HB 341: "An Act establishing a tax court to consider and determine certain taxes and penalties due and collateral matters, and amending provisions relating to taxpayer challenges to the assessment, levy, and collection of taxes by the state; and providing for an effective date."
00HOUSE BILL NO. 341 01 "An Act establishing a tax court to consider and determine certain taxes and 02 penalties due and collateral matters, and amending provisions relating to taxpayer 03 challenges to the assessment, levy, and collection of taxes by the state; and 04 providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 22 is amended by adding a new chapter to read: 07 CHAPTER 12. TAX COURT. 08 ARTICLE 1. TAX COURT ESTABLISHED. 09 Sec. 22.12.010. ESTABLISHMENT OF TAX COURT. There is established 10 the tax court, consisting of one judge. The tax court is a court of record. 11 Sec. 22.12.020. JURISDICTION. (a) The tax court has exclusive jurisdiction 12 (1) in all appeals by a taxpayer from a decision of the Department of 13 Revenue in matters relating to fixing the amount of, or imposing a penalty on, a tax 14 levied and collected by the state under
01 (A) AS 43.19 and AS 43.20; 02 (B) AS 43.21; 03 (C) AS 43.55; 04 (D) AS 43.65; and 05 (E) AS 43.75; 06 (2) in claims brought in the small claims division of the tax court 07 relating to a tax, or a penalty on a tax, described in (1) of this subsection; and 08 (3) in proceedings brought under AS 44.62.300(a)(1) to obtain a 09 judicial determination of the validity of a regulation adopted to implement, interpret, 10 or make specific a provision of a tax set out in (1) of this subsection. 11 (b) The jurisdiction of the tax court extends over the whole state. 12 (c) The tax court and its judge may issue injunctions, writs of review, 13 mandamus, prohibition, and all other writs necessary or proper to the complete exercise 14 of its jurisdiction. 15 Sec. 22.12.030. WHERE ACTIONS ARE TO BE BROUGHT. Venue for all 16 actions shall be set under rules adopted by the supreme court. 17 Sec. 22.12.040. CHANGE OF VENUE. The tax court in which the action is 18 pending may change the place of trial in an action from one place to another place in 19 the same judicial district or to a designated place in another judicial district for any of 20 the following reasons: 21 (1) when there is reason to believe that an impartial trial cannot be had; 22 (2) when the convenience of witnesses and the ends of justice would 23 be promoted by the change; 24 (3) when for any cause the judge is disqualified from acting, but, if the 25 judge of another judicial district is assigned to try the action, a change of place of trial 26 need not be made; 27 (4) if the court finds that a party will be put to unnecessary expense 28 and inconvenience. 29 Sec. 22.12.050. GENERAL POWERS AND SESSIONS. (a) The tax court 30 shall always be open, except on judicial holidays as determined by rule of the supreme 31 court. Injunctions, writs of prohibition, and mandamus may be issued and served on
01 holidays and nonjudicial days. 02 (b) The tax court is vested with all power and authority necessary to carry into 03 complete execution all its judgments, decrees, and determinations in all matters within 04 its jurisdiction according to the constitution, the laws of the state, and the common 05 law. 06 (c) The tax court shall hold regular sessions at the times and places as may be 07 designated by rule or order of the supreme court. 08 Sec. 22.12.060. EFFECT OF ADJOURNMENT. An adjournment from day 09 to day, or from time to time, is a recess in the session and does not prevent the tax 10 court from sitting at any time. 11 Sec. 22.12.070. PROCESS. Process of the tax court shall be in the name of 12 the State of Alaska, signed by the clerk of the court or the deputy clerk in the judicial 13 district where the process is issued, dated when issued, sealed with the seal of the 14 court, and made returnable according to rule prescribed by the supreme court. 15 Sec. 22.12.080. QUALIFICATIONS OF JUDGES. (a) A judge of the tax 16 court shall be a citizen of the United States and of the state, a resident of the state for 17 four years immediately preceding appointment, have been engaged for not less than 18 four years immediately preceding appointment in the active practice of tax law, and, 19 at the time of appointment, be licensed to practice law in the state. 20 (b) A person may not be appointed to serve as a judge of the tax court if the 21 person was employed by the Department of Revenue or the Department of Law at any 22 time within four years preceding the date on which a vacancy exists in the position of 23 tax court judge for which the person seeks appointment. 24 (c) In this section, "active practice of tax law" means 25 (1) serving as a tax court judge in a state or territorial court; 26 (2) being actually engaged in advising and representing clients in 27 matters of tax law; 28 (3) rendering legal services of a tax character to an agency, branch, or 29 department of a civil government within the United States or a state or territory of the 30 United States in an elective, appointive, or employed capacity; or 31 (4) serving as a professor, associate professor, or assistant professor in
