| 1 | A bill to be entitled |
| 2 | An act relating to a tax tribunal; establishing the tax |
| 3 | tribunal in the executive branch of government; providing |
| 4 | for the number, appointment, salary, term of office, and |
| 5 | removal of judges; providing qualifications; prohibiting |
| 6 | certain other employment; authorizing judges to employ |
| 7 | certain personnel; designating such employees as state |
| 8 | employees within the Selected Exempt Service; providing |
| 9 | for the principal office and locations and facilities of |
| 10 | the tax tribunal; providing for appointment of a clerk and |
| 11 | court reporter; providing for expenditures of the tax |
| 12 | tribunal; providing for jurisdiction of the tax tribunal; |
| 13 | providing for informal resolution of tax disputes under |
| 14 | certain circumstances; providing requirements and |
| 15 | procedures; providing requirements and procedures for |
| 16 | pleadings before the tax tribunal; providing for fees for |
| 17 | filings and reports; providing requirements and procedures |
| 18 | for discovery and stipulations; providing requirements and |
| 19 | procedures for hearings; providing requirements for |
| 20 | decisions of the tax tribunal; establishing a small claims |
| 21 | division of the tax tribunal for certain purposes; |
| 22 | providing jurisdiction of the division; providing |
| 23 | requirements and procedures for matters brought before the |
| 24 | division; providing for appeals from decision of the tax |
| 25 | tribunal; providing for representation before the tax |
| 26 | tribunal; providing for publication of decisions; |
| 27 | providing requirements for service of process; authorizing |
| 28 | the tax tribunal to adopt rules; providing for application |
| 29 | in the event of conflict with certain other laws; |
| 30 | providing for appointment of judges; providing for |
| 31 | application to certain proceedings; providing an |
| 32 | appropriation; requiring the chief judge of the tax |
| 33 | tribunal to submit budget requests to the Legislature each |
| 34 | year; providing an effective date. |
| 35 |
|
| 36 | WHEREAS, the Legislature wishes to increase public |
| 37 | confidence in the fairness of the state tax system, and |
| 38 | WHEREAS, the Legislature finds that the business climate of |
| 39 | the state will be enhanced by the stability and certainty which |
| 40 | will be provided by an independent agency with tax expertise to |
| 41 | resolve disputes between the Department of Revenue and |
| 42 | taxpayers, prior to requiring the payment of the amounts in |
| 43 | issue or the posting of a bond, but after the taxpayer has had a |
| 44 | full opportunity to attempt settlement with the Department of |
| 45 | Revenue based, among other things, on the hazards of litigation, |
| 46 | and |
| 47 | WHEREAS, the Legislature finds that establishing an |
| 48 | independent tax tribunal within the executive branch of |
| 49 | government will provide taxpayers with a means of resolving |
| 50 | disputes that insures both the appearance and the reality of due |
| 51 | process and fundamental fairness, and |
| 52 | WHEREAS, it is the intent of the Legislature that tax |
| 53 | tribunal process created by this act foster the settlement or |
| 54 | other resolution of tax disputes to the extent possible and, in |
| 55 | cases in which litigation is necessary, to provide the people of |
| 56 | this state with a fair, independent, prepayment procedure to |
| 57 | determine a dispute with the Department of Revenue, NOW, |
| 58 | THEREFORE, |
| 59 |
|
| 60 | Be It Enacted by the Legislature of the State of Florida: |
| 61 |
|
| 62 | Section 1. (1) TAX TRIBUNAL; ESTABLISHMENT.-- |
| 63 | (a) A tax tribunal is hereby established in the executive |
| 64 | branch of government. |
| 65 | (b) The tax tribunal shall be separate from and |
| 66 | independent of the authority of the executive director and the |
| 67 | Department of Revenue. |
| 68 | (c) The tax tribunal shall have a seal. |
| 69 | (d) The tax tribunal is created and shall exist on and |
| 70 | after January 1, 2008. The judges of the tax tribunal may be |
| 71 | appointed prior to such date and may take any action that is |
| 72 | necessary to enable the judges to properly exercise the duties, |
| 73 | functions, and powers given the tax tribunal under this section |
| 74 | after that date. |
| 75 | (2) JUDGES; NUMBER; APPOINTMENT; TERM OF OFFICE; |
| 76 | REMOVAL.-- |
| 77 | (a) The tax tribunal shall consist of at least three full- |
| 78 | time judges but no more than five full-time judges. Each judge |
| 79 | shall exercise the powers of the tax tribunal. For purposes of |
| 80 | this act, the term "judge" does not mean a judge of the judicial |
| 81 | branch but is an officer equivalent to an administrative law |
| 82 | judge for the tax purposes as provided in this act. |
| 83 | (b) The judges of the tax tribunal shall be appointed by |
