RULES AND REGULATIONS
Title 61—REVENUE
DEPARTMENT OF REVENUE
[ 61 PA. CODE CHS. 7 AND 901 ]
Board of Appeals; Small Games of Chance
[43 Pa.B. 532]
[Saturday, January 26, 2013]The Department of Revenue (Department), under authority in section 6 of The Fiscal Code (72 P. S. § 6) and section 306 of the Local Option Small Games of Chance Act (10 P. S. § 328.306), amends Chapters 7 and 901 (relating to Board of Appeals; and local option small games of chance).
Purpose of Final-Form Rulemaking
This final-form rulemaking consolidates administrative appeals under the jurisdiction of the Department's Board of Appeals (Board). Additionally, the final-form rulemaking streamlines the administrative appeals process by creating a uniform set of procedures for administrative appeals within the Department. The final-form rulemaking preserves the Board's jurisdiction over tax appeals.
Explanation of Regulatory Requirements
Sections 7.1—7.7 are rescinded.
Section 7.11 (relating to definitions) contains definitions of ''administrative proceeding,'' ''appeal'' and ''Board,'' which were previously defined in § 7.1.
Section 7.12 (relating to jurisdiction) explains that the Board's jurisdiction includes appeals and administrative proceedings as defined in § 7.11.
Section 7.13 (relating to manner of proceeding before the Board) explains that proceedings before the Board are initiated by the filing of a petition.
Section 7.14 (relating to petitions) contains the text formerly in § 7.3 with some minor modifications explained as follows.
Subsection (a) contains language in former § 7.3(a) stating that petitions should be filed with the Board.
Subsection (b) is an expansion of former § 7.3(a) regarding the time limits for filing a petition.
Subsection (c) is an expansion of former § 7.3(a) regarding receipt of a petition.
Subsection (d) is language that was formerly in § 7.3(b) and is expanded to include electronically filed petitions.
Subsection (e) contains language in former § 7.3(b)(1). This subsection explains the general requirements and contents of a petition and also additional requirements for an appeal petition.
Subsection (f) contains language that was in former § 7.3(c). It has been revised to explain the process of docketing petitions.
Subsection (g) contains language in former § 7.3(b)(1)(ix) regarding additional information.
Subsection (h) is new language and includes electronic signatures.
Section 7.15 (relating to Board practice and procedure) contains the language in former § 7.5 with minor modifications explained as follows.
Subsection (a)(1), which explains the burden of proof before the Board, is identical to former § 7.5(c)(2).
Subsection (a)(2) is nearly identical to former § 7.5(b) with minor rewording and describes the petitioner's right to have representation.
Subsection (a)(3) explains the Board's discretion to consolidate or sever multiple proceedings.
Subsection (a)(4) is made up primarily of the language in former § 7.5(c) and (d) regarding the conduct and procedures of hearings.
Subsection (a)(5) contains identical language in former § 7.5.(e) regarding evidence.
Subsection (a)(6) is language from former § 7.5.(f) regarding subpoenas with minor rewording.
Subsection (a)(7) is language from former § 7.5(h) regarding additional hearings and evidence.
Subsection (a)(8) contains language from former § 7.6 regarding the Board's decision and order.
Subsection (a)(9) is generally the language from former § 7.7 revised to clarify the Board's ability to issue corrected orders for clerical and computational errors.
Subsection (b) contains language from former §§ 7.3(b)(2)(ii), 7.5(c)(5) and (7) and 7.6(c).
Subsection (c) explains additional practices and procedures for administrative proceedings before the Board.
Section 7.16 (relating to security upon petition for review) outlines the requirements and procedures for taxpayers to file appropriate security with their petition for review filed in Commonwealth Court.
Section 901.1 (relating to definitions) is amended to change the definition of ''Board'' to mean the Board rather than the Small Games of Chance Board.
The last sentence of § 901.161 (relating to jurisdiction and purpose), regarding the Board's recommendation to the Secretary, is deleted to maintain consistency with other changes in this final-form rulemaking.
Sections 901.162 and 901.163 are rescinded.
Section 901.164 (relating to petitions) is amended to clarify the time frame for filing a petition challenging a decision of the Department. Subsections (b)—(e) have been deleted.
Section 901.165 (relating to Board practice and procedure) is amended by deleting former language and adding language that the regulations that govern the practice and procedures before the Board.
Sections 901.166 and 901.167 are rescinded.
Section 901.168(a) and (b) (relating to stay of appeal) is amended by updating language to be consistent with other changes in this final-form rulemaking.
Affected Parties
Pennsylvania taxpayers and tax practitioners may be affected by the final-form rulemaking.
