Legislature(1995 - 1996)

01/19/1996 09:05 AM House RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               HOUSE RESOURCES STANDING COMMITTEE                              
                        January 19, 1996                                       
                           9:05 a.m.                                           
                                                                               
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Joe Green, Co-Chairman                                         
 Representative Scott Ogan, Vice Chairman                                      
 Representative Alan Austerman                                                 
 Representative John Davies                                                    
 Representative Pete Kott                                                      
 Representative Don Long                                                       
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 Representative William K. "Bill" Williams, Co-Chairman                        
 Representative Ramona Barnes                                                  
 Representative Irene Nicholia                                                 
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 HOUSE BILL NO. 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."                                                              
                                                                               
      -  HEARD AND HELD                                                        
                                                                               
 PREVIOUS ACTION                                                             
                                                                               
 BILL:  HB 341                                                               
 SHORT TITLE: ALASKA TAX COURT                                                 
 SPONSOR(S): REPRESENTATIVE(S) GREEN                                           
                                                                               
 JRN DATE    JRN-PG     ACTION                                                 
 05/09/95      2042    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 05/09/95      2042    (H)   RES, JUD, FINANCE                                 
 10/24/95              (H)   RES AT 09:00 AM ANCHORAGE LIO                     
 10/24/95              (H)   MINUTE(RES)                                       
 01/19/96              (H)   RES AT 09:00 AM CAPITOL 124                       
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 JACK CHENOWETH, Attorney                                                      
 Legislative Legal Counsel                                                     
 Legislative Affairs Agency                                                    
 130 Seward Street, Suite 409                                                  
 Juneau, Alaska  99801-2105                                                    
 Telephone:  (907) 465-2450                                                    
 POSITION STATEMENT:  Explained changes for proposed committee                 
                      substitute for HB 341.                                   
                                                                               
 DEBORAH VOGT, Deputy Commissioner                                             
 Department of Revenue                                                         
 P.O. Box 110405                                                               
 Juneau, Alaska  99801-0400                                                    
 Telephone:  (907) 465-2300                                                    
 POSITION STATEMENT:  Available for questions on HB 341.                       
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 96-5, SIDE A                                                             
 Number 000                                                                    
                                                                               
 CO-CHAIRMAN JOE GREEN called the House Resources Committee meeting            
 to order at 9:05 a.m.  Members present at the call to order were              
 Representatives Green, Austerman, Davies, Kott, Long and Ogan.                
 Members absent were Representatives Barnes, Nicholia and Williams.            
                                                                               
 HB 341 - ALASKA TAX COURT                                                   
                                                                               
 CO-CHAIRMAN GREEN, sponsor of HB 341, explained that the bill had             
 been introduced the previous year.  A hearing had been held in                
 Anchorage during the interim, at which time deficiencies in the               
 prior version were noted.  Of primary concern was introduction of             
 a tax court, a special entity, which met with severe fiscal                   
 problems.  That version of HB 341 had been amended and the new                
 version was now before the committee.                                         
                                                                               
 CO-CHAIRMAN GREEN commented that under current law, when a tax bill           
 was rendered to a taxpayer, the taxpayer requested review by the              
 Department of Revenue before the issue ever went to the superior              
 court.  The court then relied heavily on the Department of                    
 Revenue's review process.  He said this seemed like a stacked deck.           
 HB 341 was designed to provide a more impartial review to an                  
 appellant.                                                                    
                                                                               
 Number 192                                                                    
                                                                               
 REPRESENTATIVE ALAN AUSTERMAN asked whether the bill addressed a              
 different type of review before the matter went to court.                     
                                                                               
 CO-CHAIRMAN GREEN answered that the intention was to not have all             
 the review stay within the department that rendered the tax bill in           
 the first place.                                                              
                                                                               
 Number 220                                                                    
                                                                               
 REPRESENTATIVE JOHN DAVIES asked if they were discussing version K;           
 Co-Chairman Green confirmed that was correct.                                 
                                                                               
 Number 230                                                                    
                                                                               
 JACK CHENOWETH, Attorney, Legislative Legal Counsel, Legislative              
 Affairs Agency, referred to version K, page 3, Section 3, and said            
 it amended the section of Title 43 dealing with taxation and                  
 revenue.  There was a process in place for appeals; HB 341 left               
 that process alone with respect to all the taxes in Title 43 except           
 those identified in subsection (a) of Section 4, page 3, lines 10             
 through 14.  The purpose of Section 3 was to say that the                     
 provisions of current law did not apply to the actions of the                 
 Department of Revenue if those actions were subject to the appeal             
 provisions of AS 43.05.242.                                                   
                                                                               