| 84 | the Governor, with the advice and consent of the Senate, for a |
| 85 | term of 4 years. The judges initially appointed shall be given |
| 86 | terms of different lengths not exceeding 4 years, so that all |
| 87 | judges' terms do not expire in the same year. A judge may be |
| 88 | reappointed to the tax tribunal after the expiration of the |
| 89 | judge's term. |
| 90 | (c) Each judge of the tax tribunal shall receive an annual |
| 91 | salary no less than that provided for circuit court judges, |
| 92 | which salary shall not be diminished during the judge's term of |
| 93 | appointment. |
| 94 | (d) Once appointed and confirmed, each judge shall |
| 95 | continue in office until his or her term expires and until a |
| 96 | successor has been appointed and confirmed. |
| 97 | (e) A vacancy on the tax tribunal occurring otherwise than |
| 98 | by the expiration of his or her term shall be filled for the |
| 99 | unexpired term in the same manner as an original appointment. |
| 100 | (f) The Governor shall designate one of the members as |
| 101 | chief judge. The chief judge shall be the executive of the tax |
| 102 | tribunal, shall have sole charge of the administration of the |
| 103 | tax tribunal, and shall apportion among the judges all causes, |
| 104 | matters, and proceedings coming before the tax tribunal. |
| 105 | (g) The Governor may remove a judge, after notice and an |
| 106 | opportunity to be heard, for neglect of duty, inability to |
| 107 | perform duties, malfeasance in office, or other good cause, with |
| 108 | the advice and consent of the Senate. |
| 109 | (h) Whenever the tax tribunal's trial docket or order of |
| 110 | business becomes congested or any judge of the tax tribunal is |
| 111 | absent, is disqualified, or for any other reason is unable to |
| 112 | perform his or her duties as judge, and it appears to the |
| 113 | Governor that it is advisable that the services of an additional |
| 114 | judge or judges be provided, the Governor may appoint a judge, |
| 115 | or judges, pro tempore of the tax tribunal. Any person appointed |
| 116 | judge pro tempore of the tax tribunal shall have the |
| 117 | qualifications set forth in paragraphs (4)(a) and (b) and shall |
| 118 | be entitled to serve for a period of no longer than 6 months. |
| 119 | (i) A judge may disqualify himself or herself on his or |
| 120 | her own motion in any matter and may be disqualified for any of |
| 121 | the causes specified in the Florida Statutes governing the |
| 122 | disqualification of circuit judges. |
| 123 | (3) JUDGES; QUALIFICATIONS; PROHIBITION AGAINST OTHER |
| 124 | GAINFUL EMPLOYMENT.-- |
| 125 | (a) Each judge of the tax tribunal shall be a citizen of |
| 126 | the United States and, during the period of his or her service, |
| 127 | a resident of this state. No person shall be appointed as a |
| 128 | judge unless at the time of appointment the individual has |
| 129 | substantial knowledge of the tax laws of this state and has been |
| 130 | a member of The Florida Bar for a period of at least 10 years. |
| 131 | (b) Before entering upon the duties of office, each judge |
| 132 | shall take and subscribe to an oath or affirmation that he or |
| 133 | she will faithfully discharge the duties of the office, and such |
| 134 | oath shall be filed in the office of the Secretary of State. |
| 135 | (c) Each judge shall devote his or her full time during |
| 136 | business hours to the duties of his or her office. A judge may |
| 137 | not engage in any other gainful employment or business or hold |
| 138 | another office or position of profit in an agency or political |
| 139 | subdivision of this state, any other state, or the United |
| 140 | States. Notwithstanding such limitation, a judge may own passive |
| 141 | interests in business entities and earn income from incidental |
| 142 | teaching or scholarly activities. Nothing in this paragraph |
| 143 | shall prohibit a judge from participation as a speaker in any |
| 144 | conference relating to state tax matters or issues. |
| 145 | (d) Each judge shall be entitled to hire a secretary and a |
| 146 | law clerk, whose salaries shall be equivalent, respectively, to |
| 147 | the salary of a senior secretary of a circuit judge in the |
| 148 | Circuit Court of the 2nd Judicial Circuit and the salary of a |
| 149 | law clerk for the 1st District Court of Appeals. |
| 150 | (e) All employees of the tax tribunal, except judges, |
| 151 | shall be deemed to be members of the Selected Exempt Service |
| 152 | class of state employees and shall be entitled to the benefits |
| 153 | awarded those employees. |
| 154 | (f) Tax tribunal judges shall have all the salary and |
| 155 | other benefits equal to those of circuit court judges. |
| 156 | (4) PRINCIPAL OFFICE; LOCATIONS; FACILITIES.-- |
| 157 | (a) The tax tribunal's principal office shall be located |
| 158 | in Tallahassee, Florida. |
| 159 | (b) The tax tribunal shall conduct hearings at its |
