ADMINISTRATION OF REVENUE LAWS
GO TO: INTEREST RATE that applies in AS 05.15.095[c]
Article 01. DEPARTMENT OF REVENUE
Sec. 43.05.010. Duties of commissioner.
The commissioner of revenue shall
(1) exercise general supervision and direct the activities of the Department of Revenue;
(2) supervise the fiscal affairs and responsibilities of the department;
(3) prescribe uniform rules for investigations and hearings;
(4) keep a record of all departmental proceedings, record and file all bonds, and assume custody of returns, reports, papers, and documents of the department;
(5) adopt a seal and affix it to each order, process, or certificate issued by the commissioner;
(6) keep a record of each order, process, and certificate issued by the commissioner, and keep the record open to public inspection at all reasonable times;
(7) hold hearings and investigations necessary for the administration of state tax and revenue laws;
(8) except as provided in AS 43.05.400 - 43.05.499, hear and determine appeals of a matter within the jurisdiction of the Department of Revenue and enter orders on the appeals that are final unless reversed or modified by the courts;
(9) issue subpoenas to require the attendance of witnesses and the production of necessary books, papers, documents, correspondence, and other things;
(10) order the taking of depositions before a person competent to administer oaths;
(11) administer oaths and take acknowledgments;
(12) request the attorney general for rulings on the interpretation of the tax and revenue laws administered by the department;
(13) call upon the attorney general to institute actions for recovery of unpaid taxes, fees, excises, additions to tax, penalties, and interest;
(14) issue warrants for the collection of unpaid tax penalties and interest and take all steps necessary and proper to enforce full and complete compliance with the tax, license, excise, and other revenue laws of the state;
(15) audit reports, payments, and payments due relating to royalty and net profits under oil and gas contracts, agreements, or leases under AS 38.05.
Sec. 43.05.020. Collection agencies.
The commissioner may employ a collection agency outside the state to assist in the collection of revenue owed to the state. The commissioner may pay for these services by entering into contingent fee agreements the commissioner considers reasonable, or by the payment of amounts out of the proper appropriation for the department the commissioner considers reasonable.
Sec. 43.05.025. Audit agents.
The commissioner may employ agents outside the state to assist in the audit of books and records located outside the state. Agents employed under this section are subject to the restrictions of AS 43.05.230 .
Sec. 43.05.030. Branch offices.
The department may establish branch offices essential for the efficient administration of its duties.
Sec. 43.05.040. Inspection of records or premises and issuance of subpoenas.
(a) The department may examine the books, papers, records, or memoranda of any person to ascertain the correctness of a return filed or to determine whether a tax or a payment for oil or gas royalty or net profits shares under a contract, agreement, or lease under AS 38.05 is due, or in an investigation or inspection in connection with tax matters or matters relating to oil and gas royalty or net profits under contracts, agreements, or leases under AS 38.05. The records and the premises where a business is conducted shall be open at all reasonable times for official inspection, and the department may subpoena any person to appear and produce books, records, papers, or memoranda bearing upon tax matters or matters relating to oil and gas royalty or net profits under contracts, agreements, or leases under AS 38.05, and to give testimony or answer interrogatories under oath respecting tax matters or matters related to oil and gas royalty or net profits under contracts, agreements, or leases under AS 38.05, and the department may administer oaths to persons who are so subpoenaed. A subpoena issued under this section may compel attendance of a witness or production of a document or thing, located either inside or outside the state, to the maximum extent permitted by law.
(b) A subpoena may be served by the commissioner of public safety or a peace officer designated by the commissioner of public safety, by a person designated by the Department of Revenue, or as otherwise provided by law. A subpoena may also be served by registered or certified mail for delivery restricted only to the person subpoenaed. The return delivery receipt must be addressed so that the receipt is returned to the department.
(c) If a person who is subpoenaed neglects or refuses to obey the subpoena issued as provided in this section, the department may report the fact to the superior court or the appropriate court of another jurisdiction, and may seek an order from the court compelling obedience to the subpoena. The court, to the maximum extent permitted by law, may compel obedience to the subpoena to the same extent as witnesses may be compelled to obey the subpoenas of the court.
Sec. 43.05.050. Return by department upon failure to make return or making false or fraudulent return.
If a person fails to file a return at the time prescribed by law or by regulation, or makes, wilfully or otherwise, a false or fraudulent return, the department shall make the return from the information it obtains. A return made by the department is prima facie good and sufficient for all legal purposes.
Sec. 43.05.060. Agreements with department respecting liability.
The department may enter into an agreement with a person relating to the liability of the person, or of a person or estate the person represents, for a tax, license fee, or excise tax for a period ending before the date of the agreement. If the agreement is approved by the attorney general, the agreement is final and conclusive and, except upon a showing of fraud or malfeasance, or misrepresentation of a material fact, the case may not be reopened as to the matters agreed upon or the agreement modified. In a suit or proceeding relating to the tax liability of the taxpayer the agreement may not be annulled, modified, set aside, or disregarded.
Sec. 43.05.070. Compromise of tax or penalty.
(a) If in the opinion of the department there is doubt as to the liability of the taxpayer for or the collectibility of a tax, license fee, or excise tax, the department, with the approval of the attorney general, may compromise the tax.
(b) The department, with the approval of the attorney general, may, for cause shown, compromise a penalty accruing under the state tax, license, or excise tax laws.
Sec. 43.05.075. Concealing or falsifying evidence.
