WAC 100

Appeals to board--Formal hearings, powers of board or tax referees--Assistance.

Correction of tax--Administrative procedure--Conference--Determination by department.

Reduction of tax after payment--Petition--Conference--Determination by department.

Rights.

Responsibilities.

Appeals, small claims and settlements. Effective 1/1/91

Appeals. Effective 11/1/05. Provides clearer and more up-to-date information.

BTA Nonacquiescence Revised 2/2/09 See ETA 3055.2009 Lincoln Ballinger Limited Partnership, Docket No. 51253 (October 7, 1998) Cimlinc, Inc., Docket No. 54862 (June 13, 2000) Puget Sound Industries, Inc., Docket No. 54675 (August 16, 2000)

BTA Nonacquiescence

Oral instructions relating to tax liability

Hotel/Motel Tax - Oral Instruction Revised 2/2/09 See ETA 3065.2009

APPEALS - PETITIONS - TIMELY - PREMATURE FILING. Petitions for review should be directed to the Interpretations and Appeals Section, should be identified as a petition for correction of assessment and must be filed after an assessment has been issued.

APPEALS - FAILURE TO FILE - ASSESSMENTS - FINALITY. If a petition for correction of assessment is not filed within the twenty day time period or within the period covered by any extension, then the assessment becomes final and the Department loses all further jurisdiction.

PENALTIES -- UNREGISTERED TAXPAYER. RCW 82.32.100 provides that the Department shall add late payment penalties if a person fails to make any return required by the Revenue act.

PENALTIES -- UNREGISTERED TAXPAYER. RCW 82.32.100 provides that the Department shall add late payment penalties if a person fails to make any return required by the Revenue act.

BUSINESS AND OCCUPATION TAX -- COLLECTION -- ESTOPPEL -- CHANGE OF POSITION BY STATE -- EFFECTIVE DATE. For the purpose of estopping the State from collecting taxes, a taxpayer cannot justifiably rely on the State's position or interpretation of a tax liability once the taxpayer has noticed that the state has changed its position even though the State has not yet adopted the new position as official policy.

CONTESTED CASE HEARINGS. Tax appeal hearings are governed by RCW 82.32.160 and are not contested cases per RCW 82.34.010.

DEPARTMENTAL HEARINGS -- SCOPE OF REVIEW -- AUTHORITY OF ADMINISTRATIVE LAW JUDGE. Rules of evidence and strict judicial protocol are neither present nor proper in a review conducted pursuant to RCW 82.32.160.

NONCLAIM PERIOD. When the taxpayer makes a timely request for a refund which the Department denied, the taxpayer must either file a petition in Superior Court or appeal that denial within the Department prior to the expiration of the nonclaim period. The Department may not extend the period for requesting a refund.

APPEALS -- SUPPLEMENTAL DETERMINATIONS -- PETITIONS FOR RECONSIDERATION. Henceforth, unless expressly provided for by statute or rule, the Department of Revenue will not issue supplemental determinations under any circumstances. Where mistakes of fact or errors of law can be identified, the appropriate administrative remedy is a petition for reconsideration.

APPEALS -- JUST AND LAWFUL DECISIONS -- EX PARTE CONTRACTS. The review proceedings authorized by Chapter 82.32.RCW are informal, non-APA, internal review proceedings which are intended to achieve just and lawful results. Such proceedings are not governed by the APA or Court rules of procedure and, by their nature entail ex parte contracts and communications.

REFUNDS/CREDITS -- NONCLAIM -- REFUND REQUEST -- UNDERESTIMATE OF AMOUNT. As a matter of policy, the Department will refund amounts which are adequately described in a taxpayer's petition for refund, even if the exact dollar amount has been underestimated and the underestimate is not discovered until after the nonclaim period has passed.

REFUNDS/CREDITS -- NONCLAIM -- OVERPAYMENTS -- DUTY OF AUDITOR TO IDENTIFY. The Revenue Act does not impose a duty on auditors to discover every error in taxpayers' reporting during the course of an audit. Neither is the nonclaim period tolled because an auditor has failed to discover an overpayment during an audit.

MISCELLANEOUS: STATUTORY CONSTRUCTION. The Governor's partial veto of a bill is part of the legislative process and must be considered in determining the legislative intent.

VALIDITY OF RULES. The Department will not entertain challenges to its administrative rules through an administrative appeal under WAC 458-20-100.

APPLICATION DUE DATE -- ESTOPPEL -- COMMUNICATION -- FACTORS. The Department was not estopped from enforcing the due date of a Distressed Area Tax Deferral application even though the taxpayer claimed that it was given incorrect, incomplete oral information by a Department employee and also claimed that it was misled by a Departmental Special Notice.

