file a written appeal with the commission secretary within the thirty-day period shall make the order of the board of review final and not subject to further review by the commission or a court, other than as to the issue of whether a written appeal from the order of the board of review was timely filed with the commission secretary.
(5) Upon receipt of a written appeal from an order of the board of review affirming a tax assessment, refund claim denial or denial of waiver of a tag penalty, the commission secretary shall schedule a hearing before the commission on the appeal. A notice of this hearing shall be mailed to the taxpayer advising the taxpayer of the date, time and location of hearing. The taxpayer or his designated representative shall attend the hearing unless a request is made to and granted by the commission to allow the taxpayer to submit his position in writing or by electronic transmission in lieu of attendance. Failure of the taxpayer or his designated representative to attend a hearing or to submit his position in writing or by electronic transmission by the date specified by the commission or by the hearing date, if no date was specified, shall constitute a withdrawal of the appeal.
(6) At any hearing before the commission on an appeal of an order of the board of review affirming a tax assessment, refund claim denial or denial of waiver of a tag penalty, two (2) members of the commission shall constitute a quorum. At the hearing, the commission shall try the issues presented, according to the law and the facts and pursuant to any guidelines established by regulation. The rules of evidence shall be relaxed at the hearing. Any appeal to chancery court from an order of the commission resulting from this type of hearing shall include a full evidentiary judicial hearing on the issues presented. No official transcript shall be made of this hearing before the commission. After reaching a decision on the issues presented, the commission shall enter its order setting forth its findings and decision on the appeal. A copy of the order of the commission shall be mailed to the taxpayer. If the order involves an appeal of a denial of a waiver of tag penalty, a copy of the order shall also be mailed to the tax collector that imposed the penalty.
(7) If in its order the commission orders a taxpayer to pay a tax assessment, the taxpayer shall, within thirty (30) days from the date of the order, pay the amount ordered to be paid or properly appeal said order of the commission to chancery court as provided in Section 4 of this act. After the thirty-day period, if the tax determined by the commission to be due is not paid and an appeal from the commission order has not been properly filed, the agency shall proceed to collect the tax assessment as affirmed by the commission. If in its order the commission determines that the taxpayer has overpaid his taxes, the agency shall refund or credit to the taxpayer, as provided by law, the amount of overpayment as determined and set out in the order.
(8) At any time after the filing of an appeal to the board of review or from the board of review to the commission under this section, an appeal can be withdrawn. Such a withdrawal of an appeal may be made voluntarily by the taxpayer or may occur involuntarily as a result the taxpayer failing to appear at a scheduled hearing, failing to make a written submission or electronic transmission in lieu of attendance at a hearing by the date specified or by the hearing date, if no date was specified, or by any other act or failure that the board of review or the commission determines represents a failure on the part of the taxpayer to prosecute his appeal. Any voluntary withdrawal shall be in writing or by electronic transmission and sent by the taxpayer or his designated representative to the chairman of the board of review, if the appeal being withdrawn is to the board of review, or to the commission secretary, if the appeal being withdrawn is to the commission. If the withdrawal of appeal is involuntary, the administrative appeal body from whom the appeal is being withdrawn shall note on its minutes the involuntary withdrawal of the appeal and the basis for the withdrawal. Once an appeal is withdrawn, whether voluntary or involuntary, the action from which the appeal was taken, whether a tax assessment, a denial of refund claim, a denial of waiver of tax penalty, or an order of the board of review, shall become final and not subject to further review by the board of review, the commission or a court. The agency shall then proceed in accordance with law based on such final action.
(9) Nothing in this section shall bar a taxpayer from timely applying to the commissioner as otherwise provided by law for a tax refund or for a revision in tax.
SECTION 4. (1) The findings and order of the commission entered under Section 3 of this act shall be final unless the taxpayer shall, within thirty (30) days from the date of the order, file a petition in the chancery court appealing the order and pay the tax or post the bond as required in Sections 1 through 10 of this act. The petition shall be filed against the State Tax Commission and shall contain a concise statement of the facts as contended by the taxpayer, identify the order from which the appeal is being taken and set out the type of relief sought. If in the action, the taxpayer is seeking a refund or credit for an alleged overpayment of tax or for taxes paid in protest under subsection (3) of this section, the taxpayer shall allege in the petition that he alone bore the burden of the tax sought to be refunded or credited and did not directly or indirectly collect the tax from anyone else.
(2) A petition under subsection (1) of this section shall be filed in the chancery court of the county or judicial district in which the taxpayer has a place of business or in the Chancery Court of the First Judicial District of Hinds County, Mississippi; however, a resident taxpayer may file the petition in the chancery court of the county or judicial district in which he is a resident.
(3) A petition filed under subsection (1) of this section that appeals an order of the commission affirming a tax assessment, shall be accompanied by a surety bond approved by the clerk of the court in a sum double the amount in controversy, conditioned to pay the judgment of the court. The clerk shall not approve a bond unless the bond is issued by a surety company qualified to write surety bonds in this state. As an alternative to the posting of bond, a taxpayer appealing an order of the commission affirming a tax assessment may, prior to the filing of the petition, pay to the agency, under protest, the amount ordered by the commission to be paid and seek a refund of such taxes, plus interest thereon.
(4) Upon the filing of the petition under subsection (1) of this section, the clerk of the court shall issue a summons to the State Tax Commission requiring the commission to answer or otherwise respond to the petition within thirty (30) days of service. The summons shall be served on the State Tax Commission by personal service on the commissioner as the chief executive officer of the State Tax Commission. The chancery court in which a petition under subsection (1) of this section is properly filed shall have jurisdiction to hear and determine said cause or issues joined as in other cases. In any petition in which the taxpayer is seeking a refund or credit for an alleged overpayment of tax or for taxes paid under protest under subsection (3) of this section, the taxpayer shall prove by a preponderance of the evidence that he alone bore the burden of the tax sought to be refunded or credited and did not directly or indirectly collect the tax from anyone else. At trial of any action brought under this section, the chancery court shall give deference to the decision and interpretation of law and regulations by the commission as it does with the decisions and interpretation of any administrative agency, but it shall try the case de novo and conduct a full evidentiary judicial hearing on the issues raised. Based on the evidence presented at the hearing, the chancery court shall determine whether the taxpayer has proven, by a preponderance of the evidence or a higher standard if required by the issues raised, that he is entitled to any or all of the relief he has requested. The chancery court shall decide all questions presented, including those as to legality and the amount of tax or refund due, and if it finds that the tax assessment or denial of refund claim in issue is incorrect or invalid, in whole or in part, it shall determine the amount of tax or refund due, including interest and, if applicable, penalty to date, and enter such order or judgment as it deems proper. Interest and penalty included in this determination shall be computed by the court based on the methods for computing penalty and interest as specified by law for the type of tax in issue. Either the State Tax Commission or the taxpayer, or both, shall have the right to appeal from the order of the chancery court to the Supreme Court as in other cases. If an appeal is taken from the order of the chancery court, the bond provided for in subsection (3) of this section shall continue to remain in place until a final decision is rendered in the case.
SECTION 5. (1) If the agency determines that there is a basis for suspension, surrender, seizure or revocation of a permit, tag or title issued or approved by the agency, the agency shall give the permittee, tag holder, title interest holder in the permit, tag or title, written notice of its intent to suspend, revoke or to order the surrender and/or seizure of the permit, tag or title. The notice of intent shall be mailed or hand delivered to the permittee, tag holder or title interest holder involved, shall set forth the facts and conduct that provide the basis for the intended action and shall advise the permittee, tag holder or title interest holder involved of the date, time and location of a show cause hearing that is at a minimum of thirty (30) days from the date of the notice. At the hearing, the permittee, tag holder or title interest holder shall show cause why the permit, tag or title in issue should not be suspended, surrendered, seized or revoked. The show cause hearing shall be informal and the rules of evidence shall be relaxed. The hearing shall be conducted by the board of review or by a single hearing officer as designated by the commissioner. As soon as practical after the show cause hearing, the hearing officer or the members of the board of review that conducted the hearing shall make a determination as to whether the intended action or any other action should be taken in regard to the permit, tag or title in issue. The hearing officer or board of review shall enter an order based on this determination and a copy of this order shall be mailed to the permittee, tag holder or title interest holder involved notifying same of the decision and the action taken.
(2) The order of the hearing officer or the board of review in regard to a show cause hearing shall be final unless, within thirty (30) days from the date of said order, the permittee, tag holder or title interest holder appeals the order to the commission. The appeal shall be in writing and request a hearing and reversal or modification of the order of the hearing officer or board of review, specify in detail the relief requested, contain any other information that might be required by regulation and be filed with the commission secretary. Failure to timely file a written appeal with the commission secretary within the thirty-day period shall make the order of the hearing officer or the board of review being appealed final and not subject to further review by the commission or a court other than as to the issue of whether a written appeal from the order of the hearing officer or board of review was timely filed with the commission secretary.
(3) Upon receipt of a written appeal from an order of a hearing officer or the board of review regarding a show cause hearing on a permit, tag or title, the commission secretary shall schedule a hearing before the commission on this appeal. A notice of the hearing shall be mailed to the person who filed the appeal to advise him of the date, time and location of hearing. In the case of an appeal from a show cause hearing on a title, the notice of hearing shall also be mailed to any other title interest holders in the motor vehicle or manufactured housing in issue. The person who filed the appeal or his designated representative shall attend the hearing. Failure of this person or his designated representative to attend a hearing shall constitute a withdrawal of the appeal.
(4) At any hearing before the commission on an appeal of an order regarding a show cause hearing on a permit, tag or title, two (2) members of the commission shall constitute a quorum. At the hearing the commission shall try the issues presented according to law and the facts and pursuant to any guidelines established by regulation. The rules of evidence shall be relaxed at the hearing and the hearing shall be taken down by a court reporter. After reaching a decision on the issues presented, the commission shall enter an order setting forth its findings and decision on the appeal. A copy of the order of the commission shall be mailed to the person who filed the appeal to notify him of the findings and decision of the commission. In the case of an appeal involving a title, a copy of the order of the commission shall also be mailed to any other title interest holder in the motor vehicle or manufactured housing in issue.