| 160 | principal office and may also hold hearings at any place within |
| 161 | the state, with a view toward securing to taxpayers a reasonable |
| 162 | opportunity to appear before the tax tribunal with as little |
| 163 | inconvenience and expense as practicable. |
| 164 | (c) The principal office of the tax tribunal shall be |
| 165 | located in a building that is separate and apart from the |
| 166 | building in which the Department of Revenue is located. When the |
| 167 | tax tribunal holds hearings outside of its principal office, it |
| 168 | shall do so in a location that is physically separated from |
| 169 | facilities regularly occupied by the Department of Revenue. |
| 170 | (d) The state, through the Department of Management |
| 171 | Services and in cooperation with the various state agencies, |
| 172 | shall provide hearing rooms, chambers, and offices for the tax |
| 173 | tribunal at its principal office and shall arrange for hearing |
| 174 | rooms, chambers, and offices or other appropriate facilities |
| 175 | when hearings are held elsewhere. |
| 176 | (5) APPOINTMENT OF CLERK AND REPORTER; EXPENDITURES OF THE |
| 177 | TAX TRIBUNAL.-- |
| 178 | (a) The tax tribunal shall appoint a clerk and a reporter |
| 179 | and may appoint such other employees and make such other |
| 180 | expenditures, including expenditures for a library, |
| 181 | publications, and equipment, as are necessary to permit it to |
| 182 | efficiently execute its functions. The salaries of the clerk and |
| 183 | reporter shall be equal to the salaries for similar officials of |
| 184 | the Division of Administrative Hearings. |
| 185 | (b) The reporter shall be subject to the provisions of |
| 186 | chapter 27, Florida Statutes, as if appointed by a judge of the |
| 187 | circuit court, except where such provisions are in conflict with |
| 188 | this section. |
| 189 | (c) No employee of the tax tribunal shall act as attorney, |
| 190 | representative, or accountant for others in a matter involving |
| 191 | any tax imposed or levied by this state. |
| 192 | (d) An employee of the tax tribunal may be removed by the |
| 193 | chief judge, after notice and an opportunity to be heard, for |
| 194 | neglect of duty, inability to perform duties, malfeasance in |
| 195 | office, or for other good cause. |
| 196 | (e) In addition to the services of the official reporter, |
| 197 | the tax tribunal may contract the reporting of its proceedings |
| 198 | and, in the contract, fix the terms and conditions under which |
| 199 | transcripts will be supplied by the contractor to the tax |
| 200 | tribunal and to other persons and agencies. |
| 201 | (6) JURISDICTION.-- |
| 202 | (a) Except as permitted by subsection (15), the tax |
| 203 | tribunal shall be the sole, exclusive, and final authority for |
| 204 | the hearing and determination of questions of law and fact |
| 205 | arising under the tax laws of this state administered by the |
| 206 | Department of Revenue as set forth in chapter 213, Florida |
| 207 | Statutes, except for ad valorem taxes imposed by the counties. |
| 208 | (b) Except as permitted by subsection (15), no person |
| 209 | shall contest any matter within the jurisdiction of the tax |
| 210 | tribunal in any action, suit, or proceeding in the circuit court |
| 211 | or any other court of the state. If a person attempts to do so, |
| 212 | such action, suit, or proceeding shall be dismissed without |
| 213 | prejudice. The improper commencement of any action, suit, or |
| 214 | proceeding shall not extend beyond the time period for |
| 215 | commencing a proceeding in the tax tribunal. |
| 216 | (c) Except in cases involving the denial of a claim for |
| 217 | refund and except as provided in the Florida Statutes regarding |
| 218 | jeopardy assessments, a taxpayer shall have the right to have |
| 219 | his or her case heard by the tax tribunal prior to the payment |
| 220 | of any amount asserted as due by the Department of Revenue and |
| 221 | prior to the posting of any bond. |
| 222 | (d) If, with or after the filing of a timely petition, a |
| 223 | taxpayer pays all or part of the tax or other amount in issue |
| 224 | before the tax tribunal has rendered a decision, the tax |
| 225 | tribunal shall treat the taxpayer's petition as a protest of a |
| 226 | denial of a claim for refund of the amount paid. |
| 227 | (e) The tax tribunal shall decide questions regarding the |
| 228 | constitutionality of the application of law to the taxpayer and |
| 229 | the constitutionality of regulations adopted by the Department |
| 230 | of Revenue but shall not have the power to declare a law |
| 231 | unconstitutional on its face. A taxpayer desiring to challenge |
| 232 | the constitutionality of a law on its face may, at the |
| 233 | taxpayer's election, do so by one of the following methods: |
| 234 | 1. Commence a declaratory action in a circuit court with |
| 235 | respect to the constitutional challenge and file a petition in |
