2010 Tennessee Code
Title 67 - Taxes And Licenses
Chapter 1 - General Provisions
Part 8 - Penalties and Interest
67-1-803 - Waiver of penalty.

67-1-803. Waiver of penalty.

(a)  (1)  The commissioner is authorized to waive, in whole or in part, any statutory penalty imposed under any revenue laws administered by the commissioner in any case of deficiency or delinquency tax collection made by the department, if the commissioner determines that the payment by a taxpayer of a tax in an amount less than that due under the applicable laws and regulations, or that the failure of a taxpayer to pay any tax by the due date is the result of one (1) or more of the good and reasonable causes enumerated in subsection (c) and is not a result of gross negligence or willful disregard of the law.

     (2)  Under no circumstances, however, shall this authority be deemed to extend to:

          (A)  Any case in which a person fails to procure a license required by law, except when such failure is the result of having been misled by erroneous advice or action on the part of officials charged with the enforcement of this state's tax statutes, and such can be shown by the person by a clear preponderance of documentary evidence; or

          (B)  Any interest payable under the law in connection with any case of tax deficiency or delinquency.

     (3)  The commissioner shall prescribe and publish rules and regulations governing the manner in which applications for a waiver of penalty shall be accepted and processed.

(b)  Initial receipt, review and recommendation for approval or disapproval of each application for waiver of penalty, as authorized in subsection (a), shall be made by the director, or the director's delegate, of the division or agency within the department charged by the commissioner with the enforcement of the tax involved. The commissioner or the commissioner's delegate shall thereafter review and approve or disapprove each application for waiver of penalty, as the commissioner or the commissioner's delegate may deem proper, and such determination by the commissioner or the commissioner's delegate shall constitute the determinative and final decision on the application. The commissioner may delegate this responsibility only to the commissioner's deputy commissioner or the commissioner's assistant commissioner for tax administration.

(c)  (1)  In the case of a tax deficiency, that is constituted by a failure to pay the full amount of tax due under the law, the following specific causes, if clearly established by the taxpayer, shall be acceptable as good and reasonable cause for the waiver of penalty:

          (A)  The taxpayer incurred the deficiency as a result of having been misled by erroneous advice or action, that was not clearly in contravention of the law, on the part of officials charged with the enforcement of this state's tax statutes;

          (B)  The taxpayer incurred the deficiency as a result of legal misadvice that was not clearly in contravention of the law, from an ostensibly competent and financially independent lawyer or accountant;

          (C)  The provisions of the pertinent law or regulation were, at the time the deficiency was incurred, unsettled, unclear, and misleading to a reasonable person; and the taxpayer acted in good faith on a reasonable, though mistaken, application of such law or regulation, with the result that the tax deficiency in question was incurred;

          (D)  The deficiency resulted from reliance by the taxpayer upon factual, but not legal, misrepresentations made by persons with whom the taxpayer dealt in the course of the taxpayer's business, other than the taxpayer's own agents or employees, the taxpayer having no reason to doubt or question such misrepresentations; or

          (E)  The deficiency resulted from a mistake of fact on the part of the taxpayer, who thereafter voluntarily and without any kind of demand upon the part of the officials charged with the enforcement of the law, tenders the amount of the deficiency, plus accrued interest.

     (2)  If the cause for the deficiency does not comport with any of the causes provided for in subdivision (c)(1), a determination may be made, nevertheless, as to whether the statement of facts submitted by the taxpayer, or known to the commissioner, establishes a good and reasonable cause. Any cause for a deficiency may be accepted as a good and reasonable cause that appears to the commissioner to justify a conclusion by the commissioner that the taxpayer has done everything the taxpayer could reasonably be expected to do as an ordinarily intelligent and reasonably prudent business person and that clearly negates either a willful disregard of the law or gross negligence.

(d)  (1)  In the case of a tax delinquency of not more than thirty (30) days, which is constituted by a failure to file a return and pay the tax within not more than thirty (30) days after the time prescribed by law, the following specific causes, if clearly established by the taxpayer, shall be acceptable as good and reasonable cause for the waiver of penalty:

          (A)  Return was timely mailed, but for reasons either known or unknown was not timely received or not received at all, and the taxpayer satisfactorily explains noncompliance within the provisions of § 67-1-107;

          (B)  Delinquency was due to erroneous information given the taxpayer by an official charged with the enforcement of this state's tax statutes;