(5) At any time after the filing of an appeal with the commission under this section, an appeal may be withdrawn. A withdrawal of an appeal can be made voluntarily by the person appealing or may occur involuntarily as the result of his failure to appear at a scheduled hearing, or by any other act or failure that the commission determines represents a failure on the part of that person to prosecute his appeal. A voluntary withdrawal shall be in writing or by electronic transmission and sent from the person appealing or his designated representative to the commission secretary. If the withdrawal of appeal is involuntary, the commission shall note on its minutes the involuntary withdrawal of the appeal and the basis for the withdrawal. Once an appeal is withdrawn, whether voluntary or involuntary, the order from the show cause hearing from which the appeal was taken shall become final and not subject to further review by the commission or a court. The agency shall then proceed in accordance with law based on such final action.
SECTION 6. (1) If the agency determines that an application or request for a permit, tag or title issued or approved by the agency should be denied, the agency shall give the applicant for the permit, tag or title written notice of the denial by mailing or hand delivering the notice to the applicant. In regard to the denial of an application for title, the designated agent who took the application and any other alleged title interest holders as appearing on the application shall also be mailed or hand delivered a copy of the agency's denial of the title application. If the applicant, or in the case of the denial of a title application, any title interest holder appearing on the title application, is aggrieved by the denial and wishes to contest the denial, he shall, within thirty (30) days from the date of the written notice of the denial, file an appeal in writing with the board of review requesting a hearing on the denial that specified in detail the relief requested and contains any other information required by regulation. Failure to timely file a written appeal with the board of review within this thirty-day period shall make final the agency's denial of the permit, tag or title in issue and not subject to further review by the board of review, the commission or a court except as to the issue of whether a written appeal to the board of review was timely filed.
(2) Upon receipt of a written appeal from a denial of a permit, tag or title, a hearing shall be scheduled before the board of review unless it is determined that the relief requested in the written appeal should be granted without a hearing. A notice of the hearing shall be mailed to the person appealing advising him of the date, time and location of hearing. If the appeal involves the denial of a title, the notice of hearing shall also be mailed to all other title interest holders in the motor vehicle or manufactured housing in issue, including both those that appear on a current title and those that appear on the application that was denied. The notice may contain a statement as to the basis for the denial of the permit, tag or title. The person appealing or his designated representative shall attend the hearing unless a request is made to and granted by the board of review to allow him to submit his position in writing or by electronic transmission in lieu of attendance. Failure of the person appealing, or his designated representative, to attend a hearing or to submit his position in writing or by electronic transmission in lieu of attendance by the date specified by the board of review or by the hearing date, if no date is specified, shall constitute a withdrawal of the appeal.
(3) At a hearing before the board of review on a denial of a permit, tag or title, the board of review shall try the issues presented, according to law and the facts and within the guidelines established by regulation. The hearing before the board of review shall be informal and no official transcript shall be made of the hearing. At the earliest practical date after the hearing, the members of the board of review that heard the appeal shall make a determination on the matter presented and notify the person appealing of its findings by mailing a copy of its order to that person. In the case of a hearing involving the denial of a title, the order shall also be mailed to all other title interest holders in the motor vehicle or manufactured housing in issue, including those that appear on a current title and those that appear on the application that was denied.
(4) The order of the board of review involving the denial of a permit, tag or title shall be final unless within thirty (30) days from the date of the order, the applicant appeals the order to the commission. In the case of an order of the board of review involving a review of the denial of a title, any title interest holder in the motor vehicle or manufactured housing in issue may appeal the order to the commission. The appeal shall be in writing, request a hearing and reversal or modification of the order of the board of review, specify in detail the relief requested, contain any other information that is required by regulation and be filed with the commission secretary. Failure to timely file a written appeal with the commission secretary within the thirty-day period will make the order of the board of review being appealed final and not subject to further review by the commission or a court other than as to the issue of whether a written appeal from the order of the board of review was timely filed with the commission secretary.
(5) Upon receipt of a written appeal from an order of the board of review involving the denial of a permit, tag or title, the commission secretary shall schedule a hearing before the commission on the appeal. A notice of the hearing shall be mailed to the person who filed the appeal to advise him of the date, time and location of hearing. In the case of an appeal from an order of the board of review involving the denial of a title, the notice of hearing shall also be mailed to all title interest holders in the motor vehicle or manufactured housing in issue. The person who filed the appeal or his designated representative shall attend the hearing. Failure of this person or his designated representative to attend a hearing shall constitute a withdrawal of the appeal.
(6) At any hearing before the commission on an appeal of an order from the board of review involving the denial of a permit, tag or title, two (2) members of the commission shall constitute a quorum. At the hearing, the commission shall try the issues presented according to law and the facts and pursuant to any guidelines established by regulation. The rules of evidence shall be relaxed at the hearing and the hearing shall be taken down by a court reporter. After reaching a decision on the issues presented, the commission shall enter its order setting forth its findings and decision on the appeal. A copy of the order of the commission shall be mailed to the person who filed the appeal with the commission to notify him of the findings and decision of the commission. In the case of an appeal involving a title, a copy of the order of the commission shall also be mailed to all title interest holders in the motor vehicle or manufactured housing in issue.
(7) At any time after the filing of an appeal with the board of review, or from the board of review to the commission under Sections 1 through 10 of this act, an appeal can be withdrawn. A withdrawal of an appeal may be made voluntarily by the person who filed the appeal or may occur involuntarily by the person failing to appear at a scheduled hearing, by failing to make a written submission or electronic transmission to the board of review in lieu of attendance by the date specified by the board or by the hearing date, if no date was specified, or by any other act or failure that the board of review or the commission determines represents a failure on the part of this person to prosecute his appeal. Any voluntary withdrawal shall be in writing or by electronic transmission and sent by the person appealing or his designated representative to the chairman of the board of review, if the appeal being withdrawn is to the board of review, or to the commission secretary, if the appeal being withdrawn is to the commission. If the withdrawal of appeal is involuntary, the administrative appeal body from whom the appeal is being withdrawn shall note on its minutes the involuntary withdrawal of the appeal and the basis for the withdrawal. Once an appeal is withdrawn, whether voluntary or involuntary, the action from which the appeal was taken, whether the original denial or the order of the board of review, shall become final and not subject to further review by the board of review, the commission or a court. The agency shall then proceed in accordance with law based on such final action.
SECTION 7. (1) The order of the commission entered in accordance with Section 5 or 6 of this act shall be final unless the permittee, tag holder, or title interest holder of the permit, tag or title in regard to which action was taken in the order shall, within thirty (30) days from the date of the order, file a petition in the chancery court seeking a review of the order. The petition shall be filed against the State Tax Commission and shall contain a concise statement of the facts as contended by the petitioner, identify the order from which the appeal is being taken and the type of relief sought. The petition shall also contain a certificate that the petitioner has paid to the commission secretary the estimated cost of the preparation of the entire record of the commission on the matter for which a review is sought.
(2) A petition under subsection (1) of this section shall be filed in the chancery court of the county or judicial district in which the petitioner has a place of business or in the First Judicial District of Hinds County, Mississippi; however, a resident petitioner may file a petition in the chancery court of the county or judicial district in which he is a resident.
(3) The review by the chancery court of the order of the commission on a petition filed under subsection (1) of this section shall be based on the record made before the commission. Before filing a petition under subsection (1) of this section, the petitioner shall obtain from the commission secretary an estimate of the cost to prepare the entire record of the commission and shall pay to the commission secretary the amount of the estimate. If, upon the preparation of the record, it is determined that the estimate paid was insufficient to pay the actual cost of the preparation of the record, the commission secretary shall mail to the petitioner a written notice of the deficiency. The petitioner shall pay the deficiency to the commission secretary within thirty (30) days from the date of this written notice. If upon the preparation of the record, it is determined that the estimate paid by the petitioner exceeds the actual cost of the preparation of the record, the commission secretary shall remit to the petitioner the amount by which the estimate paid exceeds the actual cost. The chancery court shall dismiss with prejudice any petition filed where it is shown that the petitioner failed to pay prior to filing the petition the estimated cost for preparation of the record of the commission or failed to pay any deficiency in the estimate within thirty (30) days of a notice of deficiency.
(4) Upon the filing of the petition under subsection (1) of this section, the clerk of the court in the which the petition is filed shall issue a summons to the State Tax Commission requiring the commission to answer or otherwise respond to the petition within thirty (30) days of service. The summons shall be served on the State Tax Commission by personal service on the commissioner as the chief executive officer of the State Tax Commission.
(5) Upon the filing of an answer and/or response by the State Tax Commission to the petition filed under subsection (1) of this section, and upon the filing of the record made before the commission with the clerk of the court, the chancery court shall, upon the motion of either party, establish a schedule for the filing of briefs in the action. The scope of review of the chancery court in an action filed under subsection (1) of this section shall be limited to a review of the record made before the commission to determine if the action of the commission is unlawful for the reason that it was:
(a) Not supported by substantial evidence;
(b) Arbitrary or capricious;
(c) Beyond the power of the commission to make; or
(d) In violation of some statutory or constitutional right of the petitioner.
(6) No relief shall be granted based upon the chancery court's finding of harmless error by the commission in complying with any procedural requirement; however, in the event that there is a finding of prejudicial error in the proceedings, the cause shall be remanded to the commission for a rehearing consistent with the findings of the court.
(7) The State Tax Commission, the petitioner, or both, shall have the right to appeal from the order of the chancery court to the Supreme Court as in other cases.
SECTION 8. (1) Except as otherwise provided in this section, it shall be unlawful for the commission, the commissioner, the commission secretary, the agency, or an officer, agent or employee of the agency, to divulge or make known in any manner the information contained in the files, records and orders of the agency, a hearing officer of the agency, the board of review or the commission in regard to an appeal to a hearing officer, the board of review or the commission under Sections 1 through 10 of this act.
(2) For purposes of this section, the term "appellant" means the taxpayer, permittee, tag holder or title interest holder who filed the appeal to the board of review or the commission under Sections 1 through 10 of this act which resulted in the files, records and orders of that appeal. For purposes of this section, when applied to the files, records and orders regarding a matter brought before a hearing officer of the agency or before the board of review for a show cause hearing, the term "appellant" shall mean the permittee, tag holder or title interest holder in the permit, tag or title that was the subject of the show cause hearing.
(3) The commission, the commissioner, the commission secretary, the agency, hearing officer or an agent or employee of the agency is permitted to divulge and make known information otherwise prohibited from disclosure under subsection (1) of this section in any of the following circumstances:
(a) Where the information is being disclosed as a result of complying with the provisions of Sections 1 through 10 of this act and/or with regulations promulgated to enforce the provisions of Sections 1 through 10 of this act.
(b) Where the information is being provided to the appellant or his designated representative.
