This SALT Alert summarizes the major legislative, judicial, and administrative developments affecting Alabama business taxpayers with respect to income, transactional, and property taxes, as well as several updates on miscellaneous tax and procedural matters. The spring 2014 legislative session produced a number of noteworthy tax bills, including the landmark Alabama Taxpayer Fairness Act. In addition, the Alabama courts decided several cases of importance and the U.S. Supreme Court currently has two cases pending before it that may affect Alabama businesses and our state and local government budgets.

I. INCOME AND BUSINESS PRIVILEGE TAXES

Act No. 2014-452 (HB 509) – Transferability of the Historic Tax Credit and Other Technical Corrections: Act No. 2013-241 provided a credit against the income or financial institution excise tax (FIET) liability of the owner or its partners/members for the rehabilitation, preservation, and development of certain historic structures. Act No. 2014-452 contains several technical corrections, such as clarifying that the annual $20 million of credit reservations are awarded on a calendar-year basis and removing any restrictions on changes in ownership of the qualified structure prior to placing the rehabilitation in service. Notably, the act permits a one-time transfer of the tax credit, but provides that the owner, allocatee, or transferee of the credit will be liable for any credit recapture. Read the complete article, “Legislative Wrap-up” for more details on the transferability of the Historic Tax Credit and other technical corrections.

PHR Solutions LLC v. State Department of Revenue, Admin. Law Div., Dkt. No. BPT. 13-705 (Feb. 6, 2014): Administrative Law Judge William L. (Bill) Thompson upheld an assessment for unpaid business privilege tax, rejecting the taxpayer’s argument that it may make the effective date of its dissolution retroactive to a date before the articles of dissolution were filed with the Probate Office. The taxpayer filed articles of organization with the Alabama Secretary of State on June 30, 2009. On June 24, 2014, the taxpayer filed articles of dissolution, indicating that the effective date of the filing was December 31, 2010. The taxpayer explained that the articles of dissolution were backdated because the taxpayer ceased conducting business in Alabama after 2010, and argued that Alabama law does not prohibit backdating a dissolution’s effective date to a date before the articles of dissolution were filed. Judge Thompson disagreed, finding that the Alabama Legislature could not have intended that procedure because it would lead to unintended and unreasonable results. The fact that the taxpayer did not conduct any business in Alabama after 2010 didn’t matter because the business privilege tax is a tax on the privilege of being qualified to do business in Alabama, whether any business is actually conducted.

C.M. et al. v. Bentley et al., Case No. 2:13-CV-591-WKW (M.D. Ala., Apr. 8, 2014): U.S. District Judge W. Keith Watkins dismissed a facial challenge to the key provisions of the Alabama Accountability Act of 2013, Act No. 2013-64, as amended, which grants income tax credits to parents or guardians who transfer their children from a failing public school to either a non-failing public school or to a private school, and to certain individual and corporate donors who fund those scholarships through nonprofit scholarship granting organizations. In granting the defendants’ motion to dismiss, Judge Watkins held that the students had not proven there was an Equal Protection violation, finding that no “wealth-based classification” was apparent in the parts of the law challenged by the students. The plaintiffs have appealed Judge Watkins’ decision to the 11th Circuit Court of Appeals. The appeal is still pending.

In Boyd et al. v. Magee et al., Case No. 03-CV-2013-901470 (Montgomery Cty. Cir. Ct. 2014), Montgomery County Circuit Court Judge Eugene Reese held that the Accountability Act violated several provisions of the Alabama Constitution and enjoined further implementation of the Act’s provisions. Judge Reese held that the Accountability Act’s enactment was unconstitutional, violating the single-subject rule, the original-purpose doctrine, and the three-readings requirement. In addition, the Accountability Act, according to Judge Reese, was an unconstitutional use of public funds. Shortly after issuing his decision, Judge Reese ordered that his injunction be stayed pending the outcome of an appeal to the Alabama Supreme Court. Oral arguments in the appeal were heard on December 3, 2014. We expect the Court to issue a ruling before year end.

American Equity Investment Life Insurance Company v. State Department of Revenue, Case No. CV-2013-900069 (St. Clair Cty. Cir. Ct. July 3, 2014) (on appeal): St. Clair County Circuit Court Judge Phil Seay recently held that two ADOR assessments were void in violation of the plain language of the business privilege tax statute and unconstitutional under the Due Process and Commerce Clauses of the U.S. Constitution. The ADOR has appealed.