| 236 | the tax tribunal with respect to the remainder of the matter, |
| 237 | which proceeding shall be stayed by the tax tribunal pending |
| 238 | final resolution of the constitutional challenge; |
| 239 | 2. File a petition with the tax tribunal with respect to |
| 240 | issues other than the constitutional challenge, in which the |
| 241 | taxpayer preserves the constitutional challenge until the entire |
| 242 | matter, including the constitutional challenge and the facts |
| 243 | related to the constitutional challenge, is presented to the |
| 244 | appellate court; or |
| 245 | 3. Bifurcate the matter by commencing a declaratory action |
| 246 | in a circuit court with respect to the facial constitutional |
| 247 | challenge and by filing a petition with the tax tribunal with |
| 248 | respect to the remainder of the issues. |
| 249 | (7) OPPORTUNITY TO RESOLVE TAX DISPUTES INFORMALLY PRIOR |
| 250 | TO COMMENCING A PROCEEDING IN THE TAX TRIBUNAL.-- |
| 251 | (a) Before the Department of Revenue finalizes a |
| 252 | determination that triggers a taxpayer's right to commence a |
| 253 | proceeding in the tax tribunal under subsection (9), the |
| 254 | Department of Revenue shall provide to the taxpayer, pursuant to |
| 255 | this section and to chapter 213, Florida Statutes, a review of |
| 256 | the audit or collection function's proposed determination by an |
| 257 | administrative appeals function. |
| 258 | (b) Existing rules and procedures of the Department of |
| 259 | Revenue shall be amended to provide an administrative appeals |
| 260 | function that provides for a program of holding conferences and |
| 261 | negotiating settlements that is designed to resolve the vast |
| 262 | majority of tax controversies without litigation on a basis that |
| 263 | is fair and impartial to the state and the taxpayer and that |
| 264 | enhances voluntary compliance and public confidence in the |
| 265 | integrity and efficiency of the Department of Revenue. The |
| 266 | administrative appeals function to be maintained or established |
| 267 | by the Department of Revenue shall have all of the following |
| 268 | characteristics: |
| 269 | 1. Appeals personnel shall exercise independent judgment |
| 270 | with the objective of settling as many disputed issues as |
| 271 | possible without litigation. |
| 272 | 2. Appeals personnel shall have expertise in and extensive |
| 273 | experience with the state's tax laws. |
| 274 | 3. Appeals personnel shall concede or settle individual |
| 275 | issues based on the facts and the law, including the hazards of |
| 276 | litigation, and an issue specifically conceded or settled by |
| 277 | appeals personnel shall not thereafter be contested by the |
| 278 | Department of Revenue. |
| 279 | 4. Appeals conferences shall be conducted in an informal |
| 280 | manner. |
| 281 | 5. Appeals conferences shall be conducted, at the |
| 282 | taxpayer's option, by correspondence, by telephone, or in |
| 283 | person. |
| 284 | 6. Appeals personnel shall consider arguments as to the |
| 285 | applicability of the tax laws, settlement proposals and |
| 286 | counterproposals, and new evidence in support of the taxpayer's |
| 287 | position provided, if the new evidence is substantial and should |
| 288 | have been presented at the time of audit, appeals personnel may |
| 289 | request the audit function to examine the evidence and to make a |
| 290 | recommendation as to the effect of the evidence on the related |
| 291 | issue. |
| 292 | 7. The taxpayer shall have the right to bring witnesses to |
| 293 | an in-person conference. |
| 294 | 8. The taxpayer may participate in appeals conferences |
| 295 | without representation; may be represented by an officer, |
| 296 | employee, partner, or member of the taxpayer; or may be |
| 297 | represented by a third-party representative. |
| 298 | 9. Appeals personnel shall not engage in ex parte |
| 299 | communications with any Department of Revenue employees to the |
| 300 | extent that such communications may appear to the taxpayer to |
| 301 | compromise the independence of the appeals function. Appeals |
| 302 | personnel may not be involved in the development of any |
| 303 | Department of Revenue policy or rule. All state employees |
| 304 | suspected of such ex parte communications shall be immediately |
| 305 | placed on unpaid administrative leave, and such suspicion shall |
| 306 | be investigated by the Department of Law Enforcement. If the |
| 307 | suspicion is found to be valid and the state employee is |
| 308 | accused, the employment of the state employee shall be |
| 309 | immediately terminated and the employee arrested and charged |
| 310 | with a first degree misdemeanor. |
| 311 | 10. In all cases, appeals personnel shall allow the |
| 312 | taxpayer to participate in any communications with Department of |
| 313 | Revenue employees, and a record shall be kept of any such |