(c) Where the information is being provided or disclosed pursuant to a written authorization executed by the appellant as prescribed by regulation.
(d) Where the information is being provided or disclosed in the course of a court action in which the agency, the commission, an agency officer or an agency employee and the appellant are parties, including, but not limited to, an action brought under Sections 1 through 10 of this act or in the course of the bankruptcy case of the appellant.
(e) Where the information is being provided to the Internal Revenue Service or a taxing authority of another state under an information exchange agreement where similar information can be obtained by the agency from the Internal Revenue Service or state taxing authority receiving the information.
(f) Where the information is being provided pursuant to the International Registration Plan (IRP) or the International Fuel Tax Agreement (IFTA) or any regulations, rules or procedures adopted under such plan or agreement.
(g) Where the disclosure of information is authorized under Section 27-55-49, 27-55-557, 27-57-39, 27-59-53 or 27-61-20.
(h) Where the information is being provided to the State Auditor or his employees in the course of his audit of the agency; however, the prohibitions against disclosure which apply to the agency shall also apply to the State Auditor and his employees or former employees.
(i) Where the information is being provided to the Attorney General or any other attorney representing the state or the agency in an action brought by the appellant to set aside the tax, in an action brought by the state or agency to recover the tax imposed, or in an action where the appellant is being prosecuted for a crime under the tax laws of this state.
(j) Where the information is being provided by the commissioner to a contractor of collection services pursuant to the authority granted the commissioner in Section 27-75-16.
(k) Where the information is being provided in accordance with a proper judicial order. The term "proper judicial order" as used in this paragraph shall not include subpoenas or subpoenas duces tecum, but shall include only those orders entered by a court of record in this state after furnishing notice and a hearing to the appellant and the State Tax Commission. The court shall not authorize the furnishing of such information unless it is satisfied that the information is needed to pursue pending litigation in which the information itself is in issue, or the judge is satisfied that the need for furnishing the information outweighs the rights of the appellant to have such information secreted.
(3) Nothing in subsection (1) of this section shall prohibit the inspection or disclosure of the minutes of the commission except to the extent that such minutes reflect the specific amount of a tax assessment or refund claim or the specific amount of tax or refund claim determined by the commission to be due.
(4) Information that is prohibited from being disclosed in subsection (1) of this section shall be exempt from the provisions of the Mississippi Public Records Act of 1983.
(5) Due to the need to discuss confidential tax information, the hearings before a hearing officer, the board of review and the commission under Sections 1 through 10 of this act, and the meetings in which the board of review and the commission deliberate and vote on the issues raised at such hearings shall be exempt from the provisions of Section 25-41-1 et seq.
SECTION 9. Except as to the determination of whether a tag penalty should be waived under Section 27-51-43, the provisions of Sections 1 through 10 of this act shall not apply to any action taken by the agency, commissioner or commission in regard to ad valorem taxes, including, but not limited to, the determination under Section 27-31-107 as to whether property is entitled to a new or expanded enterprise exemption, the duties and actions performed under the Homestead Exemption Law of 1946, being Section 27-33-1 et seq., the actions taken as the result of the examination of the recapitulation of the assessment rolls of the counties under Section 27-35-113, the actions relating to the examination of the assessment rolls under Section 27-35-127, and the ad valorem assessment of railroads, public service corporations, nuclear generating plants, railcar companies, airline companies, motor vehicles, manufactured homes and mobile homes. The provisions of Sections 1 through 10 of this act shall not apply to any action of the agency, commissioner or commission under the Local Option Alcoholic Beverage Control Law, being Section 67-1-1 et seq. or any action under the Mississippi Native Wine Law of 1976, being Section 67-5-1 et seq.
SECTION 10. (1) The commissioner may from time to time make such rules and regulations, not inconsistent with Sections 1 through 10 of this act, as he may deem necessary to enforce its provisions.
(2) By issuance of a subpoena under his signature and seal, the commissioner may require any person to attend a hearing before a hearing officer, the board of review or the commission and to give testimony and/or produce documents or other things at that hearing. If any person subpoenaed by the commissioner fails to attend the hearing, refuses to testify or answer any material question at the hearing or refuses to produce at the hearing any document or thing subpoenaed, the commissioner is authorized to institute proceedings in the circuit court of the county where such person resides or is found to compel compliance with the subpoena.
SECTION 11. Section 25-41-3, Mississippi Code of 1972, is amended as follows:
25-41-3. For purposes of this chapter, the following words shall have the meaning ascribed herein, to wit:
(a) "Public body" means * * * any executive or administrative board, commission, authority, council, department, agency, bureau or any other policy making entity, or committee thereof, of the State of Mississippi, or any political subdivision or municipal corporation of the state, whether such entity be created by statute or executive order, which is supported wholly or in part by public funds or expends public funds, and * * * any standing, interim or special committee of the Mississippi Legislature. There shall be exempted from the provisions of this chapter:
(i) The judiciary, including all jury deliberations;
(ii) Public and private hospital staffs, public and private hospital boards and committees thereof;
(iii) Law enforcement officials;
(iv) The military;
(v) The State Probation and Parole Board;
(vi) The Workers' Compensation Commission;
(vii) Legislative subcommittees and legislative conference committees;
(viii) The arbitration council established in Section 69-3-19; * * *
(ix) License revocation, suspension and disciplinary proceedings held by the Mississippi State Board of Dental Examiners; and
(x) Hearings and meetings of the State Tax Commission and the hearing officers and the board of review of the State Tax Commission as provided in Section 8, Senate Bill No._2742, 2005 Regular Session.
(b) "Meeting" means an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power; "meeting" also means any such assemblage through the use of video or teleconference devices.
SECTION 12. Section 27-7-51, Mississippi Code of 1972, as amended by House Bill No. 1195, 2005 Regular Session, is amended as follows:
27-7-51. (1) If, upon examination of a return made under the provisions of this article, it appears that the correct amount of tax is greater or less than that shown in the return, the tax shall be recomputed. Any overpayment of tax so determined shall be credited or refunded to the taxpayer. If the correct amount of tax is greater than that shown in the return of the taxpayer, the commissioner shall make his assessment of additional tax due by mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment. The taxpayer shall be given a period of thirty (30) days from the date of the notice in which to pay the additional tax due, including penalty and interest as hereinafter provided, and if the sum is not paid within the period of thirty (30) days, the commissioner shall proceed to collect it under the provisions of Sections 27-7-55 through 27-7-67, provided that within the period of thirty (30) days the taxpayer may appeal to the board of review as provided by law.
(2) In the case of an overpayment of tax, interest shall be computed under the provisions of Section 27-7-315. In the case of an underpayment of tax, interest at the rate of one percent (1%) per month from the due date of the return may be added or assessed in addition to the additional tax due as hereinabove provided in subsection (1) of this section.
(3) In case of failure to pay any additional taxes as assessed under this section, there may be added to the additional amount assessed a penalty of one-half of one percent (1/2 of 1%) of the amount of the additional tax if the failure is for not more than one (1) month, with an additional one-half of one percent (1/2 of 1%) for each additional month or fraction thereof during which the failure continues, not to exceed twenty-five percent (25%) in the aggregate.
(4) Where the reported net income of a taxpayer is increased by the Internal Revenue Service, a taxpayer who, without action by the commissioner, amends a return filed under this article on the basis of a change in taxable income made by the Internal Revenue Service, and pays the additional tax due * * * within thirty (30) days after agreeing to the federal change (and has received statement of the federal changes to which agreement has been made or payment thereof), shall add interest to the additional tax at the rate of one percent (1%) per month from due date of the original return. If the additional tax, based on changes in taxable income by the Internal Revenue Service, is assessed by the commissioner under subsection (1) of this section, in addition to the interest there may be added a penalty of one-half of one percent (1/2 of 1%) of the additional tax due if the failure is for not more than one (1) month, with an additional one-half of one percent (1/2 of 1%) for each additional month or fraction thereof during which the failure to pay continues, not to exceed twenty-five percent (25%) in the aggregate, unless it is shown that the failure is due to reasonable cause and not due to willful neglect.
(5) In the case of a taxpayer who files a bond when appealing the decision of the full State Tax Commission instead of paying the amount of the additional tax found to be due by the State Tax Commission, and the tax assessment or a part of the assessment is upheld by the chancery court and/or the Supreme Court, the assessment shall bear interest at the rate of one percent (1%) per month from the due date until paid.
(6) (a) Nothing in this section shall be construed as authorizing a refund of taxes for claims pursuant to the United States Supreme Court decision of Davis v. Michigan Department of Treasury, 109 S.Ct. 1500 (1989). These taxes were not incorrectly and/or erroneously collected as contemplated by this chapter.
(b) In the event a court of final jurisdiction determines the above provision to be void for any reason, it is hereby declared the intent of the Legislature that affected taxpayers shall be allowed a credit against future income tax liability as opposed to a tax refund.
SECTION 13. Section 27-7-53, Mississippi Code of 1972, as amended by House Bill No. 1195, 2005 Regular Session, is amended as follows:
27-7-53. (1) (a) Except as otherwise provided in this section, if a return is timely filed by the taxpayer but the tax due is not paid, the commissioner shall make his assessment of tax due by mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment. The taxpayer shall be given a period of thirty (30) days from the date of the notice in which to pay the tax due, including penalty and interest as hereinafter provided, and if the sum is not paid within the period of thirty (30) days, the commissioner shall proceed to collect it under the provisions of Sections 27-7-55 through 27-7-67 of this article; provided that within the period of thirty (30) days the taxpayer may appeal to the board of review as provided by law.
(b) (i) If an individual return is timely filed by the taxpayer and the amount of tax liability (determined without regard to interest, penalties, additions to the tax and additional amounts) of the taxpayer exceeds Seventy-five Dollars ($75.00) but does not exceed Three Thousand Dollars ($3,000.00), the taxpayer may request to pay the tax liability through an installment agreement. The taxpayer must file such a request with the return and must provide all information required by the commissioner. If the commissioner determines a taxpayer is financially unable to pay the tax liability, the commissioner may enter into an agreement to accept payment of the tax liability in installments if:
1. The taxpayer (and the taxpayer's spouse if the tax liability relates to a joint return), during any of the preceding five (5) years, has not:
a. Failed to file any return required by this chapter,
b. Failed to pay any tax required by this chapter, or
c. Entered into an installment agreement under this paragraph (b);
2. The agreement requires full payment of the tax liability in equal installments within twelve (12) months from the date the return was filed; and
3. The taxpayer agrees to comply with the terms of the agreement.
(ii) Payments made through an installment agreement shall be subject to the interest provisions of subsection (3) of this section.
