2005 California Revenue and Taxation Code Sections 46611-46627 Article 2. The California Taxpayers\' Bill of Rights

46611.  The board shall administer this article.  Unless the context
indicates otherwise, the provisions of this article shall apply to
this part.
46612.  (a) The board shall establish the position of the Taxpayers'
Rights Advocate.  The advocate or his or her designee shall be
responsible for facilitating resolution of feepayer complaints and
problems, including any feepayer complaints regarding unsatisfactory
treatment of feepayers by board employees, and staying actions where
feepayers have suffered or will suffer irreparable loss as the result
of those actions.  Applicable statutes of limitation shall be tolled
during the pendency of a stay.  Any penalties and interest that
would otherwise accrue shall not be affected by the granting of a
stay.
   (b) The advocate shall report directly to the executive officer of
the board.
46613.  (a) The board shall develop and implement an education and
information program directed at, but not limited to, all of the
following groups:
   (1) Fee payers newly registered with the board.
   (2) Board audit and compliance staff.
   (b) The education and information program shall include all of the
following:
   (1) A program of written communication with newly registered fee
payers explaining in simplified terms their duties and
responsibilities.
   (2) Participation in seminars and similar programs organized by
federal, state, and local agencies.
   (3) Revision of fee payer educational materials currently produced
by the board that explain the most common areas of fee payer
nonconformance in simplified terms.
   (4) Implementation of a continuing education program for audit and
compliance personnel to include the application of new legislation
to fee payer activities and areas of recurrent fee payer
noncompliance or inconsistency of administration.
   (c) Electronic media used pursuant to this section shall not
represent the voice, picture, or name of members of the board or of
the Controller.
46614.  The board shall conduct an annual hearing before the full
board where industry representatives and individual feepayers are
allowed to present their proposals on changes to the Oil Spill
Response, Prevention, and Administration Fee Law that may further
improve voluntary compliance and the relationship between feepayers
and government.
46615.  The board shall prepare and publish brief but comprehensive
statements in simple and nontechnical language that explain
procedures, remedies, and the rights and obligations of the board and
feepayers.  As appropriate, statements shall be provided to
feepayers with the initial notice of audit, the notice of proposed
additional fees, any subsequent notice of fees due, or other
substantive notices.  Additionally, the board shall include this
language for statements in the annual fee information bulletins that
are mailed to feepayers.
46616.  (a) The total amount of revenue collected or assessed
pursuant to this part shall not be used for any of the following:
   (1) To evaluate individual officers or employees.
   (2) To impose or suggest production quotas or goals.
   (b) The board shall certify in its annual report submitted
pursuant to Section 15616 of the Government Code that revenue
collected or assessed is not used in a manner prohibited by
subdivision (a).
46617.  The board shall develop and implement a program that will
evaluate an individual employee's or officer's performance with
respect to his or her contact with feepayers.  The development and
implementation of the program shall be coordinated with the Taxpayers'
Rights Advocate.
46618.  The board shall, in cooperation with the Department of Fish
and Game, the Taxpayers' Rights Advocate, and other interested
feepayer-oriented groups, develop a plan to reduce the time required
to resolve petitions for redetermination and claims for refunds.  The
plan shall include determination of standard timeframes and special
review of cases that take more time than the appropriate standard
timeframe.
46619.  Procedures of the board, relating to appeals staff review
conferences before a staff attorney or supervising tax auditor
independent of the assessing department, shall include all of the
following:
   (a) Any conference shall be held at a reasonable time at a board
office that is convenient to the feepayer.
   (b) The conference may be recorded only if prior notice is given
to the feepayer and the feepayer is entitled to receive a copy of the
recording.
   (c) The feepayer shall be informed prior to any conference that he
or she has a right to have present at the conference his or her
attorney, accountant, or other designated agent.
46620.  (a) Every fee payer is entitled to be reimbursed for any
reasonable fees and expenses related to a hearing before the board if
all of the following conditions are met:
   (1) The fee payer files a claim for the fee and expenses with the
board within one year of the date the decision of the board becomes
final.