A person may not knowingly, in connection with a compromise or offer of a compromise under AS 43.05.070 or in connection with a closing agreement or offer to enter a closing agreement under AS 43.05.060 ,
(1) conceal from an officer or employee of the state property belonging to the estate of the taxpayer or other person liable for the tax; or
(2) receive, destroy, mutilate, or falsify a book, document, or record or make a false statement under oath relating to the estate or the financial condition of the taxpayer or other person liable for the tax.
Sec. 43.05.080. Adoption of regulations.
The department shall adopt and publish regulations necessary for the enforcement of the tax, license, or excise tax laws administered by it. The department shall prepare and distribute all forms necessary or useful in the administration of tax, license, and excise tax laws.
Sec. 43.05.085. List of contributions.
The commissioner shall prepare and furnish to the Alaska Public Offices Commission by July 1 of each year a list containing the total amount of contributions received by each candidate and group for which a credit was received by an individual under AS 43.20.013 (a). The commissioner shall also mail a copy of the list to each of the candidates and groups which were recipients of those credited contributions. The list becomes public information under AS 40.25.110 - 40.25.120 on its delivery to the Alaska Public Offices Commission.
Sec. 43.05.090. Preparation and publication of statistics.
The department shall prepare and annually publish statistics of the revenues derived under the tax laws administered by it.
Sec. 43.05.100. Disposition of money.
(a) [Repealed, Sec. 3 ch 149 SLA 1978].
(b) The department may designate banks in the state as depositaries of tax revenues and may deposit tax revenues in these banks.
Sec. 43.05.110. Property in possession of deceased employee.
The personal representative of a deceased employee of the department who has possession or control of a tax list, record, return, paper, document, or book or money collected shall deliver it to the department.
Sec. 43.05.120. Concealing property or evidence. [Repealed, Sec. 38 ch 168 SLA 1990].
Repealed or Renumbered
Sec. 43.05.130. Penalty.
A person who, by conduct not described in AS 43.05.290 , violates a provision of AS 43.05.010 - 43.05.130 or a regulation adopted under those provisions is subject to a civil penalty of not more than $1,000 for each violation.
Sec. 43.05.140. Bond of commissioner.
Before taking office, the commissioner shall furnish a bond to the state. The bond shall be approved by the attorney general and filed with the Department of Administration, and a copy of it shall be filed in the attorney general's office. The bond shall be conditioned that the principal will faithfully discharge the duties of the office, keep a strict, true and correct account of all money disbursed, and that the principal will properly account for it and will pay over to a successor or other person entitled by law to receive it all money or property in the hands or possession of the principal, in accordance with law; or, in default, that the parties executing the bond will pay to the state and others injured all damages, costs, and expenses resulting from the default. The surety on the bond shall be a surety company authorized to transact business in the state. All premiums for the commissioner's bond shall be paid by the state. The amount of the bond shall be $200,000, but if the funds in the treasury of the state exceed the amount of the bond given by the commissioner, or if for any reason the governor and the Department of Administration consider the bond insufficient they shall notify the commissioner of that fact, and the commissioner shall give the additional bond with sufficient sureties, within the time and in the amount that the governor and the Department of Administration consider necessary for the safety of the state.
Sec. 43.05.150. Collection of money.
(a) The department shall demand, sue for, collect, receive, and safely keep all money of the state that is not by law entrusted to the care and custody of some other office.
(b) [Repealed, Sec. 53 ch 32 SLA 1971].
(c) [Repealed, Sec. 53 ch 32 SLA 1971].
(d) [Repealed, Sec. 53 ch 32 SLA 1971].
(e) [Repealed, Sec. 9 ch 218 SLA 1976].
Sec. 43.05.170. Payment of warrants.
Upon presentation for payment the department shall pay all warrants drawn by the Department of Administration against the state treasury, which have been properly endorsed and have not been cancelled by law. The commissioner may designate one or more agents for the purpose of redeeming state warrants, and may require that these agents be used exclusively for the purpose of redeeming state warrants. Warrants made payable to two or more persons in an amount less than $50 may be paid if endorsed by only one of the designated payees.
Sec. 43.05.180. Accounting for state funds.
The department shall keep an account of money received, money disbursed, and money and investments in its custody.
Sec. 43.05.190. Embezzlement. [Repealed, Sec. 112 ch 6 SLA 1984. For current law seeAS 11.46.210 ].
Repealed or Renumbered
Sec. 43.05.200. Application for and receipt of funds due from United States.
The department shall apply to the federal government for money which is due to the state. The department may receive the money and deposit it in the state treasury to be expended in accordance with the law.
Sec. 43.05.210. Funds received under the Federal Mineral Leasing Act. [Repealed, Sec. 70 ch 14 SLA 1987].
Repealed or Renumbered
Article 03. REMEDIES, PROCEDURE, INTEREST, AND PENALTIES
Sec. 43.05.220. Civil penalties.
(a) Five percent shall be added to a tax for each 30-day period or fraction of the period during which the taxpayer fails to file at the time or times required by law or regulation a return or report, or pay the full amount of the tax, or a portion or a deficiency of the tax, as finally determined by the department and required by this title, unless it is shown that the failure is due to a reasonable cause and not to wilful neglect. The penalty may not exceed 25 percent in the aggregate. The penalty is computed only on the unpaid balance of the tax liability as determined by the department. The department shall prescribe by regulation circumstances which constitute reasonable cause for purposes of this section.
(b) If a tax deficiency or part of a tax deficiency is due to negligence or intentional disregard of law or regulation without intent to defraud, five percent of the total amount of the tax deficiency shall be assessed, collected, and paid in the same manner as a tax deficiency.