01 the area of tax in a law school accredited by the American Bar Association. 02 Sec. 22.12.090. VACANCIES. (a) The governor shall fill a vacancy or 03 appoint a successor to fill an impending vacancy in the office of tax court judge within 04 45 days after receiving nominations from the judicial council by appointing one of two 05 or more persons nominated by the council for each actual or impending vacancy. An 06 appointment to fill an impending vacancy becomes effective upon the actual 07 occurrence of the vacancy. 08 (b) The office of a tax court judge becomes vacant upon the death or 09 resignation of the judge or 90 days after the election at which the judge is rejected by 10 a majority of those voting on the question or for which the judge fails to file a 11 declaration of candidacy. Upon the occurrence of (1) an actual vacancy; (2) the 12 certification of rejection following an election; or (3) the election following failure of 13 a judge to file a declaration of candidacy, the judicial council shall meet within 90 14 days and submit to the governor the names of two or more persons qualified for the 15 judicial office; except that this 90-day period may be extended by the council with the 16 concurrence of the supreme court. In the event of an impending vacancy other than 17 by reason of rejection or failure to file a declaration of candidacy, the council may 18 meet at any time within the 90-day period immediately preceding the effective date of 19 the vacancy and submit to the governor the names of two or more persons qualified 20 for the judicial office. 21 Sec. 22.12.100. OATH OF OFFICE. The tax court judge, upon entering 22 office, shall take and subscribe to an oath of office required of all officers under the 23 constitution and any further oath or affirmation as may be prescribed by law. 24 Sec. 22.12.110. APPROVAL OR REJECTION. The tax court judge is subject 25 to approval or rejection as provided in AS 15 (Alaska Election Code). The judicial 26 council shall conduct an evaluation of the judge before the retention election and shall 27 provide to the public information about the judge and may provide a recommendation 28 regarding retention or rejection. The information and any recommendation shall be 29 made public at least 60 days before the retention election. The judicial council shall 30 also provide the information and any recommendation to the office of the lieutenant 31 governor in time for publication in the election pamphlet under AS 15.58.050. If a
01 majority of those voting on the question rejects the candidacy of the judge, the rejected 02 judge may not for a period of four years thereafter be appointed to fill any vacancy 03 in the supreme court, court of appeals, superior court, tax court, or district court of the 04 state. 05 Sec. 22.12.120. IMPEACHMENT. The tax court judge is subject to 06 impeachment by the legislature for malfeasance or misfeasance in the performance of 07 official duties. Impeachment shall originate in the senate and must be approved by 08 two-thirds vote of its members. The motion for impeachment must list fully the basis 09 for the proceeding. Trial on impeachment shall be conducted by the house of 10 representatives. A supreme court justice designated by the court shall preside at the 11 trial. Concurrence of two-thirds of the members of the house is required for a 12 judgment of impeachment. The judgment may not extend beyond removal from office, 13 but does not prevent proceedings in the courts on the same or related charges. 14 Sec. 22.12.130. RESTRICTIONS. (a) The tax court judge while holding 15 office may not practice law, nor engage in the conduct of any other profession, 16 vocation, or business for profit or compensation if the conduct would interfere with the 17 performance of the judicial duties of the judge, nor may a judge hold office in a 18 political party, or hold any other office or position of profit under the United States, 19 the state, or its political subdivisions. 