   (2) The board, in its sole discretion, finds that the action taken
by the board staff was unreasonable.
   (3) The board decides that the fee payer be awarded a specific
amount of fees and expenses related to the hearing, in an amount
determined by the board in its sole discretion.
   (b) To determine whether the board staff has been unreasonable,
the board shall consider whether the board staff has established that
its position was substantially justified.
   (c) The amount of reimbursed fees and expenses shall be limited to
the following:
   (1) Fees and expenses incurred after the date of the notice of
determination, jeopardy determination, or a claim for refund.
   (2) If the board finds that the staff was unreasonable with
respect to certain issues but reasonable with respect to other
issues, the amount of reimbursed fees and expenses shall be limited
to those that relate to the issues where the staff was unreasonable.
   (d) Any proposed award by the board pursuant to this section shall
be available as a public record for at least 10 days prior to the
effective date of the award.
   (e) The amendments to this section by the act adding this
subdivision shall be operative for claims filed on or after January
1, 2000.
46621.  (a) An officer or employee of the board acting in connection
with any law administered by the board shall not knowingly
authorize, require, or conduct any investigation of, or surveillance
over, any person for nonfee administration related purposes.
   (b) Any person violating subdivision (a) shall be subject to
disciplinary action in accordance with the State Civil Service Act,
including dismissal from office or discharge from employment.
   (c) This section shall not apply with respect to any otherwise
lawful investigation concerning organized crime activities.
   (d) The provisions of this section are not intended to prohibit,
restrict, or prevent the exchange of information where the person is
being investigated for multiple violations which include underground
storage tank fee violations.
   (e) For the purposes of this section:
   (1) "Investigation" means any oral or written inquiry directed to
any person, organization, or governmental agency.
   (2) "Surveillance" means the monitoring of persons, places, or
events by means of electronic interception, overt or covert
observations, or photography, and the use of informants.
46622.  (a) It is the intent of the Legislature that the State Board
of Equalization, its staff, and the Attorney General pursue
settlements as authorized under this section with respect to fee
matters in dispute that are the subject of protests, appeals, or
refund claims, consistent with a reasonable evaluation of the costs
and risks associated with litigation of these matters.
   (b) (1) Subject to paragraph (2), the executive director or chief
counsel, if authorized by the executive director, of the board may
recommend to the State Board of Equalization, itself, a settlement of
any civil fee matter in dispute.
   (2) No recommendation of settlement shall be submitted to the
board unless and until that recommendation has been submitted by the
executive director or chief counsel to the Attorney General.  Within
30 days of receiving that recommendation, the Attorney General shall
review the recommendation and advise, in writing, the executive
director or chief counsel of the board of his or her conclusions as
to whether the recommendation is reasonable from an overall
perspective.  The executive director or chief counsel shall, with
each recommendation of settlement submitted to the board, also submit
the Attorney General's written conclusions obtained pursuant to this
paragraph.
   (c) Whenever a reduction of fee in settlement in excess of five
hundred dollars ($500) is approved pursuant to this section, there
shall be placed on file, for at least one year, in the office of the
executive director of the board a public record with respect to that
settlement.  The public record shall include all of the following
information:
   (1) The name or names of the feepayers who are parties to the
settlement.
   (2) The total amount in dispute.
   (3) The amount agreed to pursuant to the settlement.
   (4) A summary of the reasons why the settlement is in the best
interests of the State of California.
   (5) The Attorney General's conclusion as to whether the
recommendation of settlement was reasonable from an overall
perspective.
   The public record shall not include any information that relates
to any trade secret, patent, process, style of work, apparatus,
business secret, or organizational structure that, if disclosed,
would adversely affect the feepayer or the national defense.
   (d) The members of the State Board of Equalization shall not
participate in the settlement of fee matters pursuant to this
section, except as provided in subdivision (e).