(c) If a tax deficiency or part of a tax deficiency is due to fraud, a civil fraud penalty equal to 50 percent of the tax due or $500, whichever is greater, shall be added to the tax. This penalty is in addition to penalties determined under (a) or (b) of this section.
(d) A person required to collect or account for a tax imposed by this title who wilfully fails to collect the tax or to truthfully account for and pay over the tax, or wilfully attempts to evade payment of the tax is, in addition to other penalties provided by law, liable for a civil penalty equal to the total amount of the tax not collected, not accounted for, not paid over, or evaded. The penalty imposed by this subsection is in place of the tax not paid to the state. This penalty shall be paid upon demand by the commissioner or a designee of the commissioner, and shall be assessed and collected in the same manner as taxes are assessed and collected under this title.
(e) A penalty imposed by this section shall be collected at the same time, in the same manner, and as a part of the original tax. However, if the original tax is paid before neglect or fraud is discovered, the penalty shall be collected in the same manner as the original tax. Interest may not be collected on a penalty imposed by this section.
Sec. 43.05.225. Interest.
Unless otherwise provided,
(1) when a tax levied in this title becomes delinquent, it bears interest in a calendar quarter at the rate of five percentage points above the annual rate charged member banks for advances by the 12th Federal Reserve District as of the first day of that calendar quarter, or at the annual rate of 11 percent, whichever is greater, compounded quarterly as of the last day of that quarter;
(2) the interest rate is 12 percent a year for
(A) delinquent fees payable under AS 05.15.095 (c);
(B) [Repealed, Sec. 46 ch 107 SLA 1996]. and
(C) unclaimed property that is not timely paid or delivered, as allowed by AS 34.45.470 (a).
Sec. 43.05.230. Disclosure of tax returns and reports.
(a) It is unlawful for a current or former officer, employee, or agent of the state to divulge the amount of income or the particulars set out or disclosed in a report or return made under this title, except
(1) in connection with official investigations or proceedings of the department, whether judicial or administrative, involving taxes due under this title;
(2) in connection with official investigations or proceedings of the child support enforcement agency, whether judicial or administrative, involving child support obligations imposed or imposable under AS 25 or AS 47;
(3) as provided in AS 38.05.036 pertaining to audit functions;
(4) as provided in AS 43.05.400 - 43.05.499; and
(5) as otherwise provided in this section.
(b) The department, upon written request, shall furnish to the taxpayer a copy of the taxpayer's tax return upon payment of a fee of $1 per page.
(c) The department may permit the proper officer of the United States or of a state, territory or possession of the United States or of Canada or of a province or territory of Canada, or the officer's authorized representative, to inspect tax returns or reports filed with the department, or may furnish to the officer or representative a copy of the tax return, if the other jurisdiction grants substantially similar privileges to the department or its representative or to counsel for the state, and if the department determines that the other jurisdiction provides adequate safeguards for the confidentiality of the returns and reports, and that the returns and reports will be used for tax purposes only. The department may also permit the employment security division of the state Department of Labor and Workforce Development to inspect tax returns or reports filed with the department or may furnish a copy of the tax returns for tax purposes only.
(d) The commissioner may furnish to the Multistate Tax Commission or other authorized agent information contained in the tax returns, reports, related schedules and documents filed under an audit or investigation of a multistate business made by the department. This information may be furnished for tax purposes only. The Multistate Tax Commission or other authorized agent may make the information available to the tax officials of other states, the District of Columbia, and the United States and its territories for tax purposes only.
(e) Nothing in this section prohibits the publication of statistics so classified as to prevent the identification of particular returns or reports or the publication of delinquent lists showing the names of taxpayers who have failed to pay their taxes at the time and in the manner provided by law, together with other relevant information which in the opinion of the department may assist in the collection of delinquent taxes.
(f) A wilful violation of the provisions of this section is punishable by a fine of not more than $5,000, or by imprisonment for not more than two years, or by both.
(g) The information contained in a license issued by the commissioner of revenue or the commissioner of community and economic development under AS 43.50, AS 43.60, AS 43.65, AS 43.70, and AS 43.75 is public information.
(h) The commissioner shall, upon request, furnish to the Department of Natural Resources copies of tax returns, reports, documents filed under AS 43.65, and the Department of Revenue's determinations and workpapers. The Department of Natural Resources shall maintain the confidentiality that the Department of Revenue is required to extend to the returns, reports, documents, determinations, and workpapers furnished to the Department of Natural Resources under this subsection.
(i) The commissioner shall, upon request, furnish to the Department of Environmental Conservation or the Department of Fish and Game all names and addresses of businesses that are required to file confidential reports under AS 43.75.015 . The Department of Environmental Conservation and the Department of Fish and Game shall maintain the confidentiality that the Department of Revenue is required to extend to the names and addresses furnished under this subsection.
Sec. 43.05.240. Taxpayer remedies.
(a) A taxpayer aggrieved by the action of the department in fixing the amount of a tax or penalty may apply to the department within 60 days after the date of mailing of the notice required to be given to the taxpayer by the department, giving notice of the grievance, and requesting an informal conference to be scheduled with an appeals officer. The taxpayer shall be given access to the taxpayer's file in the department in the matter for preparation for the informal conference. At the informal conference, the taxpayer may present to the appeals officer arguments and evidence relevant to the amount of tax or penalty due the state. If the department determines that a correction is warranted, the department shall make the correction.