(iii) The commissioner may terminate an installment agreement entered into under this paragraph (b) if he determines the taxpayer provided inaccurate or incomplete information before the agreement was entered into or he believes the collection of the tax to which the agreement relates is in jeopardy.
(iv) The commissioner may modify or terminate an installment agreement entered into under this paragraph (b) if the taxpayer fails to:
1. Pay any installment due under the agreement;
2. Pay any other tax liability due under this chapter when the liability is due; or
3. Provide a statement of financial condition required by the commissioner.
(2) If no return is made by a taxpayer required by this chapter to make a return, the commissioner shall determine the taxpayer's liability from the best information available, which determination shall be prima facie correct for the purpose of this article, and the commissioner shall forthwith make an assessment of the tax so determined to be due by mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment. The taxpayer shall be given a period of thirty (30) days from the date of the notice in which to pay the tax due, including penalty and interest as hereinafter provided, and if the sum is not paid within the period of thirty (30) days, the commissioner shall proceed to collect it under the provisions of Sections 27-7-55 through 27-7-67 of this article; provided that within said period of thirty (30) days the taxpayer may appeal to the board of review as provided by law.
(3) Interest at the rate of one percent (1%) per month from the due date of the return may be added or assessed in addition to the tax due as * * * provided in subsections (1) and (2) of this section.
(4) In case of failure to file a return as required by this chapter, there may be added to the amount required to be shown as tax on the return a penalty of five percent (5%) of the amount of the tax if the failure is for not more than one (1) month, with an additional five percent (5%) for each additional month or fraction thereof during which the failure continues, not to exceed twenty-five percent (25%) in the aggregate. The failure to file a return penalty shall not be less than One Hundred Dollars ($100.00).
(5) In case of failure to pay the amount shown as tax on any return specified in subsections (1) and (2) of this section on or before the date prescribed for payment of the tax, determined with regard to any extension of time for payment or installment agreement, or both, there may be added to the amount shown as tax on the return one-half of one percent (1/2 of 1%) of the amount of the tax if the failure is for not more than one (1) month, with an additional one-half of one percent (1/2 of 1%) for each additional month or fraction thereof during which the failure continues, not to exceed twenty-five percent (25%) in the aggregate.
SECTION 14. Section 27-7-55, Mississippi Code of 1972, is amended as follows:
27-7-55. If any taxpayer, liable for the payment of income taxes, penalties or interest, fails or refuses to pay them after receiving the notice and demands as provided in Sections 27-7-49, 27-7-51 and 27-7-53, and if the taxpayer has not filed a timely appeal to the board of review as provided by law, the commissioner shall file a notice of tax lien for the income taxes, penalties and interest with the circuit clerk of the county in which the taxpayer resides or owns property, which shall be enrolled on the judgment roll. Immediately upon receipt of the notice of tax lien for income taxes, penalties and interest, the circuit clerk shall enter upon the judgment roll, in the appropriate columns, the name of the taxpayer as judgment debtor, the name of the commissioner or State Tax Commission as judgment creditor, the amount of the taxes, penalties and interest, and the date and time of enrollment. The judgment shall be valid as against mortgagees, pledgees, entrusters, purchasers, judgment creditors, and other persons from the time of filing with the clerk. The amount of the judgment shall be a debt due the State of Mississippi and remain a lien upon all property and rights to property belonging to the taxpayer, both real and personal, including choses in action, with the same force and like effect as any enrolled judgment of a court of record, and shall continue until satisfied; * * * however, the judgment shall not be a lien upon the property of the taxpayer for a longer period than seven (7) years from the date of the filing of the notice of tax lien for income taxes, penalties and interest unless an action is brought on the lien before the expiration of such time or unless the commissioner refiles the notice of tax lien before the expiration of such time. The judgment shall be a lien upon the property of the taxpayer for a period of seven (7) years from the date of refiling such notice of tax lien unless an action is brought on the lien before the expiration of such time or unless the commissioner refiles such notice of tax lien before the expiration of such time. There shall be no limit upon the number of times that the commissioner may refile notices of tax liens. The judgment shall serve as authority for the issuance of writs of execution, writs of attachment, writs of garnishment or other remedial writs. The commissioner may issue warrants for collection of income taxes from such judgments in lieu of the issuance of any remedial writ by the circuit clerk.
Upon failure to pay the taxes imposed under this article by any taxpayer who has executed any bond, the commissioner shall give notice of the failure to the sureties of the bond and demand payment of the tax, penalties and interest within ten (10) days. If the sureties of the taxpayer's bond shall fail or refuse to pay the penal sum demanded within the ten (10) days allowed, the commissioner shall file a notice of tax lien with the circuit clerk of the county in which the sureties reside or own property, which shall be enrolled upon the judgment roll, and the commissioner may proceed to collect from the sureties as in this section provided in this section for collecting from any judgment debtor.
The commissioner is hereby authorized to pay the clerk's fee for enrolling certificates of indebtedness and any court costs that may be adjudged against the commission or commissioner out of funds appropriated by the Legislature to defray expenses of the State Tax Commission.
SECTION 15. Section 27-7-79, Mississippi Code of 1972, is amended as follows:
27-7-79. (1) The commissioner shall have exclusive jurisdiction and be charged with the administration and enforcement of the provisions of this article, except as otherwise provided.
(2) The commissioner, for the purpose of ascertaining the correctness of any return, or for the purpose of making a return where none has been made, is hereby authorized, by any agent designated by the commissioner for that purpose, to examine any books, papers, records or memoranda, bearing upon the matter required to be included in the return, and may require the attendance of persons rendering a return or of any officer or employee of such person, or of any person having knowledge in the premises, and may take his testimony with reference to the matter required by law to be included in the return, with power to administer oaths to such person or persons.
* * *
(3) If any person summoned to appear under this article to testify, or produce books, papers or other data, shall refuse to do so, the chancery court for the district in which the person resides shall have jurisdiction by appropriate process to compel such attendance, testimony or production of books, papers or other data.
(4) The commissioner, with the approval of the Governor, may appoint and remove such officers, agents, deputies, clerks and employees as he may deem necessary, such persons to have such duties and powers as the commissioner may, from time to time, prescribe. The salaries of all officers, agents and employees employed by the commissioner shall be such as he may prescribe, with the approval of the Governor, not to exceed such amounts as may be appropriated by the Legislature, and the members of the commission and such officers, agents and employees shall be allowed such reasonable and necessary traveling and other expenses as may be incurred in the performance of their duties, not to exceed the amount appropriated therefor by the Legislature.
(5) The commissioner shall designate certain special agents appointed under this section and evidenced by a written certificate of appointment under the seal of the commission, of which judicial notice shall be taken by all courts of this state. Such agents, when in possession of a warrant issued under authority of this article, shall have all the powers and duties of the sheriff in enforcing the provisions of the article relating to the warrant thus issued, and in making arrests of persons obstructing or seeking to obstruct the execution of the warrant, or in serving any writ, notice or order connected with the enrolled judgment for which the warrant is issued by whatever officer or authority of court issued.
(6) The commissioner may require such of the officers, agents, and employees, as he may designate, to give bond for the faithful performance of their duties, in such form and with such securities as he may determine, and all premiums on such bonds shall be paid by the commissioner out of the monies appropriated for the purposes of this article.
(7) All officers empowered by law to administer oaths and the members of the commission, and such officers as it may designate, shall have power to administer an oath to any person or to take the acknowledgment of any person in respect to any return or report required by this article or the rules and regulations of the commissioner.
(8) All agents of the commissioner shall have, for identification purposes, proper credentials signed by the chairman of the commission.
(9) The commissioner shall prepare and publish annually statistics reasonably available with respect to the operation of this law, including classification of taxpayers and of the income, the amounts allowed as deductions, exemptions and credits, and also a statement of the cost of administering this article and any other facts deemed pertinent and valuable.
SECTION 16. Section 27-7-315, Mississippi Code of 1972, is amended as follows:
27-7-315. (1) 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 treat the failure to refund as a denial of a refund claim and appeal in the manner provided for in Section 3, Senate Bill No. 2742, 2005 Regular Session. * * *
* * *
(2) 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 the overpayment computed for the period after expiration of the ninety-day period provided in this subsection to the date of payment.
SECTION 17. Section 27-7-317, Mississippi Code of 1972, is amended as follows:
27-7-317. (1) Any employer who makes an overpayment of the tax required to be remitted to the commissioner by Section 27-7-309 may file application with the commissioner, on a form prescribed by the commissioner, to have the amount of the overpayment refunded to him or to have the amount credited against the payment which he is required to make for a subsequent quarterly period, but the refund or credit shall be allowed only to the extent that the amount of the overpayment was not withheld under Section 27-7-305 by the employer.
(2) If the commissioner shall determine that the employer is not entitled to the refund or credit as applied for, he shall so notify the employer of the denial of the refund claim.
(3) Unless written application for refund or credit is received by the commissioner from the employer within three (3) years from the date the overpayment was made, no refund or credit shall be allowed.
SECTION 18. Section 27-9-49, Mississippi Code of 1972, is amended as follows:
27-9-49. If, upon examination of any return made under this chapter, it appears that an amount of estate tax, interest or penalties has been paid in excess of that properly due, then the amount in excess shall be immediately refunded to the executor at such time as the commissioner has completed his investigation and has determined the correct estate tax liability of the estate.
If the liability of an estate for estate taxes is contested with the federal government and, as a result of that contest, the commissioner determines that the Mississippi estate tax, interest or penalties have been overpaid, then the overpayment shall be promptly refunded to the executor upon receipt of the federal closing letter or the decision of the tax court in lieu of the federal closing letter.
A refund of estate tax, interest or penalties made pursuant to this chapter shall bear interest at the rate of one-half of one percent (1/2 of 1%) per month, or major fraction thereof, for the period which is the later of the due date of the estate tax return inclusive of all approved extensions, or the final payment of the estate tax, interest or penalty and continuing until the date the commission has completed its investigation and has determined that a refund is due.
If any claim for overpayment of estate tax, interest or penalty is denied, the executor may appeal such decision to the board of review as provided by law.
