Legislature(1995 - 1996)

01/24/1996 08:03 AM House RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               HOUSE RESOURCES STANDING COMMITTEE                              
                        January 24, 1996                                       
                           8:03 a.m.                                           
                                                                               
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Joe Green, Co-Chairman                                         
 Representative William K. "Bill" Williams, Co-Chairman                        
 Representative Scott Ogan, Vice Chairman                                      
 Representative Alan Austerman                                                 
 Representative John Davies                                                    
 Representative Pete Kott                                                      
 Representative Don Long                                                       
 Representative Irene Nicholia                                                 
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 Representative Ramona Barnes                                                  
                                                                               
 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."                                                              
                                                                               
      - PASSED CSHB 341 (RES) OUT OF COMMITTEE                                 
                                                                               
 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                       
 01/19/96              (H)   MINUTE(RES)                                       
 01/24/96              (H)   RES AT 08:00 AM CAPITOL 124                       
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 TOM WILLIAMS                                                                  
 Alaska Tax Counsel                                                            
 BP Exploration, Incorporated                                                  
 P. O. Box 196612                                                              
 Anchorage, AK  99510                                                          
 Telephone:  (907) 564-5955                                                    
 POSITION STATEMENT:  Testified in support of HB 341.                          
                                                                               
 DANIEL M. SECKERS                                                             
 Tax Counsel                                                                   
 EXXON                                                                         
 3301 C Street, Suite 400                                                      
 Juneau, AK  99503                                                             
 Telephone:  (907) 564-3776                                                    
 POSITION STATEMENT:  Testified in support of HB 341.                          
                                                                               
 NORMA CALVERT                                                                 
 Marathon Oil Company                                                          
 P. O. Box 3128                                                                
 Houston, Texas  77040                                                         
 Telephone:  (713) 296-3915                                                    
 POSITION STATEMENT:  Testified in support of HB 341.                          
                                                                               
 BEVERLY WARD                                                                  
 ARCO Alaska, Incorporated                                                     
 134 North Franklin Street                                                     
 Juneau, AK  99801                                                             
 Telephone: (907) 586-3680                                                     
 POSITION STATEMENT:  Testified in support of HB 341.                          
                                                                               
 DEBORAH VOGT                                                                  
 Deputy Commissioner                                                           
 Department of Revenue                                                         
 P. O. Box 110405                                                              
 Juneau, AK  99801-0405                                                        
 Telephone:  (907) 465-2300                                                    
 POSITION STATEMENT:  Gave Department of Revenue's position HB 341.            
                                                                               
 ROBERT BRIGGS                                                                 
 Assistant Attorney General                                                    
 Department of Law                                                             
 P. O. Box 110300-0300                                                         
 Juneau, AK  99801                                                             
 Telephone:  (907) 465-3600                                                    
 POSITION STATEMENT:  Addressed the Governor's Bill HB 427.                    
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 96-6, SIDE A                                                             
 Number 000                                                                    
                                                                               
 CO-CHAIRMAN JOE GREEN called the House Resources Committee meeting            
 to order at 8:03 a.m.  Members present at the call to order were              
 Representatives Green, Williams, Ogan, Austerman, Davies, Kott and            
 Long.  Representatives Barnes and Nicholia were absent.                       
                                                                               
 HB 341 - ALASKA TAX COURT                                                   
                                                                               
 CO-CHAIRMAN GREEN discussed committee substitute for HB 341,                  
 Version "K," adopted at the Resources meeting of January 19, 1996.            
 He said the Administration has introduced a bill on the same                  
 subject, but HB 427 does not have a Resource Committee referral.              
 He said his intention is to pass CSHB 341 to House Judiciary where            
 the questions or differences between the two bills would be better            
 addressed.  Co-Chairman Green said House Judiciary will form a                
 subcommittee to iron out the differences between the two bills and,           
 hopefully, end up with a compatible bill.                                     
                                                                               
 CO-CHAIRMAN GREEN said the Administration, the department and the             
 sponsor all agree that the state's current tax structure and                  
 appeals process is in need of repair.  He said he would begin with            
 testimony from witnesses on the teleconference network.                       
                                                                               
 Number 266                                                                    
                                                                               
 REPRESENTATIVE JOHN DAVIES asked the referral path of the                     
 Governor's bill, HB 427.                                                      
                                                                               
 CO-CHAIRMAN GREEN said HB 427 has a different path.                           
                                                                               
 REPRESENTATIVE DON LONG said HB 427 had been referred to State                
 Affairs, Special Committee on Oil and Gas, Resources and Finance.             
                                                                               
 REPRESENTATIVE DAVIES said the only committee that both sets of               
 bills come to, besides Finance, is Resources.  He suggested that a            
 subcommittee of Resources would be a more easily achieved event.              
                                                                               
 CO-CHAIRMAN GREEN said the "sticking point" is the resolve that               
 needs to be done on the legal aspects.  He said this can be better            
 served by the Judiciary Committee.  The fact that the bill needs to           
 be changed is a resource issue, but it is not the purview of this             
 committee to act on judiciary matters.                                        
                                                                               
 REPRESENTATIVE DAVIES commented that the Governor's bill did not              
 get a Judiciary referral.                                                     
                                                                               
 CO-CHAIRMAN GREEN said the Governor's bill can still be addressed             
 by a House Judiciary subcommittee even though it does not have a              
 referral.  He contended the issues are better addressed by the                
 people who consider judicial issues.   He said if there is a                  
 significant amount of concern, the Speaker of the House can assign            
 HB 427 to the House Judiciary Committee.                                      
                                                                               
 Number 636                                                                    
                                                                               
 TOM WILLIAMS, Alaska Tax Counsel, BP Exploration, Incorporated,               
 testified from and Anchorage and read his testimony into the                  
 record:                                                                       
                                                                               
 "Good morning, Mr. Chairman and Members of the Committee.  My name            
 is Tom Williams, and I am Alaska Tax Counsel for BP Exploration               
 (Alaska), Incorporated.  Thank you for this opportunity today to              
 testify on behalf of BP regarding House Bill No. 341 and, in                  
 particular, on work draft `K' of a Committee Substitute for the               
 Bill, which is dated January 17, 1996.                                        
                                                                               
 MR. WILLIAMS said, "Alaska's present system of tax appeals needs              
 reform.  Present law makes the Commissioner of Revenue responsible            
 for acting as prosecutor, judge and jury in tax appeals.  In other            
 states these functions may also be combined within one agency.  But           
 in those states the potential problems from combining all three               
 functions is avoided in practice by delegating and dividing them up           
 among several different people or divisions within the agency.  In            
 Alaska, with fewer than a dozen taxpayers paying some 80% of the              
 State's total unrestricted General Fund revenues, the stakes in the           
 tax appeals have often been so material to the State that the                 
 delegations of authority here have failed to maintain a necessary             
 division of these three functions.                                            
                                                                               
 MR. WILLIAMS continued, "The dangerous overlapping, in practice, of           
 prosecutorial, judicial and juror roles within the Department has             
 been worsened by the considerable deference given by the courts to            
 formal hearing decisions issued by the Department.  On issues where           
 the facts are in dispute, the factual findings by the hearing                 
 officer are upheld unless they are `not supported by...substantial            
 evidence in light of the whole record' in the appeal.  This does              
 not mean that most of the evidence has to support the hearing                 
 officer's findings, only that there be some credible evidence -               
 some evidence of substance - which supports them.  This puts an all           
 but impossible burden of proof on the taxpayer, despite the fact              
 that the hearing officer's findings cannot become final without the           
 signature of the person who is statutorily responsible for taking             
 `all steps necessary and proper to enforce full and complete                  
 compliance with the tax...law of the state[.]'  And the fact that             
 hearing officers serve at the pleasure of the Commissioner further            
 undercuts their independence as fact-finders.  Moreover, even on              
 questions of legal interpretation, which the judiciary normally               
 views as its own particular province, if the courts defer to the              
 Department's interpretation if they decide it involves the special            
 expertise of the agency, and few other areas of the law are so                
 technical and subject to agency expertise as tax.                             
                                                                               
