35.I.01 Mississippi Administrative Code

 

35.I.01 Mississippi Administrative Code

Part I, Chapter 1, Section 107

  Information on Appeals
107

Administrative Hearings and Appeals
This section describes the administrative appeal process to be followed when a person is aggrieved by certain actions of the Agency, and includes a description of the types of actions that may be appealed, how to file appeals, the scheduling and conduct of administrative hearings, time limits for filing appeals and withdrawals of appeals. The intent of the administrative appeal process is to secure a just resolution or decision.

107.01 Administrative Appeal Process
With the exception of an appeal of a tag penalty, this section does not describe the administrative appeal process relating to actions of the Agency regarding ad valorem taxes and homestead exemptions. An administrative appeal from these actions shall be as prescribed by statute. This section also does not describe the administrative appeal process for actions taken by the Agency under the Local Option Alcoholic Beverage Control Law or under the Mississippi Native Wine Act of 1976. The administrative appeal process for such ABC actions is described in the ABC Regulations of the Agency.
  1. Informal Review
 
  a. A person may seek an informal review of any assessment or other action believed to be incorrectly issued or any refund believed to be improperly denied.
b. When an auditor or examiner determines additional tax is due, the person assessed with the tax should first attempt to resolve any questions with the auditor or examiner. If unable to reach an agreement with the auditor regarding the audit results, a conference with the auditor’s supervisor or the supervisor's designee may be arranged. This conference should provide opportunity to both parties to gain a thorough understanding of the basis of the assessment and to make sure that the underlying facts are correct and complete.
c. An informal review may be granted for any situation, but is not required before seeking an administrative appeal. The person may continue to attempt to resolve an issue informally with Agency staff once the formal appeal process has begun but the informal review does not toll the time limit to appeal to the Review Board.
  2. Representation
  A person may represent himself or may choose to have a representative at any point throughout the appeal process. Hearings before the Review Board or a hearing officer are considered confidential and are not open to the public; however, the appellant may permit another person or persons to attend the hearing and to participate as deemed appropriate or necessary.
  3. Interest continues to accrue on unpaid balances.
  Filing an appeal does not stop interest charges from accruing on any unpaid tax liability. In some situations, penalties may also continue to accrue.
  4. Written requests for Administrative Appeal
 
 

a. The taxpayer or person appealing must request a hearing in writing. A Review Board Appeal Petition Form, which can be found on the Agency’s website, may be used to make the hearing request. The written request must include the following information:
    i. All requested information about the taxpayer or person appealing including name, address,  
       contact phone number, amount of assessment, period, and account number;
   ii. The issue being appealed;
  iii. An explanation of the reason for the appeal;
  iv. The amount of tax, fees, interest and/or penalty being contested, if any;

  b. The Petition must be signed and dated by the taxpayer or person appealing. The appeal must be received within the time period prescribed for the appeal. If the appeal is postmarked by the deadline for the appeal but not received by that date, it cannot be considered due to untimeliness.
c. It is the responsibility of the person appealing to provide and maintain an official mailing address on file with the Review Board. Any change of address during the appeal process must be made known in writing and addressed to the Review Board. This notice of address change is for the appeal process only and does not make any address change to tax account information maintained by the Agency.
d. The timeline for appeals is explained further in this section. A request for appeal not received within the time periods provided below will be considered untimely and returned to the taxpayer or person appealing.
  5. Notice of hearing.
 
  a. A person or his authorized representative will be notified of the hearing by mail at his last known address. The last known address will be the mailing address provided in the written request for appeal or any subsequent address change notification to the Review Board.
b. The hearing notice will contain the time, place and date of the hearing. Notice to the person's or taxpayer's authorized representative constitutes notice to the person or taxpayer.
  6. Continuance of hearing
 
  a. A request for a continuance of the hearing will be routinely granted if the request is received within ten (10) days after the notice of the hearing is mailed. If the request for continuance is received beyond ten (10) days from the date the notice of hearing is mailed, then the determination whether to continue the hearing will be made by the Chairman of the Review Board.
b. The Department of Revenue will not be responsible for delay in the delivery of mail.
  7. Confidential hearings
  All hearings are closed to the public due to the confidential nature of the subject matter. However, through written authorization, the person appealing may waive the right to a closed hearing.
  8.Items subject to administrative appeal are
 
 

a. Assessment of tax;
b. Denial of refund;
c. Denial of waiver of tag penalty;
d. Suspension, surrender, seizure or revocation of permit, tag, or title;
e. Denial of application for a permit, tag, or title.