The primary dispute relates to the manner in which American Equity’s net worth in Alabama should be determined for business privilege tax purposes. American Equity, which sells life insurance policies and annuity contracts around the country, apportioned its net worth to Alabama based on the premiums derived from both its life insurance and annuity businesses. On audit and in the final assessments, the ADOR, however, apportioned American Equity’s net worth based only on the premiums generated by American Equity’s life insurance business in Alabama. According to the trial court, the final assessments issued by the Department were contrary to law and void because they were “based upon apportionment factors that did not include the annuity premiums,” as the plain language of the statute required. Additionally, the court held that the final assessments were unconstitutional because “the Department’s proposed apportionment methodology would be highly distortive and would significantly overstate the portion of the company’s operations and net worth attributable to Alabama.” The case is currently pending before the Alabama Court of Civil Appeals. We expect a ruling soon.

II. TRANSACTIONAL TAXES

Act No. 2014-325 (HB 129) – Retroactive Clarification of Private School Sales/Use Tax ExemptionThis act retroactively clarifies and confirms that private schools, colleges, and universities are exempt from state and local sales and use taxes. This act was necessitated by Judge Thompson’s ruling in Columbia Southern Education Group v. Baldwin County, Admin. L. Div. (Aug. 15, 2013), where he held that private schools in Alabama are not exempt from state or local sales and use taxes, and that a 1959 act and a 1961 ADOR regulation authorizing this exemption were invalid. Read the complete article, “Legislative Wrap-up” for more details on the retroactive clarification of the private school sales and use tax exemption.

Act No. 2014-316 (HB 151) – Estimated Sales Tax Payment Threshold Increased: Under current law, an Alabama taxpayer whose average monthly state sales tax liability is $1,000 or greater during the preceding calendar year is required to make estimated sales tax payments to the Department on or before the 20th day of the month in which the liability occurs. Act No. 2014-316 increases the threshold for estimated payments from $1,000 to $2,500. This change goes into effect August 1, 2016, and was championed by the Alabama Retail Association. Read the complete article, “Legislative Wrap-up” for more details on the increased estimated sales tax payment threshold.

Act No. 2014-453 (HB 280) – Durable Medical Equipment Exemption: This act provides that durable medical equipment, prosthetics, orthotics, and medical supplies (as defined by Medicare) that are sold or rented pursuant to a valid prescription and covered by Medicare, Medicaid, or a health benefit plan are exempt from state and local sales, use, and rental taxes. The act also repeals Ala. Code § 40-9-39.1, which provided a narrower exemption and was enacted last year. Read the complete article, “Legislative Wrap-up” for more details on the Durable Medical Equipment Exemption.

CSX Transportation, Inc. v. Alabama Department of Revenue, No. 12-14611 Doc. No. 2:08-cv-00655-AKK (11th Cir. Jul. 1, 2013) (cert. petition granted July 1, 2014): The Eleventh Circuit U.S. Court of Appeals ruled that Alabama’s imposition of sales tax on diesel fuel purchased by railroads, but not on diesel fuel used by interstate motor carriers or barge lines, is discriminatory and violates the Railroad Revitalization and Regulatory Reform Act (the “4R Act”), 49 U.S.C. § 11501, reversing the district court decision in favor of the Department. The Eleventh Circuit adopted a narrow view, one that looks only at the alleged discriminatory tax itself. Thus, the court only looked at whether Alabama’s sales and use tax was discriminatory under the 4R Act, not whether the entire taxing scheme, taking into account exemptions and other taxes levied on CSX’s major competitors but not on railroads, was discriminatory toward CSX.

The ADOR filed a petition for a writ of certiorari with the U.S. Supreme Court in October 2013. The Supreme Court granted the petition, and oral arguments were heard on December 9.

Alabama Department of Revenue v. AAA Cooper Transportation, No. 2120516 (Ala. Civ. App. Jan. 17, 2014): The Alabama Court of Civil Appeals reversed the judgment of the trial court and held that a transportation company’s purchases of tractors were subject to sales tax in Alabama because the title transferred and deliveries took place in Alabama. The court also held that the transportation company did not act as a common carrier by delivering the tractors to its own out-of-state terminals. The court stated that the undisputed facts establish that the tractors were delivered to AAA Cooper in Dothan and the tractors were titled by AAA Cooper in Alabama. Thus, the court found that, because physical delivery of and title to the goods were transferred from the seller to the purchaser in Alabama, the transaction easily satisfied the meaning of a closed-sales transaction for purposes of Ala. Code § 40-23-1(a)(5), and were thus taxable sales in Alabama.