Comment and Response Summary
Notice of proposed rulemaking was published at 42 Pa.B. 1222 (March 10, 2012). The Department did not receive comments from the public during the public comment period. Comments were not received from the House Finance Committee or the Senate Finance Committee. Due to content, the Department also served the proposed rulemaking on the House Gaming Oversight Committee, which did not comment. The only comments received on the proposed rulemaking were from the Independent Regulatory Review Commission (IRRC).
Explanations and amendments to the proposed rulemaking in response to IRRC's comments are as follows.
In response to IRRC's request to specifically and consistently identify the Department's statutory authority, the Department revised the citation in this preamble to reflect the specific statutory section that gives the Department regulatory authority. Further, the Department revised the response to Question 8 of the Regulatory Analysis Form (RAF) to mirror the citation in this preamble.
IRRC expressed concern regarding references to ''statutes,'' ''prescribed by statute'' and ''required by statute'' in §§ 7.14 and 7.15. These references are general in nature and not intended to refer to a specific statute. There are too many applicable statutory sections to reference in this final-form rulemaking. Therefore, a change has not been made.
In response to IRRC's request for additional information on Question 10 of the RAF regarding how many people will benefit from the changes and quantify those benefits, the Department revised its response to Question 10 in the final-form RAF.
Section 7.14(b) is not intended to provide guidance on all possible filing deadlines. Other statutes and regulations also provide deadlines. The Department does not believe it is necessary to provide a cross reference in this subsection.
The Department revised §§ 7.14(b)(3) and 901.164 in this final-form rulemaking to provide that an appeal shall be filed within a specific time frame from the date of the Department's notice. This eliminates the need for determining when a taxpayer or person receives the notice and provides a definite time frame for filing.
In regard to § 7.14(c) and (d), IRRC suggested that the Department define ''electronic.'' It is intended that this term has the general and common usage meaning and does not need to be defined in the final-form rulemaking. The term references any electronic method of filing permitted by the Department. Other Department publications and resources provide taxpayer guidance as to the available electronic filing methods accepted by the Department. Further, subsection (d) already provides that electronic filing can include ''facsimile transmittal or through the Department's web site.''
IRRC suggested that statutory language be added to § 7.14(c)(2). This subsection merely provides a cross reference. It would be redundant to reiterate an existing statute here. Reiterating the cross referenced statute would require a regulatory change if the cross referenced statute ever changes. Therefore, a change has not been made.
IRRC suggested that § 7.14(d) should specify how forms can be obtained or located. All Department forms are available to the public. The manners in which forms are available are subject to change based upon availability, budgetary constraints and technology. The Department believes the public understands that Department forms are available from the Department and that they obtain them by contacting the Department by writing, telephone or fax or from the Department's web site. It is not necessary for this subsection to describe the methods for contacting the Department.
In response to IRRC's comment that the last sentence of § 7.14(e)(2)(i) was ambiguous, the Department deleted it in this final-form rulemaking.
In this final-form rulemaking, the Department revised § 901.165 in response to IRRC's comment. The use of the phrase ''this section'' was incorrect. The Department corrected this mistake and changed the phrase to read ''The provisions of this part regarding Board procedures.''
Fiscal Impact
The Department determined that the final-form rulemaking will not have fiscal impact on the Commonwealth.
Paperwork
The final-form rulemaking will not create additional paperwork for the public or the Commonwealth.
Effectiveness/Sunset Date
This final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin. The regulations are scheduled for review within 5 years of publication. A sunset date has not been assigned.
Contact Person
The contact person for an explanation of this final-form rulemaking is Mary R. Sprunk, Office of Chief Counsel, Department of Revenue, P. O. Box 281061, Harrisburg, PA 17128-1061.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 25, 2012, the Department submitted a copy of the notice of proposed rulemaking, published at 42 Pa.B. 1222, to IRRC and the Chairpersons of the House Committee on Finance and the Senate Committee for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the House and Senate Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on November 30, 2012, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on December 13, 2012, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of intention to amend regulations has been duly given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) The amendments are necessary and appropriate for the administration and enforcement of the authorizing statute.
Order
The Department, acting under the authorizing statute, orders that:
(a) The regulations of the Department, 61 Pa. Code Chapters 7 and 901, are amended by adding §§ 7.11—7.13, 7.15 and 7.16, deleting §§ 7.1—7.7, 901.162, 901.163, 901.166 and 901.167 and amending §§ 901.1, 901.161 and 901.168 to read as set forth at 42 Pa.B. 1222; and by adding § 7.14 and amending §§ 901.164 and 901.165 to read as set forth in Annex A.
(b) The Secretary of the Department shall submit this order, 42 Pa.B. 1222 and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to form and legality as required by law.