 MR. CHENOWETH referred to Section 4 and said it created a new                 
 section covering the disposition on appeal of taxes and penalties             
 relating to taxes identified under that section in paragraphs 1 -             
 5.  Identified to be covered by the new appeal provision were                 
 questions arising under AS 43.19, the Multi-state Tax Compact; AS             
 43.20, the current corporate income tax; former corporate tax under           
 AS 43.21; the severance tax under AS 43.55; the mining license tax            
 under AS 43.65; and the fisheries taxes under AS 43.75.                       
                                                                               
 Number 419                                                                    
                                                                               
 DEBORAH VOGT, Deputy Commission, Department of Revenue, noted that            
 AS 43.21 was a tax under which there were still a couple of old               
 disputes pending.                                                             
                                                                               
 MR. CHENOWETH explained that under subsection (b), beginning on               
 line 15, a person subject to one of the included taxes had the                
 opportunity to challenge a determination by the Department of                 
 Revenue.  The challenge could be brought through an informal                  
 hearing.  A taxpayer who disagreed with the outcome of that hearing           
 had two choices.  First, under subsection (c)(1), the taxpayer                
 could appeal to the superior court in the judicial district where             
 he or she resided.  Second, under subsection (c)(2), the taxpayer             
 could ask for a formal hearing.                                               
                                                                               
 Number 525                                                                    
                                                                               
 REPRESENTATIVE DAVIES asked whether the formal hearing was within             
 the Department of Revenue; Mr. Chenoweth confirmed that it was.               
                                                                               
 Number 540                                                                    
                                                                               
 REPRESENTATIVE AUSTERMAN commented that there had been a flow chart           
 the previous year that showed the process.  He requested that                 
 another flow chart be created for the new scenario, because it                
 greatly simplified understanding the process.                                 
                                                                               
                                                                               
 CO-CHAIRMAN GREEN replied that they would produce a flow chart for            
 the following Wednesday's hearing, and would have available both              
 the existing chart and the new one.                                           
                                                                               
 Number 611                                                                    
                                                                               
 MR. CHENOWETH returned to his earlier discussion.  He referred to             
 Section 1 and said that on page 1, subsection (d)(1) restated                 
 existing law as it related to the superior court's consideration of           
 an appeal from an inferior court.  HB 341 removed the reference to            
 an administrative agency.  Mr. Chenoweth added that all                       
 administrative agency references were now at the top of page 2.  He           
 explained that paragraph 2, page 2, provided the taxpayer an                  
 opportunity to have the matter heard before the superior court and            
 to require a trial de novo, as a matter of right, on appeal from a            
 decision at an informal hearing.  It would not be discretionary               
 with the court to give a trial de novo on appeals at that stage.              
                                                                               
 Number 818                                                                    
                                                                               
 MR. CHENOWETH referred to paragraph 3 and said it covered appeals             
 to the superior court from a formal hearing.  There, the law would            
 remain the same as current law.  The appeal would remain on the               
 record unless the superior court, in its discretion, granted a                
 trial de novo in whole or in part.  Mr. Chenoweth then referred to            
 paragraph 4 and said it covered all other administrative agency               
 appeals.  There again, the law remained the same as current law.              
                                                                               
 REPRESENTATIVE DAVIES asked for confirmation that in current law              
 the issue of trial de novo was discretionary with the superior                
 court.                                                                        
                                                                               
 Number 690                                                                    
                                                                               
 MR. CHENOWETH confirmed that was the case.  He added that paragraph           
 2, by making the trial de novo a matter of right, affected an                 
 appellate procedure court rule, which change was noted in Section             
 10 of HB 341.  He then referred to page 4, line 16, and said there            
 was language in AS 43.05.244 that clarified payments of tax                   
 penalties and interest before an appeal was taken.  He said                   
 language in AS 43.05.245 amended existing law relating to                     
 collection of tax penalties and interest to pick up reference to              
 the appeals that may be taken under either AS 43.05.240, which is             
 current law, or the new AS 43.05.242 on page 5, line 5.                       
                                                                               
 Number 911                                                                    
                                                                               
 MR. CHENOWETH referred to Section 6 and said it discussed methods             
 of handling overpayments.  The amendment in Section 7 joined in the           
 new section covering the appeal process of AS 43.05.242.  He said             
 Section 8 was similar.  In Section 9, he explained, since the                 
 severance tax under AS 43.55 would be shifted from being the                  
 subject of an appeal under AS 43.05.240 to the subject of an appeal           
 process under AS 43.05.242, the reference to AS 43.05.240 was being           
 deleted on line 10 and the reference to AS 43.05.242(c)(2) was                
 being inserted.                                                               
                                                                               
