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Business Taxes Law Guide – Revision 2021
 

Appeals Regulations

Chapter 2. ANNOTATIONS

35101. Annotations.

(a) Definitions. For purposes of this regulation, the following definitions shall apply:

(1) “Annotations” are summaries of the conclusions reached in selected legal rulings of counsel. Annotations do not embellish or interpret the legal rulings of counsel which they summarize and do not have the force and effect of law.

(2) “Legal ruling of counsel” means a legal opinion written and signed by CDTFA’s Chief Counsel or an attorney who is the Chief Counsel’s designee, addressing a specific inquiry, including an inquiry from a taxpayer or taxpayer representative, a local government agency, or CDTFA staff.

(3) “Current Legal Digest” means a publication containing drafts of new annotations CDTFA proposes to publish and previously published annotations CDTFA proposes to amend or depublish.

(4) “Tax” means any tax, fee, surcharge, or assessment administered by CDTFA.

(5) “CDTFA” means the California Department of Tax and Fee Administration.

(b) Elements of Annotated Legal Rulings of Counsel. In order to qualify for annotation, a legal ruling of counsel must include the following elements:

(1) A summary of pertinent facts;

(2) An analysis of the issue(s);

(3) References to any applicable statutes, regulations, or case law; and

(4) A conclusion supported by the analysis of the issue(s).

(c) Use of Annotations.

(1) Annotations provide notice of the existence of and conclusions reached in selected legal rulings of counsel regarding the application of the statutory law, regulatory law, or judicial opinions to a particular factual circumstance.

(2) Annotations are published as a research tool to locate selected legal rulings of counsel and thus provide guidance regarding the interpretation of statutes and CDTFA regulations as applied by CDTFA staff to specific factual situations in legal rulings of counsel.

(3) Except as provided in regulation 1705 or 4902, following the advice provided in an annotation is not reasonable reliance upon written advice for purposes of obtaining relief from a failure to pay tax, interest, and penalty.

(d) Publication of Annotations.

(1) Before new annotations are published or previously published annotations are amended or depublished, CDTFA shall publish the proposed changes in a Current Legal Digest and shall provide interested persons not less than 30 days to comment on and, if necessary, challenge the proposed changes.

(2) Any person may request, and shall be entitled to receive, Current Legal Digests. Requests to be added to the mailing list to receive Current Legal Digests may be directed to CDTFA’s Legal Division.

(e) Request for Depublication of an Annotation. Any person may request that a published annotation believed to be in error and/or appearing to conflict with another annotation be depublished using the following procedure:

(1) A request for depublication of an annotation shall be directed to the Chief Counsel.

(2) A request for depublication of an annotation shall be approved or denied by the Chief Counsel within sixty (60) days from the date the request is received.

(3) If a request for the depublication of an annotation is approved by the Chief Counsel, CDTFA shall publish the proposed depublication in a Current Legal Digest.

(f) Copies of Legal Rulings of Counsel. Any person may request, and shall be entitled to receive, a copy of a legal ruling of counsel, with confidential taxpayer information redacted, that has been summarized in a published annotation. Requests may be directed to CDTFA’s Legal Division.

Note: Authority cited: Section 22971.2, Business and Professions Code; Sections 15570.40 and 15606, Government Code; Section 25215.74, Health and Safety Code; Sections 7051, 8251, 9251, 30451, 34013, 38701, 40171, 41128, 42020, 42103, 43501, 45851, 46601, 50152, 55301 and 60601, Revenue and Taxation Code.

Reference: Section 22970.2, Business and Professions Code; Sections 11340.9 and 15606, Government Code; Sections 25215.45, 105190 and 105310, Health and Safety Code; Sections 4629.5, 42464.2, 42882 and 71215, Public Resources Code; Section 893, Public Utilities Code; Sections 6596, 7051, 7084, 7657.1, 8251, 8262, 8879, 9251, 9262, 30284, 30451, 30458.2, 34013, 38454, 38701, 40104, 40171, 40202, 41098, 41128, 41162, 42020, 42103, 43159, 43501, 43513, 44003, 45157, 45851, 45858, 46158, 46601, 46613, 50112.5, 50152, 50156.2, 55045, 55301, 55323, 60210, 60601 and 60623, Revenue and Taxation Code; Section 1537, Water Code.

History: New chapter 2 (regulation 35101) and regulation filed March 19, 2018, as an emergency; effective and operative March 19, 2018. Chapter and regulation refiled September 17, 2018, as an emergency; effective and operative September 17, 2018. Chapter and regulation refiled December 17, 2018, as an emergency; effective and operative December 17, 2018. Certificate of Compliance transmitted to OAL on February 20, 2019 and filed March 19, 2019. When the regulation was refiled September 17, 2018, the reference to Revenue and Taxation Code section 254.6 was deleted from the regulation’s reference note. (The regulation incorporates provisions from regulation 5700 in division 2.1.)