§ 321 Composition; appointment; term; qualifications.
(a) The Tax Appeal Board shall consist of 5 members who shall be appointed by the Governor for terms of 3 years. The term of each member shall terminate at the end of said 3-year period, or until such member's successor has been appointed and qualified. If any member of the Tax Appeal Board shall cease to serve for any reason prior to the end of the term, the Governor shall appoint a successor to serve for the remainder of the unexpired term. At least 1 member of the Board shall be a member of 1 of the major political parties, and at least 1 member of the Board shall be a member of the other major political party; provided, however, there shall be no more than a bare majority representation of 1 major political party over the other major political party. Any person not registered with a political party shall also be eligible for appointment as a member of the Board.
(b) At least 2 of the members of the Board shall be attorneys-at-law, 1 of whom shall be appointed chairperson by the Governor. The other attorney shall be vice-chairperson to act in the absence or disability of the chairperson. The remainder of the Board shall be composed of 1 accountant and 2 members of the general public.
§ 322 Salary.
Each member of the Tax Appeal Board shall be paid a salary of $5,500 per year. The chairperson shall be paid an additional $500 per year.
§ 323 Secretary; quorum.
(a) The Tax Appeal Board shall appoint a secretary who need not be a member of the Tax Appeal Board. The secretary shall maintain a record of all proceedings before the Tax Appeal Board.
(b) A quorum for the transaction of business of the Tax Appeal Board shall be any 3 members, one of whom shall be an attorney.
30 Del. C. 1953, § 323; 57 Del. Laws, c. 718, § 1.;
§ 324 Alternate attorney member.
(a) Whenever a request in writing shall be addressed to the Governor by any attorney member of the Tax Appeal Board stating that the attorney has disqualified himself or herself from participating in a particular matter or matters coming before the Tax Appeal Board, or that the attorney is unable because of illness, disability or other good reason to take part in such matter or matters, the Governor shall designate an attorney-at-law as a special attorney member of the Tax Appeal Board for such matter or matters only and such designee shall be deemed to be an attorney member of the Tax Appeal Board for all purposes concerning such matter or matters.
(b) Any attorney so designated who renders service as such special member of the Tax Appeal Board shall be paid at the rate of $100 per diem for services.
(c) This section shall be applicable to any matters over which the Tax Appeal Board has jurisdiction, whether pending at or prior to September 15, 1970, or at any time subsequent thereto.
§ 325 Annual report; rules.
(a) The Board shall submit an annual report to the Governor, as soon as practicable at the end of the fiscal year. The report shall be a public record, and be available to the public. The report shall summarize in detail the Board's activities since the date of the last report.
(b) The Board may, by proper rules, prescribe the procedures to be followed in hearings and appeals before it.
§ 326 Facilities and services.
The Secretary of Finance shall provide office space, supplies, services and such other assistance as the Tax Appeal Board may require.
§ 327 Record of decisions; rules and rulings of the Tax Appeal Board.
The Secretary of Finance shall maintain at the main office of the Department of Finance, and open to the inspection of the public, all decisions, rules and rulings of the Tax Appeal Board. These records shall be deemed published as required by this title. The record for good cause shown may be sealed by the Tax Appeal Board so as not to disclose the identity of the taxable.
§ 328 Reimbursement of expenses.
Members of the Tax Appeal Board shall be entitled to receive their actual and necessary expenses while engaged in the performance of their duties.
30 Del. C. 1953, § 328; 57 Del. Laws, c. 718, § 1.;
§ 329 Hearings and appeals.
The Tax Appeal Board shall hear all appeals from determinations of the Director of all administrative protests including, but not necessarily limited to, determinations under §§ 525, 544 and 561 of this title, and such other statutes granting jurisdiction to the Board as may be hereafter enacted, and the Board may affirm, modify or reverse any such determination.
§ 330 Subpoenas and attendance of witnesses.
The Tax Appeal Board, for the purpose of its hearings, may issue subpoenas, compel the attendance of witnesses, administer oaths, take testimony and compel the production of pertinent books, payrolls, accounts, papers, records and documents, and in case any person summoned to testify or to produce any relevant or material evidence refuses to do so without reasonable cause, the Tax Appeal Board may certify the fact of any such refusal to the Superior Court of the county in which such hearing is held and such Superior Court may proceed against the person so refusing for contempt and may punish such person, if found guilty, in such manner as persons are punished for contempt of court.
30 Del. C. 1953, § 330; 57 Del. Laws, c. 718, § 1.;
§ 331 Appeals from Tax Appeal Board decisions.
(a) From any decision of the Tax Appeal Board, the taxable shall have the right of appeal to the Superior Court of the State in the county in which the hearing has been held; provided, however, that no appeal from such decision shall be received or entertained in the Superior Court unless notice of appeal is duly filed in the office of the Prothonotary thereof within 30 days after the date of the order entered upon such decision. The Tax Appeal Board may, upon good cause shown, extend the foregoing time (1) for an additional 30 days or (2) until disposition of any motion for a rehearing or to revise its decision.
(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.
§ 332 Frivolous or dilatory proceedings.
Whenever it appears to the Tax Appeal Board that proceedings before it have been instituted or maintained by a taxpayer primarily for delay or that the taxpayer's position in such proceedings is frivolous or without reasonable basis, damages in an amount not in excess of $5,000 shall be awarded to the State by the Board as part of the Board's decision. Damages so awarded shall be paid upon notice and demand from the Secretary of Finance and shall be collected as part of tax.
§ 333 Removal of tax appeals to the Superior Court.
(a) Any appeal brought under § 329 of this title 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.
(b) 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 1 or more parties, in its discretion grants leave to remove the action. The Board's determination grants leave to remove the action.
(c) 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.
(d) 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 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.
(e) 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.
(f) Trials of appeals removed under this section shall be to the Superior Court without a jury.
(g) 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.
(h) For purposes of this section:
(1) "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 § 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.
(2) "Person" includes any natural person and any entity, including the Division of Revenue.
(3) "Tax" includes any tax or fee governed by § 501 of this title, but shall not include any interest or penalty.
(4) "Taxpayer" includes any person who is or may be liable for any tax.
§ 334 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:
(1) All attorneys admitted to practice by the Supreme Court of the State;
(2) 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 who are entitled to practice as enrolled agents before the Internal Revenue Service;
(3) 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 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;
(4) 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 paragraph, the provisions of paragraph (3) of this section shall not apply);
(5) Any other person who establishes, to the satisfaction of the Board, that the person 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
(6) Any natural person appearing on that person's own behalf.