(a) Any petition or ground for objection that does
not comply with §9.4308 of this title (relating to Contents of
Petition) does not adequately specify the grounds for objection as
required by Government Code, §403.303(a) and may be rejected
by the division director without further review by the division.
(b) If the division director determines that a petition
or ground for objection asserted in a petition does not comply with §9.4308
of this title, the division will notify the petitioner that the petition
or ground for objection has been rejected pursuant to this section.
No additional information or evidence may be submitted by a petitioner
after a determination of rejection has been made by the division director.
Grounds for objection, if any, that have not been rejected will be
processed as otherwise set forth in this subchapter. The division's
agreement as to requested relief sought by way of a ground for objection
is deemed final resolution of that ground for objection. Consequently,
if all grounds for objection in a petition other than those that have
been rejected have been deemed finally resolved by agreement, the
petitioner may request referral of rejected issues in accordance with
the provisions of subsection (c) of this section applicable to a petition
rejected in its entirety.
(c) If a petition is rejected in its entirety as set
forth in this section, the petitioner may request referral of the
rejection to State Office of Administrative Hearings (SOAH) within
seven calendar days of the date that the division sends petitioner
notice of the rejection. Upon timely written request to the division,
a copy of the petition will be referred to SOAH with notice that the
petition has been rejected pursuant to this subchapter and a request
to docket. Following receipt of the referral, SOAH shall assign the
case a docket number and assign an Administrative Law Judge (ALJ).
The petitioner shall not be permitted to submit any additional information
or evidence for consideration by the ALJ. No oral hearing will be
held. The ALJ shall consider the petition and make a determination
as to each ground for objection included in the petition as to whether
or not such ground for objection complies with §9.4308 of this
title. If the ALJ determines that a ground for objection does not
comply with §9.4308 of this title, the ALJ shall, within ten
business days after referral, issue a proposal for decision to the
deputy comptroller that the ground for objection be rejected. If the
ALJ determines that a ground for objection does comply with §9.4308
of this title, the ALJ shall, within ten business days after referral,
issue a proposal for decision to the deputy comptroller stating the
ALJ's recommendation as to the decision on such ground for objection.
The decision must specify the specific change to the study findings
the ALJ recommends and the change must be based solely on the ground
for objection set forth in the petition. A ground for objection that
does not comply with §9.4308 of this title will not provide the
ALJ with sufficient information to identify a specific change to the
study findings. An ALJ will forward a copy of the record to the deputy
comptroller with any proposal for decision. After receiving the ALJ's
proposal for decision and the record, the deputy comptroller shall
issue a final decision.
(d) An ALJ's proposal for decision issued pursuant
to subsection (c) of this section shall include the ALJ's recommendations
for final decision and the rationale supporting such recommendations.
(e) The ALJ shall serve a proposal for decision issued
pursuant to subsection (c) of this section on the deputy comptroller,
the petitioner, and the division director by facsimile, electronic
mail, hand delivery, or overnight mail delivery service. An ALJ will
forward a copy of the record to the deputy comptroller with any proposal
for decision.
(f) A party to the protest that is adversely affected
by a proposal for decision issued pursuant to subsection (c) of this
section may, within seven calendar days after the date the proposed
decision is sent by facsimile, electronic mail, hand delivery or is
delivered to an overnight delivery service, file with the deputy comptroller
exceptions to the proposal for decision. Exceptions filed pursuant
to this subsection shall be filed with the comptroller's Special Counsel
for Tax Hearings by facsimile or hand delivery and shall on the same
date be served on all other parties to the protest by facsimile, hand
delivery, or email. If exceptions are filed, all other parties may,
within seven calendar days after the date the exceptions are filed,
file replies to the exceptions. Replies filed pursuant to this subsection
shall be filed with the comptroller's Special Counsel for Tax Hearings
by facsimile or hand delivery and shall on the same date be served
on all other parties to the protest by facsimile, hand delivery or
email.
(g) The deputy comptroller shall issue a final order
on a proposal for decision issued pursuant to subsection (c) of this
section and, in doing so, may adopt, amend, or reject the ALJ's proposal
for decision. A decision is final on the date signed by the deputy
comptroller. The deputy comptroller shall deliver written notice of
the final decision to each party to the protest.
(h) If one or more, but not all, of the grounds for
objection included in a petition are rejected as set forth in this
section, the grounds for objection that have not been rejected will
be processed as set forth in this subchapter. After the parties have
completed the prehearing stages of review, recommendation, submission
of evidence, and informal conference on the grounds for objection
that have not been rejected and the petitioner has the opportunity
to request referral to SOAH, petitioner may, at the same time and
in the same manner as grounds for objection that have not been rejected,
request referral to SOAH of rejected grounds for objection. The request
for referral to SOAH of rejected grounds for objection must be included
in petitioner's request for referral to SOAH of grounds for objection
that were not rejected. As to grounds for objection that have been
rejected, the provisions of subsections (c) - (g) of this section
will control. As to grounds for objection that have not been rejected,
the remaining provisions of this subchapter will control.
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