 Number 945                                                                    
                                                                               
 MR. CHENOWETH returned to page 2, line 28, which expanded the                 
 references relating to where money went in terms of the budget                
 reserve fund on the basis of the outcome of tax appeals.  He added            
 that the heart of HB 341 is in Section 4, the administrative appeal           
 provisions, as well as in the granting of de novo trials as a                 
 matter of right in Section 1, paragraph 2, at the top of page 2.              
                                                                               
 Number 1004                                                                   
                                                                               
 REPRESENTATIVE LONG asked if in Section 4, in particular, these               
 were compilations of law already on the books.                                
                                                                               
 MR. CHENOWETH said that was correct.  He explained the practice was           
 to draft in order by number, which sometimes put the most important           
 part of a bill in the middle or at the end.  Therefore, when he               
 explained a bill, he tried to focus on the major change and then              
 show what needed altered because of those amendments or deletions.            
                                                                               
 Number 1052                                                                   
                                                                               
 REPRESENTATIVE LONG questioned whether the language under                     
 consideration was new.                                                        
                                                                               
 MR. CHENOWETH explained that new language was either underlined or            
 said "is amended by adding new subsections to read," followed by              
 the new wording.                                                              
                                                                               
 Number 1090                                                                   
                                                                               
 REPRESENTATIVE KOTT asked Mr. Chenoweth to explain the significance           
 of interchanging the terms "person" and "taxpayer" throughout.                
                                                                               
 MR. CHENOWETH replied that "person" would be the taxpayer;  he said           
 the terms should be consistent within each chapter despite not                
 being consistent throughout Title 43.                                         
                                                                               
 Number 1141                                                                   
                                                                               
 REPRESENTATIVE SCOTT OGAN asked Mr. Chenoweth whether the de novo             
 trial portion of HB 341 would add costs to the state.                         
 MR. CHENOWETH responded that if a taxpayer opted to use the                   
 informal hearing, was dissatisfied with the outcome, and chose to             
 appeal to the superior court, the record of the informal hearing              
 was not the only evidence the superior court would consider.                  
 Rather, the court would essentially start with a blank page and               
 expect the parties to bring forward whatever evidence they felt               
 necessary to resolve the matter.  He added that would also be true            
 if the taxpayer went through the informal hearing process, went to            
 a formal hearing, and then decided to appeal to the superior court            
 under subsection (c)(1).  In this latter instance, however, the law           
 stated that the granting of a trial de novo was discretionary with            
 the superior court; the case could be decided based on the prior              
 record at the administrative level.  Mr. Chenoweth admitted that he           
 did not know under what circumstances the court would or would not            
 grant a trial de novo.                                                        
                                                                               
 Number 1277                                                                   
                                                                               
 REPRESENTATIVE OGAN asked whether under a de novo trial the                   
 superior court could consider new evidence above and beyond what              
 the Department of Revenue had considered.                                     
                                                                               
 MR. CHENOWETH explained that a trial de novo opened up a matter as            
 if there were no record.                                                      
                                                                               
 REPRESENTATIVE OGAN further questioned whether if there were a                
 trial de novo, parties and witnesses would have to be deposed                 
 again.                                                                        
                                                                               
 MR. CHENOWETH responded that he did not know if they needed to                
 reconsider material touched on before.  But there was an                      
 opportunity to bring in additional evidence, including evidence               
 previously deemed inadmissible by the Department of Revenue.                  
                                                                               
 Number 1389                                                                   
                                                                               
 REPRESENTATIVE DAVIES asked whether, as a matter of right, the                
 taxpayer would have the right to depose people again.  He said he             
 was concerned about the impact it might have on deadlines within              
 the process.  He then asked what signals the termination of the               
 process and how did a person know when the hearing was over.  He              
 further asked how long a taxpayer had to bring a request for either           
 an informal or a formal hearing.                                              
                                                                               
 Number 1457                                                                   
                                                                               
 MR. CHENOWETH replied that in an earlier version of the bill, they            
 had added a provision making use of a reference to "final                     
 decision."  Mr. Chenoweth referred to a draft prepared in December            
 which said a decision of the Department of Revenue was final if the           
 decision disposed of either the entire case or the entire issue in            
 controversy, and may include an order entered on a motion for                 
 summary or partial summary judgment if the order constituted final            
 disposition of an entire issue in controversy.  Mr. Chenoweth                 
 commented that he had removed that language because he did know               
 what the consequences of the language would be.  He said that if              
 the committee needed that kind of certainty, they would have to               
 reinsert that language to fit the context in which it was being               
 offered.  He stated that the language was as loose in HB 341 as it            
 was in current law.  In all fairness, he said, the sponsor had                
 tried to make the language more certain; but Mr. Chenoweth said he            
 himself had decided to remove it only because he did not see how it           
 needed to be worded to fit into HB 341.  If certainty was required,           
 that language needed to be built back into the bill.                          
                                                                               
