19081-19093
REVENUE AND TAXATION CODE
SECTION 19081-19093
19081. If the Franchise Tax Board finds that the assessment or the
collection of a tax or a deficiency for any year, current or past,
will be jeopardized in whole or in part by delay, it may mail or
issue notice of its findings to the taxpayer, or its transferee or
transferees, together with a demand for immediate payment of the tax
or the deficiency declared to be in jeopardy, including interest and
penalties and additions thereto. Any assessment issued under this
article shall also be an assessment issued pursuant to Section 19033,
if an assessment has not already been issued pursuant to Section
19033 with respect to that taxable year for that amount.
19082. In the case of a tax for a current period, if the Franchise
Tax Board finds that the assessment or collection of the tax will be
jeopardized in whole or in part by delay, the Franchise Tax Board may
declare the taxable period of the taxpayer immediately terminated.
The Franchise Tax Board shall mail or issue notice of its finding and
declaration to the taxpayer, together with a demand for a return and
immediate payment of the tax based on the period declared
terminated, including therein income accrued and deductions incurred
up to the date of termination if not otherwise properly includible or
deductible in respect of the period, and the tax shall be
immediately due and payable whether or not the time otherwise allowed
by law for filing the return and paying the tax has expired.
19083. (a) A jeopardy assessment is immediately due and payable,
and proceedings for collection may be commenced at once.
(b) The collection of the whole or any amount of a jeopardy
assessment may be stayed, at any time before the assessment becomes
final, by filing with the Franchise Tax Board: (1) a bond in an
amount equal to the amount (together with interest thereon to the
date of payment) as to which the stay is desired, conditioned upon
the payment of the amount, the collection of which is stayed by the
bond, upon notice and demand by the Franchise Tax Board after the
assessment becomes final; or (2) other security in the amount as the
Franchise Tax Board may deem necessary, not exceeding double the
amount (together with interest thereon to the date of payment) as to
which the stay is desired.
(c) Upon the filing of the bond or other security the collection
of so much of the amount assessed as is covered by the bond or other
security shall be stayed. The taxpayer shall have the right to waive
the stay at any time in respect of the whole or any part of the
amount covered by the bond or other security, and if as a result of
the waiver any part of the amount covered by the bond or other
security is paid, then the bond or other security shall, at the
request of the taxpayer, be proportionately reduced. If any portion
of the jeopardy assessment is abated, the bond or other security
shall, at the request of the taxpayer, be proportionately reduced.
(d) The Franchise Tax Board, prior to the time the assessment
becomes final, may stay collection of the whole or any amount of a
jeopardy assessment if it finds that jeopardy does not exist.
(e) Where collection of the whole or any amount of a jeopardy
assessment has been stayed under this section, the period of
limitation on any action to collect shall be tolled during the time
of the stay.
19084. (a) (1) (A) Unless the Chief Counsel of the Franchise Tax
Board (or the chief counsel's delegate) personally approves (in
writing) the assessment or levy, no assessment shall be made under
this article and no levy shall be issued less than 30 days after
either of the following:
(i) A notice and demand is mailed or issued for payment pursuant
to Section 19081.
(ii) Notice and demand for a return and payment is mailed or
issued pursuant to Section 19082.
(B) Within five days after the day on which either a notice and
demand for payment is mailed or issued pursuant to Section 19081, or
notice and demand for a return and payment is mailed or issued
pursuant to Section 19082, the Franchise Tax Board shall mail or
issue the taxpayer a written statement of the information upon which
the Franchise Tax Board relies in issuing that notice and demand.
(2) Within 30 days after the day on which the taxpayer is
furnished the written statement described in paragraph (1), or within
30 days after the last day of the period within which the statement
is required to be furnished, the taxpayer may petition the Franchise
Tax Board to review whether its finding pursuant to Section 19081 or
19082 is reasonable under the circumstances, specifying the grounds
on which the petition is based. The filing of a petition for review
shall not operate to stay collection. Collection may be stayed only
as provided in Section 19083. A petition filed pursuant to this
paragraph shall also be considered a protest filed pursuant to
Section 19041 against the proposed additional tax.
(3) If a petition for review under paragraph (2) is not made
within the 30-day period set forth in that paragraph, the finding of
the Franchise Tax Board pursuant to Section 19081 or 19082 is final.
(4) After a petition for review is filed under paragraph (2), the
Franchise Tax Board shall determine whether or not the issuance of
notice and demand under Section 19081 or 19082 is reasonable under
the circumstances. In making this determination, the Franchise Tax
Board shall grant the taxpayer or authorized representative an oral
hearing if the taxpayer has so requested in the petition. Chapter 4.5
(commencing with Section 11400) of Part 1 of Division 3 of Title 2
of the Government Code does not apply to a hearing under this
paragraph. The burden of proof with respect to whether a jeopardy
exists as to collection or an assessment is upon the Franchise Tax
Board.
(5) The Franchise Tax Board shall make the determination under
paragraph (4) within 90 days of the filing of the petition for review
unless the taxpayer requests, in writing, additional time.
