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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 7. Administration.

Article 5. The California Taxpayers' Bill of Rights*

Section 41176


41176. Disregard by department employee or officer. (a) If any officer or employee of the department recklessly disregards department-published procedures, a taxpayer aggrieved by that action or omission may bring an action for damages against the state in superior court.

(b) In any action brought under subdivision (a), upon finding of liability on the part of the state, the state shall be liable to the plaintiff in an amount equal to the sum of all of the following:

(1) Actual and direct monetary damages sustained by the plaintiff as a result of the actions or omissions.

(2) Reasonable litigation costs, including any of the following:

(A) Reasonable court costs.

(B) Prevailing market rates for the kind or quality of services furnished in connection with any of the following:

(i) The reasonable expenses of expert witnesses in connection with the civil proceeding, except that no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the state.

(ii) The reasonable cost of any study, analysis, engineering report, test, or project that is found by the court to be necessary for the preparation of the party's case.

(iii) Reasonable fees paid or incurred for the services of attorneys in connection with the civil proceeding, except that those fees shall not be in excess of seventy-five dollars ($75) per hour unless the court determines that an increase in the cost of living or a special factor, including the limited availability of qualified attorneys for the proceeding, justifies a higher rate.

(c) In the awarding of damages under subdivision (b), the court shall take into consideration the negligence or omissions, if any, on the part of the plaintiff that contributed to the damages.

(d) Whenever it appears to the court that the taxpayer's position in the proceeding brought under subdivision (a) is frivolous, the court may impose a penalty against the plaintiff in an amount not to exceed ten thousand dollars ($10,000). A penalty so imposed shall be paid upon notice and demand from the department and shall be collected as a surcharge imposed under this part.

History—Stats. 2006, Ch. 538 (SB 1852), in effect January 1, 2007, substituted "that" for "which" after "on the part of the plaintiff" in subdivision (c). Stats. 2021, Ch. 432 (SB 824), in effect January 1, 2022, substituted "department" for "board" throughout; substituted "state" for "State of California" throughout; substituted "including" for "such as" after "special factor," in subparagraph (b)(2)(B)(iii); substituted "subdivision" for "subdivisions" after "brought under" in the first sentence of subdivision (d); substituted "surcharge" for "tax" before "imposed under" in the second sentence of subdivision (d).


* Added by Stats. 1992, Ch. 438, in effect January 1, 1993.