(b) A party who believes that the appeals officer is unduly delaying a hearing process may notify the commissioner in writing. Within 30 days after being notified by a party, the commissioner may issue an order prescribing a schedule for the appeals officer to complete the informal conference or setting a meeting at which that schedule will be discussed and prescribed. The schedule may be subsequently modified by consent of the parties. If the commissioner fails to issue an order within 30 days after receiving notice of a party's belief of undue delay, the department's action in fixing the amount of tax or penalty shall be considered to have been summarily affirmed by the appeals officer the same as if an informal conference decision to that effect were issued on the last day of that 30-day period.
Sec. 43.05.241. Administrative appeal.
For a matter within the jurisdiction of the office of tax appeals under AS 43.05.405 , the taxpayer aggrieved by an informal conference decision entered under AS 43.05.240 may file with the office of tax appeals a notice of appeal for formal hearing, as provided in AS 43.05.430 , no later than 30 days after service of the decision resulting from an informal conference.
Sec. 43.05.242. Judicial appeal challenging validity of tax.
(a) Within 30 days after a decision resulting from the informal conference, a person aggrieved by the action of the department under AS 43.05.240 on a ground specified in this section may appeal to the superior court.
(b) An appeal under this section may be taken from an informal conference decision only with respect to an issue in the assessment for tax, interest, and penalties that the taxpayer raises upon the ground that a tax statute or tax regulation is
(1) violative of the United States Constitution;
(2) violative of the state constitution; or
(3) preempted by federal statute, regulation, or treaty.
(c) An appeal of an issue under this section may not be taken from an informal conference decision if
(1) there is a dispute of material fact;
(2) a factual record is necessary to decide the question of law raised;
(3) development of a factual record will render it unnecessary to reach the question of law raised; or
(4) the taxpayer challenges the assessment of the tax related to the issue on a ground other than one listed in (b) of this section.
(d) An issue may not be presented to the superior court unless the issue first has been presented in writing to the department at or before the informal conference. The department shall prepare a record of that portion of the informal conference relevant to the issue on appeal. The superior court shall
(1) resolve a question of law in the exercise of the independent judgment of the superior court judge;
(2) defer to the department on a question of law for which discretion is legally vested in the department unless not supported by a reasonable basis.
(e) An appeal of the informal conference decision under this section is exclusive as to the issue raised. The taxpayer electing to appeal under this section may not pursue an appeal of the issue under AS 43.05.241 or pursue any other action under another statute on the issue.
(f) When an appeal is taken under this section, the taxpayer shall be given access to the file of the department in the matter for preparation of the appeal.
(g) In an appeal under this section, the amount due shall be paid within 30 days after the date of the service of the informal conference decision. In place of payment of the amount due, the taxpayer may file a bond with the court or otherwise obtain relief from payment in accordance with the Alaska Rules of Appellate Procedure.
(h) Venue for an appeal filed under this section shall be set under rules adopted by the supreme court.
(i) If it is determined that appeal was improperly filed under this section, the appeal shall be transferred to the office of tax appeals for further proceedings under AS 43.05.400 - 43.05.499.
Sec. 43.05.245. Assessment and collection of tax, penalties, and interest.
If a taxpayer fails to file a return or report required by this title in the time required by law or regulation, or makes an erroneous or fraudulent return, the department shall proceed to assess the license fees, tax, penalties, or interest and make a return from information that it obtains. An assessment or a return subscribed by the department in accordance with this section is presumed sufficient for all legal purposes. However, nothing prevents a taxpayer from presenting evidence or other information in an informal conference underAS 43.05.240 or in an appeal under AS 43.05.241 in order to rebut the presumed sufficiency of an assessment or return subscribed by the department, nor does the presumption of sufficiency alter the parties' respective burdens of proof once the taxpayer has presented evidence or other material information to rebut that presumption. The assessment of license fees, tax, penalties, or interest under this section occurs when the department issues a notice and demand for payment of the license fees, tax, penalties, or interest. The notice and demand for payment is issued when the notice and demand is delivered to the taxpayer in person or placed in the United States mail, addressed to the last known address of the taxpayer. Penalties and interest assessed under this title shall be collected in the same manner as provided in this title for the collection of tax or license fees.
Sec. 43.05.250. Payment of taxes.
(a) If a tax is required under this title to be paid on or before a certain date, the date fixed is the last day for the payment.
(b) In addition to money, the department may receive bank drafts, checks, cashier's checks or money orders for the payment of taxes under regulations adopted by the department.
(c) The department may adopt other methods of payment including the use of bank depositories, bank and wire transfers, stamps, or other methods necessary or helpful in securing a complete and timely collection of the tax.
Sec. 43.05.255. Definition. [Repealed, E.O. No. 68 Sec. 8 (1988)].
Repealed or Renumbered
Sec. 43.05.260. Limitation on assessment.
(a) Except as provided in (c) of this section andAS 43.20.200 (b), the amount of a tax imposed by this title must be assessed within three years after the return was filed, whether or not a return was filed on or after the date prescribed by law. If the tax is not assessed before the expiration of the three-year period, proceedings may not be instituted in court for the collection of the tax.
(b) For purposes of this section, a return filed before the last day prescribed by law or regulation is considered as filed on the last day.
(c) The following exceptions apply to the limitation period in (a) of this section:
(1) in the case of a false or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of the tax may be begun without assessment, at any time;
(2) in the case of a failure to file a return, the tax may be assessed, or a proceeding in court for the collection of the tax may be begun without assessment, at any time;
(3) if, before the expiration of the time prescribed in this section for the assessment of a tax imposed by this title, both the department and the taxpayer have consented in writing to the assessment after the expiration of the time, the tax may be assessed at any time before the expiration of the period agreed upon; however, the period agreed upon may be extended by a subsequent agreement in writing made before the expiration of the period previously agreed upon.