 MR. WILLIAMS said "Reform of the present system can proceed along             
 two avenues.  One is to increase the actual independence of the               
 people hearing tax appeals from influence by the Commissioner of              
 Revenue.  The other is to make the standard for reviewing the                 
 Department's decisions in court less deferential to the agency's              
 positions.                                                                    
                                                                               
 Number 869                                                                    
                                                                               
 MR. WILLIAMS testified, "There are now no less than three different           
 proposals before the legislature to reform the present tax appeals            
 system, each of which goes varying distances down the two avenues             
 for reform.  The first is HB 341 as originally introduced.  In that           
 version, the Bill would create a new tax court in the Judicial                
 Branch to hear tax cases.  This clearly goes as far as possible               
 toward making the tax tribunal independent of the Department's                
 influence, and minimizes the need and opportunity for judicial                
 deference to agency interpretations of the law.                               
                                                                               
 MR. WILLIAMS stated, "The second proposal is the draft CS that is             
 before the Committee today.  The key feature of the CS is the                 
 opportunity for taxpayers to opt for a trial de novo in superior              
 court after an informal conference with the Department, instead of            
 the present process of having a formal hearing before a                       
 departmental hearing officer with a subsequent appeal to the courts           
 to review the hearing decision.  Trial de novo is a legal term that           
 means having a trial of the facts as if there had been no earlier             
 fact-finding by the agency.  The CS would ensure that the `jury'              
 role will be played by an impartial judge, instead of a                       
 departmental employee.  But trial de novo would still allow the               
 courts to defer to the agency's expertise in interpreting the law             
 whenever they felt the matter was one involving agency expertise,             
 so in this sense the draft CS does not go as far as the original              
 Bill in providing for independence in the adjudication of tax                 
 cases.                                                                        
                                                                               
 MR. WILLIAMS continued, "The third proposal on the table is the               
 legislation recently introduced by the Governor, HB 427 and SB 224.           
 That legislation would create a panel of administrative law judges            
 within the Department of Administration to hold the formal hearings           
 in tax cases, and those hearings would be on a de novo basis.                 
 Being in a separate department, these "ALJs" would be considerably            
 more independent of the Commissioner of Revenue than the hearing              
 officers are under the present system, although they would appear             
 to be less absolutely independent of Executive Branch influences              
 than actual judges in the Judicial Branch would be.  Offsetting               
 this, however, is the fact that the ALJs would have tax expertise             
 to match that of the Department of Revenue itself, so there should            
 be less occasion to defer to the Department's interpretations of              
 the law on the grounds of agency expertise than there would be with           
 trial de novo in superior court.                                              
                                                                               
 MR. WILLIAMS said, "Let me make BP's position as clear as possible.           
 All three proposals as currently drafted have some technical issues           
 that should be addressed before being enacted.  But assuming those            
 technical matters can be taken care of, any one of the three                  
 proposals would significantly reform and improve the tax appeals              
 system from what Alaska has now.  This means that the most                    
 important thing, from BP's perspective, is to pass one of these             
 reforms.  Which one it is is less important than the fact that it             
 pass.  The worst possible outcome this Session would be to fail to            
 pass anything, or to pass one and have it vetoed.                             
                                                                               
 MR. WILLIAMS concluded, "We in BP are confident in your ability to            
 find a reasonable accommodation that will provide true reform in              
 tax appeal procedures.  We look forward to helping you in that                
 effort in whatever way we can."                                               
                                                                               
 Number 1055                                                                   
                                                                               
 CO-CHAIRMAN GREEN referred to the flow chart in the packet                    
 requested by Representative Austerman.  He said the chart does help           
 to understand the process.                                                    
                                                                               
 Number 1070                                                                   
                                                                               
 DANIEL M. SECKERS, Tax Counsel, Exxon, testified from Anchorage and           
 read his testimony into the record.                                           
                                                                               
 "Mr. Chairman, members of the committee, my name is Dan Seckers.              
 I am Exxon's tax counsel here in Alaska.  I want to thank you and             
 the committee for allowing me the opportunity to testify before you           
 today.                                                                        
                                                                               
 MR. SECKERS continued, "At the onset, I would like to say that                
 Exxon appreciates the willingness of this Committee to address at             
 today's hearing the important issue of how the current tax dispute            
 resolution process in Alaska can be improved.  We believe that with           
 certain changes a fairer and more efficient tax appeal process can            
 be achieved that would benefit all parties to the process.  We also           
 believe that any substantive reform to the current tax dispute                
 resolution process would be a step towards improving the business             
 and investment climate in the state.  A fair and impartial tax                
 appeal process would enhance the working relationship between the             
 state and the oil and gas industry and would send a clear signal to           
 potential investors that Alaska wants to be viewed as a state                 
 willing to resolve tax disputes in a straightforward and impartial            
 way.                                                                          
 MR. SECKERS said, "Given that there have been two proposals                   
 introduced this session which address the tax dispute resolution              
 process in Alaska, I plan to address general principles rather than           
 comment on a specific bill.  I would like to share with you some              
 key elements that we will use to evaluate any proposal designed to            
 improve the tax dispute resolution process in the state of Alaska.            
                                                                               
 MR. SECKERS testified, "First, Exxon believes than an appeal from             
 the Department of Revenue's informal conference decision on a tax             
 dispute must be heard, and the facts and law must be developed,               
 outside the control of the Department of Revenue.  Having the                 
 collection of taxes and resolving tax disputes within the same                
 agency can fuel the perception of unfairness.  Moving the tax                 
 appeal process outside the Department of Revenue would go a long              
 way towards persuading Alaska taxpayers that the tax appeal process           
 contains the essential element of fairness.                                   
                                                                               
 MR. SECKERS continued, "Second, the person presiding over the                 
 appeal must be independent.  Currently, the person assigned to hear           
 an appeal works for the Commissioner and can be dismissed for any             
 reason by the Commissioner.  If the person presiding over the                 
 appeal believes that his or her decision may impact his or her                
 future job security, then that person's judgment has been                     
 compromised because such person is not free to decide the appeal              
 based solely on the weight of the evidence presented and the                  
 applicable law.  To maintain his or her independence, the person              
 presiding over the appeal should be appointed for a fixed term of             
 years and be subject to termination during that term only for                 
 cause.                                                                        
                                                                               
 MR. SECKERS said, "Third, the person presiding over the appeal must           
 be required to resolve all questions of fact based on the majority            
 of the weight of the evidence presented during the appeal.  This              
 preponderance of the evidence standard should be used to resolve              
 all questions of fact unless another standard has been established            
 by law for a particular question.                                             
                                                                               
 MR. SECKERS testified, "Fourth, we believe the standards by which             
 questions of law will be resolved should be clearly stated.  To be            
 truly impartial, the person presiding over the appeal must be                 
 required to resolve all questions of law under the person's own               
 independent interpretation of what the law means after hearing all            
 the evidence submitted by the parties.  The only exception to this            
 should be for those areas of law legislatively delegated to the               
 Commissioner by you, the members of the legislature.  With regard             
 to these areas, deference should be given to the position taken by            
 the Department of Revenue but only if the position has a reasonable           
 basis in law.  Any areas where judicial deference is to be given to           
 the Department of Revenue should be codified by you so that both              
 the taxpayer and the Department of Revenue know such areas of                 
 deference.                                                                    
                                                                               