The appellate court did not accept AAA Cooper’s argument that it acted as a common carrier in accepting the tractors purchased from Action. The sale of each of the tractors was a closed transaction, the court stated, at the time AAA Cooper took delivery in Dothan. The fact that AAA Cooper decided to assign certain tractors to its out-of-state terminals after accepting delivery from Action did not alter the time and place of delivery for purposes of determining if sales tax was due.

AAA Cooper and Action filed a petition for a writ of certiorari with the Alabama Supreme Court, which was denied on August 22, 2014.

Jaclyn L. Robinson d/b/a Robinson Studio & Design v. State Department of Revenue, Admin. Law Div., Dkt. No. S. 13-807 (Sep. 8, 2014): Judge Thompson concluded that all prepaid charges received by a wedding photographer, other than a separately stated “retainer,” were subject to Alabama sales tax, even though the photographer’s contract with her customers expressly stated that most of the fee was nonrefundable after a certain date even if the photo shoot never took place.

At issue was whether the total amount received by a photographer should be divided into a taxable amount derived from the sale of the tangible discs, albums, and/or printed photographs, and a nontaxable amount derived from services provided by the photographer. While the ALD had previously ruled that certain “consulting fees” charged by a photographer were not taxable because they were not for labor or services necessary to prepare, develop, or otherwise produce the photographs sold by the photographer, Judge Thompson distinguished his previous decision and concluded that the prepaid fees charged by the taxpayer constituted taxable gross proceeds because they are for the taxpayer’s labor in planning, shooting, and editing the photographs, which are required and necessary steps in producing the finished, tangible products being sold by the taxpayer. However, Judge Thompson concluded that any retainer fee separately stated in the taxpayer’s contracts is unrelated to the production of the finished photographs, and is accordingly not taxable.

Recognizing that these contracts are often entered into well in advance of the wedding date, Judge Thompson then addressed when the tax is due, explaining that the taxpayer should charge and remit sales tax on the prepaid amounts as they are received. If the customer directs the taxpayer to deliver the photographs outside of Alabama, or if the wedding is cancelled, he explained that the customer would be due a refund of the sales tax erroneously paid. In those circumstances, the taxpayer and the customer could either file a joint refund petition, or the taxpayer could refund the tax to the customer and then claim a credit on the next monthly sales tax return. If the customer has an address outside of Alabama or the contract specifies that the photographs will be delivered outside of Alabama, Judge Thompson indicated that the taxpayer should not charge sales tax on what she expected to be a nontaxable sale. The Judge warned the taxpayer, however, that if the customer later directed the taxpayer to deliver the photographs to an Alabama address, Alabama sales tax would then be due. The taxpayer did not appeal the ruling. Read the complete article, “Photographers Owe Sales Tax on All Charges Other Than Retainer,” for more details.

Replacement Local Nexus Rule: The ADOR’s recent local nexus regulation, Rule 810-6-5-.04.02, applies to all sales and use tax transactions occurring on or after January 1, 2014 . The Department originally had proposed changes to the local nexus rule in April 2013, but its initial draft was withdrawn after the agency received numerous comments and questions regarding the proposed rule from several business and professional associations. The initial draft adopted a very broad definition of “local nexus” and would have radically changed the landscape of local sales and use taxes. The ADOR replaced its initial proposal with a revised local nexus rule that was narrower in scope and addressed many of the concerns raised by the business community and tax practitioners. The narrower version was finalized in November 2013.

According to the final regulation, the same standards used in determining whether a business that engaged in interstate commerce is required to remit State of Alabama sales and use tax will now be used in determining whether local sales and use tax must also be collected and remitted. The regulation summarizes the new rule by stating that a seller may avoid the obligation to collect local sales or use tax on a transaction only if the seller's physical presence in the locality would have been insufficient to create a state sales and use tax collection obligation if the transaction had been an interstate transaction. The regulation cross-references the Department’s recently amended interstate nexus regulation, Rule 810-6-2-.90.01.

