An increasing number of states have established independent tribunals designed to resolve tax disputes between taxpayers and the respective agency tasked with collecting and administering state taxes.1 While the Model State Administrative Tax Tribunal Act (“Model Act”), adopted by the American Bar Association in August of 2006, has served as a template for some state legislatures, no two tax tribunals are identical. Accordingly, the increase in tax tribunals has brought with it a corresponding need to understand exactly how each of these forums functions and in what respects they differ.
Identifying, analyzing and comprehending the nuances of today’s tax tribunals is crucial because, first and foremost, taxpayers and their counsel must be aware of whether pursuing an appeal to an independent tribunal is the only option available or whether there is also a court with concurrent jurisdiction that can hear an appeal. If there is a court with concurrent jurisdiction, a taxpayer must determine which procedural option is better under the facts and circumstances of the particular case.
In addition, the statutes and rules governing the various state tribunals will substantially impact the course of a taxpayer’s proceedings, should a tribunal be utilized. For example, the timing of when an appeal must be filed with a tribunal can vary from state to state, as can the level of expertise of those hearing the appeal and the extent and scope of discovery permitted.
In this article, we examine the four most recently enacted state tax tribunals–in Georgia, Illinois, Maine and Mississippi– and highlight some of the significant provisions governing each, as well as the differences between them, with an eye towards raising issues that should be contemplated when working through a state tax appeal.
Newly Enacted Tribunals: Georgia, Illinois, Maine and Mississippi
Georgia Tax Tribunal
On April 19, 2012, Governor Nathan Deal approved the Georgia Tax Tribunal Act of 2012 (“Georgia Act”), which created the Georgia Tax Tribunal (“Georgia Tribunal”), an independent and autonomous division within the Office of State Administrative Hearings operating independently from the Georgia Department of Revenue (“Georgia DOR”).2
Illinois Independent Tax Tribunal
On August 28, 2012, Governor Pat Quinn approved the Illinois Independent Tax Tribunal Act of 2012 (“Illinois Act”), which created the Illinois Independent Tax Tribunal (“Illinois Tribunal”), an independent agency separate and apart from the Illinois Department of Revenue (“Illinois DOR”).3
Maine Board of Tax Appeals
On May 25, 2012, Governor Paul LePage signed into law an emergency measure that established the Maine Board of Tax Appeals (“Maine Tribunal”) as of July 1, 2012.4 The Maine Tribunal was established as an independent body within the Maine Department of Administrative and Financial Services, and is not subject to the supervision or control of Maine Revenue Services.5
Mississippi Board of Tax Appeals
On April 6, 2009, Governor Haley Barbour signed legislation that created the Mississippi Board of Tax Appeals (“Mississippi Tribunal”) on July 1, 2010.6 The Mississippi Tribunal was established as an independent agency, separate and apart from the supervision and control of the Mississippi Department of Revenue (“Mississippi DOR”). The Mississippi Tribunal hears administrative appeals from orders of the Mississippi Board of Review (“Mississippi BOR”), which is a division of the Mississippi DOR, and from other specific acts of the Mississippi DOR.7
Composition of Tribunals
In each of these four states, the governors are responsible for appointing tribunal judges, which appointments are subject to the consent of the state senate.8 While the tribunals in Georgia and Illinois are not comprised of a specific number of persons, the tribunals in Maine and Mississippi are comprised of three members each. In addition, the four states vary in the background, political affiliation and level of expertise that they require of their tribunal judges, which may impact the course of proceedings and the ultimate resolution of a particular matter.9
The basic jurisdictional rules for these four recently enacted tribunals are demonstrative of the significant differences between tax tribunals across the country.