20 (b) A tax court judge filing for another elective public office other than 21 delegate to a constitutional convention of this state or the United States forfeits the 22 judicial position. 23 Sec. 22.12.140. COMPENSATION. (a) The monthly base salary for the tax 24 court judge is the same as for a superior court judge under AS 22.10.190(a). The 25 monthly base salary of the tax court judge may be increased under AS 22.10.190(d) 26 as for a superior court judge. 27 (b) A salary warrant may not be issued to the tax court judge until the judge 28 has filed with the state officer designated to issue salary warrants an affidavit that no 29 matter referred to the judge for opinion or decision has been uncompleted or undecided 30 by the judge for a period of more than six months. 31 (c) In addition to the monthly salary, the tax court judge is entitled to receive
01 a geographic cost-of-living adjustment under AS 22.35.010 based on the location of 02 the judge's primary office assignment. Retirement contributions and benefits shall be 03 computed only on the monthly base salary not including the geographic cost-of-living 04 adjustment. 05 ARTICLE 2. PROCEDURES. 06 Sec. 22.12.200. PROCEDURE FOR TAKING AN APPEAL FROM A FINAL 07 DECISION OF THE DEPARTMENT OF REVENUE. (a) The supreme court may 08 adopt rules for taking an appeal to the tax court. 09 (b) Until rules are adopted under (a) of this section, the procedures for taking 10 an appeal to the tax court shall be the same as those set out in the Alaska Rules of 11 Appellate Procedure that are applicable to appeals from administrative decisions to the 12 superior court. 13 Sec. 22.12.210. PROCEEDINGS TO BE WITHOUT JURY AND DE NOVO; 14 ISSUES REVIEWED. (a) Proceedings before the tax court shall be tried de novo 15 and, to the extent permissible under the constitution, without a jury. 16 (b) In appeals from final decisions of the Department of Revenue, the issues 17 of fact and law, including constitutional issues, shall be restricted to those raised by 18 the parties before the Department of Revenue. If the court finds that other issues are 19 important to the full adjudication of the controversy, it shall remand the entire matter 20 to the Department of Revenue for further consideration unless the parties stipulate to 21 the administrative determination or to the adjudication of the other issues by the tax 22 court without a remand. 23 (c) A matter remanded to the Department of Revenue under (b) of this section 24 is subject to AS 22.12.220(b)(1). 25 Sec. 22.12.220. STANDARD OF EVIDENCE AND BURDEN OF PROOF IN 26 TAX COURT PROCEEDINGS. (a) In proceedings before the tax court, the party 27 having the burden of proof must meet the burden by a preponderance of the evidence. 28 (b) In proceedings before the tax court, the appellant, or the plaintiff in a 29 matter brought in the small claims division, has the burden of proof. However, 30 (1) in respect to new matter raised after the final assessment has been 31 issued, an increase in the alleged tax deficiency, or an affirmative defense pleaded in
01 the answer, the appellee, or the defendant in a matter brought in the small claims 02 division, has the burden of proof; and 03 (2) the Department of Revenue has the burden of proof as to an issue 04 in which the department has, in formal or informal conference, found in favor of the 05 taxpayer either in a written decision or in the record of the case. 06 Sec. 22.12.230. HEARINGS TO BE OPEN TO PUBLIC; REPORT OF 07 PROCEEDINGS; EXCEPTION; CONFIDENTIAL INFORMATION. (a) Except as 08 provided in (b) and (c) of this section, hearings before the tax court are open to the 09 public. Proceedings in the court, except those in the small claims division, shall be 10 reported unless waived by the parties with the consent of the court. 11 (b) If information that is confidential is offered into evidence in a hearing 12 before the tax court, the court may issue orders necessary to protect the confidentiality 13 of the information. 14 (c) In a case involving confidential business records, including trade secrets, 15 upon motion of a party to the suit, the court may issue protective orders necessary to 16 protect the confidentiality of the records. If, under this subsection, the court grants or 17 denies a protective order and interlocutory review of the grant or denial is sought, the 18 tax court may stay the case on the merits until a resolution of the protective order issue 19 is determined by the supreme court. 20 Sec. 22.12.240. TAX COURT DECISION. (a) The judge of the tax court, 21 except when sitting as the small claims division, shall prepare a proposed decision in 22 writing. The proposed decision must contain a concise statement of the facts found 23 and the conclusions of law reached. 24 (b) Unless modified by the court before it becomes final, the proposed decision 25 shall become the final decision of the tax court within 30 days from the date shown 26 in the clerk's certificate of distribution. In its final decision, the tax court may grant 27 relief, invoke remedies, and issue any order that is appropriate in accordance with its 28 decision. 29 Sec. 22.12.250. USE OF PANEL OF MASTERS. (a) To make findings of 30 fact and recommendations of law with respect to one or more issues in controversy, 31 the tax court may designate a panel of masters. The panel consists of three