WITNESS CREDIBILITY. The following are among the important factors to be considered in evaluating witness credibility: (1) the opportunity and capacity of the witness to observe the act or event, (2) the character and reputation of the witness for truthfulness, (3) prior inconsistent statements or actions, (4) bias or lack thereof, (5) consistency with or contradiction by other evidence, (6) inherent improbability, and (7) demeanor of the witness. Citing Henry Bacon Building Materials, Inc. v. State, BTA Docket No. 89-27, 10 WTD 223 (1991).

UNPUBLISHED DETERMINATIONS -- STARE DECISIS. Except for purposes of collateral estoppel in subsequent proceedings involving the same taxpayer, unpublished determinations are not precedent, may not be cited as such in proceedings before the Department, and do not become part of the body of administrative law governing Department actions.

AUTHORITY TO REACH CONCLUSIONS CONTRARY TO THE LANGUAGE OF A PROPERLY ADOPTED RULE. When a rule substantially quotes a statute that has been amended and the rule is not amended to reflect the new statutory language, the Department must interpret the rule as if the new statutory language were included therein and ignore those portions of the rule that are inconsistent with the new statutory language. Partially Overruling Det. No. 88-313, 6 WTD 285 (1988) to the extent that it reached a conclusion contrary to the statutory language.

AUTHORITY TO INVALIDATE A PROPERLY ADOPTED RULE. Generally, the Department must follow its own rules.

MISCELLANEOUS: B&O TAX -- SUBSTANCE OVER FORM. The doctrine of substance over form is not generally available to a taxpayer to eliminate the tax consequences of the taxpayer's structured form of the transaction. See Washington Sav-Mor Oil Co. v. State Tax Comm'n, 58 Wn.2d 518, 521, 364 P.2d 440 (1961).

EQUITABLE ESTOPPEL - GOVERNMENT ENTITY - ELEMENTS - BURDEN OF PROOF. Equitable estoppel claims against the government require proof: (1) of an admission, statement or act inconsistent with a claim later asserted; (2) of reasonable reliance on that admission, statement, or act by the other party; (3) of an injury to the relying party if repudiation of the admission, statement, or act is allowed; (4) that relief must be necessary to prevent a manifest injustice; and (5) that the exercise of government functions will not be impaired as a result.

ESTOPPEL. A taxpayer may not rely on a letter from the Department to an undisclosed third party. Furthermore, the taxpayer failed to show it detrimentally relied on the letter. The taxpayer merely possessed the letter.

IGNORANCE OF TAX OBLIGATIONS - LIABILITY FOR TAX. The fact that the taxpayer is not aware that tax is due on a transaction is not a valid defense to a valid tax assessment issued by the Department.

EQUITABLE ESTOPPEL: INTEREST -- SILENCE. While silence can work an equitable estoppel against the government, all elements of an equitable estoppel must be met before the doctrine can apply.

PETITION FOR CORRECTION OF NOTICE OF BALANCE DUE - TIMELY. Petitions filed more than thirty days after the issuance of the balance due notices are not timely. The Department cannot consider the issues raised in untimely petitions, and the petitions must be denied.

RETAIL SALES TAX - B&O TAX - ESTOPPEL - PRIOR AUDIT. The Department is not estopped from assessing taxes on warranty repair income because it did not assess such taxes in a prior audit due to oversight, inadvertence, neglect, etc.

SMALL CLAIMS PROCEDURE - CONVERSION TO REGULAR PROCEDURE. A tax appeal, initially accepted as a small claims case, may be converted to regular status where the issue presented is not a simple one.

PETITIONS FOR CORRECTION OF ASSESSMENT - PETITIONS FOR REFUND - EXHAUSTION OF ADMINISTRATIVE REMEDIES. The opportunities to file a petition for correction of assessment or a petition for refund are not remedies that must be exhausted before seeking a remedy in a court of competent jurisdiction.

PRESUMPTION OF CONSTITUTIONALITY OF LEGISLATION. An administrative body does not have the authority to determine the constitutionality of the law it administers; only the courts have that power.

HOTEL/MOTEL TAX - ORAL INSTRUCTIONS. The Department lacks legal authority to waive the tax based on oral instructions. RCW 82.32A.020 only provides authority to waive tax based upon reliance on specific, official written advice or written reporting instructions from the Department.

B&O TAX - IMPOSITION OF TAXES - AUTHORITY -- WAIVER OF - UNFAIR AND INEQUITABLE. The Department of Revenue is without authority to waive taxes lawfully imposed solely because they may appear unfair or inequitable.

USE TAX - VEHICLE - ESTOPPEL -ULTRA VIRES ACTS -INCONSISTENT STATEMENT. The Department is not estopped from collecting tax where the petitioner has not shown that the Department made any statement that is inconsistent with the tax being asserted. Further, even if the taxpayer's statement that he told a Department employee he was a Washington resident but the employee nonetheless granted him the nonresident exemption were credible, the Department would not be estopped from collecting the tax because ultra vires acts cannot be a basis to deprive the state of the power to collect taxes.