   (e) (1) Any recommendation of settlement shall be approved or
disapproved by the board, itself, within 45 days of the submission of
that recommendation to the board.  Any recommendation for settlement
that is not either approved or disapproved by the board within 45
days of the submission of that recommendation shall be deemed
approved.  Upon approval of a recommendation for settlement, the
matter shall be referred back to the executive director or chief
counsel in accordance with the decision of the board.
   (2) Disapproval of a recommendation for settlement shall be made
only by a majority vote of the board.  Where the board disapproves a
recommendation for settlement, the matter shall be remanded to board
staff for further negotiation, and may be resubmitted to the board,
in the same manner and subject to the same requirements as the
initial submission, at the discretion of the executive director or
chief counsel.
   (f) All settlements entered into pursuant to this section shall be
final and nonappealable, except upon a showing of fraud or
misrepresentation with respect to a material fact.
   (g) Any proceedings undertaken by the board itself pursuant to a
settlement as described in this section shall be conducted in a
closed session or sessions.
   (h) This section shall apply only to fee matters in dispute on or
after the effective date of the act adding this subdivision.
   (i) The Legislature finds that it is essential for fiscal purposes
that the settlement program authorized by this section be
expeditiously implemented.  Accordingly, Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code shall not apply to any determination, rule, notice, or guideline
established or issued by the board in implementing and administering
the settlement program authorized by this section.
46623.  (a) The board shall release any levy or notice to withhold
issued pursuant to this part on any property in the event the expense
of the sale process exceeds the liability for which the levy is
made.
   (b) The Taxpayers' Rights Advocate may order the release of any
levy or notice to withhold issued pursuant to this part or, within 90
days from the receipt of the funds pursuant to a levy or the notice
to withhold, may order the return of any amount up to one thousand
five hundred dollars ($1,500) of moneys received, upon his or her
finding that the levy or notice to withhold threatens the health or
welfare of the feepayer or his or her spouse and dependents.
   (c) The board shall not sell any seized property until it has
first notified the taxpayer in writing of the exemptions from levy
under Chapter 4 (commencing with Section 703.010) of Division 2 of
Title 9 of Part 2 of the Code of Civil Procedure.
   (d) This section shall not apply to the seizure of any property as
a result of a jeopardy assessment.
46623.5.  (a) Except in any case where the board finds collection of
the fee to be in jeopardy, if any property has been levied upon, the
property or the proceeds from the sale of the property shall be
returned to the fee payer if the board determines any one of the
following:
   (1) The levy on the property was not in accordance with the law.
   (2) The fee payer has entered into and is in compliance with an
installment payment agreement pursuant to Section 46464 to satisfy
the fee liability for which the levy was imposed, unless that or
another agreement allows for the levy.
   (3) The return of the property will facilitate the collection of
the fee liability or will be in the best interest of the state and
the fee payer.
   (b) Property returned under paragraphs (1) and (2) of subdivision
(a) is subject to the provisions of Section 46625.
46624.  Exemptions from levy under Chapter 4 (commencing with
Section 703.010) of Division 2 of Title 9 of Part 2 of the Code of
Civil Procedure shall be adjusted for purposes of enforcing the
collection of debts under this part to reflect changes in the
California Consumer Price Index whenever the change is more than 5
percent higher than any previous adjustment.
46625.  (a) A feepayer may file a claim with the board for
reimbursement of bank charges and any other reasonable third-party
check charge fees that are incurred by the feepayer as the direct
result of an erroneous levy or notice to withhold by the board.  Bank
and third-party charges include a financial institution's or third
party's customary charge for complying with either a levy or
instructions in a notice to withhold, and reasonable charges for
overdrafts that are a direct consequence of the erroneous levy or
notice to withhold.  Bank charges include only those charges that are
paid by the feepayer and not waived for reimbursement by the
financial institution or third party.  Each claimant applying for
reimbursement pursuant to this section shall file a claim with the
board that shall be in the form as may be prescribed by the board.