01 individuals, at least one of whom is an attorney who is a member of the bar of any 02 state. 03 (b) The tax court shall pay the costs of the panel, including staff costs and 04 compensation of the masters in amounts to be fixed by the tax court. The costs and 05 compensation shall be charged each of the parties as ordered by the court or paid out 06 of any fund that is in the custody of the tax court or as otherwise established by court 07 rule. 08 (c) The panel shall appoint one of its members to preside over hearings and 09 other matters of case administration. 10 (d) The panel 11 (1) has all of the powers of the tax court necessary to carry out its role 12 as fact finder, including the power to 13 (A) establish schedules for hearing; 14 (B) determine admissibility of evidence; and 15 (C) create a record for review; 16 (2) does not have authority to exercise powers of enforcement, 17 including issuance of subpoenas, ordering sanctions, and compelling attendance at 18 hearings, but may make applications for the exercise of an enforcement power to the 19 tax court. 20 (e) The panel shall issue a written opinion setting out detailed findings of fact, 21 recommendations of law, and the application of law to the facts. A member dissenting 22 from a majority opinion may write a dissenting opinion describing with particularity 23 the reasons on which the member differs from the majority opinion. If it is not 24 possible for the panel to issue a majority opinion, then each member shall write an 25 opinion. 26 Sec. 22.12.260. PUBLICATION OF DECISION. The supreme court may 27 provide for the publication of tax court decisions that are of general public interest in 28 a permanent and advance sheet form it considers best adapted for public convenience. 29 ARTICLE 3. SMALL CLAIMS. 30 Sec. 22.12.300. SMALL CLAIMS DIVISION. (a) The tax court shall have 31 a small claims division.
01 (b) The judge of the tax court shall sit as the judge of the small claims 02 division. 03 (c) The small claims division has jurisdiction of cases if 04 (1) the taxpayer elects to have the matter heard in the small claims 05 division; and 06 (2) the amount in controversy does not exceed $15,000, exclusive of 07 interest and penalties. 08 Sec. 22.12.310. NOTICE TO TAXPAYER. In cases in which the amount in 09 controversy does not exceed $15,000, exclusive of interest and penalties, at the time 10 that the Department of Revenue issues a decision that is adverse to the taxpayer, the 11 department shall also notify the taxpayer in writing of the taxpayer's right to file a 12 complaint in the small claims division and of the process by which the complaint may 13 be filed. 14 Sec. 22.12.320. FILING COMPLAINT IN SMALL CLAIMS DIVISION. A 15 taxpayer shall commence a proceeding in the small claims division by filing with the 16 clerk of the tax court a complaint in the form prescribed by the rules for the tax court. 17 The complaint must state the nature of the taxpayer's claim and request that it be heard 18 by the small claims division. The complaint shall be filed within the time for 19 otherwise appealing from a decision of the department. 20 Sec. 22.12.330. NOTICE TO DEPARTMENT OF REVENUE. When a 21 taxpayer files a claim in the small claims division, the clerk of the tax court shall give 22 notice of the filing to the Department of Revenue. Receipt of notice establishes the 23 department as a party to the proceeding and, at the hearing, may appear in opposition 24 to the proceeding. 25 Sec. 22.12.340. TAXPAYER'S DISMISSAL OF CASE. At any time before 26 entry of judgment, a taxpayer may dismiss a case in the small claims division by 27 notifying the clerk of the tax court in writing. Dismissal initiated by a taxpayer under 28 this section is a dismissal with prejudice. 29 Sec. 22.12.350. INFORMAL HEARING. The hearing in the small claims 30 division is informal. The tax court judge may hear testimony and receive evidence the 31 judge considers necessary or desirable for a just and equitable determination of the