Choice of Forum
In Mississippi, a taxpayer generally does not have a judicial choice and must proceed through the respective tribunal. The Mississippi Tribunal has exclusive jurisdiction to hear an appeal from a person who is aggrieved by an assessment of tax or the denial of a refund claim.10 The Illinois Tribunal has original jurisdiction over all determinations of the Illinois DOR reflected on notices of deficiency, tax liability, claim denial or penalty liability issued pursuant to certain Illinois tax acts, including the Illinois Income Tax Act and the Use Tax Act.11 However, a taxpayer has the right to pay an assessment under protest and pursue an action in circuit court under the Protest Monies Act.12
In Georgia and Maine, a taxpayer has a choice of filing an administrative or a judicial appeal. The Georgia Tribunal has concurrent jurisdiction with the Georgia superior courts to hear petitions regarding the denial of refunds and orders, rulings or findings of the commissioner of the Georgia DOR.13 The Maine Tribunal has concurrent jurisdiction with the superior court to hear an appeal from any person who is subject to an assessment by the Maine Tax Assessor or “entitled by law to receive notice of a determination of the assessor” and who is aggrieved as a result, provided Maine’s procedural requirements are met.14
Therefore, in Georgia, Illinois and Maine provide a taxpayer must make an affirmative decision as to whether to proceed through the courts or through the newly formed tribunals. Factors such as the discovery and hearing process and appellate options should be weighed in making such a decision.
Timing for Filing an Appeal with a Tribunal
Identifying and complying with the varying timeframes for filing an appeal is of the utmost importance. Quite simply, when deadlines are missed, tax tribunals and courts generally no longer have jurisdiction to consider an appeal. Timing requirements not only vary by state, but may also vary depending on the type of tax and the issue being appealed.15
In Illinois and Mississippi, taxpayers have 60 days from the date of the appealable actions of the respective departments to file a petition with the respective tribunals.16
In Georgia, like many states, timelines for filing appeals can vary depending on whether a taxpayer is appealing a claim for refund or appealing an assessment. For example, a Georgia taxpayer whose claim for refund is denied, or whose claim is not decided within one year from the date of filing the claim, has the right to bring an action for a refund in the Georgia Tribunal or in superior court.17 A taxpayer’s petition regarding a claim for refund must generally be filed before the later of: (i) the expiration of two years from the date the claim is denied or deemed denied; or (ii) if a valid protest is filed with the Georgia DOR, 30 days after the date of the department’s notice of decision on the protest.18 With respect to appealing assessments, a taxpayer must first file a written protest with the Georgia DOR within 30 days from the notice of the proposed assessment.19 Following an adverse finding, a taxpayer must then commence an appeal by filing a petition with the Georgia Tribunal or in superior court within 30 days from the date of decision of the Georgia DOR.20
In Maine, taxpayers have 60 days from the date of the appealable actions of Maine Revenue Services to appeal to the Maine Tribunal or the superior court.21
In that both Georgia and Maine provide the same amount of time to appeal to their respective tribunals or courts, there is generally no timing advantage to be gained by choosing one forum over the other.
The Discovery and Hearing Process
De Novo Proceedings and Burden of Proof
Providing a taxpayer with a de novo hearing before an independent tribunal is a vital element of taxpayer fairness and each of these four states provides for a de novo review when appealing to their respective tribunals.22
The four states vary, however, in the levels of clarity with which they set out a taxpayer’s burden of proof. In Illinois, consistent with the Model Act, the taxpayer has the burden of persuasion by a preponderance of the evidence on a factual issue.23 In Maine, a taxpayer has the burden of proving by a preponderance of the evidence that the assessor erred in applying or interpreting the relevant law.24 Mississippi does not specify a burden of persuasion, but does state that the burden of proof is on the taxpayer to prove that the action of the Mississippi DOR is incorrect.25 The Georgia Act does not identify a burden of persuasion.