Sec. 43.05.270. Collection after assessment.
(a) When the assessment of a tax imposed by this title has been made within the period of limitation underAS 43.05.260 , the tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding is begun:
(1) within six years after the assessment of the tax; or
(2) before the expiration of a period for collection agreed upon in writing by the department and the taxpayer before the expiration of the six-year period; a period agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon; the period provided by this paragraph during which a tax may be collected by levy may not be extended or curtailed because of a judgment against the taxpayer.
(b) The date on which a levy on property or right to property is made is the date on which the notice of seizure is given.
Sec. 43.05.275. Credit and refund claims.
(a) Except as provided inAS 43.20.021 , a claim for credit or refund of a tax under this title for which a taxpayer is required to file a return or pay a tax may be filed by the taxpayer
(1) before the later of
(A) three years from the time the return was filed; or
(B) two years from the time the tax was paid; or
(2) within two years from the time the tax was paid, if no return was filed.
(b) If the department and the taxpayer have consented to extend the period for assessment of tax as provided in AS 43.05.260 (c)(3), a tax refund claim may be filed at any time before the expiration of the period agreed upon.
(c) A taxpayer who has filed a return, paid the full amount due on the return, and made a claim under this section may, without exhausting administrative remedies, file an action in superior court to recover on the claim if the sole ground for appeal is that a tax statute is
(1) violative of the United States Constitution;
(2) violative of the state constitution; or
(3) preempted by federal statute, regulation, or treaty.
(d) An action may not be brought under (c) of this section if
(1) there is a dispute of material fact;
(2) a factual record is necessary to decide the appeal;
(3) development of a factual record will render it unnecessary to reach a question of constitutional law or federal preemption; or
(4) the taxpayer challenges the assessment of the tax on a ground other than one listed in (c) of this section.
Sec. 43.05.280. Interest on overpayments.
(a) Interest shall be allowed and paid on an overpayment of a tax under this title at the rate and in the manner provided in AS 43.05.225(1).
(b) Interest shall be allowed and paid as follows:
(1) in the case of a credit, from the date of the overpayment to the due date of the amount against which the credit is taken;
(2) in the case of a refund, from the date of the overpayment to a date, as determined by the department, preceding the date of the refund check by not more than 30 days, whether or not the refund check is accepted by the taxpayer after tender of the check to the taxpayer; the acceptance of the refund check does not affect the right of the taxpayer to claim an additional overpayment and interest on the overpayment.
(c) If an overpayment of a tax imposed by this title is refunded within 90 days after the last date prescribed for filing the return of the tax, determined without regard to an extension of time for filing the return, or if the return is filed after the last filing date and the overpayment is refunded within 90 days after the date the return is filed, interest may not be allowed under (a) of this section on that overpayment.
Sec. 43.05.290. Criminal penalties.
(a) A person who wilfully attempts to evade a tax imposed by this title is, in addition to other penalties provided by this title, guilty of a class C felony.
(b) A person required under this title to collect, account for, and pay over a tax imposed by this title who wilfully fails to collect or truthfully account for and pay over the tax at the time or times required by law or regulation is, in addition to other penalties provided by this title, guilty of a class C felony.
(c) A person required under this title to pay a tax, make a return, keep records, or supply information, who wilfully fails to pay the tax or estimated tax, make the return, keep the records, or supply the information at the time or times required by law or regulation is, in addition to other penalties provided by this title, guilty of a class A misdemeanor.
(d) A person who wilfully makes and subscribes a return or other document required under this title which contains or is verified by a written declaration that it is made under the penalties of perjury which the person does not believe to be true and correct as to every material matter is, in addition to other penalties provided by this title, guilty of a felony and, upon conviction, punishable by a fine of not more than $25,000, or by imprisonment for not more than three years, or by both.
(e) A person who wilfully and knowingly aids or assists in, or procures, or counsels the preparation or presentation in connection with a matter arising under this title of a return, affidavit, claim, or other document that is fraudulent or is false as to a material matter is guilty of a felony whether or not the falsity or fraud is with the knowledge or consent of the person required to present the return, affidavit, claim, or document. Upon conviction, the person is punishable by a fine of not more than $25,000, or by imprisonment for not more than three years, or by both.
(f) A person who wilfully delivers or discloses to the commissioner or the department a list, return, account, statement, or other document known by the person to be fraudulent or to be false as to a material matter is guilty of a class A misdemeanor.
(g) [Repealed, Sec. 114 ch 6 SLA 1984].
(h) A person engaging in or attempting to engage in a business, trade, profession, or occupation for which a license is required under this title, who wilfully fails to obtain the license, is guilty of a misdemeanor, and, upon conviction, is punishable by a fine of not more than $2,000, or by imprisonment for not more than six months, or by both.
(i) In this section "person" includes, but is not limited to, an officer or employee of a corporation or a member or employee of a partnership, who, as officer, employee, or member, is under a duty to perform the act in respect to which the violation occurs.
Sec. 43.05.400. Office of tax appeals established.
The office of tax appeals is established within the department.
Sec. 43.05.405. Jurisdiction.
The office of tax appeals has original jurisdiction to hear formal appeals from informal conference decisions of the Department of Revenue underAS 43.05.240 . Appeal to the office may be taken only from an informal conference decision under AS 43.05.240 . Jurisdiction of the office is limited to, and AS 43.05.400 - 43.05.499 applies to and governs, an administrative appeal regarding
(1) electric and telephone cooperative taxes under AS 10.25;
(2) a seafood marketing assessment under AS 16.51;
(3) all taxes levied under AS 43, except the property tax assessed under AS 43.56; and
(4) any other taxes administered by the Department of Revenue.