          (C)  Delinquency was attributable to an intervening providential cause, such as, but not limited to, the occurrence of a disabling injury, illness, or death of the taxpayer, or a member of the taxpayer's immediate family, or of a person upon whom the taxpayer has heretofore exclusively relied for the preparation of the taxpayer's returns, and such intervening cause occurred prior to the date on which the required return and payment would otherwise be deemed delinquent;

          (D)  Delinquency was caused by unavoidable absence of the taxpayer or a person upon whom the taxpayer has heretofore exclusively relied for the preparation of the taxpayer's returns;

          (E)  Delinquency was caused by the destruction by fire or other casualty of the taxpayer's place of business or business records;

          (F)  The taxpayer proves that the taxpayer made timely application to the department for the proper tax forms, and these were not furnished the taxpayer in sufficient time to permit the executed return to be filed on or before the due date;

          (G)  The taxpayer proves that the taxpayer personally visited an office of the department before the expiration of the time within which to file the required return for the purpose of securing information or aid to properly make out the taxpayer's return and, through no fault of the taxpayer, was unable to secure such information or aid;

          (H)  Delinquency was a result of the taxpayer's failure to enclose a negotiable instrument, as defined by the Uniform Commercial Code, compiled in title 47, with the taxpayer's timely filed return, and the taxpayer promptly responds to a request for payment upon notification thereof, and satisfactorily demonstrates such failure was due to an inadvertent oversight or error; or

          (I)  Delinquency becomes apparent when the taxpayer voluntarily pays the tax but, for any legal reason, the department would be unable to enforce collection, such as the collection would be barred by the statute of limitations, the lack of jurisdiction or other similar reason.

     (2)  If the cause for the delinquency does not comport with any of the causes provided for in subdivision (d)(1), or if the delinquency is of more than thirty (30) days' duration, a determination may be made, nevertheless, as to whether the statement of facts submitted by the taxpayer, or known to the commissioner, establishes a good and reasonable cause. Any cause for a delinquency may be accepted as a good and reasonable cause that appears to the commissioner to justify a conclusion by the commissioner that the taxpayer has done everything the taxpayer could reasonably be expected to do as an ordinarily intelligent and reasonably prudent business person, and that clearly negates either a willful disregard of the law or gross negligence.

     (3)  Notwithstanding the provisions of subdivisions (d)(1) and (2), the commissioner may accept as good and reasonable cause for waiver of a delinquency penalty the fact that the taxpayer has timely filed and paid such tax for a period of at least two (2) years next preceding the due date of the delinquent return and payment, if the specific cause for the delinquency does not constitute a willful disregard of the law or gross negligence.

(e)  (1)  There shall be no judicial review of the commissioner's action upon applications for waiver of penalty as authorized in subsection (a) otherwise than as provided in part 9 of this chapter.

     (2)  The commissioner's action upon all applications for waiver of penalty made under this section shall be deemed final.

     (3)  Prior determinations of the attorney general and reporter as to what constitutes good and reasonable cause for a deficiency shall serve as a guide and standard of reference for future decisions whenever those determinations may be applicable to the specific cause established.

     (4)  (A)  The commissioner is authorized, in the commissioner's discretion, to designate subordinate officials in the department to waive, on the commissioner's behalf, penalties in amounts of five thousand dollars ($5,000) or less.

          (B)  The commissioner is authorized, in the commissioner's discretion, to waive penalties in amounts of fifteen thousand dollars ($15,000) or less.

          (C)  The commissioner is authorized, in the commissioner's discretion, to waive penalties in amounts of more than fifteen thousand dollars ($15,000); provided, that the attorney general and reporter may require that such waivers or any class of such waivers be subject to the attorney general and reporter's prior review and approval.

[Acts 1921, ch. 113, § 2; impl. am. Acts 1923, ch. 7, §§ 19, 24; Acts 1923, ch. 106, § 1; Shan. Supp., § 809a8; Code 1932, § 1478; impl. am. Acts 1937, ch. 33, § 50; impl. am. Acts 1959, ch. 9, § 14; Acts 1965, ch. 5, § 1; 1965, ch. 154, § 1; 1970, ch. 500, § 2; 1970, ch. 559, § 4; 1973, ch. 151, § 1; 1973, ch. 368, § 1; 1973, ch. 373, § 1; 1977, ch. 106, § 1; 1978, ch. 599, § 1; 1980, ch. 460, § 1; 1981, ch. 34, § 1; 1983, ch. 148, § 1; T.C.A. (orig. ed.), § 67-101(5); Acts 1984, ch. 550, § 1; 1984, ch. 832, § 2; 1988, ch. 526, § 8; 1992, ch. 626, § 1.]