Section 887-X-1-.3 - Appeals (Alabama Administrative Code)

§ 887-X-1-.3. Appeals

(1) Any taxpayer may appeal to the Tax Tribunal from any refund denied by the Department or final assessment entered by the Department concerning a state tax or a county or municipal tax being administered by the Department, the cancellation, revocation, or denial of any license, permit, or registration administered by the Department, or any other act or proposed act or refusal to act by the Department. A taxpayer may also appeal to the Tax Tribunal from a refund denied by or on behalf of a self-administered county or municipality or a final assessment entered by or on behalf of a self-administered county or municipality concerning a sales, use, rental, or lodgings tax levied by the county or municipality; provided, the self-administered county or municipality has not duly elected to opt-out and divest the Tax Tribunal of jurisdiction to hear such appeals. A taxpayer may also appeal to the Tax Tribunal (1) to determine the propriety of any retroactive revocation of a Department revenue ruling, (2) to challenge the Department's proposed adjustment to a taxpayer's net operating loss or carryback, and (3) to dispute a preliminary assessment entered by the Department or a self-administered county or municipality that has not been made final or withdrawn within 5 years from the date of entry; provided, the self-administered county or municipality has not duly elected to opt-out and divest the Tax Tribunal of jurisdiction to hear such appeals.

(2) The Tax Tribunal shall not have jurisdiction to hear appeals of assessments of ad valorem taxes of real or personal property administered by the various counties in Alabama, except concerning the determination and assessment of public utility property under Chapter 21 of Title 40. The Tax Tribunal also shall not have jurisdiction to hear Department personnel actions, any issue that is the subject of an action pending in state or federal court, or any action concerning the collection of any final tax liability owed the State; nor shall the Tax Tribunal have jurisdiction to hear appeals of refunds denied by or final assessments entered by a self-administered county or municipality filed after the self-administered county or municipality has duly opted-out and divested the Tax Tribunal of jurisdiction to hear such appeals.

(3) Any taxpayer entitled to appeal to the Tax Tribunal pursuant to subsection (a) above shall commence an appeal by filing a notice of appeal with the Tax Tribunal. The Tax Tribunal is located at 2 North Jackson Street, Suite 301, Montgomery, AL 36104. Appeals should be mailed to the Tax Tribunal at P.O. Box 327130, Montgomery, AL 36132-7130:

(a) within 30 days from the date on which a final assessment is mailed as provided in Section 40-2A-7(b)(4) d. or delivered by personal service, whichever occurs earlier;

(b) within two years from the date on which a petition for refund is denied or deemed denied;

(c) within 30 days after the date on which the Department mails notice of any act or proposed act or refusal to act from which the taxpayer is entitled to appeal pursuant to Section 40-2A-8. If a taxpayer that is detrimentally affected by an act or proposed act or refusal to act by the Department is not mailed notice of such act, proposed act, or refusal to act under Section 40-2A-8, the taxpayer may appeal to the Tax Tribunal within 30 days from receiving actual notice of the act, proposed act, or refusal to act; provided, however, the burden is on the taxpayer to show that the appeal was filed within 30 days of actual notice;

(d) within 30 days after the date on which the Department mails notice of a proposed adjustment to a taxpayer's net operating loss deduction or carryover concerning the taxes imposed by Chapters 16 or 18 of Title 40; and

(e) within 30 days after 5 years from the date a preliminary assessment was entered by the Department or a self-administered county or municipality within the jurisdiction of the Tax Tribunal that has not been withdrawn or made final by the Department or the self-administered county or municipality.

(4)

(a) An appeal to the Tax Tribunal may be filed using the following forms:

(i) Form ATT-1 concerning appeals involving final assessments, denied refunds, proposed adjustments to a net operating loss or carryover, or challenges to a preliminary assessment that has not been made final or withdrawn within 5 years from the date of entry;

(ii) Form ATT-2 concerning appeals involving self-administered counties or municipalities; and

(iii) Form ATT-3 concerning appeals involving motor vehicle license, registration, or title disputes, or any act or proposed act or refusal to act by the Department. A taxpayer may also use any other form of notice of appeal that includes the information in subsection (d)(2).

(b) The notice of appeal shall identify or include:

(i) the final assessment, denied refund, proposed adjustment by the Department to a net operating loss, or other act, proposed act, or refusal to act by the Department from which the taxpayer is appealing;

(ii) the position of the appealing party;

(iii) the relief sought; and

(iv) the legal or other basis on which relief should be granted. Failure to include the above information shall not, by itself, be grounds for dismissal of the appeal. The Tax Tribunal Judge may require the taxpayer to file an amended notice of appeal if additional information is deemed necessary.