01 case, except that all testimony shall be given under oath. A party may appear on the 02 party's own behalf or may be represented or accompanied by an attorney, licensed 03 accountant, or another person that the court may permit to be present and participate 04 in the proceeding before the small claims division. 05 Sec. 22.12.360. JUDGMENT. The judgment in the small claims division shall 06 be conclusive on the parties, is not to be considered as judicial precedent or be given 07 any force or effect in any other case, hearing, or proceeding. The judgment may 08 include an order to the Department of Revenue to modify or cancel an assessment, pay 09 or allow a refund, or to take other action as may be necessary to carry out the 10 judgment. 11 * Sec. 2. AS 15.15.030(10) is amended to read: 12 (10) A nonpartisan ballot shall be designed for each judicial district in 13 which a justice or judge is seeking retention in office. The ballot shall be divided into 14 four parts and each part must bear a heading indicating the court to which the 15 candidate is seeking approval. Within each part the question of whether the justice or 16 judge shall be approved or rejected shall be set out in substantially the following 17 manner: (A) "Shall . . . . . . . be retained as justice of the supreme court for 10 18 years?"; (B) "Shall . . . . . . . . . be retained as judge of the court of appeals for eight 19 years?"; (C) "Shall . . . . . . . be retained as judge of the superior court for six years?"; 20 (D) "Shall . . . . . . . . . .be retained as judge of the tax court for six years?"; or 21 (E) [(D)] "Shall . . . . . . . be retained as judge of the district court for four years?" 22 Provision shall be made for marking each question "Yes" or "No." 23 * Sec. 3. AS 15.35 is amended by adding new sections to read: 24 Sec. 15.35.092. APPROVAL OR REJECTION OF TAX COURT JUDGE. 25 The tax court judge shall be subject to approval or rejection at the first general election 26 held more than three years after the judge's appointment. If approved, the judge shall 27 thereafter be subject to approval or rejection in a like manner every sixth year. 28 Sec. 15.35.094. FILING DECLARATION BY TAX COURT JUDGE. A tax 29 court judge seeking retention in office shall file with the director a declaration of 30 candidacy for retention no later than August 1 before the general election at which 31 approval or rejection is requisite.
01 Sec. 15.35.096. REQUIREMENT OF FILING FEE FOR TAX COURT 02 JUDGE CANDIDATE. At the time the declaration is filed, each candidate for 03 retention as a tax court judge shall pay a filing fee to the director. The filing fee for 04 a candidate for retention on the tax court is $30. 05 Sec. 15.35.098. PLACING NAME OF TAX COURT JUDGE ON BALLOT. 06 The director shall place the name of a tax court judge who has properly filed a 07 declaration of candidacy for retention on the ballot in each judicial district of the state 08 for the general election at which approval is sought. 09 * Sec. 4. AS 15.58.050 is amended to read: 10 Sec. 15.58.050. INFORMATION AND RECOMMENDATIONS ON 11 JUDICIAL OFFICERS. No later than August 7 of the year in which the state general 12 election will be held, the judicial council shall file with the lieutenant governor a 13 statement including information about each supreme court justice, court of appeals 14 judge, superior court judge, tax court judge, and district court judge who will be 15 subject to a retention election. The statement shall reflect the evaluation of each 16 justice or judge conducted by the judicial council according to law and shall contain 17 a brief statement describing each public reprimand, public censure, or suspension 18 received by the judge under AS 22.30.011(d) during the period covered in the 19 evaluation. A statement may not exceed 600 words. 20 * Sec. 5. AS 15.58.060(a) is amended to read: 21 (a) Each general election candidate shall pay to the lieutenant governor at the 22 time of filing material under this chapter the following: 23 (1) President or Vice-President of the United States, United States 24 senator, United States representative, governor, lieutenant governor, supreme court 25 justice, [AND] court of appeals judge, and tax court judge, $150 each; 26 (2) superior court judge and district court judge, $75 each; 27 (3) state senator and state representative, $50 each. 28 * Sec. 6. AS 22.05.010(a) is amended to read: 29 (a) The supreme court has final appellate jurisdiction in all actions and 30 proceedings. However, a party has only one appeal as a matter of right from an action 31 or proceeding commenced in [EITHER] the district court, [OR] the superior court, or