 MR. SECKERS stated, "Fifth, the appeal process should allow all               
 parties to the appeal to gather relevant evidence through a fair              
 and reasonable discovery process.                                             
                                                                               
 MR. SECKERS continued, "Sixth, the appeal process should allow the            
 introduction of fair and reasonable evidence.  The admissibility of           
 any evidence should rest with the discretion of the person                    
 presiding over the appeal.  No evidence should be statutorily                 
 determined to be irrelevant or inadmissible for all purposes.                 
                                                                               
 MR. SECKERS concluded, "Finally, it is possible to argue that it              
 may be helpful if the person presiding over the appeal is                     
 experienced in the field of tax law.  While such experience may not           
 be essential to providing taxpayers with an impartial tax appeal              
 process in Alaska, it could be helpful towards the efficient and              
 speedy conduct of the appeal.  Such experience, however, is not of            
 sufficient importance to override impartiality in any appeals                 
 process.                                                                      
                                                                               
 "Mr. Chairman and members of the Committee, Exxon stands ready to             
 work with you, the Legislature, the Governor and his Administration           
 in achieving meaningful reform to the current appeal process                  
 through incorporation of the key elements I have discussed here               
 today.  Working together we can further our objective of obtaining            
 a fair, impartial and efficient tax dispute resolution process, one           
 that sends a positive signal about the business climate in Alaska."           
                                                                               
 Number 1344                                                                   
                                                                               
 CO-CHAIRMAN GREEN invited Norma Calvert to come forward.                      
                                                                               
 Number 1380                                                                   
                                                                               
 NORMA CALVERT, Marathon Oil, read her testimony into the record:              
                                                                               
 "Good morning Chairman Green and members of the House Resources               
 Committee.  My name is Norma Calvert and I am here today                      
 representing Marathon Oil Company.  Chairman Green, before I share            
 with you Marathon's comments on the committee substitute for House            
 Bill 341 (the Tax Court Bill), I would like to thank you and your             
 staff, along with the committee members, for your dedicated efforts           
 to improve the tax appeals process in Alaska.  We believe the                 
 system can be modified for the benefit of the taxpayers and the               
 state of Alaska.                                                              
                                                                               
 MS. CALVERT continued, "As stated in Marathon's testimony given at            
 the October hearing, we strongly support the modification of the              
 appeals process.  Although we believe a tax court as proposed in HB
 341, as originally introduced, would provide the most impartial               
 process of resolving tax disputes, we also understand the concerns            
 raised at the October hearing by the Supreme Court system with                
 respect to establishing a specialty court in Alaska due to the                
 small numbers of taxpayers and cases to be resolved.                          
                                                                               
 MS. CALVERT said, " Our testimony in October gave detailed synopsis           
 of our concerns of the current system.  To review, our number one             
 concern is the empowerment within the Department of Revenue to                
 audit, issue assessments and govern the hearings for dispute                  
 resolution.  If the taxpayer does feel it necessary to appeal the             
 Department of Revenue's decision, a de novo review is not given at            
 the superior court level and great deference is given to the                  
 Department of Revenue's decision, making it nearly impossible to              
 obtain an impartial review of the case.                                       
                                                                               
 MS. CALVERT said, "Recognizing the complications in forming a tax             
 court in Alaska, we support the Committee's substitute bill to                
 allow for a de novo hearing outside the Department of Revenue at              
 the superior court level.  In continuing your efforts to improve              
 the tax appeals process, we would like for you to consider the                
 essential characteristics of an unbiased system: the appeals                  
 process should be independent of the audit and assessment process,            
 outside the Department of Revenue; taxpayers should be allowed a de           
 novo hearing before an impartial tribunal; and the burden of proof            
 on questions of fact should be a preponderance of evidence                    
 standard.  We believe a de novo review at the superior court level            
 provides resolution to the concerns we have expressed and is a                
 great step in moving toward an impartial tax appeals process.                 
                                                                               
 MS. CALVERT concluded, "There are a number of ways the current                
 system could be improved and we support the committee substitute as           
 an alternative to the Tax Court bill as originally introduced.  We            
 encourage this committee, the Alaska Legislature and the                      
 Administration to work toward a resolution that truly provides an             
 impartial appeal process in Alaska.  Such changes will lead to                
 expedited resolution of tax issues, with benefit to all parties               
 involved.  Most importantly, it sends a message of tax fairness               
 that is critical in encouraging future investments in Alaska."                
                                                                               
 Number 1527                                                                   
                                                                               
 REPRESENTATIVE DAVIES asked Ms. Calvert if she had reviewed HB 427,           
 the Governor's bill, and asked for her comments on that approach.             
                                                                               
 CO-CHAIRMAN GREEN remarked that HB 427 was not on the table.                  
                                                                               
 Number 1538                                                                   
                                                                               
 MS. CALVERT explained she is not in the tax organization of                   
 Marathon Oil, but would answer in a broad sense.  She said Marathon           
 had reviewed the Governor's proposal, and their general feeling is            
 HB 341 provides a more impartial process by having the de novo                
 review at the superior court level.                                           
                                                                               
 Number 1631                                                                   
                                                                               
 BEVERLY WARD, ARCO Alaska, Incorporated, came before the committee            
 and read her testimony into the record:                                       
                                                                               
 "ARCO Alaska, Incorporated, appreciates the opportunity to present            
 its views regarding legislation to change the procedures for                  
 hearing tax disputes and looking for ways to improve that process.            
 This has been an area of great concern to ARCO for more than twenty           
 years and we applaud the efforts of Representative Green and the              
 efforts of the Knowles Administration to deal with this complex               
 issue in a thoughtful and fair-minded manner.                                 
                                                                               
 MS. WARD continued, "ARCO believes that the present system for tax            
 hearings is broken.  It is so broken that it is rarely used because           
 taxpayers go to great lengths to avoid it.  ARCO has used the                 
 existing formal hearing process only once in the past ten years.              
 There is a widely held perception among taxpayers that the existing           
 system does not provide taxpayers with the opportunity for a fair             
 and independent hearing.                                                      
                                                                               
 MS. WARD testified, "In the past few weeks, we have looked at three           
 different proposals for changing the tax hearing process:  House              
 Bill No. 341 introduced by Representative Green would establish a             
 separate Tax Court; a newly adopted CS for House Bill No. 341 also            
 presented by Representative Green would provide for tax hearings              
 before the superior court; and House Bill No. 427 introduced by the           
 Governor would establish an Administrative Law Court outside of the           
 Department of Revenue.                                                        
                                                                               
 MS. WARD said, "While these bills each take different approaches,             
 each of these proposals would be much fairer than the present                 
 system and we urge the legislature to give each of these bills a              
 full hearing.                                                                 
                                                                               
 MS. WARD said, "In judging these three proposals and any other                
 proposals which might emerge, ARCO urges the legislature to                   
 critically examine the proposals against nine criteria which ARCO             
 believes should be present in any tax hearing process:                        
                                                                               
 -The hearing should be outside the control of the Department of               
 Revenue.                                                                      
                                                                               
 -The hearing officer or judge should serve for a term of years                
 rather than be subject to termination at will.                                
 -The hearing officer or judge should be specifically required to              
 have experience in the area of tax law.                                       
                                                                               
 -The hearing should be a de novo proceeding where the hearing                 
 officer or judge has original jurisdiction and hears evidence                 
 without regard to the proceedings below.                                      
                                                                               
 -The burden of proof on questions of fact should be preponderance             
 of the evidence.                                                              
                                                                               