(c) The Secretary shall certify this order, 42 Pa.B. 1222 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
DANIEL MEUSER,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 42 Pa.B. 7877 (December 29, 2012).)
Fiscal Note: Fiscal Note 15-454 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 61. REVENUE
PART I. DEPARTMENT OF REVENUE
Subpart A. GENERAL PROVISIONS
CHAPTER 7. BOARD OF APPEALS § 7.14. Petitions.
(a) Place. Petitions shall be filed with the Board.
(b) Time.
(1) Petitions shall be filed within the time limits prescribed by statute, this title or other regulation. The burden is on the petitioner to present evidence sufficient to prove that a petition is timely filed.
(2) In the absence of a specific time limit for filing as prescribed in paragraph (1), a petition shall be filed no later than 90 days after the date of the Department's decision or action that is the subject of the petition.
(3) The date of a Department decision or action for purposes of the filing of a petition is the date of the notice of the decision or action.
(c) Receipt.
(1) General rule. A petition is filed with the Board on the date the Board receives it. A petition that is received by electronic means after the close of business is received on the date of transmission as long as the Board receives the transmission by 12 midnight.
(2) Appeals. Section 1102.1 of the FC (72 P. S. § 1102.1) and section 3003.6 of the TRC (72 P. S. § 10003.6) apply to appeals that are transmitted to the Department by mail.
(3) Department personnel. A petition that the Board receives after the date prescribed by statute or this title that is presented to other Department personnel prior to or on the date prescribed by statute or this title is deemed filed as of the date the other Department personnel receives it.
(d) Manner and form. A petition may be delivered to and filed with the Board by hand delivery, mail or electronically, including facsimile transmittal or through the Department's web site. A petition shall be in writing. A writing includes an electronic petition submitted through the Department's web site. The Department will prescribe the form for a petition.
(e) Contents. A petition must contain the information, documentation and attachments required by statute and the following:
(1) General. Petitions must contain the following:
(i) The petitioner's name, address and telephone number.
(ii) The name, address and telephone number of the petitioner's authorized representative, if any.
(iii) The petitioner's signature. If the petitioner is a corporation or association, an officer of the corporation or association shall sign the petition. If an authorized representative files the petition for the petitioner, the authorized representative may sign the petition on behalf of the petitioner.
(iv) A detailed statement in separate numbered paragraphs of the facts and grounds relied upon. If based upon a written document, a copy of the document, or material part thereof, shall be attached.
(v) A statement specifying the relief requested.
(vi) A statement indicating whether or not a hearing is requested.
(vii) A signed statement certifying that the facts in the petition are true and correct to the petitioner's knowledge and belief and that the petition is not made for purposes of delay.
(2) Appeal petitions. In addition to the requirements of paragraph (1), an appeal petition must contain the following:
(i) Designation of the tax, including the year or other period, and the amount involved.
(ii) The petitioner's license number, account number, employer identification number, Social Security number, claim number, file number, corporate box number or other appropriate identifying designation.
(iii) In the case of an Inheritance and Estate Tax protest, the petition must contain the decedent's name, last known address, the file number and the assessment control number, if applicable.
(f) Docketing of petitions.
(1) The Department will docket upon receipt a filing that purports to be a petition or which otherwise claims relief that may be sought through the filing of a petition. If a filing fails to satisfy any statutory requirement for the filing of a petition, the Board will notify the petitioner of the deficiency in the filing and give the petitioner an opportunity to correct the deficiency. The petitioner shall remedy the deficiency within 30 days of the Board's notice. If the petitioner fails to remedy the deficiencies, the Board will summarily dismiss the petition.
(2) For purposes of section 806.1(a)(4) of the FC (72 P. S. § 806.1(a)(4)), the administrative review procedure will be deemed to be initiated on the date the Board dockets the petition.
(g) Additional information. Upon written request, the Board may require a petitioner to furnish additional information that may be necessary to define the issues or to determine the case.
(h) Signatures. A signature includes an electronic signature issued by the Department to the petitioner.
PART VII. LOCAL OPTION SMALL GAMES OF CHANCE
CHAPTER 901. LOCAL OPTION SMALL GAMES OF CHANCE
Subchapter B. LICENSING AND REGISTRATION
BOARD PROCEDURES § 901.164. Petitions.
A person challenging a Department decision shall file a petition within 15 days after the issue date of notice of the Department's decision.
§ 901.165. Board practice and procedure.
The provisions of this part regarding Board procedures and Chapter 7 (relating to Board of Appeals) govern practice and procedure before the Board.
[Pa.B. Doc. No. 13-133. Filed for public inspection January 25, 2013, 9:00 a.m.]
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