SENATE BILL NO. 380
AN ACT TO AMEND TITLE 30 OF THE DELAWARE CODE RELATING TO THE TAX APPEAL BOARD. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 3, Title 30 of the Delaware Code by adding to said Chapter a new Section 333 to read as follows:
1333. Removal of Tax Appeals to the Superior Court.
(a) Any appeal brought under Section 329 of this Chapter may be removed by the taxpayer or the Division of Revenue from the Tax Appeal Board to the Superior Court of this State as provided by this section.
No action may be removed by either party unless: (1) the total
amount in controversy for all taxable periods which are the subject of the appeal exceeds $50,000 and a notice of removal has been filed by either party; or (2) the Tax Appeal Board (hereinafter the Board"), on motion by one or more parties, in its discretion grants leave to remove the action. The
Board's determination grants leave to remove the action.
In the case of taxes determined under Chapter 11 of this Title
(other than taxes due under Subchapter VII of said Chapter), if the taxpayer is a resident of this State, the action being removed shall be removed to the Superior Court in and for the county of the taxpayer's residence. In all
other cases, the action being removed shall be removed to the Superior Court in and for New Castle County.
(a) The person desiring to remove an action to the Superior Court
shall file with the Tax Appeal Board a notice of such removal or a motion for leave to remove. A notice of removal must be filed within sixty (60) days after the appeal Is commenced and shall state the grounds for removal. A motion for leave to remove may be filed at any time prior to the matter being submitted to the Board for decision.
(b) Upon the filing of a notice of removal or granting of a motion for leave to remove, the Board shall transmit all records in the appeal to the Superior Court in and for the county to which the action is removed. Except as otherwise provided in this section or as provided by Rule of the Superior Court, following the filing of such notice or the granting of such motion, the action shall continue as though It had commenced in Superior Court.
(a) Trials of appeals removed under this section shall be to the
Superior Court without a jury.
(a) The taxpayer removing a case to the Superior Court pursuant to this section shall pay fees to the Superior Court as if the taxpayer had commenced the action in Superior Court. In the case of a motion for leave to remove, fees shall be paid as If the petitioner or petitioners had commenced the action in the Superior Court.
(b) For purposes of this section:
(1) 'Tax' includes any tax or fee governed by Section 501 of this
Title, but shall not include any interest or penalty.
(2) 'Person' includes any natural person and any entity, Including
the Division of Revenue.
(3) 'Taxpayer' includes any person who is or may be liable for any
(4) 'Amount in Controversy' means: (A) The portion of tax as
reflected on a Notice of Proposed Assessment or Notice of Disallowance of Refund issued under Sections 521 or 542 of this Title which a taxpayer contests; plus (B) Any interest reflected on said Notice to the extent such
interest is computed on the amount of tax which is contested; plus (C) The amount of penalty as reflected on such Notice which the taxpayer contests."
Section 2. Amend Section 331, Title 30 of the Delaware Code by designating existing Section 331 as subsection (a) of said section and adding thereto a new subsection (b) to read as follows:
"(b) Whenever, at any time prior to the Board's Issuance of a final order, the parties (including the Director of Revenue) to any appeal so stipulate, the Board's order shall not be subject to appeal to the Superior Court, notwithstanding subsection (a) of this section."
Section 3. Amend Chapter 3, Title 30 of the Delaware Code by adding to said Chapter a new Section 334 to read as follows:
1334. Admission to Practice before the Tax Appeal Board.
The Rules of any Court of this State to the contrary notwithstanding, the Tax Appeal Board shall admit to practice before the Board the following individuals:
(a) All attorneys admitted to practice by the Supreme Court of the State of Delaware;
(a) All accountants who have received a certificate as a Certified
Public Accountant granted by the Delaware State Board of Accountancy or its successor and all other accountants practicing within the State of Delaware who are entitled to practice as enrolled agents before the Internal Revenue Service;
(b) Attorneys-at-law and Certified Public Accountants duly admitted to practice their respective professions by the appropriate authorities in other states, or the District of Columbia, or other accountants practicing outside the State of Delaware who are entitled to practice as enrolled agents before the Internal Revenue Service upon application wherein good cause is shown (in the case of attorneys, in accordance with the Rules of the Delaware Supreme Court) upon admission by the Board pro hac vice for the purpose of representing parties appearing before the Board;
(c) Any employee (including an attorney admitted to practice by the appropriate authority of another state or the District of Columbia) of a corporation that is a party to proceedings before the Board provided such employee is duly appointed by the corporation to undertake such representation and such representation is within the scope of the employee's employment. (In the case of an attorney seeking admission to practice under this subsection , the provisions of subsection (c) shall not apply);
(a) Any other person who establishes, to the satisfaction of the
Board, that he or she is a citizen of the United States and of the State of Delaware, of good moral character and repute, and possessed of the requisite qualifications to represent others in the preparation and trial of matters before this Board, may be admitted to practice before the Board subject to such uniform requirements, interviews, or examinations which the Board, by supplemental rule, may adopt; and
(a) Any natural person appearing on his or her own behalf."
Section 3. Effective Date.This Act shall be effective for all appeals
filed with the Tax Appeal Board on or after August 1, 1994.
Approved July 13, 1994.