SECTION 9.4309. Insufficient Grounds for Objection

(a) Any ground for objection that does not comply with §9.4308 of this title (relating to Contents of Petition) does not adequately specify the grounds for objection as required by Government Code, §403.303(a) and shall be rejected by the division director without further review.

(b) If the division director determines that a ground for objection asserted in a petition does not comply with §9.4308 of this title, the division will notify the petitioner that the ground for objection has been rejected pursuant to this section. No additional information or evidence may be submitted by a petitioner after a determination of rejection has been made by the division director.

(c) If all grounds for objection in a petition are rejected resulting in the petition being rejected in its entirety, the petitioner may request referral of the petition to SOAH for a hearing on the rejections.

(1) The petitioner must request the referral to SOAH within 15 calendar days of the date the division sends petitioner notice of the rejections.

(2) Upon a timely written request for referral from the petitioner, the division will file a request to docket with SOAH together with a copy of the division's notice to the petitioner that the petition has been rejected in its entirety pursuant to this subchapter.

(3) Following receipt of the request to docket, SOAH shall assign the case a docket number and assign an ALJ.

(A) Arguments before the ALJ shall be limited to the reasons for the rejections reported by the division to the petitioner, and the petitioner shall not be permitted to submit any additional information or evidence for consideration by the ALJ.

(B) No oral hearing on the rejections shall be held, except upon a ruling by the ALJ pursuant to §9.4314(c) of this title (relating to Administrative Law Judge's Powers). Motions for oral hearing shall be decided based solely upon the written motions and replies, if any, submitted to the ALJ for ruling pursuant to §9.4314(c) of this title.

(4) The ALJ shall consider the petition and make a determination as to whether each ground for objection included in the petition complies with §9.4308 of this title. A ground for objection that does not comply with §9.4308 of this title will not provide the ALJ with sufficient information to identify a specific change to the study findings.

(A) If the ALJ determines that a ground for objection does not comply with §9.4308 of this title, the ALJ shall, within 14 calendar days after referral, issue a proposal for decision to reject that ground for objection.

(B) If the ALJ determines that a ground for objection complies with §9.4308 of this title, the ALJ shall, within 30 calendar days after referral, issue a proposal for decision stating the ALJ's recommendation for specific changes to the study findings as to that ground for objection.

(5) The ALJ shall issue a proposal for decision, stating the ALJ's reasons for the proposed decision, under this section 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. 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.

(6) A party to the protest that is adversely affected by the proposal for decision 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. To file with the deputy comptroller, exceptions must be filed with the comptroller's Special Counsel for Tax Hearings via hand delivery, overnight delivery service, facsimile, or email. On the same date as the exceptions to the proposal for decision are filed, the excepting party shall serve a copy of the exceptions with all other parties via hand delivery, overnight delivery service, facsimile, or email.

(7) Within seven calendar days after the exceptions are filed and served in accordance with this subsection, all other parties may file replies to the exceptions with the deputy comptroller. To file with the deputy comptroller, replies must be filed with the comptroller's Special Counsel for Tax Hearings via hand delivery, overnight delivery service, facsimile, or email. On the same date as 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 with all other parties via hand delivery, overnight delivery service, facsimile, or email.

(8) 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.

(d) If one or more, but not all, of the grounds for objection included in the petition are rejected as set forth in this section, the grounds for objection that have not been rejected will be processed as otherwise set forth in this subchapter. After conclusion of the informal conference required in §9.4311(g) of this title (relating to Prehearing Exchanges and Informal Conference Regarding Petition), the petitioner may request referral of the rejected grounds for objections as set forth in §9.4311(i) and (j) of this title.

(e) If all grounds for objection in a petition other than those that have been rejected have been finally resolved by agreement, the petitioner may request referral of rejected objections in accordance with the provisions of subsection (c) of this section applicable to a petition rejected in its entirety.

Source Note: The provisions of this §9.4309 adopted to be effective July 19, 2021, 46 TexReg 4358