| 314 | communications which shall be deemed subject to the provisions |
| 315 | of chapter 119, Florida Statutes. |
| 316 | 11. Appeals decisions and agreements shall not be |
| 317 | considered as precedent. |
| 318 | 12. A taxpayer's decision to forego appeals consideration |
| 319 | shall not constitute a failure to exhaust administrative |
| 320 | remedies, and a taxpayer's decision to request appeals |
| 321 | consideration with respect to a determination shall not preclude |
| 322 | the taxpayer from commencing a proceeding before the tax |
| 323 | tribunal with respect to any issue not resolved by settlement or |
| 324 | concession. |
| 325 | (c) The Department of Revenue shall adopt emergency and |
| 326 | other rules governing the operation of the administrative |
| 327 | appeals function, including, without limitation, a rule allowing |
| 328 | the Department of Revenue to finalize its determination if the |
| 329 | taxpayer fails to timely request or pursue appeals consideration |
| 330 | or a rule allowing the Department of Revenue to publicly |
| 331 | designate specific issues that appeals personnel may not |
| 332 | compromise. Such rules shall be adopted not less than 180 days |
| 333 | after the effective date of this act. |
| 334 | (8) PLEADINGS.-- |
| 335 | (a) A taxpayer may commence a proceeding before the tax |
| 336 | tribunal by filing a petition protesting the Department of |
| 337 | Revenue's determination imposing a liability for tax, penalty, |
| 338 | or interest; denying a refund or credit application; canceling, |
| 339 | revoking, suspending, or denying an application for a license, |
| 340 | permit, or registration; or taking any other action that gives a |
| 341 | person the right to a hearing under the law. The petition shall |
| 342 | be filed with the tax tribunal no later than 90 days after |
| 343 | receipt of the Department of Revenue' s written notice of such |
| 344 | determination. For purposes of this section, the term "taxpayer" |
| 345 | includes a person who is challenging the state's jurisdiction |
| 346 | over the person and who has standing to challenge the validity |
| 347 | or applicability of the tax. |
| 348 | (b) The Department of Revenue shall file its answer with |
| 349 | the tax tribunal no later than 30 days after receiving the tax |
| 350 | tribunal's notification that the taxpayer has filed a petition |
| 351 | in proper form. Upon written request, the tax tribunal may grant |
| 352 | up to 15 additional days to file an answer, and only one such |
| 353 | request shall be permitted. The Department of Revenue shall |
| 354 | serve a copy of its answer on the taxpayer's representative or, |
| 355 | if the taxpayer is not represented, on the taxpayer and shall |
| 356 | file proof of such service with the answer. Material facts |
| 357 | alleged in the petition, if not expressly admitted or denied in |
| 358 | the answer, shall be deemed admitted. If the Department of |
| 359 | Revenue fails to answer within the prescribed time, all material |
| 360 | facts alleged in the petition shall be deemed admitted. |
| 361 | (c) The taxpayer may file a reply with the tax tribunal |
| 362 | within 30 days after receiving the answer. The taxpayer shall |
| 363 | serve a copy of the reply on the authorized representative of |
| 364 | the Department of Revenue and shall file proof of such service |
| 365 | with the reply. If the taxpayer fails to reply within the |
| 366 | prescribed time, all material facts alleged in the answer shall |
| 367 | be deemed denied. When a reply has been filed or, if no reply |
| 368 | has been filed, 30 days after the filing of the answer, the |
| 369 | controversy shall be deemed at issue and shall be scheduled for |
| 370 | hearing. |
| 371 | (d) Either party may amend a pleading once without leave |
| 372 | at any time before the period for responding to the pleading |
| 373 | expires. After such time, a pleading may be amended only with |
| 374 | the written consent of the adverse party or with the permission |
| 375 | of the tax tribunal. The tax tribunal shall freely grant consent |
| 376 | to amend a pleading upon such terms as may be just. Except as |
| 377 | otherwise ordered by the tax tribunal, there shall be an answer |
| 378 | or reply to an amended pleading if an answer or reply is |
| 379 | required to the pleading being amended. Filing of the answer or, |
| 380 | if the answer has already been filed, the amended answer shall |
| 381 | be made no later than 75 days after filing of the amended |
| 382 | petition. Filing of the reply or, if the reply has already been |
| 383 | filed, the amended reply shall be made within 30 days after |
| 384 | filing of the amended answer. The taxpayer may not amend a |
| 385 | petition after expiration of the time for filing a petition if |
| 386 | such amendment would have the effect of conferring jurisdiction |
| 387 | on the tax tribunal over a matter that would otherwise not come |
