Code Section Group

Revenue and Taxation Code - RTC

DIVISION 2. OTHER TAXES [6001 - 61050]

  ( Heading of Division 2 amended by Stats. 1968, Ch. 279. )

PART 20. EMERGENCY TELEPHONE USERS SURCHARGE ACT [41001 - 41176]

  ( Heading of Part 20 amended by Stats. 2017, Ch. 561, Sec. 241. )

CHAPTER 4. Determination of Surcharge [41050 - 41099]

  ( Chapter 4 added by Stats. 1976, Ch. 443. )

ARTICLE 6. Interest and Penalties [41095 - 41099]
  ( Article 6 added by Stats. 1976, Ch. 443. )

41095.
  

(a) Any person who fails to pay any surcharge to the state or any amount of surcharge required to be collected and paid to the state, except amounts of determinations made by the department under Article 3 (commencing with Section 41070) or Article 4 (commencing with Section 41080), within the time required shall pay a penalty of 10 percent of the surcharge in addition to the surcharge or amount of surcharge, plus interest at the modified adjusted rate per month, or fraction thereof, established pursuant to Section 6591.5, from the date on which the surcharge or the amount of surcharge required to be collected became due and payable to the state until the date of payment.

(b) Any person who fails to file a return in accordance with the due date set forth in Section 41052 or the due date established by the department in accordance with Section 41052.1, shall pay a penalty of 10 percent of the amount of the surcharge with respect to the period for which the return is required.

(Amended by Stats. 2021, Ch. 432, Sec. 93. (SB 824) Effective January 1, 2022.)

41095.5.
  

(a) If the department finds, taking into account all facts and circumstances, that it is inequitable to compute interest at the modified adjusted rate per month or fraction thereof, as defined in subdivision (b) of Section 6591.5, interest shall be computed at the modified adjusted daily rate from the date on which the surcharge was due until the date of payment, if all of the following occur:

(1) The payment of the surcharge was made one business day after the date the surcharge was due.

(2) The person was granted relief from all penalties that applied to that payment of the surcharge.

(3) The person files a request for a one-day adjustment.

(b) For purposes of this section, “modified adjusted daily rate” means the modified adjusted rate per annum as defined in subdivision (a) of Section 6591.5 determined on a daily basis by dividing the modified adjusted rate per annum by 365.

(c) For the purposes of this section, “department” means the California Department of Tax and Fee Administration.

(d) For purposes of this section, “business day” means any day other than a Saturday, Sunday, or any day designated as a state holiday.

(e) This section shall not apply to any payment made pursuant to a deficiency determination, or a determination where no return has been filed.

(f) This section shall only apply to electronic payments of surcharges.

(Amended by Stats. 2021, Ch. 432, Sec. 94. (SB 824) Effective January 1, 2022.)

41096.
  

(a) If the department finds that a person’s failure to make a timely return or payment is due to reasonable cause and circumstances beyond the person’s control, and occurred notwithstanding the exercise of ordinary care and the absence of willful neglect, the person may be relieved of the penalty provided by Sections 41060, 41080, 41090, and 41095.

(b) Except as provided in subdivision (c), any person seeking to be relieved of the penalty shall file with the department a statement under penalty of perjury setting forth the facts upon which the person bases the claim for relief.

(c) The department shall establish criteria that provide for efficient resolution of requests for relief pursuant to this section.

(Amended by Stats. 2021, Ch. 432, Sec. 95. (SB 824) Effective January 1, 2022.)

41097.
  

If the department finds that a person’s failure to make a timely return or payment was due to a disaster, and occurred notwithstanding the exercise of ordinary care and the absence of willful neglect, the person may be relieved of the interest provided by Sections 41054, 41060, 41082, and 41095.

Any person seeking to be relieved of the interest shall file with the department a statement under penalty of perjury setting forth the facts upon which the person bases the claim for relief.

(Amended by Stats. 2021, Ch. 432, Sec. 96. (SB 824) Effective January 1, 2022.)

41097.5.
  

(a) The department, in its discretion, may relieve all or any part of the interest imposed on a person by this part if the failure to pay the surcharge is due in whole or in part to an unreasonable error or delay by an employee of the department acting in the employee’s official capacity.

(b) For purposes of this section, an error or delay shall be deemed to have occurred only if no significant aspect of the error or delay is attributable to an act of, or a failure to act by, the taxpayer.

(c) Any person seeking relief under this section shall file with the department a statement under penalty of perjury setting forth the facts on which the claim for relief is based and any other information which the department may require.

(d) The department may grant relief only for interest imposed on surcharge liabilities that arise during surcharge periods commencing on or after January 1, 2000.

