| (a) Definition. A motion for rehearing is a request
to the comptroller from a party in a contested case to reconsider
part or all of a decision or order. The motion may or may not result
in an additional hearing. A motion for rehearing is a prerequisite
for a tax refund lawsuit.
(b) Contents of a motion for rehearing.
(1) Government Code, §2001.146(g) provides that
a motion for rehearing must identify with particularity findings of
fact or conclusions of law that are the subject of the complaint and
any evidentiary or legal ruling claimed to be erroneous.
(2) Government Code, §2001.146(g) further provides
that a motion for rehearing must also state the legal and factual
basis for the claimed error.
(3) Tax Code, §111.105(d) further provides that
a motion for rehearing on a tax refund claim must assert each specific
ground of error and state the amount of the refund sought.
(c) Deadline to file a motion for rehearing. A motion
for rehearing must be filed no later than 25 days after the comptroller's
decision is signed. The comptroller will state the 25-day deadline
to file a motion for rehearing on the first page of the comptroller's
decision. For contested case purposes, the comptroller will consider
a motion for rehearing timely if it is filed by the motion for rehearing
deadline stated on the comptroller's decision.
(d) Additional time to file a motion for rehearing.
(1) Motion for extension of time. A motion to extend
the time to file a motion for rehearing or reply must be filed with
the Office of Special Counsel for Tax Hearings in accordance with
§1.5 of this title (relating to Filing Documents with SOAH or
the Office of Special Counsel for Tax Hearings) no later than five
days after the deadline to file the motion or reply. Government Code,
§2001.146(e) gives the comptroller the authority to act on the
motion not later than the 10th day after the original deadline. If
a motion is timely and properly filed, the comptroller shall issue
an order granting or denying the motion. If the comptroller has not
timely acted on the motion, the motion is considered overruled.
(2) Failure to receive notice. Government Code, §2001.142
establishes a procedure to revise the motion for rehearing period
if a party did not receive notice or acquire actual knowledge of a
signed decision before the 15th day after the date the decision is
signed. A party may file a sworn motion to revise the period for filing
a motion for rehearing. The motion must be filed with the Office of
Special Counsel for Tax Hearings in accordance with §1.5 of this
title. If the comptroller does not issue an order granting or denying
the motion by the 10th day after the motion is received, the motion
is considered granted by operation of law.
(e) Calculation of due dates. Refer to §1.4 of
this title (relating to Computation of Time) for guidance related
to the calculation of due dates.
(f) Determining the date that a document is filed.
Refer to §1.5 of this title for guidance related to determining
the date a document is filed.
(g) Filing information for the Office of Special Counsel
for Tax Hearings. The motions and replies described in this section
must be filed with the Office of Special Counsel for Tax Hearings,
in accordance with the requirements set out in §1.5 of this title.
(h) Requirement to serve other parties. A copy of the
motion or reply must be sent to other parties on the same date the
motion or reply is filed with the Office of Special Counsel for Tax
Hearings. Refer to §1.6 of this title (relating to Service of
Documents on Parties) for additional guidance.
(i) Reply to a motion for rehearing. A party may file
a reply to a motion for rehearing, but a reply is not required. The
reply must be filed no later than the 40th day after the date the
decision is signed.
(j) Action on a motion for rehearing.
(1) The comptroller is not required to act on a motion
for rehearing. If the comptroller does not timely act to grant the
motion for rehearing, the motion for rehearing is overruled by operation
of law the 55th day after the decision was signed. If the comptroller
grants an extension to file a motion for rehearing and does not timely
act to grant the motion for rehearing, the motion for rehearing is
overruled by operation of law the 100th day after the decision was
signed.
(2) If the comptroller acts on a motion for rehearing,
the comptroller will send a written order granting or denying a rehearing
to each party's designated representative for notice. An order granting
a motion for rehearing may or may not include the comptroller's decision
upon rehearing.
(k) Finality. If a motion for rehearing is overruled,
whether by order or operation of law, the comptroller's decision is
final on the date the motion is overruled.
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