| 388 | within its jurisdiction. An amendment of a pleading shall relate |
| 389 | back to the time of filing of the original pleading, unless the |
| 390 | tax tribunal orders otherwise either on motion of a party or on |
| 391 | the tax tribunal's own initiative. |
| 392 | (9) FEES.-- |
| 393 | (a) Upon filing a petition, the taxpayer shall pay to the |
| 394 | clerk a fee in an amount equal to the filing fee for a civil |
| 395 | action in the Circuit Court of the 2nd Judicial Circuit of |
| 396 | Florida. |
| 397 | (b) The tax tribunal may fix a fee, not in excess of the |
| 398 | fees charged and collected by the clerks of the circuit courts, |
| 399 | for comparing, or for preparing and comparing, a transcript of |
| 400 | the record, or for copying any record, entry, or other paper and |
| 401 | the comparison and certification thereof. |
| 402 | (10) DISCOVERY AND STIPULATION.-- |
| 403 | (a) The parties to a proceeding shall make every effort to |
| 404 | achieve discovery by informal consultation or communication |
| 405 | before invoking the discovery procedures authorized by this |
| 406 | section. |
| 407 | (b) The parties to a proceeding shall stipulate all |
| 408 | relevant and nonprivileged matters to the fullest extent to |
| 409 | which complete or qualified agreement can or fairly should be |
| 410 | reached. The existence or use of the discovery mechanisms |
| 411 | authorized by this section shall not excuse failure to comply |
| 412 | with this provision. |
| 413 | (c) Subject to reasonable limitations prescribed by the |
| 414 | tax tribunal, a party may obtain discovery by written |
| 415 | interrogatories; requests for the production of returns, books, |
| 416 | papers, documents, correspondence, or other evidence; |
| 417 | depositions of parties, nonparty witnesses, and experts; and |
| 418 | requests for admissions. The tax tribunal may provide for other |
| 419 | forms of discovery. |
| 420 | (d) A judge or the clerk of the tax tribunal, upon the |
| 421 | request of any party to the proceeding, shall issue subpoenas |
| 422 | requiring the attendance of witnesses and giving of testimony |
| 423 | and subpoenas duces tecum requiring the production of evidence |
| 424 | or things. |
| 425 | (e) Any employee of the tax tribunal designated in writing |
| 426 | for the purpose by the chief judge may administer oaths. |
| 427 | (f) Any witness subpoenaed or whose deposition is taken |
| 428 | shall receive the same fees and mileage as a witness in a |
| 429 | circuit court of this state unless that witness is an employee |
| 430 | of the Department of Revenue. |
| 431 | (g) The tax tribunal may enforce its orders on discovery |
| 432 | and other procedural issues, among other means, by deciding |
| 433 | issues wholly or partly against the offending party. |
| 434 | (11) HEARINGS.-- |
| 435 | (a) Proceedings before the tax tribunal shall be tried de |
| 436 | novo and, to the extent permissible under the constitution, |
| 437 | without a jury. |
| 438 | (b) Except as set forth in this section, the tax tribunal |
| 439 | shall take evidence, conduct hearings, and issue final and |
| 440 | interlocutory decisions. |
| 441 | (c) Hearings shall be open to the public and shall be |
| 442 | conducted in accordance with such rules of practice and |
| 443 | procedure as the tax tribunal may adopt. Notwithstanding such |
| 444 | requirements, upon motion of either party, the tax tribunal may |
| 445 | issue a protective order or an order calling for proceeding of |
| 446 | the hearing to be held in camera, closing part or all of the |
| 447 | hearing to the public if the party shows good cause to protect |
| 448 | specified information from being disclosed to the public. |
| 449 | (d) The tax tribunal shall not be bound by the rules of |
| 450 | evidence applicable to civil cases in the circuit courts of this |
| 451 | state. The tax tribunal shall admit relevant evidence, including |
| 452 | hearsay, if it is probative of a material fact in controversy. |
| 453 | The tax tribunal shall exclude irrelevant and unduly repetitious |
| 454 | evidence. Notwithstanding such requirements, the rules of |
| 455 | privilege recognized by law shall apply. |
| 456 | (e) Testimony may be given only on oath or affirmation. |
| 457 | (f) The petition and other pleadings in the proceeding |
| 458 | shall be deemed to conform to the proof presented at the |
| 459 | hearing, unless a party satisfies the tax tribunal that |
| 460 | presentation of the evidence would unfairly prejudice the party |
| 461 | in maintaining its position on the merits or unless deeming the |
| 462 | taxpayer's petition to conform to the proof would confer |
| 463 | jurisdiction on the tax tribunal over a matter that would not |
| 464 | otherwise come within its jurisdiction. |
| 465 | (g) In the case of an issue of fact, the taxpayer shall |
| 466 | have the burden of persuasion by a preponderance of the evidence |