 -The standard of review of questions of law should be substitution            
 of judgment.                                                                  
                                                                               
 -Where authority has been legally vested in the Commissioner of               
 Revenue to interpret a revenue provision, a reasonable basis                  
 standard should apply.                                                        
                                                                               
 -A taxpayer should have the opportunity to conduct legitimate                 
 discovery but neither the taxpayer nor the Department of Revenue              
 should be permitted to abuse the discovery process.                           
                                                                               
 -The hearing process structure should, to the extent possible, take           
 into account the uniqueness of Alaska's situation of very few                 
 taxpayers and tax appeals.  The hearing system should be tailored             
 to Alaska's needs and be as efficient as possible.                            
                                                                               
 MS. WARD continued, "ARCO urges this committee to apply these                 
 criteria to all three proposals as wells as to the existing law.              
 We believe a proposal might emerge which meets all of these                   
 criteria and is acceptable to the stakeholders - the legislature,             
 the Administration, the court system and the Alaska taxpayers.                
                                                                               
 MS. WARD concluded, "In closing, ARCO would like to stress two                
 points.  The first is that from our perspective this is a very                
 important issue which has long term implications for how taxpayers            
 will view the business climate in the state and the fairness of the           
 playing field.  The second is that this is a major opportunity                
 where all of the stakeholders are making a bona fide attempt to               
 establish a fair tax hearing system and every bill that has been              
 proposed is a significant improvement over the existing system.               
                                                                               
 "Once again, we applaud your efforts and the efforts of the                   
 Administration.  We stand ready to do whatever we can to facilitate           
 the enactment of fair tax hearing legislation."                               
                                                                               
 Number 1853                                                                   
                                                                               
 REPRESENTATIVE SCOTT OGAN asked Ms. Ward to explain the current               
 burden of proof with the Department of Revenue.                               
                                                                               
 MS. WARD said her understanding of preponderance of the evidence              
 means the majority of the evidence has to support the argument.               
                                                                               
 Number 1915                                                                   
                                                                               
 DEBORAH VOGT, Deputy Commissioner, Department of Revenue, said she            
 did not plan to give an overview of the Governor's bill (HB 427),             
 except to talk about general concepts.  She said she appreciated              
 industry representatives comments on the principles they wanted to            
 look at rather than line-by-line problems or the benefits of any              
 particular approach.                                                          
                                                                               
 MS. VOGT feels the current system is not broken.  She said the                
 current system is fair and can be used by taxpayers to resolve                
 their differences in a fair way.  She said she believes the system            
 is perceived to be broken and that perception is not going to go              
 away.  Ms. Vogt said she would present information that she had               
 also provided at the October 24, 1995 hearing on HB 341.                      
                                                                               
 MS. VOGT continued, the Department of Revenue decided to look into            
 the perception that its system is unfair.  This first thing we did            
 was a survey of all fifty of the other states.  The DOR talked to             
 each of the tax departments in each of the states and concluded               
 that its system of having the department review a taxpayers                   
 dissatisfaction with his assessment in front of the department, and           
 then have it go on appeal to the superior court on a substantial              
 evidence test, is in the distinct minority.                                   
                                                                               
 MS. VOGT said the Department of Revenue then contracted with New              
 York consultant Paul Frankel, Morrison & Foerster, who has                    
 consulted with a number of other states on tax resolution and tax             
 dispute procedures.  Mr. Frankel reviewed Alaska's laws and                   
 regulations and proposed regulations and recommended the Department           
 of Revenue move toward a system of independence.  His criteria was:           
 (1) the independence of the person who does the de novo review or             
 the trial; (2) the taxpayer should be able to have its factual                
 determinations made in an evidentiary hearing before it is required           
 to pay the tax; and (3) the individuals performing the trial have             
 tax expertise and be tax professionals.                                       
                                                                               
 Number 2071                                                                   
                                                                               
 MS. VOGT referred to the flow sheet entitled, House Resources                
 Committee comparison of Alaska's Present Tax Audit and Appeals                
 Process and the Resources committee substitute HB 341 version "K."           
 She said, in our current system, a taxpayer files a return and with           
 most taxpayers their return is reviewed and accepted.  With the oil           
 and gas taxpayers, we have a policy that every return is audited,             
 and the tax for the severance tax and the corporate income tax of             
 the industry taxpayers are constantly reviewed.  She said it is               
 rare that the audit process has not resulted in some disagreement             
 with the taxpayers initial filing.  So, the tax bill is then                  
 issued.  At that point, under our current system, the taxpayer has            
 a choice of paying the bill, going to informal conference or going            
 to formal hearing.  The informal conference is an opportunity to              
 come in and talk with the department about what the Department of             
 Revenue may have done wrong.  In a $200 million dispute, the                  
 conference is going to be a little more formal than with a                    
 fisherman over a dispute of a couple of hundred dollars.  It is not           
 a trial, or an adversarial process where two parties put on                   
 evidence in front of a judge, and the judge makes a decision on the           
 record.                                                                       
                                                                               
 MS. VOGT testified that a taxpayer can skip that process and go               
 straight to formal hearing which is a more formal proceeding.  It             
 is an adversarial process, it is a three component system where you           
 have a judge and two parties, and the judge is the hearing officer            
 who is, as the taxpayers pointed out, an employee of the Department           
 of Revenue.  It is the statutory duty of the commissioner to hold             
 the hearing himself.  She said she remembered when Tom Williams was           
 commissioner, he held at least one hearing.  The hearing officer              
 holds the hearing on behalf of the commissioner and makes a                   
 recommended decision to the commissioner.  The commissioner then              
 adopts, rejects or revises the decision or sends it back for more             
 work; and then the hearing officer puts out the decision under the            
 commissioner's name.  That decision can be appealed by the taxpayer           
 to the superior court.  As the taxpayers have testified, the                  
 standard of review at the superior court is the substantial                   
 evidence standard.  What that means is the judge looks at the                 
 record to discover whether there is any good evidence in the record           
 that supports the hearing officer's conclusion.  That is the job of           
 the trial court, to weigh the evidence and believe the witnesses.             
                                                                               
 MS. VOGT explained that the standard at the Department of the                 
 Revenue is the "preponderance of evidence standard" before the                
 department's hearing officer.  She said the difficulty the                    
 taxpayers have with that is that it is the department's hearing               
 officer who views the facts and not an impartial party.                       
                                                                               
 Number 2262                                                                   
                                                                               
 MS. VOGT clarified that "de novo" means "the trial," the point at             
 which the facts are tried.  She said it was confusing to talk about           
 the concept of appeal with the concept of de novo, but what it                
 means is the person who weighs the evidence "de novo" does so as              
 though no proceedings have taken place.                                       
                                                                               
 Number 2318                                                                   
                                                                               
 MS. VOGT said the department has some problems with the way CSHB
 341 is drafted and appreciates a further opportunity to work out              
 whatever becomes of this effort.  The DOR feels the committee                 
 substitute does not provide the full independence the taxpayers are           
 looking for; (1) because it only applies to certain taxes, and (2)            
 the taxpayers have a choice whether to go through the Department of           
 Revenue proceedings or go to court.  For a small taxpayer that may            
 be an important decision because court proceedings will be more               
 formal and it is going to be harder to do it "pro se," without a              
 lawyer, and small taxpayers may feel that this has not fixed                  
 anything for them.   The legislation that is before you does not              
 provide for tax professionals to review the tax cases; you will               
 appeal to the superior court and it is not clear whether you get a            
 jury or not.  But, you will certainly get the luck of the draw in             
 the judge, and the judge will not have any particular background or           
 expertise in tax matters.  Many taxpayers, maybe not the ones we              
 have heard from today, but fishermen and small corporations are               
 very dependent upon the tax expertise within the department.                  
                                                                               