SECTION 19. Section 27-13-23, Mississippi Code of 1972, is amended as follows:
27-13-23. (1) If a return is timely filed by the taxpayer but the tax is not paid, the commissioner shall make his assessment of tax due by mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment. The taxpayer shall be given a period of thirty (30) days from the date of the notice in which to pay the tax due, including penalty and interest as * * * provided in this section, and if the sum is not paid within the thirty-day period, the commissioner shall proceed to collect it under the provisions of Sections 27-13-29 through 27-13-41 of this chapter; provided that within the thirty-day period the taxpayer may appeal to the board of review as provided by law.
(2) If no return is made by a taxpayer required by this chapter to make a return, the commissioner shall determine the taxpayer's liability from the best information available, which determination shall be prima facie correct for the purpose of this chapter, and the commissioner shall forthwith make an assessment of the tax so determined to be due by mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment. The taxpayer shall be given a period of thirty (30) days from the date of the notice in which to pay the tax due, including penalty and interest as * * * provided in this section, and if the sum is not paid within the thirty-day period, the commissioner shall proceed to collect it under the provisions of Sections 27-13-29 through 27-13-41 of this chapter; provided that within the thirty-day period the taxpayer may appeal to the board of review as provided by law.
(3) Interest at the rate of one percent (1%) per month from the due date of the return shall be added or assessed in addition to the tax due as * * * provided in subsections (1) and (2) of this section.
(4) In case of failure to file a return as required by this chapter, unless it can be shown that the failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on the return a penalty of five percent (5%) of the amount of the tax if the failure is for not more than one (1) month, with an additional five percent (5%) for each additional month or fraction thereof during which the failure continues, not to exceed twenty-five percent (25%) in the aggregate.
(5) In case of failure to pay the amount shown as tax on any return specified in subsections (1) and (2) of this section on or before the date prescribed for payment of the tax, determined with regard to any extension of time for payment, unless it is shown that the failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount shown as tax on the return one-half of one percent (1/2 of 1%) of the amount of the tax if the failure is for not more than one (1) month, with an additional one-half of one percent (1/2 of 1%) for each additional month or fraction thereof during which the failure continues, not to exceed twenty-five percent (25%) in the aggregate.
SECTION 20. Section 27-13-25, Mississippi Code of 1972, is amended as follows:
27-13-25. (1) If, upon examination of a return made under the provisions of this chapter, it appears that the correct amount of tax is greater or less than that shown in the return, the tax shall be recomputed. Any overpayment of tax so determined shall be credited or refunded to the taxpayer. If the correct amount of tax is greater than that shown in the return of the taxpayer, the commissioner shall make his assessment of additional tax due by certified mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment. The taxpayer shall be given a period of thirty (30) days after receipt of notice in which to pay the additional tax due, including penalty and interest as * * * provided in this section, and if the sum is not paid within the thirty-day period, the commissioner shall proceed to collect it under the provisions of Sections 27-13-29 through 27-13-41, provided that within the thirty-day period the taxpayer may appeal to the board of review as provided by law.
(2) In the case of an overpayment of tax, interest shall be computed under the provisions of Section 27-7-315. In the case of an underpayment of tax, interest at the rate of one percent (1%) per month from the due date of the return shall be added or assessed in addition to the additional tax due as * * * provided in subsection (1) of this section.
(3) In case of failure to pay any additional taxes as assessed under this section, unless it is shown that the failure is due to reasonable cause and not due to willful neglect, there shall be added to the additional amount assessed a penalty of one-half of one percent (1/2 of 1%) of the amount of the additional tax if the failure is for not more than one (1) month, with an additional one-half of one percent (1/2 of 1%) for each additional month or fraction thereof during which the failure continues, not to exceed twenty-five percent (25%) in the aggregate.
SECTION 21. Section 27-13-29, Mississippi Code of 1972, is amended as follows:
27-13-29. If any taxpayer, liable for the payment of franchise taxes, penalties or interest, fails or refuses to pay them after receiving the notice and demands as provided in Section 27-13-23 or 27-13-25, and if such taxpayer has not filed a timely appeal to the board of review as provided by law, the commissioner shall file a notice of tax lien for the franchise taxes, penalties, and interest with the circuit clerk of the county in which the taxpayer resides or owns property, which, shall be enrolled on the judgment roll. Immediately upon receipt of the notice of tax lien for franchise taxes, penalties and interest, the circuit clerk shall enter upon the judgment roll, in the appropriate columns, the name of the taxpayer as judgment debtor, the name of the commissioner or State Tax Commission as judgment creditor, the amount of the taxes, penalties and interest, and the date and time of enrollment. The judgment shall be valid as against mortgagees, pledgees, entrusters, purchasers, judgment creditors, and other persons from the time of filing with the clerk. The amount of the judgment shall be a debt due the State of Mississippi and remain a lien upon all property and rights to property belonging to the taxpayer, both real and personal, including choses in action, with the same force and like effect as any enrolled judgment of a court of record, and shall continue until satisfied. Such judgment shall serve as authority for the issuance of writs of execution, writs of attachments, writs of garnishment or other remedial writs. The commissioner may issue warrants for collection of franchise taxes from such judgments in lieu of the issuance of any remedial writ by the circuit clerk.
Upon failure to pay the taxes imposed under this chapter by any taxpayer who has executed any bond, the commissioner shall give notice of the failure to the sureties of such bond and demand payment of the tax, penalties and interest within ten (10) days. If the sureties of the taxpayer's bond shall fail or refuse to pay the penal sum demanded within the ten (10) days allowed, the commissioner shall file a notice of tax lien with the circuit clerk of the county in which the sureties reside or own property, which shall be enrolled upon the judgment roll, and the commissioner may proceed to collect from the sureties as * * * provided in this section for collecting from any judgment debtor.
The commissioner is hereby authorized to pay the clerk's fee for enrolling certificates of indebtedness and any court costs that may be adjudged against the commission or commissioner out of funds appropriated by the Legislature to defray expenses of the State Tax Commission.
SECTION 22. Section 27-13-65, Mississippi Code of 1972, is amended as follows:
27-13-65. (1) Jurisdiction. The commissioner shall have exclusive jurisdiction and be charged with the administration and enforcement of the provisions of this chapter, except as otherwise provided.
(2) Examine books. The commissioner, for the purpose of ascertaining the correctness of any return, or for the purpose of making a return where none has been made, is hereby authorized, by any agent designated by the commissioner, for that purpose, to examine any books, papers, records or memoranda, bearing upon the matter required to be included in the return, and may require the attendance of persons rendering a return or of any officer or employee of such person, or of any person having knowledge in the premises, and may take his testimony with reference to the matter required by law to be included in such return, with power to administer oaths to such person or persons.
(3) Summons. If any person summoned to appear under this chapter to testify, or produce books, papers or other data, shall refuse to do so, the chancery court for the district in which such person resides shall have jurisdiction by appropriate process to compel * * * attendance, testimony or production of books, papers or other data.
(4) Employees. The commissioner, with the approval of the Governor, may appoint and remove such officers, agents, deputies, clerks and employees as he may deem necessary, such persons to have such duties and powers as the commissioner may, from time to time, prescribe. The salaries of all officers, agents and employees employed by the commissioner shall be such as he may prescribe, with the approval of the Governor, not to exceed such amounts as may be appropriated by the Legislature, and the members of the commission and such officers, agents and employees shall be allowed such reasonable and necessary traveling and other expenses as may be incurred in the performance of their duties not to exceed the amount appropriated therefor by the Legislature.
(5) Special agents. The commissioner shall designate certain special agents appointed under this section and evidenced by a written certificate of appointment under the seal of the commission, of which judicial notice shall be taken by all courts of this state. Such agents, when in possession of a warrant issued under authority of this chapter, shall have all the powers and duties of the sheriff in enforcing the provisions of the chapter relating to the warrant thus issued, and in making arrests of persons obstructing or seeking to obstruct the execution of such warrant, or in serving any writ, notice or order connected with the enrolled judgment for which the warrant is issued by whatever officer or authority of court issued.
(6) Employees bond. The commissioner may require such of the officers, agents and employees, as he may designate, to give bond for the faithful performance of their duties, in such form and with such securities as he may determine, and all premiums on such bonds shall be paid by the commissioner out of the monies appropriated for the purposes of this chapter.
(7) Administer oath. All officers empowered by law to administer oaths and the members of the commission, and such officers as it may designate, shall have power to administer an oath to any person or to take the acknowledgment of any person in respect to any return or report required by this chapter or the rules and regulations of the commissioner.
(8) Credentials. All agents of the commissioner shall have, for identification purposes, proper credentials signed by the chairman of the commission.
(9) Statistics. The commissioner shall prepare and publish annually statistics reasonably available with respect to the operation of this law, as he may deem pertinent and valuable.
* * *
SECTION 23. Section 27-19-48, Mississippi Code of 1972, is amended as follows:
27-19-48. (1) Owners of motor vehicles who are residents of this state, upon complying with the motor vehicle laws relating to registration and licensing of motor vehicles, and upon payment of the road and bridge privilege taxes, ad valorem taxes and registration fees as prescribed by law for private carriers of passengers, pickup trucks and other noncommercial motor vehicles, and upon payment of an additional fee in the amount provided in subsection (4)(a) of this section, shall be issued a personalized license tag of the same color as regular license tags to consist of the name of the county and not more than seven (7) letters of the alphabet or seven (7) numbers in lieu of the license tag numbering system prescribed by law. The purchaser of the personalized license tag may choose the combination of such letters or numbers, but no two (2) motor vehicles shall have the same combination of letters or numbers. In the event that the same combination of letters has been chosen by two (2) or more purchasers, the State Tax Commission shall assign a different number to each such purchaser which shall appear on the license tag following the combination of letters; * * * however, this combination shall not exceed seven (7) letters and/or numbers. The combination of letters and/or numbers written across the license tag shall be sufficiently large to be easily read but shall not be less than three (3) inches in height. No combination of letters or numbers which comprise words or expressions that are considered obscene, slandering, insulting or vulgar in ordinary usage shall be permitted, with the Chairman of the State Tax Commission having the responsibility of making this determination. If, however, such license plate is issued in error or otherwise and is determined by the chairman to be obscene, slanderous, insulting, vulgar or offensive, the chairman shall notify the owner that the license plate must be surrendered and that another personalized license plate may be selected by him and issued at no cost. Should the vehicle owner not desire another personalized license plate, the fee for such plate shall be refunded. In the event the owner fails to surrender the license plate after receiving proper notification, the chairman shall issue an order directing that the license plate be seized by agents of the State Tax Commission or any other duly authorized law enforcement personnel. * * *
(2) For the purposes of this section the terms "motor vehicle" and "vehicle" include motorcycles.