 REPRESENTATIVE DAVIES asked what the time line was to request the             
 hearings in the first place.                                                  
                                                                               
 Number 1535                                                                   
                                                                               
 MR. CHENOWETH replied that on page 3, line 16, after a                        
 determination was made by the Department of Revenue, the taxpayer             
 had 60 days from the date of mailing of the notice of determination           
 to request an informal hearing.  Under either subsection (c)(1) or            
 (c)(2), the taxpayer then had 30 days after the date of decision              
 resulting from an informal hearing to either request a formal                 
 hearing or appeal to the superior court.                                      
                                                                               
 Number 1535                                                                   
                                                                               
 CO-CHAIRMAN GREEN asked if there were any other questions as to the           
 intent of the bill.                                                           
                                                                               
 REPRESENTATIVE DAVIES referred to the list of taxes in Section 4              
 and asked what the decision process had been in choosing those                
 taxes.  Specifically, he wanted to know if other taxes had been               
 omitted from the list and what the rationale was for those on the             
 list.                                                                         
                                                                               
 Number 1608                                                                   
                                                                               
 MR. CHENOWETH responded that Section 4 did not address, for                   
 example, questions involving the estate tax, taxes on coin-operated           
 devices and punch boards, the motor fuel tax, the tobacco tax, the            
 pipeline property tax, the oil and gas conservation tax, taxes on             
 alcoholic beverages, the Business License Act tax or the existing             
 salmon enhancement tax.  All those, he said, continued to be                  
 resolved by the appeal process under AS 43.05.240, which was the              
 appeal process in current law.  He added that the selection of the            
 particular taxes listed went back to the original work order                  
 request that came from the sponsor of the bill.  He noted that when           
 the bill originated, it was with the idea of a separate tax court.            
 Now, there was no separate tax court being considered, but the                
 appeal process was being modified in relation to the same taxes               
 originally being considered under the bill.                                   
                                                                               
 Number 1661                                                                   
                                                                               
 REPRESENTATIVE DAVIES redirected his question to the sponsor of the           
 bill, Co-Chairman Green, asking how the particular taxes listed in            
 HB 341 had been chosen.                                                       
                                                                               
 CO-CHAIRMAN GREEN explained that these were major taxes and                   
 affected fewer members of the general public than would, for                  
 example, the tobacco tax or gasoline tax.  He suggested these taxes           
 were of more consequence and of a higher visibility for dispute               
 than some others.  The intent was not to resolve disputes over the            
 existence of the taxes, but rather to resolve differences in case-            
 by-case applications involving how the amounts were calculated.  In           
 contrast, he said, methods of figuring taxes on gasoline and                  
 tobacco would not be under dispute in individual cases.                       
                                                                               
 Number 1736                                                                   
                                                                               
 REPRESENTATIVE LONG asked for clarification that not all state                
 taxes were being affected by HB 341.                                          
                                                                               
 CO-CHAIRMAN GREEN confirmed that it was only certain taxes, and               
 added that they were not eliminating those taxes.  It affected                
 methods of deriving taxes and the final dollar amounts owed, not              
 the question of whether taxes were owed at all.                               
                                                                               
 Number 1777                                                                   
                                                                               
 REPRESENTATIVE PETE KOTT asked whether under AS 43.65, the mining             
 license tax, there had ever been a dispute.  He wondered why that             
 had been included and said he felt it was an oddball in the group.            
                                                                               
 MR. CHENOWETH responded that, to his best recollection, the mining            
 license tax was a bit of a misnomer.  Although it was a license               
 tax, part of the liability was determined with respect to the                 
 amount of deduction.  Consequently, there was potential for a                 
 significant question on liability based upon something that was or            
 was not produced.                                                             
                                                                               
 Number 1856                                                                   
                                                                               
 CO-CHAIRMAN GREEN noted that although they had not been requested             
 to include timber, that might be a category to be added.                      
                                                                               
 REPRESENTATIVE AUSTERMAN asked whether timber fell under the                  
 severance portion of the bill.                                                
                                                                               
 CO-CHAIRMAN GREEN said he did not know and deferred to Deborah Vogt           
 for a response.                                                               
                                                                               