Sec. 43.05.410. Appointment; term; reappointment.
(a) The governor shall appoint a chief administrative law judge of the office of tax appeals from among two or more persons nominated as most qualified for that position by the Alaska Judicial Council. If one or more additional administrative law judges are established in the office of tax appeals, the governor shall appoint additional administrative law judges from among two or more persons nominated as most qualified for each position by the judicial council.
(b) The initial term for an administrative law judge, including the chief administrative law judge, is three years. The governor may reappoint a person appointed to serve as an administrative law judge, including the chief administrative law judge, to subsequent terms of four years each.
(c) A reappointment of a person appointed to serve as an administrative law judge, including the chief administrative law judge, shall be made as follows:
(1) if an administrative law judge seeks reappointment, the governor shall notify the judicial council of the impending end of the administrative law judge's term at least 150 days before the end of the term;
(2) in reviewing the performance of the administrative law judge, the judicial council shall collect and review sufficient information to thoroughly evaluate the administrative law judge; the review by the judicial council must include a published notice requesting written comments on the administrative law judge whose performance is being evaluated;
(3) the judicial council shall review the performance of the administrative law judge and submit by at least 60 days before the vacancy a recommendation to the governor on whether the administrative law judge should be reappointed;
(4) the governor has discretion to reappoint or not reappoint an administrative law judge whom the judicial council recommends for reappointment; however, the governor may not reappoint a person as administrative law judge if the judicial council recommends against that reappointment.
(d) Upon notice of an administrative law judge opening and request by the governor for nominations under this section, including a vacancy caused by the decision of a sitting administrative law judge to not seek reappointment, a vacancy caused by the removal or resignation of an administrative law judge, or an administrative law judge opening resulting from the decision to add an additional administrative law judge position to the office, the judicial council shall advertise and invite applications for the position. The judicial council shall meet and make nominations under this section for the position within 120 days of the governor's notice and request for nominations, unless the 120-day period is extended by the judicial council with the concurrence of the governor.
(e) Nominations made by the Alaska Judicial Council under this section shall be made after the judicial council has reviewed the qualifications of applicants for administrative law judges. The judicial council shall collect and review sufficient information to thoroughly evaluate each applicant. The review by the judicial council must include a published notice requesting written comments on the list of applicants for an administrative law judge opening.
(f) In reviews by the Alaska Judicial Council under this section,
(1) comments, references, or survey responses that request confidentiality, or for which the judicial council promises confidentiality, shall be kept confidential, but the judicial council shall provide the applicant for administrative law judge or administrative law judges seeking reappointment a summary of the concerns raised in the comments, references, and survey responses that are kept confidential;
(2) the judicial council has authority to review confidential Alaska Bar Association files, including bar complaint files, on applicants for administrative law judge and on administrative law judges seeking reappointment whose applications or reappointment evaluations are under review; the judicial council shall maintain the confidentiality of these files; and
(3) the judicial council shall send to the governor with its nominees or reappointment recommendations copies of all nonconfidential materials that it gathers on applicants for administrative law judge and administrative law judges seeking reappointment whose applications or reappointment evaluations are under review, and shall provide the governor with summaries of concerns raised in the comments, references, and survey responses that are kept confidential.
Sec. 43.05.415. Removal.
(a) The chief administrative law judge may be disciplined or removed from office by the commissioner only for good cause.
(b) An administrative law judge other than the chief administrative law judge may be disciplined or removed from office by the chief administrative law judge only for good cause.
(c) In this section, "good cause" includes
(1) violation of the Alaska code of judicial conduct adopted by the Alaska Supreme Court;
(2) conviction of a crime of moral turpitude;
(3) unjustified failure to handle the caseload assigned or similar nonfeasance of office;
(4) failure to meet the requirements ofAS 43.05.425 relating to qualification for office; and
(5) unreasonable failure to comply with the statutes or regulations regarding the confidentiality of taxpayer information.
Sec. 43.05.420. Administration.
(a) The chief administrative law judge
(1) shall exercise general supervision of the office; and
(2) may select and hire staff for the office.
(b) An administrative law judge, including the chief administrative law judge, may preside over a proceeding and carry out any procedures authorized underAS 43.05.400 - 43.05.499.
(c) The chief administrative law judge may adopt regulations implementing or interpreting AS 43.05.400 - 43.05.499, including rules of procedure and evidence for proceedings before the office.
Sec. 43.05.425. Qualifications; code of conduct.
(a) An administrative law judge, including the chief administrative law judge, at the time of appointment, must
(1) be licensed to practice law in this state or another state; and
(2) have experience in the field of tax law or tax administration.
(b) A person appointed as an administrative law judge under AS 43.05.410 who is not licensed to practice law in this state at the time of appointment must become licensed to practice law in this state within 12 months after appointment or shall cease to hold office.
(c) An administrative law judge, including the chief administrative law judge, shall comply with the Alaska code of judicial conduct and, except as provided in (b) of this section, shall be and remain licensed to practice law in this state.
Sec. 43.05.430. Notice of appeal from informal conference decision.
An appeal under the jurisdiction of the office is initiated by filing with the office, and serving upon the commissioner of revenue, a notice of appeal from an informal conference decision of the Department of Revenue underAS 43.05.240 . A notice of appeal from the informal conference decision may be filed or amended after the time for filing has expired only if good cause is shown.