MISCELLANEOUS: ATTORNEY FEES. Title 82 RCW, the Revenue Act, contains no provision for attorney fees.

INTEREST -- WAIVER -- REQUEST FOR WRITTEN OPINION -- FAILURE TO RESPOND. Neither RCW 82.32A.020 nor Rule 100 authorizes the Department to cancel or waive interest that may be causally linked to the Department's failure to respond to a taxpayer's request for a written opinion of future tax liability. RCW 82.32.105 does not authorize waiver or cancellation under that circumstance either.

APPEALS -- TIMELINESS -- PETITION FOR CORRECTION OF ASSESSMENT. Petitions for correction of assessment must be filed within twenty days of the issuance of the notice of assessment or before the due date of the assessment if the due date has been extended. Petitions not filed within this time frame will be dismissed.

APPEALS -- CONFERENCES -- FAILURE TO APPEAR. A taxpayer who fails to appear for a scheduled conference and who fails to communicate a reason for his failure to appear will have his appeal decided on the basis of the written record.

EXCISE TAX -- INTEREST -- PENALTIES -- STATUTE OF LIMITATIONS -- UNREGISTERED TAXPAYER -- REGISTRATION WITH OTHER AGENCIES -- ESTOPPEL. The four-year statute of limitations for the assessment of excise tax does not apply in favor of a previously registered taxpayer. The department of Revenue is not estopped from assessing tax outside the statute of limitations by virtue of the taxpayer's registration with other state agencies or offices.

EQUAL PROTECTION -- SELECTIVE ENFORCEMENT. Fact that another taxpayer may not properly be reporting taxes is not grounds for overturning an assessment, citing Frame Factory, v. Depart. of Ecology, 21 Wn. App. 50 (1978); accord Det. No. 93-16,13 WTD 170 (1993) and Det. No. 92-4, 11 WTD 551 (1992).

SETTLEMENTS. Taxpayers do not have a right to have cases settled under RCW 82.32.350 and Rule 100. Settlement is a discretionary decision of the Department. Settlement is not appropriate under Rule 100(10)(b), when the settlement offer is not based on the merits of the case.

PUBLIC UTILITY TAX -- STATUTORY CONSTRUCTION. If nothing in the plain meaning of a statute creates an ambiguity, no resort to legislative history is appropriate. If a statute is ambiguous, however, resort to legislative history appropriate. Successive legislative drafts, legislative bill reports and fiscal notes are useful sources of legislative intent.

WAIVER OF INTEREST -- ADMINISTRATIVE PROCEDURES ACT -- ADJUDICATIVE PROCEEDINGS -- UNREASONABLE DELAY. The Department is not required to waive interest because the hearing before the Appeals Division did not take place within six months of the date of filing. Hearings before the Appeals Division of the Department of Revenue are not adjudicative proceedings under the APA. Such hearings do not arise from a statute requiring a hearing or a constitutional right. The Department does waive interest beyond 12 months where the sole reason for the delay was for the benefit of the Department.

EXCISE TAXES - CREDITING OR COMPENSATING TAXPAYER FOR COSTS INCURRED. The Department cannot grant a credit, or otherwise compensate, a taxpayer for out-of-pocket expenses the taxpayer incurs in connection with a Department examination of the taxpayer's books and records, or in connection with appeals within the Department.

MISC: EQUITABLE ESTOPPEL - REASONABLE RELIANCE. In order for a taxpayer to succeed in a claim of equitable estoppel it must prove, among other things, that it reasonably relied on a statement made by the Department. Reliance on letters written by the Taxpayer Information and Education Section for persons other than the addressee is not reasonable. Likewise, reliance on telephone conversations with unnamed Department personnel and refunds paid but specifically made subject to future audit verification are insufficient to establish equitable estoppel.

REVIEW OF DEPARTMENTAL ACTIONS - ASSESSMENTS AND REFUNDS - EXHAUSTION OF ADMINISTRATIVE REMEDIES. The review procedures authorized by RCW 82.01.060(4), 82.32.160, 82.32.170, and Rule 100 may be used by taxpayers to review tax assessments and refund requests. However, there is no duty to exhaust administrative remedies with regard to the Department's review processes before challenging the Department in a refund action under RCW 82.32.180.

DEPARTMENT OF REVENUE -- ADMINISTRATION OF STATUTE LAW -- PRESUMED CONSTITUTIONALITY OF STATUTES. An administrative body does not have the authority to determine the constitutionality of the law it administers, but must presume the statute is constitutional.