01 the tax court. 02 * Sec. 7. AS 22.05.010(c) is amended to read: 03 (c) A decision of the superior court on an appeal from an administrative 04 agency decision may be appealed to the supreme court as a matter of right. A 05 decision of the tax court on an appeal from the Department of Revenue may be 06 appealed to the supreme court as a matter of right. 07 * Sec. 8. AS 22.05.100 is amended to read: 08 Sec. 22.05.100. APPROVAL OR REJECTION. Each supreme court justice 09 is subject to approval or rejection as provided in AS 15 (Alaska Election Code). The 10 judicial council shall conduct an evaluation of each justice before the retention election 11 and shall provide to the public information about that justice and may provide a 12 recommendation regarding retention or rejection. The information and any 13 recommendation shall be made public at least 60 days before the retention election. 14 The judicial council shall also provide the information and any recommendation to the 15 office of the lieutenant governor in time for publication in the election pamphlet under 16 AS 15.58.050. If a majority of those voting on the question rejects the candidacy, the 17 rejected justice may not be appointed to fill any vacancy in the supreme court, court 18 of appeals, superior court, tax court, or district court [COURTS] of the state for a 19 period of four years thereafter. 20 * Sec. 9. AS 22.07.060 is amended to read: 21 Sec. 22.07.060. APPROVAL OR REJECTION. Each judge of the court of 22 appeals is subject to approval or rejection as provided in AS 15 (Alaska Election 23 Code). The judicial council shall conduct an evaluation of each judge before the 24 retention election and shall provide information to the public about the judge and may 25 provide a recommendation regarding retention or rejection. The information and any 26 recommendation shall be made public at least 60 days before the election. The judicial 27 council shall also provide the information and any recommendation to the office of the 28 lieutenant governor in time for publication in the election pamphlet as required by 29 AS 15.58.050. If a majority of those voting on the question rejects the candidacy of 30 a judge, the rejected judge may not for a period of four years thereafter be appointed 31 to fill a vacancy in the supreme court, the court of appeals, the superior court, the tax
01 court, or the district court of the state. 02 * Sec. 10. AS 22.10.020(d) is amended to read: 03 (d) The superior court has jurisdiction in all matters appealed to it from a 04 subordinate court, or, except as provided by AS 22.12.020(a)(1), in all matters 05 appealed to it from an administrative agency when appeal is provided by law. The 06 hearings on appeal from a final order or judgment of a subordinate court or 07 administrative agency shall be on the record unless the superior court, in its discretion, 08 grants a trial de novo, in whole or in part. 09 * Sec. 11. AS 22.10.150 is amended to read: 10 Sec. 22.10.150. APPROVAL OR REJECTION. Each superior court judge is 11 subject to approval or rejection as provided in AS 15 (Alaska Election Code). The 12 judicial council shall conduct an evaluation of each judge before the retention election 13 and shall provide to the public information about the judge and may provide a 14 recommendation regarding retention or rejection. The information and any 15 recommendation shall be made public at least 60 days before the retention election. 16 The judicial council shall also provide the information and any recommendation to the 17 office of the lieutenant governor in time for publication in the election pamphlet under 18 AS 15.58.050. If a majority of those voting on the question rejects the candidacy of 19 a judge, the rejected judge may not for a period of four years thereafter be appointed 20 to fill any vacancy in the supreme court, court of appeals, superior court, tax court, 21 or district court [COURTS] of the state. 22 * Sec. 12. AS 22.15.195 is amended to read: 23 Sec. 22.15.195. APPROVAL OR REJECTION. Each district court judge is 24 subject to approval or rejection as provided in AS 15 (Alaska Election Code). The 25 judicial council shall conduct an evaluation of each judge before the retention election 26 and shall provide to the public information about the judge and may provide a 27 recommendation regarding retention or rejection. The information and the 28 recommendation shall be made public at least 60 days before the election. The judicial 29 council shall also provide the information and any recommendation to the office of the 30 lieutenant governor in time for publication in the election pamphlet under 31 AS 15.58.050. If a majority of those voting on the question rejects the candidacy of
