SECTION 9.4307. Dismissal

(a) A protest shall be dismissed if there is any jurisdictional defect in submission of the petition. If a petition is filed and there is a jurisdictional defect, the division may file a motion to dismiss with the State Office of Administrative Hearings (SOAH) and a request to docket. Following receipt of the request to docket, SOAH shall assign the case a docket number and assign an Administrative Law Judge (ALJ). On the same date as the date the division files the motion to dismiss with SOAH, the division shall serve a copy of the motion to dismiss with the petitioner via hand delivery, overnight delivery service, facsimile, email or an electronic filing and service system utilized by SOAH.

(b) The petitioner may file a response with SOAH no later than seven calendar days from the date the motion to dismiss is filed. On the same date the petitioner files a response to the division's motion to dismiss, petitioner shall serve a copy of the response to the division director and legal counsel for the division via hand delivery, overnight delivery service, facsimile, email or an electronic filing and service system utilized by SOAH.

(c) The division will have seven calendar days from the date petitioner files a response to file a reply to the response with SOAH. On the same date the division files its reply to petitioner's response, the division shall serve a copy of the reply to the petitioner via hand delivery, overnight delivery service, facsimile, email or an electronic filing and service system utilized by SOAH.

(d) Arguments shall be limited to the jurisdictional issues presented in the motion to dismiss filed with SOAH. Neither the division nor the petitioner shall be permitted to submit any additional information or evidence for consideration by the ALJ.

(1) No oral hearing will be held, except upon a ruling by an ALJ pursuant to §9.4314(c) of this title (relating to Administrative Law Judge's Powers).

(2) Motions for oral hearing shall be decided solely upon the written motions for oral hearing and responses, if any, submitted to the ALJ for ruling pursuant to §9.4314(c) of this title.

(e) After time for the division to file a reply has expired, the assigned ALJ shall consider the motion, any timely filed response, and any timely filed reply, and no later than 14 calendar days after time for the division to file a reply has expired, issue a proposal for decision to the deputy comptroller stating the ALJ's recommendation for a final decision on the motion and the reasons for the proposed decision.

(1) The ALJ's proposal for decision shall be issued to the deputy comptroller by filing the proposal for decision with the comptroller's Special Counsel for Tax Hearings via hand delivery, overnight delivery service, facsimile, email or an electronic filing and service system utilized by SOAH.

(2) On the same date the ALJ issues the proposal for decision to the deputy comptroller, the ALJ shall serve a copy of the proposal for decision on all other parties via hand delivery, overnight delivery service, facsimile, email or an electronic filing and service system utilized by SOAH

(f) A party to the protest may, within seven calendar days after the date the proposed final decision is served, file with the deputy comptroller exceptions to the proposal for decision.

(1) Exceptions to the proposal for decision, if any, shall be filed with the deputy comptroller by filing the exceptions with the comptroller's Special Counsel for Tax Hearings via hand delivery, overnight delivery service, facsimile, or email.

(2) On the same date as the date exceptions to the proposal for decision are filed, the excepting party shall serve a copy of the exceptions on all other parties via hand delivery, overnight delivery service, facsimile, or email.

(g) Within seven calendar days after the exceptions are filed and served in accordance with subsection (f) of this section, all parties not filing exceptions may file replies to the exceptions with the deputy comptroller.

(1) Replies to the exceptions to the proposal for decision, if any, shall be filed with the deputy comptroller by filing the replies with the comptroller's Special Counsel for Tax Hearings via hand delivery, overnight delivery service, facsimile, or email.

(2) On the same date the replies to exceptions to the proposal for decision are filed with the deputy comptroller, the party filing the replies shall serve a copy of the replies to all other parties via hand delivery, overnight delivery service, facsimile, or email.

(h) After considering all timely filed exceptions and timely filed replies to exceptions, the deputy comptroller shall issue a final order and, in doing so, may adopt, amend, or reject the ALJ's proposal for decision. A decision is final on the date signed by the deputy comptroller. The deputy comptroller shall deliver written notice of the final decision to each party to the protest via hand delivery, overnight delivery service, facsimile, or email.

(i) The petitioner bears the burden of proof on all jurisdictional matters.

(j) If a motion to dismiss is denied, the petition will be otherwise processed in accordance with this subchapter.

Source Note: The provisions of this §9.4307 adopted to be effective July 19, 2021, 46 TexReg 4358