States also vary greatly with respect to the scope of discovery permitted in proceedings before their tribunals. In Illinois, the parties must comply with the Illinois Supreme Court Rules for Civil Proceedings in the Trial Court regarding discovery, requests for admission and pre-trial procedure, which allow for depositions, interrogatories, discovery of documents, etc.26
Mississippi provides only that any party may have the Mississippi Tribunal issue a subpoena to require the attendance of a witness at a hearing to give testimony and/or to produce and permit inspection of designated books, documents or other tangible things.27 In addition, upon request or on its own initiative, the Mississippi Tribunal may require a party to provide the other party with a copy of all documents which the party intends to provide to the tribunal in the presentation of its case at the hearing.28
In Georgia, the provisions regarding discovery and depositions contained in Georgia’s Civil Practice Act apply to proceedings before the Georgia Tribunal.29 However, the parties are required to make efforts to conduct discovery by informal consultation or communication.30 Furthermore, after the period for completing discovery has expired, or earlier as the parties may agree, the parties to a proceeding must stipulate all relevant and non‑privileged matters to the fullest extent to which complete or qualified agreement can be reached or fairly should be reached.31
Maine’s statutes do not provide rules regarding the extent of discovery permitted by the Maine Tribunal, but do provide that the appeals officer presiding over a conference at the Maine Tribunal has the authority to take testimony, hold hearings, summon witnesses and subpoena records, files and documents that the appeals officer considers necessary for carrying out the responsibilities of the Maine Tribunal.32 At the superior court, however, a party generally may obtain discovery by taking depositions, written interrogatories, production of documents and requests for admission.33
With regard to Georgia, as the rules of discovery are virtually the same before the tribunal or the superior court, the issue of discovery will not impact the selection of an advantageous forum.34 Maine, however, provides a taxpayer with a definitive choice between the explicit rules governing discovery applicable to the superior court and the more informal rules governing proceedings before the tribunal.
Rules of Evidence
The Model Act provides that tribunals are not bound by the rules of evidence and that all relevant evidence, including hearsay, is admissible.35 The goal of the Model Act in this regard is to ensure that administrative proceedings be more informal than court proceedings.
However, it appears that not all states have the same goal in mind.
The Illinois Tribunal utilizes the rules of evidence as applied in the trial of civil nonjury cases in the Illinois circuit courts.36 In contrast, the Mississippi Rules of Evidence apply at hearings before the Mississippi Tribunal but are “relaxed.”37 Further, the presentation of evidence before the Mississippi Tribunal is not required to be by examination of witnesses and the parties may present evidence through an oral presentation, written presentation and/or by the introduction of documentary evidence.38 In addition, relevant hearsay evidence may be presented to the Mississippi Tribunal unless the presiding board member determines that such evidence lacks trustworthiness.39
Like Illinois, the Georgia tribunal utilizes the rules of evidence as applied in the trial of civil nonjury cases in Georgia superior courts.40 In stark contrast, appeals to the Maine Tribunal are not subject to the rules of evidence observed by the courts.41
As Georgia’s evidentiary rules applicable to proceedings before the Georgia Tribunal are the same as those applicable to the superior court, taxpayers will not have to factor in the rules of evidence when making a forum selection. On the other hand, a taxpayer in Maine must give consideration to the potential value or drawbacks of proceeding without evidentiary rules, as the Maine Tribunal specifically provides that formal rules of evidence do not apply.
Time Allowed for Issuance of Decisions
Illinois Tribunal decisions must be rendered within 90 days after submission of the last brief filed subsequent to completion of a hearing.42 If no briefs are submitted, the decision must be rendered no later than 90 days after completion of a hearing.43 A decision becomes final 35 days after the issuance of a notice of decision.44 In contrast, Mississippi does not specify the amount of time in which a decision must be rendered by the Mississippi Tribunal. However, a rather unusual provision explicitly permits the Mississippi Tribunal to verbally announce its decision at the end of the hearing or to take the matter under advisement for a decision at a later time.45
Like Mississippi, the Georgia Act does not specify the amount of time in which a decision must be rendered by the Georgia Tribunal. Maine’s procedure, however, is quite different in that it utilizes a hear-and-recommend process.46 In Maine, an appeals officer must prepare a recommended final decision in writing, containing findings of fact and conclusions of law, for consideration by the Maine Tribunal based upon the evidence and arguments presented to the appeals officer.47 The Maine Tribunal is free to adopt, modify or reject the final decision of an appeals officer.48 This type of hear-and-recommend procedure differs from the Model Act which provides that hearings occur before, and briefs are submitted directly to, the tribunal and the tribunal subsequently renders a decision.49 With regard to timing, Maine’s statutes do not specify the amount of time in which a decision must be rendered by an appeals officer, but do provide that the Maine Tribunal’s review of an officer’s recommended decision must be performed on a timely basis.50
As there are also no specific time limits for the issuance of decisions by the respective tribunals in Georgia and Maine, the timeframe in which a particular matter will be concluded will likely not have an impact on a choice of forum. However, unlike the Maine Tribunal that utilizes a hear-and-recommend process, in a proceeding before the superior court, the judge that hears the case will most likely be the one issuing the decision.
