SECTION 9.1056. Eligibility Determination Appeal

(a) Eligibility appeal to the State Office of Administrative Hearings (SOAH). If an applicant disagrees with the comptroller's denial of eligibility for limitation of appraised value under Tax Code, §313.024, the applicant may request an eligibility determination hearing before SOAH. To request an eligibility determination hearing before SOAH, the applicant shall timely file with Local Government Assistance Division (LGA) a written request for an eligibility determination hearing that satisfies all of the requirements of this section.

(b) Hearing Request. A written request for an eligibility determination hearing shall:

(1) include a Statement of Grounds that states fully and in detail each reason or ground on which the basis of eligibility is claimed and citing the specific subsection of Tax Code, §313.024 that applies to each reason or ground;

(2) include all documentary evidence, placed in order by category and item number, necessary to support the factual and legal contentions made in the hearing request;

(3) include a statement of whether the applicant requests:

(A) a written submission hearing before a SOAH administrative law judge; or

(B) an oral hearing before a SOAH administrative law judge;

(4) be filed within 30 days after the date of the notice of the comptroller's determination; and

(5) contain a statement by the person signing the hearing request that, to the best of the person's knowledge, the evidence contained in the hearing request is true and correct.

(c) Hearing request time extension. If the hearing request with the Statement of Grounds cannot be filed within the applicable time limit, the applicant may request an extension as provided by §1.6 of this title (relating to Extensions of Time for Initiating Hearing Process). A request for an eligibility determination hearing that is not submitted to the comptroller within the original time limit or before the expiration of an extended time limit will not be granted and the request will be denied.

(d) Filing a hearing request. All hearing requests and other documents related to an Eligibility Determination Appeal shall be filed with the LGA manager. No document or hearing request is filed until actually received. However, any hearing request including contemporaneously filed supporting evidence is timely filed if it is sent to the LGA manager by:

(1) first-class United States mail in a properly addressed and stamped envelope or wrapper, and the envelope or wrapper exhibits a legible postmark affixed by the United States Postal Service showing that the hearing request including supporting evidence was mailed on or before the last day for filing;

(2) an express mail corporation in a properly addressed envelope or wrapper, and the envelope or wrapper exhibits a legible date showing that the petition including supporting evidence was delivered to the express mail corporation for delivery on or before the last day for filing;

(3) fax received on or before the last day for filing if the petition including supporting evidence, is under ten pages in content, the original is mailed within three days of the fax and all procedures for submitting a hearing request have been followed; or

(4) electronic transmission, if applicant obtains written permission from the LGA manager before the hearing request, evidence, or both are filed or the LGA manager has approved the file format and form of transmission before the hearing request is filed.

(e) Position letter. An assistant general counsel of the comptroller's office will review a timely submitted Statement of Grounds together with all the application material submitted by the applicant as of the date of the eligibility determination by the comptroller. The assistant general counsel shall timely prepare and submit to LGA a Position Letter that will accept or reject, in whole or in part, each contention of the applicant, and state the basis or bases for the determination that the property does not meet the requirements of Tax Code, §313.024 for eligibility for a limitation on appraised value pursuant to Tax Code, Chapter 313.

(f) LGA review. After reviewing the applicant's Statement of Grounds, the assistant general counsel's Position Letter, and such other information it deems appropriate, the LGA shall:

(1) within 10 days, or other date to which the parties have agreed, either:

(A) issue a redetermination accepting the eligibility of the property under the application; or

(B) adopt the Position Letter and file a Request to Docket Case form with SOAH; and

(2) provide a copy of either the redetermination or the Request to Docket Case form to the applicant and the school district.

(g) Request to docket case. In accordance with the provisions of SOAH Rules of Procedure, 1 TAC §155.53, at the time the Request to Docket Case form is filed with SOAH, the LGA shall file with SOAH a copy of:

(1) the applicant's application, forms, schedules and attachments that were submitted to the comptroller by the school district as of the date of the comptroller's eligibility determination;

(2) the applicant's Request for Hearing and Statement of Grounds together with any contemporaneously filed supporting evidence; and

(3) the LGA's Position Letter.

(h) SOAH Rules of Procedure. Upon the filing of the Request to Docket Case form with SOAH, the SOAH Rules of Procedure, 1 TAC Chapter 155, shall apply through the issuance of a proposal for decision and rulings on any exceptions that may be filed.

(i) Comptroller decision. Upon receipt of the proposal for decision from SOAH and review of any exceptions filed by the applicant and the assistant general counsel, the comptroller shall issue a decision. Notification of the comptroller's decision will be mailed to the applicant's authorized representative(s) and to the school district by first class mail. The authorized representative(s) is presumed to have been notified of the comptroller's decision on the third day after notice of the decision is mailed.

(j) Judicial review. Pursuant to Tax Code, §313.025(h), the applicant may seek judicial review of the comptroller's eligibility determination in a Travis County district court.

(1) The timely filing of a motion for rehearing is a prerequisite to judicial review. A motion for rehearing shall be filed by the applicant not later than the 20th day after the date on which the applicant or the applicant's attorney of record is notified of the decision.

(2) In the absence of a timely filed motion for rehearing, a decision is final on the expiration of the period for filing a motion for rehearing as described in paragraph (1) of this subsection. The final decision is not appealable.

(3) If a timely motion for rehearing is filed as described in paragraph (1) of this subsection, the deputy comptroller shall act on a motion for rehearing not later than the 45th day after the date on which the applicant or the applicant's attorney of record is notified of the decision. The deputy comptroller may by written order extend the time for taking action, but may not extend the time beyond the 90th day after the date on which the applicant or the applicant's attorney of record is notified of the decision. The decision is final and appealable on the date an order overruling a motion for rehearing is signed or on the date the motion is overruled by operation of law.

(4) If the applicant elects to exercise its ability to seek judicial review, the applicant is required to pay all of the cost of preparation of the original and certified copy of the record of the agency proceeding that is required to be sent to the reviewing court including any cost of providing copies of the record to the parties. The cost of preparation of the record includes, but is not limited to, the cost of any transcript.

(k) Time computation. Time periods identified in this section shall be computed as provided by §1.31 of this title (relating to Computation of Time).

Source Note: The provisions of this §9.1056 adopted to be effective June 22, 2010, 35 TexReg 5368