 Number 2401                                                                   
                                                                               
 REPRESENTATIVE ALAN AUSTERMAN stated that the taxpayers still have            
 that ability.                                                                 
                                                                               
 MS. VOGT replied yes, they could stay within the Department of                
 Revenue and go to formal hearing, or they can go outside the                  
 Department of Revenue and go to more complex hearings and a                   
 considerably graver expense.                                                  
                                                                               
 Number 2430                                                                   
                                                                               
 MS. VOGT said another element that Mr. Frankel talked about was               
 that the taxpayer should be entitled to have his or her trial go              
 for paying any taxes, and this legislation requires the taxpayer              
 pay all the undisputed taxes, which seems to make sense, but also             
 that the taxpayer posts a bond for the disputed taxes.  That is               
 what we do when the case goes to superior court, but we have                  
 already held the trial by the time it goes to superior court.                 
                                                                               
 Number 2430                                                                   
                                                                               
 MS. VOGT said the current system raises an issue for the DOR that             
 every commissioner over the years has grappled with; how to                   
 preserve judicial independence for those cases that are going to              
 come to the commissioner's office for resolution.  For example,               
 when a matter comes to the commissioner's office and it comes to              
 formal hearing, the commissioner must then remove himself from the            
 details of the case on the division's side.  That is not hard for             
 a commissioner in a state with thousands and thousands of                     
 taxpayers, and no one of whom pays more than two or three percent             
 of the state's taxes.  It is very hard in a state where you have              
 three big taxpayers, and the cases, as they are coming through the            
 process, are important.....end tape.                                          
                                                                               
 TAPE 96-6, SIDE B                                                             
 Number 000                                                                    
                                                                               
 MS. VOGT is saying the commissioner is not going to know until the            
 taxpayer makes the choice of either going through the Department of           
 Revenue proceedings or going to court, what route that case is on.            
 She said that is the difficulty and the department feels if we are            
 going to do this, let's do the whole thing, let's get the hearings            
 out of the Department of Revenue and then the commissioner's role             
 becomes clear for all cases.                                                  
                                                                               
 Number 033                                                                    
                                                                               
 MS. VOGT said the final principle is the department thinks whatever           
 system is used should streamline the cases.  Some cases take years            
 and years to resolve, and part of that is because they are so big,            
 and part of that is because the laws were not as clear as they are            
 now, but part of it is because the procedures are not designed for            
 streamlining the cases.  Ms. Vogt informed Chairman Green that she            
 feels his bill will make things worse.  She feels court proceedings           
 are going to be more complex, more drawn out, require more                    
 discovery and more formal rules of evidence.  She said it is going            
 to take longer, and it is going to be longer before the public                
 knows how much money it is entitled to from the taxpayers.                    
                                                                               
 Number 071                                                                    
                                                                               
 MS. VOGT said the Governor's bill, HB 427, provides the formal                
 hearing function for taxes to be moved to the Department of                   
 Administration, outside the purview of the Department of Revenue.             
 An independent "administrative law judge (ALJ)," the same function            
 as a hearing officer, would be established in the Department of               
 Administration.  The chief administrative law judge, if more than             
 one, would be hired for a term of years and be dismissable only for           
 cause.  The "administrative law judge" must have a tax background.            
 The standard of review is clearly articulated in the Governor's               
 legislation and fits in with the articulated requirements that the            
 industry testified to today.  The "administrative law judge" would            
 review factual questions on a preponderance of evidence unless some           
 other standard is required by law.  There are a couple of instances           
 where either, for instance, the Supreme Court of the United States            
 has repeatedly said, in certain income tax matters or by statute,             
 a different standard is set.  CSHB 341 changes the hearing                    
 procedure for determinations of what the economic limit is.  The              
 statute says the taxpayers has to show by clear and convincing                
 evidence.                                                                     
                                                                               
 MS. VOGT said questions of law should be resolved on the                      
 substitution of judgment standard. In questions that are committed            
 to the agency's discretion, or questions of basic policy, should be           
 reviewed and should be deferred to, if there is a reasonable basis            
 for those.  The department felt very strongly that we did not want            
 an outside hearing officer or judge to be substituting his or her             
 judgment for that of the commissioner on those things that are                
 really committed to the Department of Revenue's judgement.                    
                                                                               
 Number 219                                                                    
                                                                               
 MS. VOGT referred to Dan Seckers testimony where he recommended               
 that standard for those questions committed by statute to agency              
 discretion.  The department feels that goes too far.  There are               
 issues that the courts are going to find are really founded in the            
 expertise of the department or that are really basic policy issues.           
 The legislature is not going to be able to think of every one of              
 them and articulate them in statute.  She felt that everyone agreed           
 that the Department of Revenue's policy determinations ought to be            
 left to the department, but she feels there is still some                     
 disagreement between the department and the taxpayers.                        
                                                                               
 Number 246                                                                    
                                                                               
 MS. VOGT said the Governor's bill resolves the dual role of the               
 commissioner problem because it takes all of the tax hearings out             
 of the DOR.  It has a lot provisions in it to streamline the cases.           
 It has provisions dealing with discovery and provisions dealing               
 with evidence.                                                                
                                                                               
 Number 291                                                                    
                                                                               
 MS VOGT concluded, saying she is pleased that the committee has               
 taken on this issue.  It is an issue that ought to be resolved and            
 she hopes the Administration and the committee can come to a                  
 resolution.                                                                   
                                                                               
 CO-CHAIRMAN GREEN noted the arrival of Representative Nicholia.               
                                                                               
 Number 321                                                                    
                                                                               
 REPRESENTATIVE OGAN said if the vast majority of tax situations end           
 up in dispute; a better approach is to write tax laws that are less           
 ambiguous, resulting in fewer disputes.                                       
                                                                               
 MS. VOGT said that was a good point.  The department has had a                
 series of regulation review, writing and projects for the oil and             
 gas taxes to narrow the grounds for dispute.  She said there are              
 always going to be disputes no matter how clear the law. She said             
 on the corporate income tax side, issues like, "Is a certain                  
 foreign tax, an income tax or not?"  If it is an income tax, then             
 it is not a deduction against our income tax, if it is an excise              
 tax then it is.  She said we can go to hearing on some of these               
 issues and get precedential hearing decisions, but the committee              
 has heard testimony from some taxpayers that they are reluctant to            
 use that system.  Most of the tax and royalty matters have been               
 settled in the last six or eight years.  She said what she sees               
 from a tax administrator's perspective is that the department does            
 not have answers to some of the recurring kind of questions.  A               
 hearing process that every one believes is fair can help the                  
 department move forward in that direction.                                    
                                                                               
 Number 445                                                                    
                                                                               
 REPRESENTATIVE LONG said HB 341 was geared toward certain taxes, he           
 asked Ms. Vogt to clarify what taxes are covered in this bill.                
                                                                               
 Number 461                                                                    
                                                                               
 MS. VOGT replied, CSHB 341 addresses the major taxes, the oil                 
 severance tax and the corporate income tax, those are the big ones.           
 The procedures it articulates apply to those taxes, the mining                
 license tax which is not a big tax, it applies to fisheries                   
 business tax, but it does not apply to the landing tax and those              
 taxes are the left and right hands of each other for onshore                  
 processing and offshore processing.  It applies to the oil                    
 severance tax, but not the conservation tax and the conservation              
 tax is a function of the same production that the severance tax is.           
 She would like to see legislation for this effort that applies to             
 all tax and not just specific ones.                                           
                                                                               