(5)

(a) Upon receipt of a timely filed notice of appeal involving the Department and/or a county or municipality whose local taxes are administered by the Department, the Tax Tribunal shall submit a copy of the appeal, with attachments, if any, to the Department's Legal Division, with a Notice to Legal Division directing the Legal Division to file an Answer in the case within 45 days after receipt of the Notice. The Tax Tribunal shall also notify the taxpayer or the taxpayer's representative that it has received the appeal, and the date on which the Notice to Legal Division was transmitted to the Legal Division. A Notice to Legal Division shall be deemed received by the Legal Division 3 business days from the date on which the Tax Tribunal transmits the Notice to Legal Division to the Legal Division, or the date on which the notice is file-stamped as received by the Legal Division, whichever occurs first. The Legal Division may be allowed up to a 45 day extension to file its Answer, but only if the Legal Division files a written extension request with the Tax Tribunal before the initial 45 day period has expired and specifies in the request why an extension is necessary and should be granted. The Tax Tribunal may in its discretion grant the requested extension for any period it deems appropriate, up to 45 days. If an extension request is granted for a period less than 45 days, no additional extension will be allowed absent extraordinary circumstances.

(b) If an appeal involves a self-administered county or municipality, the Tax Tribunal shall mail a copy of the appeal, with attachments, if any, by U.S. mail with delivery confirmation or certified U.S. mail, to the administrator or clerk of the subject self-administered county or municipality with a Notice to County or Notice to Municipality or its designee, if any, directing the county, municipality, or designee to file an Answer within 45 days after receipt of the Notice. The Tax Tribunal shall also notify the taxpayer or the taxpayer's representative that the Tax Tribunal has received the appeal, and the date on which the Notice to County or Notice to Municipality was transmitted to the county, municipality, or designee. A Notice to County or Notice to Municipality shall be deemed received by the county, municipality, or designee 3 business days from when the Tax Tribunal transmits the Notice to County or Notice to Municipality to the county, municipality, or designee, or the date on which it is received by the county, municipality, or designee, whichever occurs first. The county, municipality, or designee may be allowed up to a 45 day extension to file its Answer, but only if the county, municipality, or designee files a written extension request with the Tax Tribunal before the initial 45 day period has expired, and specifies in the request why an extension is necessary and should be granted. The Tax Tribunal may in its discretion grant the requested extension for any period it deems appropriate, up to 45 days. If an extension request is granted for a period less than 45 days, no additional extension will be granted absent extraordinary circumstances. If the Answer is filed by a designee representing a self-administered county or municipality or multiple self-administered counties and municipalities, the timely filing of the Answer by the designee shall constitute the timely filing of an Answer by all self-administered jurisdictions represented in the appeal.

(c) If the Department's Legal Division or a self-administered county or municipality fails to file its Answer or file a written extension request with the Tax Tribunal within the 45 day period, or, if an extension is requested and granted, within the extended period, the Tax Tribunal shall grant the relief requested by the taxpayer. As a courtesy, the Tax Tribunal shall within 10 days before the Answer due date provide the Legal Division or the self-administered county or municipality or designee required to file the Answer with notice by electronic transmission that the Answer is due; provided, however, the Tax Tribunal's failure to transmit the notice and/or the failure of the Legal Division or self-administered county or municipality or designee to receive the notice shall not relieve the Legal Division or self-administered county or municipality or designee of the duty to timely file the Answer.

(6)

(a) Upon the timely filing of an Answer with the Tax Tribunal, the Tribunal may, at the discretion of the Tax Tribunal Judge, enter a preliminary or other order:

(i) directing one or more parties to take such action as deemed appropriate by the Tax Tribunal Judge under the circumstances;

(ii) referring any disputed issue or issues in a case involving the Department or a county or municipality whose taxes are administered by the Department to the Department's Office of Taxpayer Advocacy for review;

(iii) holding the appeal in abeyance if agreed by the parties or deemed appropriate and necessary by the Tax Tribunal Judge; or

(iv) setting the case for hearing. A copy of the Answer shall be submitted to the taxpayer or taxpayer's representative after the Answer is filed with the Tax Tribunal.

(b) The taxpayer may, but is not required to, file a reply to the Answer with the Tax Tribunal within 30 days after receipt of the Answer. The Legal Division or a self-administered county, municipality, or designee may, but is not required to, file an amended Answer, from which the taxpayer may, but is not required to, file a response.

(c) The notice of appeal and any subsequent pleadings submitted by the parties shall be deemed to conform to the evidence submitted by the parties. If an issue is raised or evidence is presented at a hearing that was not previously pled or raised, the opposing party may, at the discretion of the Tax Tribunal Judge, be allowed time to address the issue or evidence, either through brief, or at a subsequent hearing in the case, as fairness dictates.

(Amended by Alabama Administrative Monthly Volume XXXII, Issue No. 12, September 30, 2014, eff. October 14, 2014.)

Author: William L. Thompson

Statutory Authority: Code of Ala. 1975, § 40-2B-1

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