Sec. 43.05.435. Scope and standards for decision.
The administrative law judge shall hear all questions de novo under AS 43.05.400 - 43.05.499. The administrative law judge shall
(1) resolve a question of fact by a preponderance of the evidence or, if a different standard of proof has been set by law for a particular question, by that standard of proof;
(2) resolve a question of law in the exercise of the independent judgment of the administrative law judge;
(3) defer to the Department of Revenue as to a matter for which discretion is legally vested in the Department of Revenue, unless not supported by a reasonable basis.
Sec. 43.05.440. Service of documents.
Service of documents required underAS 43.05.400 - 43.05.499 may be accomplished in any manner authorized under the Alaska Rules of Civil Procedure. If service is done only by mail, the date of service is determined by the date of mailing. If service is done by both mail and hand delivery, the date of service is determined by the earlier of the date of mailing or actual receipt of the documents.
Sec. 43.05.445. Discovery.
(a) In an appeal underAS 43.05.405 , discovery may take place only under a plan for discovery approved by the administrative law judge. The administrative law judge shall approve a plan for discovery to the extent consistent with the efficient, just, and speedy conduct of the appeal. The plan may limit or set conditions on discovery and must include provisions for stipulations of fact by the Department of Revenue and the taxpayer. Discovery shall be limited to information that is relevant to the determination of the correct tax or penalty, unless the Department of Revenue or the taxpayer makes a showing that the discovery is reasonably calculated to lead to admissible information.
(b) Requests by the taxpayer for disclosure of public records relating to the appeal are governed by, and the records are disclosed only in accordance with, the plan approved under this section.
(c) Legislative history, reported court decisions, statutes, regulations, or similar documents available for public inspection at a library or the office of the lieutenant governor or through a publicly accessible database must be obtained through those means and may not be sought through discovery.
Sec. 43.05.450. Subpoenas.
An administrative law judge may issue a subpoena to compel attendance of a witness or the production of a document or thing. A subpoena may compel attendance of a witness or production of a document or thing, located either inside or outside the state, to the maximum extent permitted by law. A subpoena may be used for the purpose of discovery or for the purpose of presenting evidence at a formal hearing. A subpoena shall issue upon request of a party, subject to reasonable limitation or conditions set in the subpoena. A subpoena may be enforced by petition to or other appropriate legal proceeding brought in a court of this state or another jurisdiction.
Sec. 43.05.455. Formal hearing.
(a) At or before the formal hearing, a party may present argument and evidence relevant to the amount of the tax or penalty. The administrative law judge shall administer oaths and permit inquiry necessary to determine the proper amount of the tax or penalty.
(b) Each party and witness shall be present during the formal hearing, except that
(1) with the consent of the taxpayer, the administrative law judge may conduct all or part of the hearing by telephone, audio or video teleconference, or other electronic medium; and
(2) with the consent of the parties and the administrative law judge, all or part of the hearing may be conducted through correspondence.
(c) The taxpayer bears the burden of proof on questions of fact by a preponderance of the evidence unless a different standard of proof has been set by law for a particular question.
(d) The formal hearing before the administrative law judge is not required to be conducted with strict adherence to the Alaska Rules of Evidence. Relevant evidence must be admitted if it is probative of a material fact in controversy. Irrelevant and unduly repetitious evidence shall be excluded. Hearsay evidence is admissible if it is the kind of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of a common law or statutory rule that makes improper the admission of the evidence over objection in a civil action. Oral evidence may be taken only on oath or affirmation. The rules of privilege are effective to the same extent that they are recognized in a civil action in the courts of this state, except that relevant documents and other material items that are public records underAS 40.25.100 - 40.25.220 shall be admissible.
(e) The administrative law judge shall make a record of the proceedings of the appeal, including recordation of the proceedings of a formal hearing by electronic or stenographic means.
(f) The administrative law judge may grant exceptions to the requirements of this section in the interest of justice.
Sec. 43.05.460. Enforcement.
(a) The administrative law judge and each party is responsible for the efficient, just, and speedy conduct of the formal hearing. The administrative law judge may impose sanctions on the parties for failure to comply with a subpoena, an order respecting discovery, and any other matter regarding conduct of the appeal. In imposing sanctions, the administrative law judge shall be guided by the practices of the courts of this state in imposing sanctions for similar offenses in civil proceedings.
(b) The administrative law judge may
(1) remand the matter for consideration of material new information or material information withheld by a party;
(2) prohibit a party from introducing information previously withheld without good cause, and any other evidence dependent upon the information;
(3) enter an order, upon a showing of good cause,
(A) barring a designated claim or defense;
(B) striking part or all of a pleading of a party; or
(C) dismissing part or all of the appeal; or
(4) grant any other relief that the administrative law judge considers appropriate.
(c) In addition to the remedies of (a) and (b) of this section, a party may seek enforcement of a subpoena or other order of an administrative law judge by the superior court underAS 44.62.590 .
Sec. 43.05.465. Decision; reconsideration; finality.
(a) Within 180 days after the record on the appeal is closed, the administrative law judge shall issue a decision in writing. The decision must contain a concise statement of reasons for the decision, including findings of fact and conclusions of law. In the decision, the administrative law judge may grant relief, provide remedies, and issue any order that is appropriate. The administrative law judge shall serve each party in the case with a copy of the decision. Unless reconsideration is ordered under (c) of this section, the decision under this subsection is the final administrative decision.