Government Contractor Exemption: Alabama Act 2013-205 (effective in 2014) provides for the ADOR to grant certificates of exemption from sales and use taxes to certain contractors and subcontractors licensed by the State Licensing Board for General Contractors. Contractors can use these exemption certificates to purchase building and construction materials for use in the construction of a building or other project for certain (but not all) governmental entities that are exempt from paying sales and use taxes. Exemption certificates will not be issued for highway, bridge, or road projects.

For many tax-exempt entities, the new act essentially reinstates former Ala. Code § 40-9-33, which was repealed in 2004, but the act imposes severe penalties for abuse or tax avoidance. The act applies to new (and only new) contracts entered into on or after January 1, 2014. The purchasing agent procedure remains a viable alternative.

III. AD VALOREM PROPERTY TAXES

Act No. 2014-415 (HB 108) – Business Personal Property Online Filing System: This act requires the ADOR to create a centralized online filing system for business personal property tax returns, called the Optional Personal Property Assessment Link (OPPAL). All Alabama taxing jurisdictions will be required to accept business personal property tax returns filed using OPPAL, but the system is optional for taxpayers. Not only does Act No. 2014-415 create a single-point filing system, but it also provides uniform procedures and standardized formatting for online filing across all 67 Alabama counties. The OPPAL system must be operational no later than September 30, 2016, and will be available for use in fiscal years beginning on or after October 1, 2016.

In addition to OPPAL, Act No. 2014-415 also creates a non-itemized short-form tax return for certain small businesses. The short-form return will be available to taxpayers who either: (1) filed an itemized personal property tax return that included $10,000 or less in total property acquisition costs in the previous tax year or (2) properly filed a short form in the previous tax year. If the short-form return is used, the $10,000 amount will be used by the local tax-assessing official as the market value of the property when calculating the taxes due. Taxpayers may begin using the short-form return for the fiscal year beginning October 1, 2014. Read the complete article “Legislative Wrap-up,” for more details on OPPAL.

Lynch v. State of Alabama, Case No. 11-15656, D.C. Dkt. No. 5:08-cv-00450-CLS (11th Cir. 2014): In a landmark ruling in a decades-long debate, the Eleventh Circuit Court of Appeals rejected a challenge to Alabama’s property tax system, essentially affirming an 804-page ruling by the district court. The plaintiffs, a group of children attending public schools in Sumter and Lawrence Counties, argued that Alabama’s property tax system was “rooted in the State’s historic racially discriminatory policies” and “cripple[d] the ability of certain rural, nearly all-black public school systems in Alabama to raise revenues.” Specifically, the plaintiffs were challenging the so-called “Lid Bill” caps on various millage rates (Sections 214, 215, and 216) and the property classification system (Section 217 as amended by Amendments 325 and 373) contained in the Alabama Constitution of 1901.

B-H Transfer Co., Inc. v. Magee et al., Talladega County Circuit Court, Civil Action No: CV-2012-900318 (Feb. 25, 2014): The circuit court held that when a common carrier can establish that its rolling stock is subject to ad valoremtaxation in both Alabama and another state, Alabama is prohibited from taxing that portion of the rolling stock that may be subject to ad valorem taxation in the other state. The taxpayer was in the business of providing interstate trucking services and owned 16 tractor trucks and 42 semi-trailers that were based at its terminal facility in Sylacauga, Alabama. These motor vehicles were subject to ad valorem taxation in Georgia, the state in which the taxpayer had its corporate headquarters, and also subject to ad valorem taxation in Alabama, the state where the vehicles were based.

Mark Griffin, ADOR Chief Counsel, explained that the Department wouldn’t appeal the court’s decision, saying, “We’re basically stating that we agree that [the 100 percent valuation] is a violation of the U.S. Constitution.” This ruling should have statewide impact for trucking companies—and we believe water carriers—subject to property tax in both Alabama and other states.

IV. MISCELLANEOUS TAXES AND PROCEDURAL MATTERS

Act No. 2014-146 (Substitute HB 105) – Alabama Taxpayer Fairness Act: The Alabama Taxpayer Fairness Act (Act No. 2014-146) was signed into law by Governor Bentley on March 11 and became effective on October 1. It represents a modified and streamlined version of the bill formerly referred to as “TBOR II.” Most importantly, the Act establishes the Alabama Tax Tribunal (ATT) by abolishing the current Administrative Law Division of the ADOR and transferring both the personnel and equipment to a newly formed, independent state agency under the executive branch. The ATT provisions are substantially similar to the American Bar Association’s Model State Administrative Tax Tribunal Act, except that appeals from the ATT will continue to be filed with the appropriate circuit court rather than with the Court of Civil Appeals. The annual appropriation earmarked for the ALD is carved out and assigned to the ATT, so there should be no additional cost to Alabama taxpayers for creating the tribunal. Read the article, “At Last, Alabama Establishes Independent Tax Tribunal,” for more details on the Alabama Taxpayer Fairness Act.

