35.I.01 Mississippi Administrative Code

 

Part I, Chapter 1, Sections 108 to 110

108

Requests for Guidance.
1. Any taxpayer or person seeking information concerning their responsibilities and requirements under the laws administered by the Agency may request advice and guidance concerning those obligations. The requests may be through an informal means such as oral advice or letter rulings, or formally through a declaratory opinion.
2. Taxpayers or other persons may also obtain publications of the Agency that provide information useful in complying with the laws administered by the Agency. Most printed publications of the Agency may also be found on the Mississippi Agency’s website.

108.01

Oral advice.
1. Many questions may be answered easily over the telephone or in person by an agent of the Commissioner. Oral advice is considered advisory only and is non-binding.
2. Taxpayers or persons who have complicated questions or issues centered on their own particular facts and circumstances should seek a letter ruling on the matter or request further advice from the Agency as provided below.

108.02

Letter rulings.
1. Taxpayers or other persons may seek guidance by submitting a written request for a letter ruling to the Office of Tax Policy.
2. When asking for instruction on a specific issue, it is necessary to provide adequate information in order to accurately answer the question. Because a request is based on one person's specific facts and circumstances, the response is restricted to the taxpayer or person making the request for information and the specific facts involved.
3. Letter rulings are considered informal guidance; however, the taxpayer or person requesting the letter ruling may rely on the response absent a subsequent law or regulation change or written retraction and provided that the information presented is factual and complete with no material omissions and that no changes have been made with regard to the information provided.
4. The Agency will refuse to issue a letter ruling under the following circumstances:
     a. The matter is outside the primary jurisdiction of the Agency.
     b. The question presented lacks clarity, has insufficient facts to provide a conclusive determination 
          or is too vague or too broad to be answered.
      c. A pending or active audit, criminal tax investigation, anticipated litigation, administrative action or
          other determination before the Agency, Board of Tax Appeals or a court of law which may  
         either answer the question presented or otherwise make an answer unnecessary.
      d. The question presented in the request concerns the legal validity of a statute or rule.
      e. No clear answer is determinable.
       f. The question presented involves the application of a criminal statute or facts that may constitute
           a crime.
      g. The answer to the question presented would require the disclosure of information that is                          privileged or otherwise protected by law from disclosure.
      h. The request involves an issue that may adversely affect the interests of the State, the Agency, or
          any of the Agency’s officers or employees in any litigation that is pending or may reasonably be
         expected to arise.
5. If the Agency should at a later date determine that its response was incorrect, the letter ruling will be retracted in writing and the effect of the retraction will be prospective from the date of the retraction letter.
6. Absent a written retraction of the letter ruling, a law or rule change or a change in the person's particular circumstances that affects the issue being addressed, a letter ruling will be valid for a period of seven (7) years from the date of its issuance. At the end of the seven (7) year period, the person should review and update the information in his original request for information and re-submit the question to the Agency.
7 Any letter rulings written by the Agency prior to June 30, 2005 are no longer valid. A recipient of a ruling issued prior to that date should review their letter ruling to determine if an update is necessary.
8. The Agency will accept an anonymous request for a letter ruling, but the response will not be binding until the identity of the person to whom the request pertains has been disclosed to the Agency. The name and other identifying information of the anonymous person should be provided within ninety (90) days of the date of the letter ruling. The letter ruling will be considered non-binding if the identity of the person is not provided within the time period specified.
9. A response to a person's authorized representative constitutes notice to that person. It is the person's continuing obligation to inform the Agency of the identity and address of its representative.

108.03 Declaratory Opinions.
1. Scope of the rules
These sections set forth the Agency's rules governing the form and content of requests for declaratory opinions, and the Agency's procedures regarding the requests, under Mississippi Code Ann. Section 25-43-2.103.
2. Persons who may request declaratory opinions
Any person with a substantial interest in the subject matter on which he is requesting information may submit a written request to the Agency for a declaratory opinion by following the procedures specified below. Substantial interest in the subject matter means that the interest must be direct, immediate, not remote in consequence, and must surpass the common interest of all citizens.
3. Subjects that may be addressed in declaratory opinions
The Agency will issue declaratory opinions regarding subject matters that are within the primary administrative responsibilities of the Agency. Subject matters within the oversight of the Agency include the applicability of specified facts to a statute administered or enforced by the Agency, or a rule promulgated by the Commissioner. The Agency will not issue a declaratory opinion regarding a statute or rule beyond the administrative responsibility of the Agency.
4. Circumstances in which declaratory opinions will not be issued
The Agency may, for good cause, refuse to issue a declaratory opinion. Without limiting the generality of the foregoing sentence, the circumstances in which declaratory opinions will not be issued include, but are not necessarily limited to:
 