The board shall not grant a claim unless it determines that both of
the following conditions have been satisfied:
   (1) The erroneous levy or notice to withhold resulted from board
error.
   (2) Prior to the levy or notice to withhold, the feepayer
responded to all contacts by the board and provided the board with
any requested information or documentation that was sufficient to
establish the feepayer's position.  The requirement of this paragraph
may be waived by the board for reasonable cause.
   (b) Claims pursuant to this section shall be filed within 90 days
from the date of the levy or notice to withhold that is asserted to
be erroneous.  The board shall respond to a claim filed pursuant to
this section within 30 days of receipt.  If the board denies a claim,
the taxpayer shall be notified in writing of the reason or reasons
for denial.
46626.  (a) At least 30 days prior to the filing or recording of a
lien pursuant to either Chapter 14 (commencing with Section 7150) or
Chapter 14.5 (commencing with Section 7220) of Division 7 of Title 1
of the Government Code, the board shall mail to the fee payer a
preliminary notice of lien.  The notice shall specify the board's
statutory authority for filing or recording the lien, the earliest
date on which the lien may be filed or recorded, and the remedies
available to the fee payer to prevent the filing or recording of the
lien.  In the event liens are filed for the same liability in
multiple counties, only one preliminary notice shall be sent.
   (b) The preliminary notice required by this section shall not
apply to jeopardy determinations issued under Article 4 (commencing
with Section 46301) of Chapter 3.
   (c) If the board determines that a lien was recorded in error, it
shall mail a release to the fee payer and the entity that recorded
the lien as soon as possible, but in no event later than seven days
after this determination and the receipt of lien recording
information.  The release shall contain a statement that the lien was
filed in error.  In the event the erroneously recorded lien is
obstructing a lawful transaction, the board shall immediately issue a
release of lien to the fee payer and the entity that recorded the
lien.
   (d) Upon issuing a release pursuant to subdivision (c), notice of
that release shall be mailed to the taxpayer.  Upon the request of
the taxpayer, a copy of the release shall be mailed to the major
credit reporting companies in the county where the lien was recorded.
   (e) The board may release or subordinate a lien if the board
determines that the release or subordination will facilitate the
collection of the fee liability or will be in the best interest of
the state and the fee payer.
46627.  (a) If any officer or employee of the board recklessly
disregards board-published procedures, a feepayer aggrieved by that
action or omission may bring an action for damages against the State
of California in superior court.
   (b) In any action brought under subdivision (a), upon finding of
liability on the part of the State of California, the state shall be
liable to the plaintiff in an amount equal to the sum of all of the
following:
   (1) Actual and direct monetary damages sustained by the plaintiff
as a result of the actions or omissions.
   (2) Reasonable litigation costs including any of the following:
   (A) Reasonable court costs.
   (B) Based on prevailing market rates for the kind or quality of
services furnished in connection with any of the following:
   (i) The reasonable expenses of expert witnesses in connection with
the civil proceeding, except that no expert witness shall be
compensated at a rate in excess of the highest rate of compensation
for expert witnesses paid by the State of California.
   (ii) The reasonable cost of any study, analysis, engineering
report, test, or project that is found by the court to be necessary
for the preparation of the party's case.
   (iii) Reasonable fees paid or incurred for the services of
attorneys in connection with the civil proceeding, except that those
fees shall not be in excess of seventy-five dollars ($75) per hour
unless the court determines that an increase in the cost of living or
a special factor, such as the limited availability of qualified
attorneys for the proceeding, justifies a higher rate.
   (c) In the awarding of damages under subdivision (b), the court
shall take into consideration the negligence or omissions, if any, on
the part of the plaintiff which contributed to the damages.
   (d) Whenever it appears to the court that the feepayer's position
in the proceeding brought under subdivision (a) is frivolous, the
court may impose a penalty against the plaintiff in an amount not to
exceed ten thousand dollars ($10,000).  A penalty so imposed shall be
paid upon notice and demand from the board and shall be collected as
a fee imposed under this part.