(Amended by Stats. 2021, Ch. 432, Sec. 97. (SB 824) Effective January 1, 2022.)

41098.
  

(a) If the department finds that a person’s failure to make a timely return or payment is due to the person’s reasonable reliance on written advice from the department, the person may be relieved of the surcharge imposed by this part and any penalty or interest added thereto.

(b) For purposes of this section, a person’s failure to make a timely return or payment shall be considered to be due to reasonable reliance on written advice from the department, only if the department finds that all of the following conditions are satisfied:

(1) The person requested in writing that the department advise the person whether a particular activity or transaction is subject to the surcharge under this part. The specific facts and circumstances of the activity or transaction shall be fully described in the request.

(2) The department responded in writing to the person regarding the written request for advice, stating whether or not the described activity or transaction is subject to the surcharge, or stating the conditions under which the activity or transaction is subject to the surcharge.

(3) The liability for surcharges applied to a particular activity or transaction which occurred before either of the following:

(A) Before the department rescinded or modified the advice so given, by sending written notice to the person of rescinded or modified advice.

(B) Before a change in statutory or constitutional law, a change in the department’s regulations, or a final decision of a court, which renders the department’s earlier written advice no longer valid.

(c) Any person seeking relief under this section shall file with the department all of the following:

(1) A copy of the person’s written request to the department and a copy of the department’s written advice.

(2) A statement under penalty of perjury setting forth the facts on which the claim for relief is based.

(3) Any other information which the department may require.

(d) Only the person making the written request shall be entitled to rely on the department’s written advice to that person.

(Amended by Stats. 2021, Ch. 432, Sec. 98. (SB 824) Effective January 1, 2022.)

41099.
  

(a) Under regulations prescribed by the department, if:

(1) A surcharge liability under this part was understated by a failure to file a return required to be filed under this part, by the omission of an amount properly includable therein, or by erroneous deductions or credits claimed on a return, and the understatement of surcharge liability is attributable to one spouse; or any amount of the surcharge reported on a return was unpaid and the nonpayment of the reported surcharge liability is attributable to one spouse.

(2) The other spouse establishes that the other spouse did not know of, and had no reason to know of, that understatement or nonpayment.

(3) Taking into account whether the other spouse significantly benefited directly or indirectly from the understatement or the nonpayment and taking into account all other facts and circumstances, it is inequitable to hold the other spouse liable for the deficiency in surcharge attributable to that understatement or nonpayment, then the other spouse shall be relieved of liability for the surcharge, including interest, penalties, and other amounts, to the extent that the liability is attributable to that understatement or nonpayment of the surcharge.

(b) For purposes of this section, the determination of the spouse to whom items of understatement or nonpayment are attributable shall be made without regard to community property laws.

(c) This section shall apply to all calendar months, quarters, or years subject to the provisions of this part, but shall not apply to a calendar month, quarter, or year that is more than five years from the final date on the department-issued determination, five years from the return due date for nonpayment on a return, or one year from the first contact with the spouse making a claim under this section; or that has been closed by res judicata, whichever is later.

(d) For purposes of paragraph (2) of subdivision (a), “reason to know” means whether a reasonably prudent person would have had reason to know of the understatement or nonpayment.

(e) For purposes of this section, with respect to a failure to file a return or an omission of an item from the return, “attributable to one spouse” may be determined by whether a spouse rendered substantial service as a service supplier for each access line subscribed by service users or a sellers collection from each prepaid consumer’s purchase of prepaid mobile telephony services, or an access line or purchase of prepaid mobile telephony services to which the understatement is attributable. If neither spouse rendered substantial services as a service supplier, seller, or as a service user, then the attribution of applicable items of understatement shall be treated as community property. An erroneous deduction or credit shall be attributable to the spouse who caused that deduction or credit to be entered on the return.

(f) Under procedures prescribed by the department, if, taking into account all the facts and circumstances, it is inequitable to hold the other spouse liable for an unpaid surcharge or deficiency, or any portion of either, attributable to any item for which relief is not available under subdivision (a), the department may relieve the other spouse of that liability.

(g) For purposes of this section, registered domestic partners, as defined in Section 297 of the Family Code, have the same rights, protections, and benefits as provided by this section, and are subject to the same responsibilities, obligations, and duties as imposed by this section, as are granted to and imposed upon spouses.

(h) The relief provided by this section shall apply retroactively to liabilities arising prior to January 1, 2008.

(Amended by Stats. 2021, Ch. 432, Sec. 99. (SB 824) Effective January 1, 2022.)

RTCRevenue and Taxation Code - RTC6.