01 a judge, the rejected judge may not for a period of four years thereafter be appointed 02 to fill any vacancy in the supreme court, court of appeals, superior court, tax court, 03 or district court [COURTS] of the state. 04 * Sec. 13. AS 22.20.010 is amended to read: 05 Sec. 22.20.010. JUDICIAL OFFICER DEFINED. The term "judicial officer" 06 means a supreme court justice, including the chief justice, a judge of the court of 07 appeals, a judge of the superior court, a judge of the tax court, a district judge, and 08 a magistrate. 09 * Sec. 14. AS 22.20.022(a) is amended to read: 10 (a) If a party or a party's attorney in a district court action or a superior court 11 action, civil or criminal, files an affidavit alleging under oath the belief that a fair and 12 impartial trial cannot be obtained, the presiding district court or superior court judge, 13 respectively, shall at once, and without requiring proof, assign the action to another 14 judge of the appropriate court in that district, or if there is none, the chief justice of 15 the supreme court shall assign a judge for the hearing or trial of the action. If a party 16 or a party's attorney in a tax court action files an affidavit alleging under oath 17 the belief that a fair and impartial trial cannot be obtained, the chief justice of 18 the supreme court shall assign a judge for the hearing or trial of the action. The 19 affidavit shall contain a statement that it is made in good faith and not for the purpose 20 of delay. 21 * Sec. 15. AS 22.20.040 is amended by adding a new subsection to read: 22 (c) The provisions of (a) of this section do not apply to proceedings 23 commenced by a taxpayer in the small claims division of the tax court to the extent 24 permitted by AS 22.12. 25 * Sec. 16. AS 22.20.110 is amended to read: 26 Sec. 22.20.110. DUTY OF THE COMMISSIONER IN THE COURT OF 27 APPEALS, THE SUPERIOR COURT, THE TAX COURT, AND THE DISTRICT 28 COURT [COURTS]. When required by the supreme court, and except as otherwise 29 provided in AS 25.35.040, the commissioner shall serve and execute all process issued 30 by the court of appeals, the superior court, the tax court, and the district court 31 [COURTS]; attend to and wait upon grand and petit juries; maintain order; attend the
01 sessions of the courts; and exercise the power and perform the duties concerning all 02 matters within the jurisdiction of the courts as may be assigned. The commissioner 03 is the executive officer of the court of appeals, the superior court, the tax court, and 04 the district court [COURTS]. 05 * Sec. 17. AS 22.25.010(g) is amended to read: 06 (g) The word "justice" means a supreme court justice, and the word "judge," 07 unless the context clearly indicates otherwise, means a judge of the court of appeals, 08 a superior court judge, the tax court judge, or a district court judge. 09 * Sec. 18. AS 22.30.080(2) is amended to read: 10 (2) "judge" means a justice of the supreme court, a judge of the court 11 of appeals, a judge of the superior court, the judge of the tax court, or a judge of the 12 district court who is the subject of an investigation or proceeding under sec. 10, 13 art. IV, Constitution of the State of Alaska and this chapter, including a justice or 14 judge who is serving in a full-time, part-time, permanent, or temporary position. 15 * Sec. 19. AS 43.05.240(d) is amended to read: 16 (d) Within 30 days after the formal hearing and decision by the department, 17 a person aggrieved by the decision of the department 18 (1) as to a tax set out in this paragraph, may appeal to the tax 19 court; the taxpayer shall be given access to the file of the department in the 20 matter for preparation of the appeal; if after the appeal is heard it appears that 21 the tax was correct, the tax court shall confirm the tax; if incorrect, the tax court 22 shall determine the amount of the tax and if the person aggrieved is entitled to 23 recover the tax or part of it, the tax court shall order the repayment and the 24 department shall immediately pay the amount due and attach a certified copy of 25 the judgment to the payment; the provisions of this paragraph apply to a matter 26 relating to fixing the amount of, or imposing a penalty on, a tax levied and 27 collected by the state under 28 (A) AS 43.19 and AS 43.20; 29 (B) AS 43.21; 30 (C) AS 43.55; 31 (D) AS 43.65; and
