(a) If a person’s failure to make a timely return or payment is due to the person’s reasonable reliance on written advice from the board, the person may be relieved of the taxes assessed or any interest, additions to tax, and penalties added thereto, as follows:
(1) Taxes shall only be relieved, and any interest, additions to tax, and penalties added thereto, if the person’s failure to make a timely return or payment was due to a person’s reasonable reliance on the written advice of a legal ruling by the chief counsel, and only if the board itself finds all the conditions satisfied.
(2) In the event that the person relied on written advice of other than a chief counsel ruling, taxes shall not be relieved. Interest, additions to tax, and penalties may be waived if the board staff finds all the conditions satisfied.
(b) For purposes of subdivision (a), all of the following conditions shall be satisfied:
(1) The person or the person’s representative requested in writing that the board advise him or her whether a particular activity or transaction is subject to tax under the tax laws administered by that agency, and the specific facts and circumstances of the activity or transaction were fully described in the request. If the request is for a legal ruling, the request shall specifically so state.
(2) The board responded in writing to the person regarding the written request for advice, stating whether or not the described activity or transaction is subject to tax, or stating the conditions under which the activity or transaction is subject to tax. In the case where a chief counsel ruling is issued, the ruling shall be signed by the chief counsel or his or her designee.
(3) In reasonable reliance on the board’s written advice, the person did not remit the tax due.
(4) The liability for taxes applied to a particular activity or transaction which occurred before the board rescinded or modified the advice so given, by sending written notice to the person of the rescinded or modified advice.
(5) The tax consequences expressed in the board’s written advice were not subsequently changed by any of the following:
(A) A change in statutory law or case law.
(B) A change in federal interpretation in cases where the board’s written advice was predicated upon federal interpretation.
(C) A change in material facts or circumstances relating to the taxpayer.
(c) Any person seeking relief under this section shall file with the board all of the following:
(1) A copy of the person’s written request to the board and a copy of the board’s written advice.
(2) A statement signed under penalty of perjury, setting forth the facts on which the claim is based.
(3) Any other information which the board may require.
(d) Only the person making the written request shall be entitled to rely on the board’s written advice to that person.
(e) If written advice is issued pursuant to this section, it shall include a declaration that the tax consequences expressed in the advice may be subject to change for any of the reasons specified in paragraph (5) of subdivision (b) and that it is the duty of the taxpayer to be aware of any of these possible changes.
(f) This section does not apply if the taxpayer’s request for written advice pursuant to paragraph (1) of subdivision (b) contained a misrepresentation or omission of one or more material facts.
(g) For purposes of subdivision (a), the board shall waive only that portion of tax, penalties, interest, and additions to tax attributable to the actions taken by the taxpayer after receipt of the written advice of the board which were in reasonable reliance on the written advice.
(h) Chief counsel rulings shall be issued as provided in published guidelines.
(Added by Stats. 1988, Ch. 1573, Sec. 2.)
Last modified: October 25, 2018