The Alabama Taxpayer Fairness Act also includes several updates and changes to the existing procedural protections contained in the Alabama Taxpayers’ Bill of Rights/Uniform Revenue Procedures Act of 1992. Those changes include:

  • Date of mailing (not date of entry) for preliminary and final assessments: A preliminary or final assessment must be appealed within 30 days from the date of mailing to the taxpayer (or date of personal service, whichever occurred earlier), instead of the date of its entry under current law.
  • Option to appeal net operating loss (NOL) adjustments to the ATT: This clarifies that taxpayers have the option, but are not required, to appeal to the ATT any proposed adjustments by the ADOR to their NOL deductions or carryovers, even though the proposed adjustment does not result in an assessment of tax or a denied refund claim.
  • “Innocent spouse” relief: This conforms to two intervening changes to the “innocent spouse” rules under the Internal Revenue Code to expand the scope of the defense for Alabama spouses. A bill passed in 2012 only partially conformed to the pro-taxpayer federal changes.
  • Increased power of the Taxpayer Advocate: The Taxpayer Advocate may correct a final order issued by the ATT if there is newly discovered evidence that shows the taxpayer was incorrectly assessed.
  • Dormant preliminary assessments: Taxpayers have the option of appealing a preliminary assessment to the ATT or the appropriate circuit court after five years from the date of entry if the assessment has not been made final or withdrawn by the taxing authority. Under current law, the issuance of a preliminary assessment suspends the statute of limitations indefinitely, during which a taxpayer has no appeal rights.
  • Security exemption for appeals to circuit court: In cases in which a final assessment is appealed directly to circuit court (or from the ATT to circuit court), a taxpayer who has a net worth of less than $250,000 based on fair market values need not post an appeal bond or pay the disputed tax before filing the appeal. Formerly, the threshold was $100,000 in net worth.
  • Consultation with department attorney on revenue rulings: This change requires the ADOR attorney assigned to a revenue ruling request to consult with the taxpayer and his or her authorized representative prior to issuing the ruling.
  • Penalties: Unlike previous versions of the TBOR II bill, the current bill contains no increases to existing penalties; no new penalties for filing frivolous returns or appeals, or for failing to file certain pass-through entity information returns; and no changes to the one-year period for reporting IRS audit adjustments to the ADOR.

Judge Thompson authored a comprehensive set of regulations that now govern the procedures to be followed in appeals filed with the ATT. The regulations fill in several gaps in the act and address a number of key provisions, including filing appeals with ATT, the conduct of hearings before the ATT, protective orders, and appeals from preliminary and final orders issued by the ATT. The regulations also state that taxpayers will receive fair and impartial hearings before the ATT in a relatively informal manner, just as they did before the ALD. The regulations, with some amendments dealing with the transition, became final on October 15, 2014. More information is available through the ATT’s informative website, http://taxtribunal.alabama.gov/.

Act No. 2014-144 (HB 2) – Alabama Limited Liability Company Law of 2014: This Alabama Law Institute bill substantially amends Alabama’s LLC laws, provides for the formation and recognition of series LLCs, and updates the state’s conformity with the IRS’s “check-the-box” entity classification regulations, effective January 1, 2015.

Under current Alabama law, domestic or foreign LLCs are treated as partnerships for all state tax purposes unless classified otherwise for federal income tax purposes. If a single member LLC is classified as a disregarded entity for federal income tax purposes, for example, the SMLLC would be classified in the same manner for state tax purposes, i.e., as a disregarded entity for state income, sales, use, rental, payroll, motor fuel excise, and other taxes. Act No. 2014-144 updates the federal conformity provision by providing that LLCs are treated as partnerships for state tax purposes unless classified otherwise for “federal tax purposes.” By deleting the word “income” from the current federal conformity provision, Alabama law will align with relatively recent changes to the U.S. Treasury Department’s check-the-box regulations in the area of SMLLCs and excise and payroll taxes.