 Number 521                                                                    
                                                                               
 REPRESENTATIVE AUSTERMAN asked the Chair why CSHB 341 did not                 
 contain all taxes.                                                            
                                                                               
 CO-CHAIRMAN GREEN said the original legislation started out as a              
 tax court, specifically, for a majority of the oil taxes.  Through            
 the committee substitute, the bill has taken a somewhat different             
 approach.  He said he understood the department's desire that if              
 the tax appeal process is adjusted, then it should be for all                 
 taxes.  Albeit, the number would be greater, but the amount would             
 be rather small compared to ones that this originally addressed.              
 He said, some of the undisputed taxes were left out.                          
                                                                               
 Number 570                                                                    
                                                                               
 REPRESENTATIVE AUSTERMAN asked if there would there be a problem              
 with including all of taxes in the new committee substitute.                  
                                                                               
 CO-CHAIRMAN GREEN said he would have to review that issue and did             
 not see a problem.                                                            
                                                                               
 REPRESENTATIVE JOHN DAVIES said the fact of whether the oil and gas           
 conservation tax and whether certain fisheries taxes should be                
 included is more of a resource issue than a judicial issue.  He               
 suggested the Resources Committee make those recommendation as it             
 forwards the packet to the House Judiciary Committee.                         
                                                                               
 Number 608                                                                    
                                                                               
 CO-CHAIRMAN GREEN said he certainly had no objection.  He said he             
 would also forward Ms. Vogt's testimony.                                      
                                                                               
 Number 618                                                                    
                                                                               
 CO-CHAIRMAN BILL WILLIAMS asked Ms. Vogt to provide information on            
 tax appeal ratios concerning fishermen versus the oil industry.               
                                                                               
 MS. VOGT said the majority of the DOR's appeals involve the                   
 corporate income tax.  She said there are not very many cases.                
 Over the last four or five years, approximately 15-20 cases coming            
 out of the Income and Excise Division have gone to formal hearing.            
 The Income and Excise Division is responsible for corporate income            
 taxes, all the fisheries taxes, everything but the oil severance              
 and the former separate accounting.  The department has had                   
 approximately four appeals from the oil and gas side which involved           
 the severance tax and the former separate accounting.  She said               
 almost all of the 20 cases involved the corporate income tax.                 
                                                                               
 Number 755                                                                    
                                                                               
 CO-CHAIRMAN WILLIAMS asked a question about smaller taxpayers being           
 reluctant to use departmental expertise.                                      
                                                                               
 MS. VOGT responded that the reluctance she is aware of comes from             
 the large taxpayers.  She said smaller taxpayers often rely on the            
 tax expertise of the people in the DOR.  Most of these matters are            
 going to be resolved in informal conference.  That process would              
 not change under either Representative Green's bill or the                    
 Governor's bill except that you would no longer have the choice of            
 skipping it.                                                                  
                                                                               
 Number 880                                                                    
                                                                               
 MS. VOGT elaborated on the informal conference and said one of the            
 differences between Representative Green's bill and the Governor's            
 bill is that HB 341 requires the taxpayers to make the choice of              
 staying with the department, which they perceive as unfair, or                
 going to court where they have to get a lawyer and it is going to             
 become more formal.                                                           
                                                                               
 Number 945                                                                    
                                                                               
 CO-CHAIRMAN WILLIAMS said the committee's goal is to develop this             
 process so that it is friendly to everyone and not perceived as the           
 taxpayers have testified.  He asked how the committee can achieve             
 that when the Administration is saying that CSHB 341 will not be              
 able to get there.                                                            
                                                                               
 Number 994                                                                    
                                                                               
 MR. WILLIAMS said small taxpayers may feel there is a problem of              
 lack of impartiality, but it is not merely a perception to how big            
 taxpayers, like BP, feel.  Many small taxpayers like to cover their           
 own records and not be represented with an attorney.  Those types             
 of taxpayers do not see the fine points, like myself, in terms of             
 burden of proof and preponderance of the evidence and trial de                
 novo.  What they do know is their juror, their judge is an employee           
 of the commissioner who is also responsible for prosecuting the               
 audit (inaudible).  That is what gives rise to the sense, for those           
 people as well, that it is tough to get a fair shake.                         
                                                                               
 MR. WILLIAMS related that he was general counsel to Cook Inlet                
 Region, Incorporated (CIRI), prior to working for BP.  While Cook             
 Inlet Region is small compared to the oil companies, we did get a             
 tax assessment because Cook Inlet Region has some royalty income              
 from leases in the Kenai Peninsula.  That income was subject to               
 sharing under Section 7 (i) of the Alaska Native Claims Settlement            
 Act.  So, not only on behalf of its shareholders but on behalf of             
 all the regions and village corporations who will share under                 
 Section 7(i) and 70 percent of that revenue, the CIRI wanted to               
 contest the assessment issued against it.  It ended up being                  
 settled, in part, because there is a problem in the formal hearings           
 currently that become very cumbersome and expensive.                          
                                                                               
 Number 1159                                                                   
                                                                               
 MR. WILLIAMS discussed Ms. Vogt's point about the Governor's bill             
 having the flexibility for the administrative law judge to relax              
 the procedures where you have a "mom and pop" corporate entity                
 coming in contesting an assessment or disallowing an interest                 
 deduction when they find a receipt and come in show it.  He said              
 that is the sort of thing that is good, there is flexibility in the           
 Governor's bill to deal with the small taxpayers.  There has been             
 a problem in the past about merging these roles.  He said, "When I            
 was commissioner, people who were not involved in the hearing and             
 did not hear the witnesses, nevertheless, were editing and revising           
 the hearing officer's findings and conclusions of law."  That is              
 legally permissible, but it is not something that creates a good              
 atmosphere of trust between the taxpayers and the department.  That           
 is the real problem that everyone is agreeing on.  Set aside the              
 arguments about the legal merits of things, that is irrelevant, we            
 are looking at the future together and trying to put our                      
 differences behind us and look over what our interests are in                 
 common.  This perceived problem of impartiality is an issue that is           
 an obstacle toward Alaska's competitiveness.  The legislature and             
 the Administration are both concerned about this and so are we.               
                                                                               
 Number 1239                                                                   
                                                                               
 MR. WILLIAMS said we can debate the relative merits of all three              
 proposed bills, but compared to the present system, all three of              
 them are so far ahead of where we are now that it would be almost             
 preposterous that disagreement about which one is the very, very              
 best, would keep something from happening.  That is what our                  
 concern is, we want to work out an agreement with principles and              
 then put those principles down in words, and move forward.  He said           
 BP is prepared to work as hard as they have to, to try to craft               
 something that is going to reflect one of these measures or perhaps           
 a combination that represents a significant improvement from where            
 we are.                                                                       
                                                                               
 Number 1305                                                                   
                                                                               
 REPRESENTATIVE PETE KOTT followed up on Representative Ogan's                 
 question regarding the vast majority of tax situations ending up in           
 court.  He wanted to know why the legislature had not made inroads            
 in solving this problem.                                                      
                                                                               
 Number 1356                                                                   
                                                                               
 MS. VOGT responded there are going to be tax disputes as long as we           
 have taxes, and we are going to have to have a system for resolving           
 them.  She reiterated that the DOR had tried very hard over the               
 past couple of years to work on the regulations so that the                   
 magnitude of the disputes is as narrow as possible.  What we are              
 striving to do is to make the disputes with the industry of the $20           
 million magnitude rather than the $200.00 or the $2 billion                   
 magnitude.  She related that the DOR had made progress in resolving           
 old disputes and most of them have been settled. She said the                 
 department's tax program is getting close to current and will be              
 current in a couple of years.  She mentioned two very old issues              
 remaining and said the department simply needs a way to resolve               
 those remaining issues.                                                       
                                                                               