(6) In making the determination required by paragraph (4), the
Franchise Tax Board shall consider all relevant factors, including,
but not limited to, the likelihood that collection will be
jeopardized, the assets of the taxpayer, and the amount of the
assessment as it relates to whether jeopardy status exists. The
burden of proof as to the amount of the assessment for purposes of
determining jeopardy status is upon the taxpayer.
(b) (1) Within 60 days after the earlier of the following days,
the taxpayer may appeal the determination to the State Board of
Equalization in the manner provided in Section 19085:
(A) The day the Franchise Tax Board notifies the taxpayer of the
determination described in paragraph (4) of subdivision (a).
(B) One day after the time period prescribed by paragraph (5) of
subdivision (a) for the Franchise Tax Board to make its
determination.
(2) If an appeal is not filed before the expiration of the time
periods, the Franchise Tax Board's determination is final. Filing of
an appeal shall not operate to stay collection. Collection may be
stayed only as provided in Section 19083.
(3) Within 60 days after an appeal is filed under paragraph (1),
the board shall determine whether the issuance of notice and demand
under Section 19081 or 19082 is reasonable under the circumstances.
The burden of proof with respect to whether a jeopardy exists as to
collection or an assessment is upon the Franchise Tax Board.
(4) If the board determines that a jeopardy status does not apply
to all or part of the assessment, the board may modify the amount of
the assessment to which the jeopardy attaches. If the board does not
act within the time period provided in paragraph (3) as modified by
paragraph (6), the board will be deemed to have denied the taxpayer's
appeal.
(5) In making the determination required by paragraph (3), the
board shall consider all relevant factors, including, but not limited
to, the likelihood that collection will be jeopardized, the assets
of the taxpayer, and the amount of the assessment as it relates to
whether jeopardy status exists. The burden of proof as to the amount
of the assessment for purposes of determining jeopardy status is upon
the taxpayer.
(6) If either party requests an extension of the 60-day period set
forth in paragraph (3) and establishes reasonable grounds why the
extension should be granted, the board may grant an extension of not
more than 30 additional days.
(c) (1) Within 60 days after the earlier of the following days,
either party may bring a civil action against the other in superior
court for a judicial determination as to whether or not the issuance
of the notice and demand under Section 19081 or 19082 is reasonable
under the circumstances:
(A) The day the board notifies the taxpayer of its determination
described in paragraph (3), as modified by paragraph (6), of
subdivision (b).
(B) If the board fails to make a timely determination, then one
day after the time prescribed for the board to make its
determination.
(2) If a civil action under this subdivision is not commenced
within the 60-day period set forth in paragraph (1), the board's
determination is final. The filing of the civil action shall not
operate to stay collection. Collection shall be stayed only as
provided by Section 19083.
(3) Within 60 days after proper service is made, the superior
court shall determine whether the issuance of notice and demand under
Section 19081 or 19082 is reasonable under the circumstances. The
burden of proof with respect to whether a jeopardy exists as to
collection or an assessment is upon the Franchise Tax Board.
(4) If the court determines that a jeopardy status does not apply
to all or part of the assessment, the court may modify the amount of
the assessment to which the jeopardy attaches.
(5) In making the determination required by paragraph (3), the
superior court shall consider all relevant factors, including, but
not limited to, the likelihood that collection will be jeopardized,
the assets of the taxpayer, and the amount of the assessment as it
relates to whether jeopardy status exists. The burden of proof as to
the amount of the assessment for purposes of determining jeopardy
status is upon the taxpayer.
(6) If either party in the action requests an extension of the
60-day period set forth in paragraph (3) of subdivision (c) and
establishes reasonable grounds why the extension should be granted,
the superior court may grant an extension of not more than 30
additional days.
(7) Actions filed pursuant to this section shall be filed in the
Superior Court of the County of Los Angeles, the City and County of
San Francisco, the County of San Diego, or the County of Sacramento.
Sections 19387 and 19389 shall apply to those actions.
(8) The determination made by a superior court under this section
shall be final and conclusive and shall not be reviewed by any other
court.
(d) The amendments made by the act adding this subdivision are
operative for taxes assessed and levies made after the effective date
of the act adding this subdivision.
19085. The taxpayer may appeal to the board from the Franchise Tax
Board's action on the petition for review. The appeal shall be made
in the manner prescribed by Section 19046. Article 3 (commencing with
Section 19031) of Chapter 4 relating to an appeal from the action of
the Franchise Tax Board on a protest against an additional tax
proposed to be assessed applies to the appeal.
19086. In any proceeding brought to enforce payment of taxes made
due and payable by this article, the finding of the Franchise Tax
Board under Section 19081, whether made after notice to the taxpayer
or not, is for all purposes presumptive evidence that the assessment
or collection of the tax or the deficiency was in jeopardy. A
certificate of the Franchise Tax Board of the mailing or issuing of
the notices specified in this article is presumptive evidence that
the notices were mailed or issued.