(b) A party may request reconsideration of a decision issued under (a) of this section within 30 days after the date of service shown in the certificate of service of the decision. The request must state specific grounds for reconsideration. Reconsideration may be granted if, in reaching the decision, the administrative law judge has
(1) overlooked, misapplied, or failed to consider a statute, regulation, court or administrative decision, or legal principle directly controlling;
(2) overlooked or misconceived some material fact or proposition of law;
(3) misconceived a material question in the case; or
(4) applied law in the ruling that has subsequently changed.
(c) The administrative law judge may issue an order for reconsideration of all or part of the decision upon request of a party. Reconsideration is based on the record, unless the administrative law judge allows additional evidence and argument. A hearing on reconsideration at which additional evidence or argument is offered or received is subject to the procedures applicable to a hearing under AS 43.05.455.
(d) The power to order reconsideration expires 60 days after the date of service, as shown on the certificate of service, of a decision issued under (a) of this section. If the administrative law judge does not issue an order for reconsideration within the time allowed for ordering reconsideration, a motion for reconsideration is considered denied.
(e) Within 60 days after the close of the record on reconsideration, the administrative law judge shall issue a written decision upon reconsideration. The administrative law judge shall serve each party in the case with a copy of the decision upon reconsideration. The decision upon reconsideration is the final administrative decision.
(f) A final administrative decision becomes final either on the date
(1) 60 days after the date of service of a decision issued under (a) of this section if an order for reconsideration is not issued; or
(2) the decision upon reconsideration is served, as shown by the certificate of service executed by the administrative law judge under (e) of this section.
Sec. 43.05.470. Public proceedings and records.
(a) Records, proceedings, and decisions underAS 43.05.400 - 43.05.499 are confidential, except that the records, proceedings, and decisions become public records and open to the public when the final administrative decision is issued and becomes final.
(b) Upon a showing of good cause, an administrative law judge shall issue a protective order requiring that specified parts of the records, proceeding, or decision shall be kept confidential in a particular appeal. If a protective order is issued, the final administrative decision shall be made public after redacting by deletion or substitution of information as required by the protective order.
(c) The department, in consultation with the chief administrative law judge, shall maintain, index, and make available for public inspection the final administrative decisions, proceedings, and records of the office made public under this section.
Sec. 43.05.475. Consistency of decisions.
(a) As to questions of law, a final administrative decision issued underAS 43.05.400 - 43.05.499, unless reversed or overruled, has the force of legal precedent.
(b) To promote consistency among legal determinations issued under AS 43.05.400 - 43.05.499, the chief administrative law judge may review and circulate among the other administrative law judges the drafts of formal decisions, decisions upon reconsideration, and other legal opinions of the other administrative law judges in the office. The drafts are confidential documents and are not subject to disclosure under AS 40.25.100 - 40.25.220 or this chapter.
Sec. 43.05.480. Judicial review.
(a) Judicial review by the superior court of a final administrative decision may be had by a party to the appeal underAS 43.05.400 - 43.05.499 by filing a notice of appeal in accordance with the applicable rules of court governing appeals to that court in civil matters. The notice of appeal shall be filed within 30 days after an administrative decision becomes final under AS 43.05.465 . The right to judicial review under this subsection is not affected by the failure to seek reconsideration before the administrative law judge.
(b) The amount due must be paid or refunded within 30 days after the date that the final administrative decision becomes final under AS 43.05.465. In place of payment of the amount due, a taxpayer who has appealed a final administrative decision may file a bond with the court or otherwise obtain relief from payment in accordance with the Alaska Rules of Appellate Procedure.
(c) Appeals under this section are reviewed under AS 44.62.560 and 44.62.570.
(d) If, after the appeal is heard, it appears that the final administrative decision was correct, the court shall affirm the decision. If the final administrative decision is incorrect, the court shall determine the amount due. If the taxpayer is entitled to a refund, the court shall order the repayment and the Department of Revenue shall pay the amount due and attach a certified copy of the judgment to the payment. If the court determines that the taxpayer owes an additional amount, the court shall order the payment and the taxpayer shall pay the amount due and attach a certified copy of the judgment to the payment. Any payment required under this subsection shall be paid by the 30th day following the expiration of the time within which an appeal from the superior court decision may be filed, unless the party appealing files a bond or otherwise obtains relief from payment in accordance with the Alaska Rules of Appellate Procedure.
Sec. 43.05.499. Definitions.
InAS 43.05.400 - 43.05.499, unless the context otherwise requires,
(1) "administrative law judge" means an administrative law judge appointed under AS 43.05.410 ;
(2) "commissioner" means the commissioner of administration;
(3) "department" means the Department of Administration;
(4) "discovery" means the use of subpoenas, subpoenas duces tecum, interrogatories, requests for production, requests for admission, depositions, and other methods of civil procedure by which one party to an action may discover information within the knowledge and control of another person;
(5) "legislative history" means the documents of the legislature recording the background and events, including draft bills, correspondence and memoranda, committee reports, tapes and transcripts of hearings, and tapes and transcripts of floor debate concerning consideration of a bill;
(6) "office" means office of tax appeals in the department;
(7) "party" means the Department of Revenue or the taxpayer;
(8) "proceeding" means only a proceeding under the jurisdiction of the office;
(9) "subpoena" means a command to appear at a certain time and place to testify, or to appear at a certain time and place to produce books, papers, and other things, and testify;
(10) "tax" means a tax described in AS 43.05.405 , including a seafood marketing assessment under AS 16.51;
(11) "taxpayer" means a person required to pay a tax, including a person required to pay a seafood marketing assessment under AS 16.51.