 

9. Items not subject to administrative appeal include but are not limited to:

    a. Bond amounts;
b. Declaratory Opinions;
c. Letter rulings;
d. Oral or written advice;
e. Collection actions including but not limited to liens and garnishments
f. Diversions or distributions of tax revenue;
g. Refund offsets used to pay debts owed to other government agencies;
h. Denials of certifications of tax incentives; and
i. Denial of rebates.
  10. Request for removal of voting member of Review Board
 
  a. Any person may request that a member of the voting panel of the Review Board be replaced or that a member not participate in a hearing if it appears that member's impartiality might be questioned by a reasonable person knowing all the circumstances, or for other reasonable grounds.
b. A written or verbal request for removal of a voting member from the decision-making process stating the reason the member's impartiality is questioned must be made by the taxpayer or person appealing before the commencement of a Review Board hearing. Such request should be made to the Chairman or the presiding member of the Review Board. Any denial of the request is not subject to appeal.
  11. Timeline for filing appeals
 
  a. Assessment of tax, denial of refund or denial of a waiver of tag penalty:
 
    i. A taxpayer, aggrieved by an assessment of tax, penalty or interest, a denial of a refund or a denial of a waiver of tag penalty, may apply for a hearing before the Review Board. The taxpayer must submit a request in writing to the Chairman of the Review Board within sixty (60) days of the date of the action. The matter will become final after this sixty (60) day period if it is not appealed.
ii. If the Review Board determines that the assessed tax, penalty or interest is due, the taxpayer must pay the assessment or appeal to the Board of Tax Appeals within sixty (60) days from the date of the order of the Review Board. A taxpayer wishing to appeal an order of the Review Board must submit the request for appeal in writing to the Executive Director of the Board of Tax Appeals. At the time of filing his appeal with the Executive Director, the taxpayer shall also file a copy of his written appeal with the Chief Counsel of the Legal Division. The matter will become final after this sixty (60) day period if it is not appealed.
 
  b. Suspension, surrender, seizure or revocation of a permit, tag, or title:
 
    i. If the Agency determines that action against a permit, IFTA license, IRP registration, tag or title is necessary, the permittee, tag holder or title interest holder will be notified by mail of the agency's intention to revoke, suspend or order the surrender or seizure of the permit, tag or title. The notice will advise that the permit, IFTA license, IRP registration, tag or title will be revoked or suspended unless the permittee, licensee, registrant, tag holder or title interest holder files with the Review Board a written request for a hearing on the intended action within thirty (30) days from the date of the notice. The matter will become final after thirty (30) days if it is not appealed.
ii. If the permittee, IFTA licensee, IRP registrant, tag holder or title interest holder is aggrieved by the determination of the Review Board or hearing officer, the aggrieved party may appeal in writing to the Board of Tax Appeals within thirty (30) days of the date of the order. At the time of filing his appeal with the executive director, the permittee, IFTA licensee, IRP registrant, tag holder or title interest holder shall also file a copy of his written appeal with the Chief Counsel of the Legal Division. The matter will become final after this thirty (30) day period if it is not appealed.
 
  c. Denial of an application for a permit, tag, or title.
 
    i. If the Agency determines that an application for a permit, IFTA license, IRP registration, tag or title should be denied, the applicant will be notified either by mail or in person of the Agency's intention to deny the permit, IFTA license, IRP registration, tag or title. If the denial involves an application for a title, the notice will also be mailed to the designated agent who submitted the title application and any other alleged title interest holders shown on the application. If the applicant or any title interest holder appearing on the application is aggrieved by the denial of application, the aggrieved party shall file a written appeal with the Review Board within thirty (30) days of the notice. The matter will become final after this thirty (30) day period if it is not appealed.
ii. If the applicant or the title interest holder remains aggrieved by the determination of the Review Board, the aggrieved party may appeal in writing to the Board of Tax Appeals within thirty (30) days of the date of the order. The matter will become final after this thirty (30) day period if it is not appealed.
    d. When an appeal, objection or other document is required by statute, regulation or the Agency to be filed with the Review Board within any number of days, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, legal holiday or any other day when the offices of the Agency are in fact closed, with or without legal authority, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, a legal holiday or any other day when the office of the Agency is closed. Legal holidays for the Agency are found at Miss. Code Ann. § 3-3-7(1). When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. Mailing does not constitute filing, and the time period within which the appeal, objection or other document has to be filed is not extended because of mailing.
  12. Review Board hearing
 