Appealing a Decision Rendered by a Tribunal
Who Can Appeal and What Steps Must Be Taken to Appeal?
State taxing authorities may not always be able to appeal a decision rendered in favor of a taxpayer. Currently, however, in all four states addressed herein, either party may appeal a final judgment of the respective tax tribunal.51 As either party may also appeal a superior court decision in Georgia or Maine, this issue also has no bearing on the choice of a forum.
However, it is important to be aware of the steps that must be taken before an appeal from a tribunal decision can be made. In Mississippi, for example, prior to appealing a decision of the Mississippi Tribunal affirming a tax assessment to the chancery court, a taxpayer must file a bond in an amount equal to half the amount in controversy.52 In addition, a taxpayer must pay the amounts that it is not contesting prior to appealing a decision of the Mississippi Tribunal.53 Failure of a taxpayer to timely pay the uncontested tax will bar a taxpayer from obtaining a reduction, abatement or refund of any contested tax in the appeal and will result in the taxpayer’s appeal being dismissed with prejudice and with judgment being entered granting the Mississippi DOR the relief it requested.54
Furthermore, taxpayers should also take note of the obligations imposed on the state taxing authorities. For example, in an appeal involving a refund claim denial, if a judicial appeal is filed by the Mississippi DOR, it must refund or credit to the taxpayer the amount of any overpayment included in the refund claim which the Mississippi DOR does not contest.55 If the Mississippi DOR fails to timely pay the uncontested overpayment, the Mississippi DOR’s appeal will be dismissed with prejudice and judgment will enter granting the taxpayer its requested relief, excluding any request for attorney’s fees.56
Record on Appeal and Standard of Review
In Georgia, a hearing or petition for judicial review from a tribunal decision is conducted by the superior court without a jury and is confined to the record.57 The superior court cannot substitute its judgment for that of the Georgia Tribunal’s as to the weight of the evidence on questions of fact.58
In Maine, by contrast, either party may raise on appeal in superior court facts, arguments or issues that relate to the tribunal decision, regardless of whether the facts, arguments or issues were raised during the proceeding being appealed, and the superior court will make its own determination as to all questions of fact or law.59 Therefore, an appeal of a tribunal decision to the superior court effectively gives a taxpayer the chance at a second de novo proceeding. However, such a proceeding may come with similar resource commitments as the initial proceeding.
Consequently, time and resource allocation and the likelihood of success at the respective tribunal should factor heavily into the choice of forum, as should (in the case of a Georgia matter) the potential impact of being limited to the record established at the tribunal level.
Tribunal or Court
Georgia, Illinois and Maine provide a taxpayer with the option of protesting a tax determination either through an administrative tribunal or directly through the courts.60
Proceeding before the Georgia Tribunal requires conformance to the same or similar discovery procedures and rules of evidence that a taxpayer would be required to follow if the taxpayer were in superior court.61 Nevertheless, the choice of forum should be carefully contemplated on a case by case basis as there may be a beneficial forum based on a variety of other factors, including the experience of a potential judge and the tendencies of the Georgia Tribunal and superior court regarding particular tax issues. Similarly, taxpayers and practitioners in Maine must consider on a case by case basis whether the use of the Maine Tribunal’s informal discovery practices and lack of formal evidentiary rules will be advantageous or present a hindrance, and whether there are other benefits to be gained by a certain forum selection.
The increasing accessibility to independent tax tribunals or courts has been a significant step in the direction towards increasing both the perception and reality of state tax fairness. As more states contemplate moving in the direction of adopting independent tribunals, taxpayers and their representatives should feel confident that their chances of obtaining an impartial review of their tax matters are significantly increased.62 However, navigating the intricacies of each tribunal is no easy task. Awareness of the many procedural issues on which state tribunals may differ is vital to presenting a particular case using the best procedural methods available and avoiding foot-faults that may prevent a substantive tax matter from being heard.