CHAPTER 386

FORMERLY

SENATE BILL NO. 347

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 30, DELAWARE CODE, RELATING TO RECIPROCAL COLLECTION OF TAX CLAIMS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §558, Title 30, Delaware Code, by re-designating existing §558 as subsection (a) of said section, captioning said subsection "(a) General," and adding to said section a new subsection (b) to read as follows:

(b) Collection of tax debts of certain other governments

(1) Definitions--For purposes of this section:

(A) 'Claimant government' means any other state or agency of the United States that. in either case, extends a like comity for the collection of a tax debt owed to this State.

(B) 'Tax debt' means any amount of tax imposed under the laws of the claimant government, including additions to tax for penalties and interest, which is finally due and payable to the claimant government, with respect to which any administrative remedies and appeals have been exhausted or have lapsed and which is legally enforceable, whether or not there is an outstanding judgment of such sum.

(C) 'Taxpayer' means any person or entity identified by a claimant government for action by the Director of Revenue under this section, and, in the case of an intercept of a refund of personal income tax arising from the filing of a joint return, the taxpayer's spouse.

(D) 'Taxing Official' means a unit or official of a claimant government charged with the imposition, assessment, or collection of taxes of that government.

(E) 'Refund' means any taxpayer's claim to repayment of an overpayment of a tax determined to be owed by this State.

(2) Request for intercept--

(A) Except as provided in this subsection, a taxing official may:

(i) certify to the Director of Revenue the existence of a tax debt to a claimant government, and

(ii) request the Director of revenue to withhold any refund to which the taxpayer is entitled.

(B) A taxing official may not certify or request the Director of Revenue to withhold a refund unless the laws of the claimant government allow the Director of Revenue to:

(i) certify a tax debt due,

(ii) request the taxing official to withhold the taxpayer's refund,

and

(iii) provide for the payment of the refund to Delaware.

(3) Certification to Director of Revenue -- Certification of a tax debt by the taxing official to the Director of Revenue shall include:

(A) the full name of the taxpayer and, if in the sound discretion of the Director it will aid in identifying and locating the taxpayer, the taxpayer's address;

(B) the taxpayer's social security number or federal tax identification number,

(C) the amount of the tax debt, including a detailed statement for each taxable year showing tax, interest, and penalty or data that, in the sound discretion of the Director of Revenue, sufficiently describes the tax debt; and

(D) a statement that all rights to administrative remedies and appeals have been exhausted or lapsed and that the assessment of tax, interest and penalty is final and enforceable.

(4) Notice to taxpayer-- Upon receipt of a request for intercept and certification from a taxing official, the Director shall notify the taxpayer (and, in the case of a refund of any tax imposed upon the income of individuals, any spouse with whom the taxpayer filed a Joint return) thereof and of the right M protest the intercept. The notice shall include a copy of the certification by the taxing official.

(5) Protest of intercept. A taxpayer may protest an intercept of a refund pursuant to Section 523 of this Title (except that the time to protest shall be 30 days from the date of the Director's notice of intercept pursuant to paragraph (4) and not 60 days). If a taxpayer shall file a timely protest, the Director shall:

(A) suspend the proposed intercept and impound the claimed amount of the taxpayer's refund,

(B) pay to the taxpayer the unclaimed amount of the refund, if any,

(C) send a copy of the protest to the claimant government for determination of the protest on its merits in accordance with the laws of that state, and

(D) pay over to the taxpayer the impounded amount if the claimant government shall fail within 45 days of the date of the protest to re-certify to the Director of Revenue that the claimant government has reviewed the issues raised by taxpayer, that all administrative and judicial remedies provided under the laws of that state have been exhausted, and the amount of the tax debt finally determined to be due.

(6) Rights of spouses to refunds from joint returns. If a proposed intercept Is based upon the tax debt of only one individual and if the refund is based upon a joint personal income tax return, the non-debtor spouse shall have the right to protest the intercept of that spouse's share of the refund in accordance with paragraph (5), showing the non-debtor spouses proper share of such refund;

(7) Intercept and payment of refund. Subject to the taxpayer's rights of notice and protest, upon receipt of a request for intercept in accordance with paragraph (2) of this subsection, the Director of Revenue shall

(A) pay to the claimant government the entire refund or the amount certified. whichever is less;

(B) pay any refund in excess of the certified amount to the taxpayer; and

(C) if a refund is less than the certified amount, withhold amounts from subsequent refunds due to the taxpayer provided the claimant government shall withhold subsequent refunds of taxpayers certified to the claimant government by the Director of Revenue.

(8) The Director of Revenue shall have the authority to enter into agreements with the lasing officials of claimant governments relating to

(A) procedures and methods to be employed by a claimant government with respect to the operation of this section;

(B) safeguards against the disclosure or inappropriate use of any personally identifiable information regarding the taxpayer obtained or maintained pursuant to this chapter; and

(C) a minimum tax debt, amounts below which, in light of administrative expenses and efficiency, shall, in the Director's discretion, not be subject to the intercept procedures set forth in this section.

(9) Remedy not exclusive. The collection procedures prescribed by this subsection are in addition to, and not in substitution for, any other remedy available by law.

(10) Notwithstanding any other provision of this section, the Director may deem he government of the United States a claimant government provided he finds, based on specific action 01 the United States or House of Representatives or a Committee thereof, reason to believe the United States may extend a like comity for the collection of a tax debt owed to this State no tater than January 1, 2001

Section 2.. Amend Title 30, Delaware Code, by adding thereto a new §565 to read as follows

"§565 Priorities among requests to intercept or reduce refunds.

The Director of Revenue shall honor the claims for collection of debts owed to certain State agencies pursuant to §545 of this title and requests to intercept refunds by other claimant governments pursuant to §558(b) of this title in the following order:

(a) a refund intercept to collect unpaid taxes and additions to tax of this State,

(b) a claim pursuant to a notice of a claimant agency of this State pursuant to ,;545 if this Title, and

(c) a request by a claimant government for intercept of a refund pursuant to §558(b) of this Title.".

Section 3. If any clause, sentence, section, provision or part of this Act shall be adjudged to be unconstitutional or invalid for any reason by any court of competent jurisdiction, such judgment shall not impair, invalidate, or affect the remainder of this Act, which shall remain in full force and effect.

Approved July 8, 1998