Laws, Regulations and Annotations
Business Taxes Law Guide – Revision 2022
Emergency Telephone Users Surcharge Act
Revenue and Taxation Code
Division 2. Other Taxes
Part 20. Emergency Telephone Users Surcharge Act
Chapter 4. Determination of Surcharge.
Article 6. Interest and Penalties
41099. Relief of spouse. (a) Under regulations prescribed by the department, if:
(1) A surcharge liability under this part was understated by a failure to file a return required to be filed under this part, by the omission of an amount properly includable therein, or by erroneous deductions or credits claimed on a return, and the understatement of surcharge liability is attributable to one spouse; or any amount of the surcharge reported on a return was unpaid and the nonpayment of the reported surcharge liability is attributable to one spouse.
(2) The other spouse establishes that the other spouse did not know of, and had no reason to know of, that understatement or nonpayment.
(3) Taking into account whether the other spouse significantly benefited directly or indirectly from the understatement or the nonpayment and taking into account all other facts and circumstances, it is inequitable to hold the other spouse liable for the deficiency in surcharge attributable to that understatement or nonpayment, then the other spouse shall be relieved of liability for the surcharge, including interest, penalties, and other amounts, to the extent that the liability is attributable to that understatement or nonpayment of the surcharge.
(b) For purposes of this section, the determination of the spouse to whom items of understatement or nonpayment are attributable shall be made without regard to community property laws.
(c) This section shall apply to all calendar months, quarters, or years subject to the provisions of this part, but shall not apply to a calendar month, quarter, or year that is more than five years from the final date on the department-issued determination, five years from the return due date for nonpayment on a return, or one year from the first contact with the spouse making a claim under this section; or that has been closed by res judicata, whichever is later.
(d) For purposes of paragraph (2) of subdivision (a), "reason to know" means whether a reasonably prudent person would have had reason to know of the understatement or nonpayment.
(e) For purposes of this section, with respect to a failure to file a return or an omission of an item from the return, "attributable to one spouse" may be determined by whether a spouse rendered substantial service as a service supplier for each access line subscribed by service users or a sellers collection from each prepaid consumer’s purchase of prepaid mobile telephony services, or an access line or purchase of prepaid mobile telephony services to which the understatement is attributable. If neither spouse rendered substantial services as a service supplier, seller, or as a service user, then the attribution of applicable items of understatement shall be treated as community property. An erroneous deduction or credit shall be attributable to the spouse who caused that deduction or credit to be entered on the return.
(f) Under procedures prescribed by the department, if, taking into account all the facts and circumstances, it is inequitable to hold the other spouse liable for an unpaid surcharge or deficiency, or any portion of either, attributable to any item for which relief is not available under subdivision (a), the department may relieve the other spouse of that liability.
(g) For purposes of this section, registered domestic partners, as defined in Section 297 of the Family Code, have the same rights, protections, and benefits as provided by this section, and are subject to the same responsibilities, obligations, and duties as imposed by this section, as are granted to and imposed upon spouses.
(h) The relief provided by this section shall apply retroactively to liabilities arising prior to January 1, 2008.
History—Added by Stats. 2007, Ch. 342 (AB 1748), in effect January 1, 2008. Stats. 2008, Ch. 179 (SB 1498), in effect January 1, 2009, deleted "or not" after "account whether" and substituted commas for parentheses around the phrase "including interest, penalties, and other amounts" in paragraph (3) of subdivision (a); substituted "a" for "any" after "shall not apply to" in subdivision (c); deleted "or not" after "means whether" in subdivision (d); substituted "communication" for "communications" after "intrastate telephone" in subdivision (e); substituted "an" for "any" after "spouse liable for", deleted "any" after "unpaid surcharge or", and substituted commas for parentheses around the phrase "or any portion of either" in subdivision (f); and substituted "January 1, 2008" for "the effective date of this section" in subdivision (h). Stats. 2021, Ch. 432 (SB 824), in effect January 1, 2022, substituted "department" for "board" throughout; substituted "the other spouse" for "he or she" after "establishes that" in paragraph (a)(2); substituted "for each access line subscribed by" for "of intrastate telephone communication services" after "service supplier", deleted "as" after "service users or", substituted "sellers collection from each prepaid consumer’s purchase of prepaid mobile telephony services, or an access line or purchase" for "users" before "of", substituted "prepaid mobile telephony" for "intrastate telephone communication" before "services to which" in the first sentence of subdivision (e); added "or seller," after "service supplier" in the second sentence of subdivision (e).