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(a)A petition is subject to dismissal if there is any jurisdictional defect. Jurisdictional defects include, but are not limited to, lack of standing and untimely filing. If a petition is filed and there is a jurisdictional defect, the division may file a motion to dismiss with the State Office of Administrative Hearings (SOAH) 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). At the time of filing the motion to dismiss, the division will deliver a copy to petitioner by United States Postal Service First Class Mail and, if an email address has been provided in the petition, by email. The petitioner may, no later than seven calendar days from the date the motion to dismiss is filed, file a response with SOAH. At the time of filing a response, the petitioner shall deliver a copy of the response to the division director and counsel for the division by United States Postal Service First Class Mail and email. The division will have seven calendar days from the date of filing of the response to file a reply with SOAH. At the time of filing a reply, a copy shall be delivered to petitioner by United States Postal Service First Class Mail and, if an email address has been provided in the petition, by email. After time for the division to file a reply has expired, SOAH shall consider the motion, any timely-filed response, and any timely-filed reply, and issue a proposed final decision within seven business days to the deputy comptroller stating the ALJ's recommendation as to the decision on the motion. Neither the division nor the petitioner shall be permitted to submit any additional information or evidence for consideration by the ALJ. No oral hearing will be held. (b)The ALJ's proposal for decision shall include the ALJ's recommendation for final decision and the rationale supporting such recommendation. (c)The ALJ shall serve the proposal for decision 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. (d)A party to the protest that is adversely affected by the proposal for decision may, within five 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 five 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. (e)The deputy comptroller shall issue a final order and, in doing so, may adopt, amend, or reject the ALJ's proposal for decision. (f)A decision is final on the date signed by the deputy comptroller. (g)The deputy comptroller shall deliver written notice of the final decision to each party to the protest. (h)Petitioner bears the burden of proof on all jurisdictional matters. (i)If a motion to dismiss is denied, the petition will be processed in accordance with this subchapter.
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on November 4, 2010
TRD-201006256 Ashley Harden
General Counsel
Comptroller of Public Accounts
Earliest possible date of adoption: December 19, 2010
For further information, please call: (512) 475-0387
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