19087. (a) If any taxpayer fails to file a return, or files a false
or fraudulent return with intent to evade the tax, for any taxable
year, the Franchise Tax Board, at any time, may require a return or
an amended return under penalties of perjury or may make an estimate
of the net income, from any available information, and may propose to
assess the amount of tax, interest, and penalties due. All the
provisions of this part relative to delinquent taxes shall be
applicable to the tax, interest, and penalties computed hereunder.
(b) When any assessment is proposed under subdivision (a), the
taxpayer shall have the right to protest the same and to have an oral
hearing thereon if requested, and also to appeal to the board from
the Franchise Tax Board's action on the protest; the taxpayer must
proceed in the manner and within the time prescribed by Sections
19041 to 19048, inclusive.
19088. (a) On the appointment of a receiver for any taxpayer in any
receivership proceeding before any court of the United States or of
any state or territory or of the District of Columbia, any deficiency
(together with all interest, additional amounts, or additions to the
tax provided for by law) determined by the Franchise Tax Board in
respect of a tax upon the taxpayer may be immediately assessed.
(b) Any deficiency (together with all interest, additional
amounts, and additions to the tax provided by law) determined by the
Franchise Tax Board in respect of a tax on either of the following:
(1) The debtor's estate in a case under Title 11 of the United
States Code.
(2) The debtor, but only if liability for the tax has become res
judicata pursuant to a determination in a case under Title 11 of the
United States Code,
may be immediately assessed if that deficiency has not previously
been assessed in accordance with law.
19089. (a) Every trustee in a case under Title 11 of the United
States Code, receiver, assignee for the benefit of creditors or like
fiduciary shall give notice of qualification as such to the Franchise
Tax Board in the manner and at the time that may be required by
regulations of the Franchise Tax Board. The Franchise Tax Board may
by regulation provide for any exemptions from the requirements of
this section that the Franchise Tax Board deems proper.
(b) If the regulations issued pursuant to this section require the
giving of any notice by any fiduciary in any case under Title 11 of
the United States Code, or by a receiver in any other court
proceeding to the Franchise Tax Board of qualification as such, the
running of the period of limitations for mailing a notice of proposed
deficiency assessment shall be suspended for the period from the
date of the institution of the proceeding to a date 30 days after the
date upon which the notice from the receiver or other fiduciary is
received by the Franchise Tax Board; but the suspension under this
section shall in no case be for a period in excess of two years.
19090. (a) Claims for the deficiency and such interest, additional
amounts and additions to the tax may be presented, for adjudication
in accordance with law, to the court before which the receivership
proceeding (or case under Title 11 of the United States Code) is
pending, despite the pendency of an appeal to the board.
(b) In the case of a receivership proceeding, no appeal shall be
filed with the board after the appointment of the receiver.
19091. Upon notice and demand from the Franchise Tax Board after
termination of the receivership proceeding, the taxpayer shall pay
any portion of the claim allowed in the proceeding which is unpaid.
The unpaid amount may be collected in the manner provided in this
part for the collection of delinquent taxes at any time within six
years after termination of the proceeding.
19092. The Franchise Tax Board may prescribe rules and regulations
necessary to properly carry out this article.
19093. (a) If the individual who is in physical possession of cash
in excess of ten thousand dollars ($10,000) does not claim that cash
in any of the capacities specified in paragraphs (1) and (2), then
for purposes of Sections 19081 and 19082, it shall be presumed that
the cash represents gross income of a single individual for the
taxable year in which the possession occurs, and that the collection
of tax will be jeopardized by delay:
(1) The cash is not claimed as his or hers.
(2) The cash is not claimed as belonging to another person whose
identity the Franchise Tax Board can readily ascertain and who
acknowledges ownership of that cash.
(b) In the case of any assessment resulting from the application
of subdivision (a), all of the following apply:
(1) The entire amount of the cash shall be treated as taxable
income for the taxable year in which the possession occurs.
(2) That income shall be treated as taxable at the maximum rate
under Section 17041.
(3) Except as provided in subdivision (c), the possessor of the
cash shall be treated (solely with respect to that cash) as the
taxpayer for purposes of Chapter 4 (commencing with Section 19001)
and Chapter 5 (commencing with Section 19201).
(c) If, after an assessment resulting from the application of
subdivision (a), that assessment is abated and replaced by an
assessment against the owner of the cash, that later assessment shall
be treated for purposes of all laws relating to lien, levy, and
collection as relating back to the date of the original assessment.
(d) For purposes of this section, the following definitions apply:
(1) "Cash" includes any cash equivalent.
(2) "Cash equivalent" means any of the following:
(A) Foreign currency.
(B) Any bearer obligation.
(C) Any medium of exchange to which both of the following apply:
(i) It is of a type which has been frequently used in illegal
activities.
(ii) It is specified as a cash equivalent for purposes of this
part in regulations prescribed by the Franchise Tax Board.
(3) Any cash equivalent shall be taken into account in the
following manner:
(A) In the case of a bearer obligation, at its face amount.
(B) In the case of any other cash equivalent, at its fair market
value.