In addition to the federal conformity change, the Act provides for the formation of domestic series LLCs and recognition of foreign series LLCs. Under the new law, an LLC may establish, by way of its LLC agreement, one or more designated series of assets with which certain members might be associated. Each series has separate rights, powers, and duties with respect to the specific property or obligation within the series, and each series can have a separate purpose or investment objective. Tax and business law practitioners anxiously await the Treasury’s finalization of its proposed series LLC regulations early next year. Read the complete article, “Legislative Wrap-up,” for more details regarding the Alabama Limited Liability Company Law of 2014.

City of Birmingham v. Robert G. Methvin, Jr., et al., Case Nos. 2120736, 2120737, 2120738, 2120739, 2120740 (Ala. Civ. App., Apr. 11, 2014): The Court of Civil Appeals recently dismissed the City of Birmingham’s appeal (at the City’s request) of a Jefferson County Circuit Court ruling because the ruling was not a final judgment. The taxpayers were attorney-shareholders in a well-known plaintiffs law firm with a single office in Birmingham’s city limits. The taxpayers performed legal services for clients in Birmingham and throughout the United States. For the years at issue, the taxpayers paid business license tax to Birmingham based on the gross receipts generated from legal services performed within the City. The City of Birmingham Revenue Department audited the taxpayers’ financial records and assessed the taxpayers for municipal business license tax on their entire gross receipts, including those receipts from services performed outside of Birmingham. The taxpayers paid the assessment under protest and filed suit for refund in Jefferson County Circuit Court.

The trial court granted the taxpayers’ motion for summary judgment, concluding that “the plain, ordinary and commonly understood meaning of the term ‘services rendered within the City of Birmingham’ cannot encompass services rendered outside of the City of Birmingham. . . . Therefore, the base of the City’s business license tax is limited to only those receipts derived from services rendered wholly within the city.” While the trial court declared its judgment to be final, it directed the parties to determine the proper apportionment of the taxpayers’ receipts within and without the City. If the parties were unable to reach an agreement as to apportionment, the trial court stated that it would appoint a mediator or special master to assist them.

The Court of Civil Appeals in effect remanded, holding that—even though the trial court styled its order as a “Final Summary Judgment,” and it stated that its order constituted a final judgment in the case—the trial court left open the issue of the amount of tax either due or to be refunded. In addition, the Court stated that the trial court contemplated the procedure it intended to use to mediate any dispute over the amount of tax owed by the taxpayers. Thus, the issue of the amount of the attorneys’ tax liability remained pending before the trial court, and the trial court’s order did not constitute a final judgment. The case remains pending in circuit court.

Washer & Refrigeration Supply Co. v. PRA Government Services, LLC, Jefferson Co. Cir. Ct. CV 2010-903417 (Oct. 19, 2011): Two Alabama taxpayers filed a very detailed class action suit against the largest private auditing firm in Alabama, PRA Government Services, LLC, which does business as “Revenue Discovery Systems,” and formerly as “AlaTax,” and affiliates (“AlaTax”), requesting damages for prior assessments, as well as declaratory and injunctive relief. The complaint alleges several violations by AlaTax or its auditors of the Alabama Taxpayers’ Bill of Rights (“TBOR”).

The plaintiffs allege that AlaTax violated several aspects of the TBOR, including: failing to notify taxpayers who have overpaid taxes of the procedures for filing a refund claim; failing to notify taxpayers of the right to an administrative appeal (in lieu of filing an appeal in circuit court); failing to comply with auditor surety bonding requirements; entering into contingency fee-auditing contracts; and rewarding its employees and independent contractors through incentive bonuses based on tax collections or assessments. For example, the plaintiffs allege that a so-called “Tax Revenue Enhancement Agreement” exists between AlaTax and numerous local jurisdictions, which provides for compensation to AlaTax for its examination services equal to “fifty percent (50%) of business license revenue collected by AlaTax.” The plaintiffs argue that these contingency fee arrangements violate taxpayers’ due process rights and create a biased administrative appeal process, citing evidence that taxpayers obtain refunds in approximately 45% of the appeals before the ALD, compared to a 0.2% success rate before AlaTax hearing officers.

Circuit Judge Robert Vance recently issued an order conditionally certifying a class and preliminarily approving the class action settlement of the case. A fairness hearing is scheduled for April 10, 2015, to determine whether the settlement class and proposed class action settlement should be finally certified. We are considering whether to recommend to our clients that they attempt to opt out of the class (the proposed class does not allow any opt-outs) or challenge certain aspects of the proposed settlement.