| 467 | in the record, except that the Department of Revenue shall have |
| 468 | the burden of persuasion in the case of an assertion of fraud |
| 469 | and in other cases provided by law. |
| 470 | (h) Proceedings before the tax tribunal, except those |
| 471 | before the small claims division as provided in subsection (14), |
| 472 | shall be officially reported. The state shall pay the expense of |
| 473 | reporting from the budget appropriation for the tax tribunal. |
| 474 | (12) DECISIONS.-- |
| 475 | (a) The tax tribunal shall render its decision in writing, |
| 476 | including a concise statement of the facts found and the |
| 477 | conclusions of law reached. The tax tribunal's decision shall, |
| 478 | subject to law, grant such relief, invoke such remedies, and |
| 479 | issue such orders as it deems appropriate to carry out its |
| 480 | decision. |
| 481 | (b) The tax tribunal shall render its decision no later |
| 482 | than 6 months after submission of the last brief filed |
| 483 | subsequent to completion of the hearing or, if briefs are not |
| 484 | submitted, no later than 6 months after completion of the |
| 485 | hearing. The tax tribunal may extend the 6-month period, for |
| 486 | good cause, up to 3 additional months. |
| 487 | (c) If the tax tribunal fails to render a decision within |
| 488 | the prescribed period, either party may institute a proceeding |
| 489 | in circuit court to compel the issuance of such decision. |
| 490 | (d) The tax tribunal's decision shall finally decide the |
| 491 | matters in controversy, unless any party to the matter timely |
| 492 | appeals the decision as provided in subsection (15). |
| 493 | (e) The tax tribunal's decision shall have the same effect |
| 494 | and shall be enforced in the same manner, as a judgment of a |
| 495 | circuit court. |
| 496 | (f) The tax tribunal's interpretation of a provision of |
| 497 | tax law subject to contest in one case shall be followed by the |
| 498 | tax tribunal in subsequent cases involving the provision of tax |
| 499 | law, and its application of a provision of law to the facts of |
| 500 | one case shall be followed by the tax tribunal in subsequent |
| 501 | cases involving similar facts, unless the tax tribunal's |
| 502 | interpretation or application conflicts with that of an |
| 503 | appellate court or the tax tribunal provides satisfactory |
| 504 | reasons for reversing prior precedent. |
| 505 | (13) SMALL CLAIMS DIVISION; ESTABLISHMENT; JURISDICTION.-- |
| 506 | (a) There is hereby established a Small Claims Division of |
| 507 | the tax tribunal. |
| 508 | (b) The judges of the tax tribunal shall sit as the judges |
| 509 | of the Small Claims Division. |
| 510 | (c) If a taxpayer timely elects, the Small Claims Division |
| 511 | shall have jurisdiction over any proceeding with respect to any |
| 512 | calendar year for which the net amount of the tax deficiencies |
| 513 | and claimed refunds in controversy does not exceed $25,000, |
| 514 | exclusive of interest and penalties. |
| 515 | (d) A taxpayer may elect to proceed in the Small Claims |
| 516 | Division by filing a petition in the form prescribed by the tax |
| 517 | tribunal no later than 90 days after the taxpayer's receipt of |
| 518 | written notice of the determination that is the subject of the |
| 519 | petition. A taxpayer may not revoke an election to proceed in |
| 520 | the Small Claims Division. |
| 521 | (e) No later than 30 days after receipt of notice that the |
| 522 | taxpayer has filed a petition in proper form, or at such other |
| 523 | time as the tax tribunal may order, the Department of Revenue |
| 524 | shall file with the tax tribunal an answer similar to that |
| 525 | required by subsection (9). |
| 526 | (f) At any time prior to entry of judgment, a taxpayer may |
| 527 | withdraw a proceeding in the Small Claims Division by notifying |
| 528 | the clerk of the tax tribunal in writing. Such withdrawal shall |
| 529 | be with prejudice and shall not have the effect of revoking the |
| 530 | election made in accordance with paragraph (d). |
| 531 | (g) Hearings in the Small Claims Division shall be |
| 532 | informal and the judge may receive such evidence as the judge |
| 533 | deems appropriate for determination of the case. Testimony shall |
| 534 | be given under oath or affirmation. |
| 535 | (h) A judgment of the Small Claims Division shall be |
| 536 | conclusive upon all parties and may not be appealed. A judgment |
| 537 | of the Small Claims Division shall not be considered as |
| 538 | precedent in any other case, hearing, or proceeding. |
| 539 | (i) Subsections (1)-(13) and (15)-(19) shall apply to |
| 540 | proceedings in the Small Claims Division unless expressly |
| 541 | inapplicable thereto or inconsistent with the provisions of this |
| 542 | section. |
| 543 | (14) APPEALS.-- |
| 544 | (a) A taxpayer or the Department of Revenue shall be |
| 545 | entitled to judicial review of a final decision of the tax |