(3) Application for the personalized license tags shall be made to the county tax collector on forms prescribed by the State Tax Commission. The application form shall contain space for the applicant to make five (5) different choices for the combination of the letters and numbers in the order in which said combination is desired by the applicant. The application and the additional fee, less five percent (5%) thereof to be retained by the tax collector, shall be remitted to the State Tax Commission within seven (7) days of the date the application is made. The portion of the additional fee retained by the tax collector shall be deposited into the county general fund.
(4) (a) Beginning with any registration year commencing on or after November 1, 1986, any person applying for a personalized license tag shall pay an additional fee which shall be in addition to all other taxes and fees. The additional fee paid shall be for a period of time to run concurrent with the vehicle's established license tag year. The additional fee of Thirty Dollars ($30.00) is due and payable at the time the original application is made for a personalized tag and thereafter annually at the time of renewal registration as long as the owner retains the personalized tag. If the owner does not wish to retain the personalized tag, he must surrender it to the local county tax collector. The additional fee due at the time of renewal registration shall be collected by the county tax collector and remitted to the State Tax Commission on a monthly basis as prescribed by the commission.
(b) The State Tax Commission shall deposit all taxes and fees into the State Treasury on the day collected. At the end of each month, the State Tax Commission shall certify the total fees collected under this section to the State Treasurer who shall distribute to the credit of the State General Fund Sixteen Dollars and Twenty-five Cents ($16.25) of each additional fee and the remainder of each such additional fee shall be deposited to the credit of the State Highway Fund to be expended solely for the repair, maintenance, construction or reconstruction of highways.
(5) A regular license tag must be properly displayed as required by law until replaced by a personalized license tag; and the regular license tag must be surrendered to the tax collector upon issuance of the personalized license tag. The tax collector shall issue up to two (2) license decals for the personalized license tag, which will expire the same month and year as the original license tag.
(6) The applicant shall receive a refund of the fee paid for a personalized license tag if the personalized license tag is not issued to him because the combination of letters and numbers requested to be placed thereon is not available for any reason.
(7) In the case of loss or theft of a personalized license tag, the owner may make application and affidavit for a replacement license tag as provided by Section 27-19-37. The fee for a replacement personalized license tag shall be Ten Dollars ($10.00). The tax collector receiving such application and affidavit shall be entitled to retain and deposit into the county general fund five percent (5%) of the fee for such replacement license tag and the remainder shall be distributed in the same manner as funds from the sale of regular license tags.
(8) The owner of a personalized license tag may make application for a duplicate of such tag. The fee for such duplicate personalized license tag shall be Ten Dollars ($10.00). The tax collector receiving the application shall be entitled to retain and deposit into the county general fund five percent (5%) of the fee for such duplicate personalized license tag and the remainder shall be distributed in the same manner as funds from the sale of regular license tags. A duplicate personalized license tag may not be fastened to the rear of a vehicle and may not be utilized as a replacement for any personalized license tag issued pursuant to this section. Month decals and year decals shall not be issued for duplicate personalized license tags and month decals and year decals shall not be attached to duplicate personalized license tags.
SECTION 24. Section 27-19-73, Mississippi Code of 1972, is amended as follows:
27-19-73. The tax collector or the commission, as the case may be, is authorized and empowered to refund to any individual, firm or corporation any motor vehicle privilege license tax, permit or tag fee which has been paid or collected through error or otherwise when the person, individual, firm or corporation was not liable for such tax or fee or when the individual, firm or corporation has paid any such privilege tax or fee in excess of the sum properly due, whether such payments were made under protest or compulsion or not. Taxes erroneously paid within the meaning of this section shall include, but shall not be limited to, overpayments, double payments upon the same vehicle, payments upon vehicles not located within the State of Mississippi, and all other erroneous or illegal payments.
All claims for refunds under this section shall be made within twelve (12) months from the date of the erroneous payment of * * * taxes or fees and the refunds, approved by the tax collector or commission, shall be made out of any monies collected by the tax collector or commission from the same source of revenue. If such source of revenue no longer exists, the refund shall come from the general fund collections. If such refund is approved by the tax collector, he shall issue a warrant to the claimant and deduct the proper amounts from his next settlement. If a claim for refund is disapproved, the claimant shall be notified of the disapproval and the reasons therefor. * * *
SECTION 25. Section 27-55-535, Mississippi Code of 1972, is amended as follows:
27-55-535. When special fuel is lost or destroyed in quantities of seven hundred fifty (750) gallons or more through explosion, fire, collision, storage tank wreckage, wreckage of loading or unloading facilities, such as pumps and lines, or acts of Providence while in storage in this state or while being transported in this state, the owner of the special fuel shall be entitled to tax credit or refund of the tax paid thereon.
The commission shall be notified by the owner of the lost or destroyed special fuel within five (5) days after the loss or destruction is discovered. The commission shall make an investigation of the facts and circumstances surrounding the loss or destruction as may be reasonably necessary for the effective administration of this article.
The claim shall be made in the name of the owner of the lost or destroyed special fuel and shall be signed by the owner or his authorized agent and filed within three (3) years after the date of loss. All * * * claims must be accompanied by proof satisfactory to the commission that the special fuel for which credit is claimed was destroyed by or through one of the means set forth in the first paragraph of this section, and in all cases where the special fuel alleged to have been destroyed was covered by insurance, the commission shall not approve such claims unless and until the insurer has acknowledged and actually paid the loss.
Upon receipt of the claim the commission shall determine the amount of refund or tax credit due the claimant and in the case of refund the amount shall be refunded to the claimant as provided in Section 27-55-19.
If the commission determines that any refund claim shall not be paid, it shall notify the claimant stating the reason or reasons why the claim is disallowed.
A claimant may, within thirty (30) days after receipt of written notice of the disallowance of his claim, appeal to the board of review as provided by law.
SECTION 26. Section 27-57-19, Mississippi Code of 1972, is amended as follows:
27-57-19. When lubricating oil is lost or destroyed in quantities of two hundred fifty (250) gallons or more through explosion, fire, collision, storage tank wreckage, wreckage of loading or unloading facilities or other acts of Providence, only while in storage in this state or while being transported in this state, the owner of the lubricating oil shall be entitled to a refund of the tax paid thereon.
The commission shall be notified by the owner of lubricating oil lost or destroyed within five (5) days after the loss or destruction is discovered. The commission shall make an investigation of the facts and circumstances surrounding the loss or destruction as may be reasonably necessary for the effective administration of this section.
The claim shall be made in the name of the owner of the lubricating oil lost or destroyed, and shall be signed by the owner or his authorized agent and filed within three (3) years after the date of the loss. All * * * claims must be accompanied by proof satisfactory to the commission that the lubricating oil for which credit is claimed was destroyed as herein provided. In all cases where lubricating oil alleged to have been destroyed was covered by insurance, the commission shall not approve such claim unless and until the insurer has acknowledged and actually paid the loss.
Upon the receipt of the claim, the commission shall determine the amount of refund or tax credit due to the claimant and in the case of refund the amount shall be refunded to the claimant as provided in Section 27-55-19. The refund shall be paid from current lubricating oil tax collections.
If the commission determines that any refund claim shall not be paid or any tax credit allowed, it shall notify the claimant at the earliest possible date after it determines the claim cannot be allowed stating the reason or reasons why the claim is rejected.
A claimant may, within thirty (30) days after the rejection of his claim, appeal to the board of review as provided by law.
SECTION 27. Section 27-65-27, Mississippi Code of 1972, is amended as follows:
27-65-27. (1) Any person who engages, or who intends to engage, in any business or activity which will subject such person to a privilege tax imposed by this chapter, shall apply to the commissioner for a permit to engage in and to conduct any business or activity upon the condition that he shall pay the tax accruing to the State of Mississippi under the provisions of this chapter, and shall keep adequate records of such business or activity as required by this chapter. By making an application for a permit issued pursuant to this section, a person agrees, regardless of his presence in this state, to:
(a) Be subject to the jurisdiction of this state for purposes of taxation;
(b) Collect and remit all taxes levied under this chapter on the type of business or activity to be conducted by the applicant;
(c) Be subject to all the provisions of this chapter.
(2) Upon receipt of the permit, the applicant shall be duly licensed under this chapter to engage in and conduct the business or activity. The permit shall continue in force so long as the person to whom it is issued shall continue in the same business at the same location, unless revoked by the commissioner for cause.
(3) The commissioner shall require of every person desiring to engage in business within this state who maintains no permanent place of business within this state, of every person desiring to engage in the business of making sales of mobile homes, a cash bond or an approved surety bond in an amount sufficient to cover twice the estimated tax liability for a period of three (3) months. * * * However, * * * the bond shall in no case be less than One Hundred Dollars ($100.00) and * * * the tax may be prepaid in lieu of filing bond if the amount is approved by the commissioner. This bond shall be filed with the commissioner prior to the issuance of a permit to do business and before any such person may engage in business within this state. Failure to comply with the provision will subject such person to the penalties provided by this chapter.
(4) The commissioner is * * * authorized to deny the application for a permit or revoke the permit of any person who has failed or is failing to comply with any of the provisions of this chapter. * * * The commissioner may also deny the application for a permit or revoke the permit of any person who has failed to satisfy all of the finally determined tax liabilities owed by that person. As used in this subsection, "finally determined tax liabilities" means any state tax, fee, penalty and/or interest owed by a person to the Mississippi State Tax Commission where the assessment of the liability has been made against that person as provided by law and such assessment is not subject to any further timely filed administrative or judicial review. Revocation of such permit, or engaging or continuing in business after such permit is revoked or engaging in business without a permit, shall subject the person to all the penalties imposed by this chapter.
(5) Any person liable for the tax who fails to obtain a permit from the commissioner, or who continues in business after such permit has been revoked, or who fails to make his returns for taxation as provided, or who fails to keep adequate records and invoices provided by this chapter, or who fails or refuses to permit inspection of such records, or who fails to pay any taxes due hereunder, shall forfeit his rights to do business in this state until he complies with all the provisions of this chapter and until he enters into a bond, with sureties, to be approved by the commissioner, in an amount not to exceed twice the amount of all taxes estimated to become due under this chapter by the person for any period of three (3) months, conditioned to comply with the provisions of this chapter, and pay all taxes legally due by him.