 MS. VOGT explained that the severance tax included in HB 341 was              
 the oil severance tax.  As to the mining license tax, to her                  
 knowledge, there had never been a significant dispute, nor even any           
 significant revenue resulting from it.                                        
                                                                               
 CO-CHAIRMAN GREEN asked Ms. Vogt to address the timber portion in             
 order to answer Representative Kott's question.                               
                                                                               
 MS. VOGT replied she did not know the answer.                                 
                                                                               
 Number 1965                                                                   
                                                                               
 MR. CHENOWETH said he knew of no separate levy on timber.                     
                                                                               
 CO-CHAIRMAN GREEN agreed it was a good question and suggested that            
 it would be looked into and addressed at the next meeting.                    
                                                                               
 REPRESENTATIVE KOTT asked Mr. Chenoweth about page 3, line 24.  He            
 wondered if after the informal hearing, there would be written                
 notification to the taxpayer and if so, could it be tied to the               
 date of mailing of the notice as it was on page 3, line 15.  He               
 also wanted to know how much time the Department of Revenue needed            
 to prepare and provide the records to the taxpayer.                           
                                                                               
 MR. CHENOWETH replied that he did not know the mechanics of how the           
 Department of Revenue formally advised the taxpayer of the outcome            
 of an informal conference or hearing.  He noted that page 3, lines            
 20 and 21, states that if the department determines a correction is           
 warranted, the department shall make the correction.  He said he              
 assumed the outcome would be communicated either by phone or in               
 writing to the taxpayer, regardless of the outcome.  He added that            
 AS 43.05.240 was the model for this part of HB 341.  He further               
 stated that the language could be expanded to tie in with the                 
 outcome of the informal hearing to the first day the taxpayer had             
 to either appeal to the superior court or to request a formal                 
 hearing.                                                                      
                                                                               
 Number 2038                                                                   
                                                                               
 REPRESENTATIVE KOTT asked, if the Department of Revenue needed 28             
 days to get the records to the taxpayer, giving the taxpayer two              
 days to look them over, would that be enough time.                            
                                                                               
 Number 2040                                                                   
                                                                               
 MS. VOGT responded that the Department of Revenue issued written              
 informal conference decisions.  She noted that the one thing                  
 different was that an informal conference was an optional procedure           
 that can be skipped.  She said the taxpayer's files are always                
 available to the taxpayer throughout any proceeding.  However,                
 there might be attorney work product that was unavailable to the              
 taxpayer under any circumstances.  In an informal conference                  
 decision, most of what the taxpayer would not have seen would be              
 the decision itself.  She added she foresaw no problem with the 30-           
 day period that already existed between the informal conference               
 decision and the deadline for appeal.  She added that within the              
 department, they would have the power to grant an extension and she           
 could not imagine they would not do so if it were warranted.                  
                                                                               
 Number 2196                                                                   
                                                                               
 REPRESENTATIVE OGAN asked Ms. Vogt to explain how the bill would              
 affect how the Department of Revenue operated, and asked whether it           
 would detrimentally affect the revenue stream of the state of                 
 Alaska.                                                                       
                                                                               
 MS. VOGT conveyed her understanding that there would be no                    
 testimony at the meeting, and added that she was not prepared to              
 respond.                                                                      
                                                                               
 CO-CHAIRMAN GREEN reminded the committee that these issues would be           
 addressed at the full hearing on Wednesday.  The current meeting              
 was for familiarization only.                                                 
                                                                               
 MS. VOGT clarified that she would gladly address technical aspects            
 about how the Department of Revenue operates.                                 
                                                                               
 Number 2245                                                                   
                                                                               
 CO-CHAIRMAN GREEN added that the Department of Revenue had                    
 introduced a bill similar to HB 341.  He said that by Wednesday,              
 the committee would have looked at the two bills to determine if              
 there was some way to combine them.                                           
                                                                               
 MS. VOGT noted that the bill was HB 427, with SB 224 being an                 
 identical bill on the Senate side.                                            
                                                                               
 Number 2290                                                                   
                                                                               
 REPRESENTATIVE KOTT moved to adopt CS for HB 341 as a working                 
 document.                                                                     
                                                                               
 CO-CHAIRMAN GREEN asked if there was any objection to adopting the            
 committee substitute for HB 341, version K, as the working draft.             
 There being no objection, it was so ordered.                                  
                                                                               
 REPRESENTATIVE OGAN expressed his appreciation at hearing the bill            
 before adopting it as a working document.                                     
                                                                               
 Number 2315                                                                   
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 There being no further business to conduct, CO-CHAIRMAN GREEN                 
 adjourned the House Resources Committee meeting at 9:50 p.m.                  
                                                                               
                                                                               

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