 Number 1521                                                                   
                                                                               
 REPRESENTATIVE KOTT confirmed with Ms. Vogt that she is suggesting            
 the state has lesser of a problem today than three years ago.                 
 MS. VOGT replied, absolutely.                                                 
                                                                               
 Number 1530                                                                   
                                                                               
 REPRESENTATIVE AUSTERMAN wanted clarification that the informal               
 hearing process in the Governor's bill stays the same, and then, if           
 the process goes to formal hearing, it goes before a hearing                  
 officer in the Department of Administration.                                  
                                                                               
 MS. VOGT said that was correct with one exception.  The exception             
 would be that the informal conference would no longer be a matter             
 of choice, it would be mandatory to go through the informal                   
 conference proceeding within the Department of Revenue.                       
                                                                               
 Number 1685                                                                   
                                                                               
 REPRESENTATIVE AUSTERMAN confirmed that after the formal hearing at           
 the Department of Administration, the appeal would go to superior             
 court, and, if appealed again, it goes to trial de novo.                      
                                                                               
 MS. VOGT said the appeal at the superior court would be on the                
 record and would end an appeal of an administrative decision like             
 it is now.                                                                    
                                                                               
 Number 1724                                                                   
                                                                               
 REPRESENTATIVE KOTT stated that when these cases end up in superior           
 court, the Department of Revenue is represented by counsel.  He               
 asked if counsel is retained on contract or is the Department of              
 Law responsible for providing counsel.                                        
                                                                               
 Number 1776                                                                   
                                                                               
 MS. VOGT said the Department of Law makes that decision.  In the              
 past, they have used outside attorneys for some of the bigger                 
 cases.  She understands the department is moving toward the ability           
 to handle more and more of these issues in house.                             
                                                                               
 Number 1800                                                                   
                                                                               
 REPRESENTATIVE KOTT wanted clarification from the Department of Law           
 about court rules concerning the "prevailing party."  He wanted to            
 know if there is a court rule that prevents a taxpayer from                   
 arbitrarily or capriciously filing in superior court.  Is there a             
 prevailing party court rule that would be applied?                            
                                                                               
 Number 1890                                                                   
                                                                               
 MS. VOGT felt Representative Kott was referring to the attorney               
 fees provisions Alaska has, that is different from any other state,           
 where the prevailing party is entitled to some portion of its                 
 expenses in litigating.  She said the committee substitute has a de           
 novo trial in superior court and the prevailing party is entitled             
 to attorney fees under Rule 82.  She clarified that no fees are               
 available for the Administrative proceeding in the Department of              
 Revenue nor are they in the Governor's bill at the Department of              
 Administration.                                                               
                                                                               
 Number 1967                                                                   
                                                                               
 REPRESENTATIVE AUSTERMAN said under the Governor's bill, the formal           
 appeals process goes to the Department of Administration.  He asked           
 Chairman Green his feeling on amending the proposed committee                 
 substitute for HB 341 to include that.                                        
                                                                               
 CO-CHAIRMAN GREEN clarified, "of going directly to superior court             
 after the informal hearing?"                                                  
                                                                               
 REPRESENTATIVE AUSTERMAN said the industry might want to answer               
 that question and suggested the industry may not want to go to                
 court quite so fast if the Department of Administration is the                
 formal appeal officer.                                                        
                                                                               
 CO-CHAIRMAN GREEN deferred to Ms. Vogt.  He asked, "Are we at arms            
 length or are we the same with a different title."                            
                                                                               
 NUMBER 2085                                                                   
                                                                               
 MS. VOGT said she the question might be better addressed by the               
 industry.  She said many states that have "independent review of              
 tax appeals" have that review in an administrative agency outside             
 of the tax department.  She said the DOR's consultant, Mr, Frankel,           
 has been a proponent of exactly that model.                                   
                                                                               
 MS. VOGT responded to the comment about cabinet members sitting               
 around talking about a particular case, and said the obstacle there           
 is the commissioner of the Department of Revenue would then be a              
 litigant in front of the commissioner of the Department of                    
 Administration and he would not be able to talk about that case.              
                                                                               
 Number 2197                                                                   
                                                                               
 MS. VOGT clarified in the Governor's bill that the commissioner of            
 Administration does not adopt a proposed hearing decision made by             
 the administrative law judge within the department.  The                      
 administrative law judge simply adopts his own decision and it is             
 not subject to approval by a cabinet member.  The administrative              
 law judge would be appointed for a term and dismissable only for              
 cause.  His or her decision then would be appealed straight to                
 superior court.  She believes the Governor's bill sets up the sort            
 of true independence the parties are looking for.                             
                                                                               
 Number 2264                                                                   
                                                                               
 REPRESENTATIVE AUSTERMAN recommended hearing from the oil industry            
 whether having the informal hearing process incorporated into the             
 Department of Administration would solve some of their problems.              
 He said if the committee was going to amend HB 341, that is one of            
 the areas he will consider.                                                   
                                                                               
 Number 2370                                                                   
                                                                               
 CO-CHAIRMAN GREEN said Ms. Vogt has been invited to work with the             
 House Judiciary Committee.                                                    
                                                                               
 MS. VOGT said if the Department of Administration were substituted            
 for the Department of Revenue in the committee substitute, the DOR            
 would object to there being a de novo hearing at the Department of            
 Administration and then, again, at court.....end Tape One.                    
                                                                               
 TAPE 96-7, SIDE A                                                             
 Number 000                                                                    
                                                                               
 MS. VOGT explained in drafting the Governor's bill, the Department            
 of Law felt it unusual to appoint an administrative employee for a            
 term of years.  The Department of Revenue did not want to stray too           
 far from the normal personnel procedures, and felt that by                    
 providing the independence protection to the chief administrative             
 law judge, it would accomplish the perception of true independence            
 that we are looking for here.                                                 
                                                                               
 Number 139                                                                    
                                                                               
 REPRESENTATIVE DAVIES conjectured that the chief administrative law           
 judge has the protection, but if his deputy is actually the hearing           
 officer in the case.  Is it the deputy's decision that is appealed            
 to superior court or is his position adopted by the chief and that            
 is appealed to the superior court.                                            
                                                                               
 MS. VOGT replied that HB 427 has a provision that states that the             
 decisions have a precedential value and the administrative law                
 judges are expected to circulate decisions among themselves and               
 come to an agreement.                                                         
                                                                               
 Number 220                                                                    
                                                                               
 ROBERT BRIGGS, Assistant Attorney of Law, Oil, Gas and Mining                 
 Section, Department of Law addressed the question of who makes the            
 final decision on a tax case in the Governor's bill.  The way it is           
 drafted, the final decision would be made by the hearing officer              
 who heard the evidence.  There is a provision in the bill for                 
 opinions on questions of law to be circulated among the chief                 
 administrative law judge and the other administrative law judges              
 who might be employed.  The purpose for that provision is to                  
 provide some consistency, sort of a "collegial atmosphere" for                
 administrative law judges to look over each others shoulders and              
 read their legal opinions and say, "I do not think you have this              
 right" and give a chance for that kind of comparison for legal                
 opinion.  As to questions of fact, those under the Governor's bill            
 would be decided by the person who hears the evidence.                        
                                                                               
 Number 306                                                                    
                                                                               
 REPRESENTATIVE DAVIES recommended that perhaps all administrative             
 law judges should have the protection of term of office so that               
 their perceptions of fact and their findings would have that mantle           
 of independence that we are trying to achieve.                                
                                                                               