  a. The matter is outside the primary jurisdiction of the Agency.
b. The question presented lacks clarity, the facts provided are insufficient to provide a conclusive determination, or the information is too vague or too broad to provide an answer.
c. A pending or active audit, criminal tax investigation, anticipated litigation, administrative action, or other determination before the Agency, Board of Tax Appeals or a court of law, which may either answer the question presented or otherwise make an answer unnecessary.
d. The statute, rule or order on which a declaratory opinion is sought is clear and does not require interpretation in order to answer the question presented.
e. The confidentiality waiver on the Declaratory Opinion Transmittal Form is not signed and provided to the Agency with the request for a declaratory opinion.
f. The request fails to contain the information required by these rules, or the requestor failed to follow the procedure set forth in these rules.
g. The request seeks to resolve issues that have become moot, are abstract or involve multiple hypotheticals such that the requestor is not substantially affected by the rule or statute on which a declaratory opinion is sought.
h. The request pertains to a hypothetical situation, the underlying facts of which do not, and are not anticipated to, affect or pertain to the requesting party.
i. The question presented concerns the legal validity of a statute or rule.
j. The requesting party is not directly affected by the application of the statute, rule or regulation.
k. No clear answer is determinable.
l. The question presented involves the application of a criminal statute or facts that may constitute a crime.
m. The answer to the question presented would require the disclosure of information that is privileged or otherwise protected by law from disclosure.
n. The request involves an issue that may adversely affect the interests of the State, the Agency or any of the Agency's officers or employees in any litigation that is pending or may reasonably be expected to arise.
  5. Form of the request for a declaratory opinion.
 
  a. A written request for a Declaratory Opinion, including a completed Declaratory Opinion Transmittal Form, is required. Each request must be printed or typewritten, or must be in legible handwriting. Each request must be submitted on standard business letter-size paper. Requests may be in the form of a letter addressed to the Office of Tax Policy or in the form of a pleading as might be addressed to a court.
b. All requests must be mailed or delivered to the Office of Tax Policy. The request and the envelope in which it is delivered shall clearly state that it is a request for declaratory opinion. Oral, telephonic, or facsimiled requests are not acceptable. The request must include a completed transmittal form as prescribed by the Commissioner and an executed confidentiality waiver signed by the taxpayer or person requesting the declaratory opinion.
c. Each request must include the full name, telephone number and mailing address of the requestor. Each request shall be signed by the person filing the request or a duly authorized representative. The signing party shall attest that the request complies with the requirements set forth in these rules. A declaratory opinion will have no effect if it is later determined the request did not comply with the requirements of this rule.
d. A request must be limited to a single set of facts and each request shall contain the following:
 
    i. Clear identification of the statute, rule or order at issue;
ii. A concise statement of the issue or question presented for the declaratory opinion;
iii. A complete and accurate statement of all facts relevant to a resolution of the question presented;
iv. The identity of all known persons involved or impacted by the factual situation described in the request, including their relationship to the facts, their names, their mailing addresses, and their telephone numbers;
v. A statement sufficient to show that the person making the request is substantially affected by the statute, rule, or regulation.
 
  e. A request may contain relevant information to support a position or proposed opinion suggested by the requestor. The argument may be submitted in the form of a brief containing a full discussion of the basis for the request, including any legal authorities in support of the position of the requestor.
f. The Agency may request that additional information be submitted by any interested party.
  6. Time for Mississippi State Tax Commission’s response.
 
  a. Within forty-five (45) days after the receipt of a request for a declaratory opinion that complies with the requirements of these rules, the Agency will respond in writing by one of the following methods:
 
  i. Issue an opinion declaring the applicability of the specified statute, rule, or order to the specified circumstances;
ii. Decline to issue a declaratory opinion, stating the reasons for its action;
iii. Agree to issue a declaratory opinion or a written decision by a specified time later than forty-five (45) days but no later than ninety (90) days after receipt of the written request.
 
  b. The forty-five (45) day period will begin on the first business day after the request is received by the Agency.
c. The response may be sent to the authorized representative in lieu of the requesting party or the person signing the request.
 

7. Public availability of requests and declaratory opinions.
Declaratory opinions and requests for declaratory opinions are available for public inspection. The taxpayer must sign a confidentiality waiver to authorize the Agency to disclose the contents of a declaratory opinion.

109 Contacting the Agency
The Department of Revenue may be contacted in person or by telephone during regular business hours, or by U.S. Mail, electronic mail or facsimile. A current listing of contact information for the Department of Revenue may be found at www.dor.ms.gov or obtained by calling (601) 923-7000.
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