(6) If any person is engaged in or continuing in this state in any business or activity without obtaining a permit, or after the permit has been revoked, or without filing a required bond, or without keeping and allowing inspection of all records required by this chapter, or without making a return, or returns, and without paying all taxes due by him hereunder, it shall be the duty of the commissioner to proceed by injunction to prevent the continuance of the business. Any temporary injunction enjoining the continuance of the business shall be granted without notice by a judge or chancellor now authorized to grant injunctions.
SECTION 28. Section 27-65-57, Mississippi Code of 1972, is amended as follows:
27-65-57. If any person liable for the payment of sales taxes, damages or interest fails or refuses to pay them after receiving the notice and demand as provided in Sections 27-65-35 and 27-65-37, and if such person has not filed a timely appeal to the board of review as provided by law, the commissioner may file a notice of a tax lien for the sales taxes, damages and interest with the circuit clerk of the county in which the taxpayer resides or owns property which shall be enrolled as a judgment on the judgment roll.
Immediately upon receipt of the notice of the tax lien for sales taxes, damages and interest, the circuit clerk shall enter the notice of a tax lien as a judgment upon the judgment roll and show in the appropriate columns the name of the taxpayer as judgment debtor, the name of the commissioner or State Tax Commission as judgment creditor, the amount of the taxes, damages and interest, and the date and time of enrollment. The judgment shall be valid as against mortgagees, pledgees, entrusters, purchasers, judgment creditors, and other persons from the time of filing with the clerk. The amount of the judgment shall be a debt due the State of Mississippi and remain a lien upon all property and rights to property belonging to the taxpayer, both real and personal, including choses in action, with the same force and like effect as any enrolled judgment of a court of record, and shall continue until satisfied. The judgment shall be the equivalent of any enrolled judgment of a court of record and shall serve as authority for the issuance of writs of execution, writs of attachment, writs of garnishment or other remedial writs. The commissioner may issue warrants for collection of sales taxes from such judgments, in lieu of the issuance of any remedial writ by the circuit clerk, as provided in Sections 27-65-59 and 27-65-61 hereof; * * * however, * * * such judgment shall not be a lien upon the property of the taxpayer for a longer period than seven (7) years from the date of the filing of the notice of tax lien for sales taxes, damages and interest unless action be brought thereon before the expiration of such time or unless the commissioner refiles the notice of tax lien before the expiration of such time. The judgment shall be a lien upon the property of the taxpayer for a period of seven (7) years from the date of refiling the notice of tax lien unless action be brought thereon before the expiration of such time or unless the commissioner refiles the notice of tax lien before the expiration of such time. There shall be no limit upon the number of times that the commissioner may refile notices of tax liens.
Upon failure to pay the taxes imposed under this chapter by any taxpayer who has executed any bond under provisions of this chapter, the commissioner shall give notice of the failure to the sureties of the bond and demand payment of the tax, damages and interest within ten (10) days. If the sureties on the taxpayer's bond shall fail or refuse to pay the penal sum demanded within the ten (10) days allowed, the commissioner shall file a notice of tax lien with the circuit clerk of the county in which the sureties reside or own property which shall be enrolled upon the judgment roll, and the commissioner may proceed to collect from the sureties as hereinafter provided for collecting from any judgment debtor.
The commissioner is hereby authorized to pay the clerk's fee for enrolling the notice of tax lien out of funds appropriated by the Legislature to defray expenses of the State Tax Commission.
SECTION 29. Section 27-69-9, Mississippi Code of 1972, is amended as follows:
27-69-9. In addition to the penalties imposed in this chapter, after the second offense for any violation, the commissioner may revoke any permit which may have been issued to any person, or persons, violating any provisions of this chapter, or any rules or regulations promulgated by the commissioner under authority of this chapter * * *.
The commissioner, in the event a permit is revoked, is required to notify by letter, all manufacturers, wholesalers and distributors having a permit required by this chapter, that the permit has been revoked, and such manufacturer, wholesaler and distributor is henceforth prohibited from selling taxable tobacco to such dealer or retailer.
SECTION 30. Section 27-73-1, Mississippi Code of 1972, is amended as follows:
27-73-1. (1) If any person, firm or corporation has paid, or shall hereafter pay to the Auditor of Public Accounts * * * or the Commissioner of Insurance, through error or otherwise, whether paid under protest or not, any ad valorem, privilege or excise tax for which the person, firm or corporation was not liable, or if any such taxpayer has paid any tax in excess of the sum properly due and such erroneous payment or overpayment has been paid into the proper treasury, the taxpayer shall be entitled to a refund of the taxes so erroneously paid. Taxes erroneously paid within the meaning of this section shall include double payment, or overpayment, or payment on state, United States, vacant and exempt land, and the purchase price paid for the redemption of lands erroneously sold for taxes.
Claims for refund under the provisions of this section shall be filed with the Auditor of Public Accounts and shall be supported by proper documents showing the overpayment or erroneous payment for which claim is made. The * * * auditor is hereby authorized and required to make a careful investigation and audit of all such claims and if he shall find that the taxes or monies covered by the * * * claim have been erroneously paid into the treasury of the state, county, drainage or levee districts, he shall distribute the claim against each separate fund in proportion to the amount paid over to such fund in each case, and submit the audited claim with the voucher and evidence upon which the claim is based, to the Attorney General for his approval. The Attorney General shall have plenary power to require the claimant or the officer who collected the tax to furnish any * * * additional documents or information as may in his opinion be necessary or proper to enable him to determine the merits of the claim.
If the Attorney General shall be of the opinion that the claim is in proper form and complies with the requirements of this section, he shall approve the claim and return it to the Auditor of Public Accounts, who shall thereupon file in his office the audited claim, together with the Attorney General's approval and all other documents relating to the claim, as a voucher, and issue his warrant on the State Treasurer in favor of the claimant for the amount of purchase money or taxes erroneously paid into the State Treasury. The auditor shall then certify to the clerk of the board of supervisors, the secretary of the drainage district board, or the secretary of the levee board, as the case may be, the amount, if any, found to be due to the claimant by the county, drainage district or levee district. Upon receipt of the certificate, the board of supervisors, or the commissioners of the drainage district or of the levee district, shall cause a warrant to be issued on the treasurer of the county or drainage or levee district, as the case may be, in favor of the claimant for the amount erroneously paid into their respective treasuries.
If the Attorney General shall disapprove the claim, he shall return it to the Auditor of Public Accounts accompanied by his opinion which shall show the reason for his disapproval, whereupon the auditor shall promptly notify the claimant of the disapproval. A claimant taxpayer being aggrieved at the disapproval may, within six (6) months from the date thereof, file in the chancery court his petition for appeal and review. All * * * petitions for appeal and review shall be filed in the chancery court of the county in which the money for which refund is claimed was originally paid, and shall be accompanied by a bond in the sum of Five Hundred Dollars ($500.00) conditioned to pay all costs which may accrue in the case, which bond shall be approved by the clerk of the * * * court. Upon the approval of the bond, the chancery clerk shall give the Attorney General and the Auditor of Public Accounts notice, as required by law, of the filing of the petition. It shall be the duty of the * * * auditor to promptly transmit to the court in which the appeal is pending a certified copy of the entire record of the claim as shown by the files in his office, which record shall be docketed by the clerk in the cause, and the controversy shall be tried by the court on such record. It shall be the duty of the Attorney General to defend on behalf of the state, and he may request the district attorney, county attorney or attorney for the drainage or levee district, as the case may be, to defend on behalf of the county, drainage or levee district. If the claimant taxpayer shall prevail, judgment shall be entered requiring the payment of the claim in like manner as if it had been duly approved by the Attorney General. If, however, the action of the Attorney General in disapproving the claim shall be affirmed by the court, judgment shall be entered against the appealing taxpayer for the costs of the proceedings.
Nothing in this section shall be so construed as to authorize the recovery or repayment of any tax heretofore levied and collected by any special road district, drainage district, or separate school district, on account of, or upon the ground that the law authorizing such tax was unconstitutional, whether the unconstitutionality of such tax be based upon the creation or mode of operation of any special road district, drainage district or separate school district. Provided further, that nothing in this section shall be construed as authorizing the refunding of state taxes paid into the State Treasury through error, or otherwise, or satisfying a judgment or decree against the state except through an appropriation therefor by the Legislature.
(2) This section shall not be construed as repealing or modifying Section 27-73-7, or any other law providing for the application for or the certification of a claim for refund, but shall be taken and construed as an additional and supplemental method of refunding taxes erroneously paid.
SECTION 31. Section 67-3-29, Mississippi Code of 1972, is amended as follows:
67-3-29. (1) The commissioner, or a hearing officer or the board of review, as designated by the commissioner, after a show cause hearing, shall revoke or suspend any permit granted by authority of this chapter to any person who shall violate any of the provisions of this chapter or the revenue laws of this state relating to engaging in transporting, storing, selling, distributing, possessing, receiving or manufacturing of wines or beers, or any person who shall hereafter be convicted of the unlawful sale of intoxicating liquor, or any person who shall allow or permit any form of illegal gambling or immorality on the premises described in such permit. The commissioner shall not revoke or suspend a permit of a retailer for the sale of light wine or beer to a person under the age of twenty-one (21) years until there has been a conviction of the permit holder or an employee of the permit holder for such violation.
(2) If any person exercising any privilege taxable under the provisions of Chapter 71 of Title 27, Mississippi Code of 1972, shall willfully neglect or refuse to comply with the provisions of such chapter, or any rules or regulations promulgated by the commissioner under authority of such chapter, or the provisions of this chapter, including maintaining the qualifications of an applicant under Section 67-3-19, during the permit period, the commissioner shall be authorized to revoke or suspend the permit theretofore issued to the person * * *. Any person whose permit shall have been revoked by the commissioner shall be thereafter prohibited from exercising any privilege under the provisions of Chapter 71 of Title 27, Mississippi Code of 1972, for a period of two (2) years from the date of the revocation. The commissioner may, however, for good cause shown, grant a new permit upon such conditions as the commissioner may prescribe. Any person whose permit shall have been suspended by the commissioner shall be prohibited from exercising any privilege under the provisions of Chapter 71 of Title 27, Mississippi Code of 1972, during the period of the suspension. Failure of the person to comply with the terms of the suspension shall be cause for revocation of his permit, in addition to the other penalties provided by law.