 CO-CHAIRMAN GREEN stated that the committee has heard Ms. Vogt's              
 opinion about a tax court.  He then asked her if she would still be           
 opposed to a tax court review if the issue included the capability            
 of a tax "wise" judge to hear the case.                                       
                                                                               
 Number 439                                                                    
                                                                               
 MS. VOGT reiterated two reasons why the Department of Revenue was             
 not happy with the idea of a tax court.  She said the first problem           
 in the current draft is the lack of tax expertise, and felt the               
 Chairman was postulating that if that issue was solved, how would             
 the DOR feel.  She said the other major element is the expeditious            
 treatment of tax matters.  She talked about developing an informal            
 system for the small taxpayer; a system that would not be subject             
 to the formal rules of court; and formal evidence rules to all the            
 panoply of discovery.  She said the DOR has spent a fair amount of            
 time developing provisions in the Governor's bill that would give             
 the hearing officer some "teeth" to get a handle on the magnitude             
 of the case and keep it to a reasonable size.  She feels the size             
 of cases will "blossom" rather than become streamlined under the              
 committee substitute.                                                         
                                                                               
 Number 537                                                                    
                                                                               
 MR. WILLIAMS asked to comment on an earlier issue and addressed the           
 subject of, "moving toward clearer rules of the game to reduce tax            
 disputes."  He said he agreed with Ms. Vogt that there has been a             
 lot of progress made and continues to be worked on now.  It is an             
 ongoing process to clarify the rules.  He said, part of the problem           
 in the past, and one the lessons to be learned from it is that when           
 mistakes get absolutely colossal, policy making may become                    
 paralyzed or becomes driven by considerations that parties would              
 rather not see driving those decisions.  The point is, by making              
 the playing field on the tax appeals more level, at the same time             
 that tax rules of the game are made clearer, we take the pressure             
 off the system and have a fair and equitable system of tax                    
 administration which, from this side of the Table, Alaska has                 
 lacked.  We are very encouraged by the progress that has been made            
 and are encouraged to believe that there will be a lot more                   
 progress to be made with the Administration on clarifying the tax             
 rules.  That is a complimentary effort not an exclusionary effort             
 to the one that you are dealing with here in the subject of this              
 legislation.  The two go hand-in-hand and between the two of them             
 we will have a better system.                                                 
                                                                               
 CO-CHAIRMAN GREEN asked Ms. Vogt if the administrative law judge              
 concept in the Governor's bill could be modified by removing it               
 from the Department of Administration and creating an independent             
 administrative law judge.                                                     
                                                                               
 Number 692                                                                    
                                                                               
 MS. VOGT said she was unprepared to address that issue at present,            
 but she expressed concern with the expense of setting up an entity            
 separate from existing government.                                            
                                                                               
 Number 717                                                                    
                                                                               
 CO-CHAIRMAN GREEN said if that were contracted out instead of                 
 having a departmental employee, would the expense be a trade off.             
                                                                               
 MS. VOGT said she cannot imagine that a contract attorney would be            
 less expensive than a state employee.                                         
                                                                               
 Number 752                                                                    
                                                                               
 CO-CHAIRMAN GREEN asked the view of the Department of Revenue                 
 regarding the right to the discovery procedure if there is a quasi            
 "de novo" in the Department of Administration.                                
                                                                               
 Number 796                                                                    
                                                                               
 MS. VOGT replied the subject came up with Paul Frankel who                    
 recommended eliminating the discovery procedure.  She explained               
 that Mr. Frankel's point was that the Department of Revenue has the           
 subpoena power and can get all of the taxpayers records.  The                 
 taxpayer has access to his own file in the DOR.                               
                                                                               
 MS. VOGT said that she and the commissioner were intrigued by that            
 idea and floated it out for discussion amongst the group working on           
 the Governor's bill.  She said the DOR had some resistance from               
 both sides, from the attorneys in the Department of Law and from              
 the taxpayers we worked with.  She remarked that Mr. Frankel has              
 probably not seen tax cases in which one taxpayer pays almost half            
 the taxes in the state.                                                       
                                                                               
 Number 881                                                                    
                                                                               
 MS. Vogt continued, the DOR worked very hard to find some sort of             
 compromise that would limit a "blank check" on discovery without              
 compromising appropriate due process.                                         
                                                                               
 Number 933                                                                    
                                                                               
 CO-CHAIRMAN GREEN said if an applicant protested an administrative            
 law judge decision in the Governor's version, and the ALJ refused             
 to provide the applicant with a particular request; and the                   
 applicant appealed to superior court, would the entire record                 
 including the denied request be transferred to superior court.                
                                                                               
 MS. VOGT said yes, it would be like a trial judge in superior court           
 making a ruling that the superior court or the next court up would            
 be empowered to find the ruling was in error and the evidence                 
 should have been admitted.                                                    
                                                                               
 Number 973                                                                    
                                                                               
 REPRESENTATIVE DAVIES asked if the intent of the Chair was to move            
 CSHB 341 from committee.  He stated he found the discussion very              
 useful and suggested that the committee hold the bill and continue            
 the discussion.  Representative Davies said if it is the intent of            
 the committee to move the bill, he would like to include two items.           
                                                                               
 Number 1010                                                                   
                                                                               
 REPRESENTATIVE DAVIES asked that the committee substitute for HB
 341 include the understanding that the Chair would request the                
 Speaker of the House to refer the Governor's bill to the House                
 Judiciary Committee.                                                          
                                                                               
 CO-CHAIRMAN GREEN responded that would be a consideration, and                
 whether or not that is actually done, the context of the bill would           
 be reviewed in the House Judiciary Committee.                                 
                                                                               
 Number 1056                                                                   
                                                                               
 REPRESENTATIVE DAVIES said testimony from the taxpayers indicates             
 they think there is a substantial agreement in principle among all            
 the parties here about the kinds of concerns that need to be                  
 resolved.  He recalled a specific suggestion that the subcommittee            
 consider these principles to find the commonality, and then proceed           
 to a new committee substitute to incorporate all of these things.             
 CO-CHAIRMAN GREEN said that certainly is his feeling as well that             
 there should be a strong recommendation to the Judiciary Committee.           
                                                                               
 Number 1111                                                                   
                                                                               
 REPRESENTATIVE LONG said that was also one of his concerns.  He               
 said he was unsure of the procedure but that he intended to make a            
 motion to attach HB 427 to HB 341.                                            
                                                                               
 CO-CHAIRMAN GREEN said the committee can send a recommendation, but           
 the question of whether we attach HB 427, or not, is moot because             
 the context would be part of the recommendation for review.  He               
 said he felt he could speak for the chairman of the Judiciary                 
 Committee that that would be his attitude.                                    
                                                                               
 Number 1177                                                                   
                                                                               
 REPRESENTATIVE OGAN commented that there is a problem in many state           
 agencies where the same organization that creates the regulations,            
 enforces and adjudicates the regulations.  He feels HB 341 is a               
 step in the right direction.                                                  
                                                                               
 Number 1208                                                                   
                                                                               
 CO-CHAIRMAN WILLIAMS moved that CSHB 341 Resources move from the              
 House Resources Committee with individual recommendation and the              
 attached fiscal note.  CO-CHAIRMAN WILLIAMS motion also included              
 the language "the questions brought up by the Chair and other                 
 Representatives be attached."  There being no objection, it was so            
 ordered.                                                                      
                                                                               
 Number 1237                                                                   
                                                                               
 CO-CHAIRMAN GREEN announced the committee will hear HB 325, Heavy             
 Oil, on Friday, January 26th.                                                 
                                                                               
 Number 1281                                                                   
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 The meeting was adjourned at 9:58 a.m.                                        
                                                                               

Document Name Date/Time Subjects