With high-priced Franchise Tax Board and BOE attorneys
present, the board sided with the taxpayer in a case that ultimately involved
$3.48 (Appeal of John and Ivy Nelson).
Originally, the taxpayer's representative said that Mrs.
Nelson was erroneously advised by the FTB call center that pensions are not
taxable in California (only Social Security is exempt). It was pointed out
taxpayers cannot rely on erroneous oral advice from the tax agency. In
addition, most of the interest that accrued prior to the time the taxpayer
contacted the board about the board's notice of proposed assessment could not
be waived. This left just $3.48 at issue.
The FTB argued that the $3.48 could be abated only if the
applicants met the requirement of demonstrating that one or more
"ministerial" or "managerial" acts of the FTB prevented the
taxpayer from paying the full interest amount of $687 between October 14 and
November 5 of 2006.
FTB attorney Diane Ewing said the FTB does not have the
authority to abate de minimus
amounts of interest. As a result, the taxpayer must file an appeal with the
BOE; a hearing must be held; taxpayers must demonstrate that a ministerial act
of the FTB prevented payment, and the BOE must agree.
In this case, all of that activity had to happen before the
taxpayer could get back $3.48. Fortunately for the taxpayer – who undoubtedly
spent much more than that to navigate her way through this maze – the board
unanimously ruled that her money should be refunded.
Other BOE developments:
Taxpayer Can't Get a
Refund of Tax Not Owed. Victoria Soufflet, a
severely disabled taxpayer from Siskiyou County, overpaid her 2001 income tax
by $622, but can't get her money back. This is another good example of how the
amnesty program, passed by the Legislature in 2004 and signed by the governor,
victimizes taxpayers. According to the FTB, the amnesty statute prohibits
taxpayers from filing for a refund of taxes paid under amnesty, even if the
taxes are subsequently determined not to be owed.
Here are the facts in Ms. Soufflet's
case:
·
In 2001, she timely paid part of tax through
withholding, but did not pay the balance of $560, attributable to an early
withdrawal from a qualified retirement plan.
·
In 2005, the FTB sent her a notice inviting her
to apply for tax amnesty, and she signed the notice.
·
In 2005 and 2006, she made installment payments
totaling $694.17 to cover the unpaid $560 plus interest.
·
In 2007, the IRS agreed to refund a portion of
federal tax, as she was exempt from the tax on the early withdrawal of
retirement funds because she was completely and totally disabled.
·
At the tax appeal, the FTB conceded that she is
exempt from state tax on the withdrawal income, but said she has no right to
file for a refund of the tax she paid on this income, because the amnesty
statute prohibits those who file for amnesty from later filing for a tax
refund.
The board unanimously agreed that the amnesty statute
prohibits her from filing for a refund of the overpaid tax, and denied her
appeal (Appeal of Victoria Soufflet). The state will keep the money that she did
not owe, along with the relatively large amount of interest that she paid.
2010 Timberland Production Values Approved. A schedule of values for lands zoned for
timberland production for 2010 were approved unanimously by the board. The
values all have decreased in the range of $1 to $7 per acre due to the decrease
in timber values over the past several years. The values range from $245 per
acre for Site I land in the redwood region to $27 for Site V land in the
pine-mixed conifer region.
Board Determines Revenue Backfill From First Five Tobacco Tax to be $21.8 Million. When Proposition 10 of 1998 increased the
cigarette tax by 50 cents per pack, with revenues to go to the First Five
program, a backfill of other programs funded by the cigarette tax was required.
Because the 50-cents-per-pack tax decreased cigarette tax revenue, the BOE is
charged with determining how much the programs funded by Proposition 99 of 1988
(a 25-cents-per-pack tax) and the 2-cent tax for breast cancer research would
lose each year. This year, the BOE determined that $21.8 million of revenue
from the First Five tax must be used to backfill losses in programs funded by
the other two cigarette tax measures.
Building Costs Continue to Escalate, While
Move to Pricy New Digs Is Planned. Costs of remediation of the BOE's
headquarters building continue to skyrocket, with no end in sight. At its
November 19 meeting, the board agreed unanimously to spend another $2.1 million
to extend a contract with Hygiene Technologies International through May 31,
2011. Liz Houser, deputy director for administration, said the firm provides
assessment and testing services to ensure the safety of BOE employees during
water damage remediation.
Ms. Houser also
reported on a timetable for moving employees to a new facility that can
accommodate the size of the BOE's growing workforce.
During the meeting, nothing was said about moving to some of the most expensive
buildings in town, but that is exactly what is happening, according to a
December 3 report in The Sacramento Bee.
Business columnist Bob Shallit wrote that the BOE
"is closing in on lease deals at two of the region's pricier office
buildings."
The columnist quoted
a Department of General Services spokesman who said the agency is finalizing
leases at two locations, and wrote that the locations are said to be the U.S.
Bank Tower at 621 Capitol Mall in downtown Sacramento (where the BOE's legal staff reportedly will set up shop) and the
Gateway Tower in South Natomas (which reportedly will
house the call center, media services and training staff). Ms. Houser said a
summer of 2010 move date is anticipated for the first move, and said she is
hopeful that the second move will occur in the fall.
Mr. Shallit interviewed Board Member Bill Leonard, asking him
how he feels about the BOE "taking space in buildings where rents are
among the highest in town." Mr. Leonard answered, "I'm told we're
getting a very good deal and taking advantage of the market." (Cal-Tax: If the board can take
advantage of the market to get a better deal in a high-end building, can't it
also take advantage of the market to get a better deal for taxpayers in a
building that is less expensive to begin with?)
Sales Tax Appeals: Big Win for Board. No sales tax appeals were decided in favor of
taxpayers. In two cases, Mr. Leonard and Board Member Michelle Steel wanted to
abate interest, but their efforts were rejected by 3-2 votes. These cases: Appeal of Nickolaos
and Dimitra Papadopoulos and Appeal of Musleh Saleh
Zokari.
Cal-TaxReports, December 7, 2009
© 2009 California Taxpayers'
Association.
All Rights Reserved.