| 546 | tribunal, except a final decision of the Small Claims Division, |
| 547 | in accordance with the procedure for appeal from a decision of a |
| 548 | circuit court, but without regard to the sum involved. The |
| 549 | taxpayer or the Department of Revenue may obtain judicial review |
| 550 | of an interlocutory decision of the tax tribunal under the same |
| 551 | conditions and in the same manner as an interlocutory decision |
| 552 | of a circuit court. |
| 553 | (b) The record on judicial review shall include the |
| 554 | decision of the tax tribunal, the stenographic transcript of the |
| 555 | hearing before the tax tribunal, the pleadings, and all exhibits |
| 556 | and documents admitted into evidence. |
| 557 | (15) REPRESENTATION.-- |
| 558 | (a) Appearances in proceedings conducted by the tax |
| 559 | tribunal may be by the taxpayer, by an attorney admitted to |
| 560 | practice of law in this state, including an attorney who is a |
| 561 | partner or member of, or is employed by, an accounting or other |
| 562 | professional services firm, by an accountant licensed in this |
| 563 | state, or by an enrolled agent authorized to practice before the |
| 564 | Internal Revenue Service. In addition, the tax tribunal may |
| 565 | adopt rules permitting a taxpayer to be represented by an |
| 566 | officer, employee, partner, or member. |
| 567 | (b) The Department of Revenue shall be represented by an |
| 568 | attorney from the Department of Legal Affairs. |
| 569 | (16) PUBLICATION OF DECISIONS.--Except for decisions |
| 570 | issued by the Small Claims Division, the tax tribunal shall |
| 571 | index and publish its final decisions in such print or |
| 572 | electronic form as it deems best adapted for public convenience. |
| 573 | Such publications shall be made permanently available and |
| 574 | constitute the official records of the tax tribunal. |
| 575 | (17) SERVICE OF PROCESS.-- |
| 576 | (a) Mailing by first class or certified or registered |
| 577 | mail, postage prepaid, to the address of the taxpayer given on |
| 578 | the taxpayer's petition, or to the address of the taxpayer's |
| 579 | representative of record, if any, or to the usual place of |
| 580 | business of the Department of Revenue, shall constitute personal |
| 581 | service on the other party. The tax tribunal may by rule |
| 582 | prescribe that notice by other means shall constitute personal |
| 583 | service and may in a particular case order that notice be given |
| 584 | to additional persons or by other means. |
| 585 | (b) Mailing by registered or certified mail and delivery |
| 586 | by a private delivery service approved by the Internal Revenue |
| 587 | Service in accordance with s. 7502(f) of the Internal Revenue |
| 588 | Code of 1986, as amended, shall be deemed to have occurred, |
| 589 | respectively, on the date of mailing or the date of submission |
| 590 | to the private delivery service. |
| 591 | (18) RULES AND FORMS.--The tax tribunal may adopt all |
| 592 | reasonable rules and forms, pursuant to ss. 120.536(1) and |
| 593 | 120.54, Florida Statutes, as may be necessary or appropriate to |
| 594 | carry out the intent and purposes of this section. |
| 595 | (19) APPLICATION OF OTHER LAWS.--To the extent that |
| 596 | provisions of chapters 72, 120, and 213, Florida Statutes, |
| 597 | conflict with any provision of this section, the provisions of |
| 598 | this section shall control. |
| 599 | Section 2. The first appointment of judges of the tax |
| 600 | tribunal under this act shall be made prior to January 1, 2008. |
| 601 | This act shall apply to all proceedings commenced before the tax |
| 602 | tribunal on or after such date and all administrative |
| 603 | proceedings commenced prior to such date that have not been the |
| 604 | subject of a final and irrevocable administrative action as of |
| 605 | such effective date, to the extent this act can be made |
| 606 | applicable to such proceedings. Any administrative proceeding in |
| 607 | which a hearing has commenced prior to the effective date of |
| 608 | this act shall be transferred to the tax tribunal, which shall |
| 609 | render the decision in such proceeding unless there is a prior |
| 610 | settlement. This act shall not affect any proceeding, |
| 611 | prosecution, action, suit, or appeal commenced in the judicial |
| 612 | branch the effective date of this act. |
| 613 | Section 3. The sum of $2.5 million is appropriated from |
| 614 | the General Revenue Fund for the operation, expenses, and |
| 615 | salaries required for the implementation of this act for the |
| 616 | 2007-2008 fiscal year. The chief judge of the tax tribunal shall |
| 617 | submit a budget request to the President of the Senate and the |
| 618 | Speaker of the House of Representatives for all subsequent |
| 619 | fiscal years in the same manner as any other agency of the |
| 620 | state. |
| 621 | Section 4. This act shall take effect July 1, 2007. |