(3) In addition to the reasons specified in this section and other provisions of this chapter, the commissioner shall be authorized to suspend the permit of any permit holder for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a permit for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a permit suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a permit suspended for that purpose, shall be governed by Section 93-11-157 or Section 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or Section 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 32. Section 67-3-59, Mississippi Code of 1972, is amended as follows:
67-3-59. (1) Except as * * * provided in this subsection, sales by wholesalers, distributors or manufacturers to persons who do not hold valid permits are unlawful; and any wholesaler, distributor or manufacturer making such sales, or who sells any beer or light wine on which the tax provided by law has not been paid, shall, in addition to any other fines, penalties and forfeitures, be subject to a penalty of Twenty-five Dollars ($25.00) for each * * * sale. If all other applicable taxes are paid, this penalty will not apply to the following: sales to employees of the wholesaler; sales to nonprofit charitable and civic organizations for special fund-raising events provided that the beer or light wine is not resold; sales to affiliated member associations.
(2) The commissioner may assess the penalty by giving notice by * * * mail, demanding payment within thirty (30) days from date of delivery of the notice. * * *
The proceeds of all penalties shall be deposited by the commissioner with the other monies collected by him and shall be disposed of as provided by law.
SECTION 33. Section 75-23-25, Mississippi Code of 1972, is amended as follows:
75-23-25. The State Tax Commission shall prescribe, adopt and enforce rules and regulations relating to the administration and enforcement of the Unfair Cigarette Sales Law.
The commission is hereby empowered to and may from time to time undertake and make or cause to be made one or more cost surveys for the state or such trading area or areas as it shall define and when a cost survey shall have been made by or approved by it, it shall be permissible to use the cost survey as provided in * * * Section 75-23-19(b) * * *. The commission may revoke or suspend the license issued under the provisions of this law or the tobacco tax law of this state, of any person who refuses or neglects to comply with any provisions of this article or any rule or regulation of the commission prescribed under this article.
Whenever any person fails to comply with any provision of the Unfair Cigarette Sales Law or any rule or regulation of the commission promulgated thereunder, the commission * * *, or a hearing officer or the board of review, as designated by the commissioner, after a show cause hearing, may revoke or suspend the license held by the person.
Any ruling, order or decision of the commission shall be subject to review, as provided by law, in any court of competent jurisdiction in the county in which the person affected resides.
SECTION 34. Section 25-43-1.102, Mississippi Code of 1972, is amended as follows:
25-43-1.102. As used in this chapter, the following terms shall have the meanings ascribed to them in this section unless the context otherwise requires:
(a) "Agency" means a board, commission, department, officer or other administrative unit of this state, including the agency head, and one or more members of the agency head or agency employees directly or indirectly purporting to act on behalf or under the authority of the agency head. The term does not include the Legislature or any of its component units, the judiciary or any of its component units or the Governor. The term does not include a political subdivision of the state or any of the administrative units of a political subdivision. * * * To the extent it purports to exercise authority subject to any provision of this chapter, an administrative unit otherwise qualifying as an "agency" must be treated as a separate agency even if the unit is located within or subordinate to another agency.
(b) "Agency head" or "head of the agency" means an individual or body of individuals in whom the ultimate legal authority of the agency is vested by any provision of law.
(c) "Agency proceeding" or "proceeding" means the process by which an agency considers:
(i) A declaratory opinion pursuant to Section 25-43-2.103, or
(ii) A rule pursuant to Article III of this chapter.
(d) "Agency record" means the official rule-making record of an agency pursuant to Section 25-43-3.112.
(e) "Declaratory opinion" means an agency opinion rendered in accordance with the provisions of Section 25-43-2.103.
(f) "Order" means an agency action of particular applicability that determines the legal rights, duties, privileges, immunities or other legal interests of one or more specific persons. An order shall be in writing signed by a person with authority to render the order, or if more than one (1) person has such authority by at least that number of such persons as jointly have the authority to render the order, or by a person authorized to render the order on behalf of all such persons. The term does not include an executive order issued by the Governor pursuant to Section 25-43-1.104, an opinion issued by the Attorney General pursuant to Section 7-5-25, an opinion issued by the Ethics Commission pursuant to Section 25-4-17, or a declaratory opinion rendered in accordance with Section 25-43-2.103.
(g) "Person" means an individual, partnership, corporation, association, governmental subdivision or unit thereof, or public or private organization or entity of any character, and includes another agency.
(h) "Provision of law" or "law" means the whole or a part of the federal or state Constitution, or of any federal or state (i) statute, (ii) case law or common law, (iii) rule of court, (iv) executive order, or (v) rule or order of an administrative agency.
(i) "Rule" means the whole or a part of an agency regulation or other statement of general applicability that implements, interprets or prescribes:
(i) Law or policy, or
(ii) The organization, procedure or practice requirements of an agency. The term includes the amendment, repeal or suspension of an existing rule. "Rule" does not include:
1. A regulation or statement concerning only the internal management of an agency which does not directly and substantially affect the procedural or substantive rights or duties of any segment of the public;
2. A regulation or statement that establishes criteria or guidelines to be used by the staff of an agency in performing audits, investigations or inspections, settling commercial disputes, negotiating commercial arrangements or in the defense, prosecution or settlement of cases, if disclosure of the criteria or guidelines would:
a. Enable law violators to avoid detection;
b. Facilitate disregard of requirements imposed by law; or
c. Give a clearly improper advantage to persons who are in an adverse position to the state;
3. A regulation or statement that only establishes specific prices to be charged for particular goods or services sold by an agency;
4. A regulation or statement concerning only the physical servicing, maintenance or care of agency owned or operated facilities or property;
5. A regulation or statement relating only to the use of a particular facility or property owned, operated or maintained by the state or any of its subdivisions, if the substance of the regulation or statement is adequately indicated by means of signs or signals to persons who use the facility or property;
6. A regulation or statement directly related only to inmates of a correctional or detention facility, students enrolled in an educational institution or patients admitted to a hospital, if adopted by that facility, institution or hospital;
7. A form whose contents or substantive requirements are prescribed by rule or statute, and instructions for the execution or use of the form;
8. An agency budget;
9. A compact or agreement between an agency of this state and one or more agencies of another state or states; or
10. An opinion of the Attorney General pursuant to Section 7-5-25, an opinion of the Ethics Commission pursuant to Section 25-4-17, or an Executive Order of the Governor.
(j) "Rule-making" means the process for formulation and adoption of a rule.
SECTION 35. Section 25-43-2.103, Mississippi Code of 1972, is amended as follows:
25-43-2.103. Declaratory opinions. (1) Any person with a substantial interest in the subject matter may make a written request of an agency for a declaratory opinion as to the applicability to specified circumstances of a statute, rule or order within the primary jurisdiction of the agency. Such written request must clearly set forth the specific facts upon which an opinion is asked for and shall be limited to a single transaction or occurrence. An agency, through the agency head or its designee(s) by rule, shall issue a declaratory opinion in response to a written request for that opinion unless the agency determines that issuance of the opinion under the circumstances would be contrary to a rule adopted in accordance with subsection (2) of this section.
(2) Each agency shall issue rules that provide for: (a) the form, contents and filing of written requests for declaratory opinions; (b) the procedural rights of persons in relation to the written requests; and (c) the disposition of the written requests. Those rules must describe the classes of circumstances in which the agency will not issue a declaratory opinion.
(3) Within forty-five (45) days after receipt of a written request for a declaratory opinion, an agency, in writing, shall:
(a) Issue an opinion declaring the applicability of the statute, rule or order in question to the specified circumstances;
(b) Agree to issue a declaratory opinion by a specified time but no later than ninety (90) days after receipt of the written request; or
(c) Decline to issue a declaratory opinion, stating the reasons for its action.
(4) A copy of all opinions issued in response to a written request for a declaratory opinion must be mailed promptly to the requesting person.
(5) (a) When any person receives a declaratory opinion from an agency and shall have stated all the facts to govern such opinion, the agency shall take no civil or criminal action against such person who, in good faith, follows the direction of such opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support. No declaratory opinion shall be given or considered if the opinion is requested after suit is filed or prosecution begun. Any declaratory opinion rendered pursuant to this chapter shall not be binding or effective for any third party or person other than the agency issuing the declaratory opinion and the person to whom the opinion is issued and shall not be used as precedent for any other transaction or occurrence beyond that set forth by the requesting person.
(b) The authority of persons to request and receive agency declaratory opinions in no way affects the ability of any person authorized by Section 7-5-25 to request a legal opinion from the Attorney General.
(c) Subject to any confidentiality provisions established by law, each agency shall make all declaratory opinions available for public inspection and copying and shall index them by name and subject, unless information contained within such opinions is confidential by statute or exempt from public disclosure pursuant to another provision of law.
(6) Without in any way limiting a person's right to request and receive a declaratory opinion under this section, or an agency's duty to issue a declaratory opinion under this section, nothing contained in this section shall prohibit an agency from providing informal responses or advice, orally or in writing, to any inquiries or requests for information submitted to the agency. Informal responses shall not be considered a declaratory opinion under this section.
SECTION 36. Sections 27-3-29, 27-7-71, 27-7-73, 27-9-47, 27-13-43, 27-13-45, 27-19-337, 27-55-41, 27-55-549, 27-57-29, 27-59-43, 27-59-317, 27-61-35, 27-65-45, 27-65-47, 27-65-49, 27-67-23, 27-67-25, 27-67-27, 27-69-43 and 63-21-61, Mississippi Code of 1972, which provide for hearings and appeals from certain actions of the State Tax Commission, are repealed.
SECTION 37. Nothing in this act shall affect or defeat any assessment, refund claim, request for waiver of a tax penalty or the suspension, revocation, surrender, seizure or denial of permit, tag or title or the administrative appeal or judicial appeal thereof where the initial date of said assessment, refund claim, tag penalty, denial, notice of the intent to suspend, notice of the intent to revoke, request for surrender or order for seizure is before the date on which this act becomes effective. The provisions of the laws relating to the administrative appeal or judicial review of such actions which were in effect prior to the effective date of this act are expressly continued in full force, effect and operation for the purpose of providing an administrative appeal and/or judicial review of any assessment, refund claim, request for waiver of a tag penalty or the suspension, revocation, surrender, seizure or denial of a permit, tag or title where the initial date of said assessment, refund claim, tag penalty, denial, notice of the intent to suspend, notice of the intent to revoke, request for surrender or order for seizure is before the date on which this act becomes effective.
SECTION 38. Sections 1 through 10 of this act shall be codified as a separate chapter in Title 27, Mississippi Code of 1972.
SECTION 39. This act shall take effect and be in force from and after July 1, 2005.