01 (E) AS 43.75; 02 (2) as to a tax other than a tax set out in (1) of this subsection, may 03 appeal to the superior court in the judicial district in which the person resides; the [. 04 THE] taxpayer shall be given access to the file of the department in the matter for 05 preparation of the appeal; if [. IF] after the appeal is heard it appears that the tax was 06 correct, the superior court shall confirm the tax; if [. IF] incorrect, the superior court 07 shall determine the amount of the tax and if the person aggrieved is entitled to recover 08 the tax or part of it, the superior court shall order the repayment and the department 09 shall immediately pay the amount due and attach a certified copy of the judgment to 10 the payment. 11 * Sec. 20. AS 43.05.240 is amended by adding a new subsection to read: 12 (e) For purposes of (d)(1) of this section, a decision by the department is final 13 if the decision disposes of either the entire case or an issue in controversy, and may 14 include an order entered on a motion for summary or partial summary judgment if the 15 order constitutes the final disposition of an entire issue in controversy. 16 * Sec. 21. AS 43.05 is amended by adding new sections to read: 17 Sec. 43.05.242. TAX, PENALTY, AND INTEREST PAYABLE BEFORE 18 APPEAL. (a) In an appeal from a decision of the department involving a deficiency 19 of taxes levied and collected by the state under a tax described in AS 43.05.240(d)(1), 20 the taxpayer shall pay to the state the full amount of the tax, penalty, and interest in 21 respect of the amount of tax assessed that is not in dispute. The taxpayer shall post 22 a bond, obtain a letter of credit, or provide other evidence satisfactory to the tax court 23 that it is able to pay the amount of tax assessed that is in dispute and that is the basis 24 of the taxpayer's appeal. 25 (b) The tax and interest due under this section are the amounts stated in the 26 final order of the department from which the appeal is taken, or if the final order 27 appealed from is a summary judgment or partial summary judgment, the amount shall 28 be as originally assessed on the issue or issues disposed of. 29 Sec. 43.05.244. OVERPAYMENT. If it has been finally determined that an 30 overpayment exists, either the taxpayer or the commissioner may elect within 60 days 31 to credit the overpayment, including any interest accruing on the overpayment, against
01 the tax liability of the taxpayer for the current tax year and subsequent tax years. The 02 amount of the refund not credited within three years of the date of the election shall 03 be paid to the taxpayer, with interest accrued at the rate established in AS 43.05.280. 04 * Sec. 22. AS 44.62.300 is amended to read: 05 Sec. 44.62.300. JUDICIAL REVIEW OF VALIDITY. (a) An interested 06 person may get a judicial declaration on the validity of a regulation 07 (1) adopted to implement, interpret, or make specific a tax set out 08 in AS 22.12.020(a)(1) by bringing an action for declaratory relief in the tax court; 09 (2) other than a regulation described in (1) of this subsection by 10 bringing an action for declaratory relief in the superior court. 11 (b) In addition to any other ground, the tax court or the superior court, as 12 applicable, may declare the regulation invalid 13 (1) for a substantial failure to comply with AS 44.62.010 - 44.62.320; 14 or 15 (2) in the case of an emergency regulation or order of repeal, upon the 16 ground that the facts recited in the statement do not constitute an emergency under 17 AS 44.62.250. 18 * Sec. 23. TRANSITION. (a) A matter relating to fixing the amount of, or imposing a 19 penalty on, a tax levied and collected by the state under a tax set out in AS 22.12.020(a)(1), 20 added by sec. 1 of this Act, that, on the effective date of this Act, had been appealed to the 21 superior court but for which notice of appeal had not been filed with the Alaska Supreme 22 Court shall be transferred to the tax court for review under AS 22.12.010 - 22.12.360. 23 (b) Notwithstanding AS 22.12.210(a), a matter transferred to the tax court under (a) 24 of this section must be determined based upon the record of the proceedings before the 25 Department of Revenue, but upon the application of a party, the tax court may allow the 26 presentation of additional evidence that was excluded or precluded during the course of the 27 administrative proceeding. 28 (c) Notwithstanding (b) of this section, a party for which a case is referred to the tax 29 court under (a) of this section may move for consideration of the case by a panel of masters 30 under AS 22.12.250, added by sec. 1 of this Act. 31 * Sec. 24. This Act takes effect July 1, 1996.