  a. With the exception of matters regarding alcoholic beverage control and Agency actions related to Ad Valorem Tax, a taxpayer or person in disagreement with an assessment, refund or other appealable action of the Agency may request a hearing before the Review Board. Three members of the Review Board shall constitute a quorum and may hear any matter before the Review Board; however, an appeal of the intent to revoke, suspend, or order for seizure or surrender of a permit, tag, or title may be heard by a panel of the Review Board or by a hearing officer.
b. Upon timely receipt of a written request from the person appealing or his authorized representative, the Review Board shall promptly schedule a hearing for consideration of the appeal. At the hearing, the Review Board shall decide the issues presented according to the applicable law and the facts.
c. A decision in favor of the person appealing may be made without a hearing when the facts are not in dispute, the issues are clearly identified, or the law has been applied in the same manner in similar situations in previous decisions.
d. There will be no official transcript or recording made of a Review Board hearing. The official record of the hearing will be the minutes and orders of the Review Board, which are confidential for all tax matters. Review Board hearings shall be informal and the rules of evidence shall be relaxed.
e. In any appeal covered by this Chapter, the burden of proof shall be on the appellant to prove that the action of the Agency is incorrect.
f. The person requesting the hearing or the person's authorized representative will be asked to discuss the facts supporting the person’s claim and to provide an explanation of how the law supports that claim. Representatives of the Agency may also be asked to discuss the facts in support of the Agency’s action or cause.
g. The Review Board may request the person appealing the matter or Agency staff to provide additional information and/or documents during the course of its review. Time limits for submission of the additional information or documents will be established by the chair of the Review Board. If the person from whom information or documents are requested fails to respond to the request in the time provided, the Review Board may decide the appeal without the supplemental documents or information.
h. An order will be issued after the Review Board has fully considered the information provided at the hearing, any post-hearing information submitted to the Review Board and the laws specific to the case. The Chairman of the Review Board will prepare the order and mail it to the person or authorized representative. Notice to the authorized representative constitutes notice to the person appealing.
i. The Review Board may elect to uphold the assessment, to amend the assessment, to issue a revised assessment, to issue a refund or credit, to remand the issue to the originating division for further review or to take any other action it deems appropriate. If the person remains aggrieved by the decision of the Review Board, the action may be appealed to the Board of Tax Appeals within the time limits set forth above.
  13. Withdrawal of an appeal
 
  a. An appeal before a hearing officer or the Review Board may be withdrawn at any time by the taxpayer or person filing the appeal. The withdrawal may be made voluntarily by the person or may occur involuntarily under the conditions listed below.
b. An involuntary withdrawal of an appeal may occur as result of the person’s failure to appear at a scheduled hearing, failure to timely provide a written appeal in lieu of attendance at a hearing or by any other act or failure that the body hearing the appeal determines is a failure on the part of the person to prosecute his appeal. An involuntary withdrawal will be documented in the minutes providing the basis of the withdrawal.
c. A voluntary withdrawal of an appeal must be delivered in writing by the person or authorized representative to the Chairman of the Review Board prior to the scheduled time of the hearing on the appeal..
d. Following the withdrawal of an appeal, the action shall become final and not subject to further review by the Review Board, Board of Tax Appeals or a court. The Agency shall then proceed with any action in accordance with the law.
  14. Board of Tax Appeals Hearing
 
  a. Any person aggrieved by a final Order of the Review Board may seek an administrative review of that decision by the Board of Tax Appeals by filing a written appeal with the Executive Director of the Board of Tax Appeals as provided by law.
b. The person filing the appeal with the executive director shall also file a copy of his written appeal with the Chief Counsel of the Legal Division.

 

Next, Section 108 (Guidance, Letter Rulings, Declaratory Opinions)

Sections 100-103 (General Information and Definitions)

Section 104 (Agency Organization)

Section 105 (Obtaining Information, Public Records Requests)

Section 106 (Adoption of Rules and Regulations)

Section 107 (Hearings and Appeals)

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