EXTRACTING B&O TAX - INTEREST - SMALL HARVESTER - STATUTE OF LIMITATIONS. The Department's assessment of B&O tax and interest in 2001 is not time-barred against a small harvester of timber whose gross proceeds exceeded $100,000 in 1997 for a harvest that occurred that year. Furthermore, the Department's records show the Department informed the taxpayer in 1997 of his B&O tax liability.

RCW 82.32.350: ACCORD AND SATISFACTION. Accord and satisfaction cannot occur when a cover letter is clearly inconsistent with the claim of accord and satisfaction notated on the check that it accompanies. North Bonneville v. Bencor Corp., 32 Wash. App. 144, 646 P.2d 161 (1982).

RCW 82.32.350: SETTLEMENT AGREEMENTS - METHODS - ACCORD AND SATISFACTION -- EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS. Under the judicial doctrine of statutory construction expressio unius est exclusio alterius, the legislature, in designating only one method of compromising Washington tax liabilities under the Revenue Act, has clearly restricted taxpayers and the Department from any other methods of doing so - including accord and satisfaction under the provisions of Washington's Uniform Commercial Code.

RCW 82.32.160: PETITION FOR CORRECTION OF ASSESSMENT - REQUIREMENT FOR TIMELY WRITTEN FILING. Taxpayers must file a written petition for correction of a tax assessment, and they must file the petition within 30 days after issuance of the tax assessment, or within the period covered by any extension given by the Department of Revenue. Any tax assessment for which a written petition for correction is not timely filed shall become final.

RCW 82.32A; ETA 419: TAX WAIVER - ORAL INSTRUCTIONS. The Department lacks legal authority to waive tax based upon oral instructions.

REVIEW OF DEPARTMENTAL ACTIONS - ASSESSMENTS AND REFUNDS - EXHAUSTION OF ADMINISTRATIVE REMEDIES. The review procedures authorized by RCW 82.01.060(4), 82.32.160, 82.32.170, and Rule 100 may be used by taxpayers to review tax assessments and refund requests. However, there is no duty to exhaust administrative remedies with regard to the Department's review processes before challenging the Department in a refund action under RCW 82.32.180.

DEPARTMENT OF REVENUE -- ADMINISTRATION OF STATUTORY LAW -- PRESUMED CONSTITUTIONALITY OF STATUTES. An administrative body does not have the authority to determine the constitutionality of the law it administers, but must presume the statute is constitutional.

ISSUE OF FIRST IMPRESSION; INDUSTRY-WIDE IMPACT. That an issue is one of first impression or has industry-wide impact or significance does not allow the Department greater flexibility in interpreting applicable tax statutes.

STATUTES -- CONSTRUCTION -- ASSUMING UNINTENTIONAL OMISSIONS. The Department cannot assume the Legislature unintentionally left something out of a statute and read the "omission" into the statute.

B&O TAX - SALES TAX - USE TAX - REFUND -- PETITION - STATUE OF LIMITATIONS - EXTENSION. A petition for review requesting a refund of taxes paid must be filed within four years after the close of the tax year in which the taxes were paid. The Department may not grant an extension of time to file a petition for review requesting a refund of taxes paid.

B&O TAX - SALES TAX - USE TAX - OFFSET - TAX PROPERLY DUE. Different types of taxes and credits are considered together on taxpayers' returns and in the Department's assessments to calculate the amount of tax properly due or refundable.

B&O TAX - SALES TAX - USE TAX - CREDIT ASSESSMENT - INCREASE ADJUSTMENT -- STATUTE OF LIMITATIONS. A credit assessment will not be increased from the amount originally credited for those years for which the statute of limitations would have expired, unless a refund claim was filed or a waiver executed prior to the expiration date. An assessment may be reduced after the expiration date, but not increased.

TAX -- PENALTIES - INTEREST - WARRANT - BIFURCATION OF. Where a warrant includes an amount previously assessed against a taxpayer and an amount not previously assessed, and the taxpayer appeals the warrant, only the propriety of the warrant will be [reviewed] as to the first amount, whereas the merits of the assessment will be [reviewed] vis-a -vis the second amount.

RAP 10.4(h): UNPUBLISHED APPELLATE DECISIONS - USE IN DEPARTMENT OF REVENUE DETERMINATIONS: Taxpayers may not cite, and the Department of Revenue will not consider, unpublished appellate decisions for use in the Department's tax determinations.

CONFIDENTIALITY - EQUAL TREATMENT - DEPARTMENTAL ERRORS - UNPUBLISHED DETERMINATIONS. Even if other assisted living facilities received determinations from the Department allowing exemption for their income, we could not discuss those determinations with the taxpayer if those determinations have not been published. Although equal treatment of similarly situated taxpayers is a legitimate concern, we cannot discuss other taxpayers because of confidentiality requirements.

APPEALS - FAILURE TO FILE - FINALITY. If a petition for correction of an assessment is not filed within thirty days after issuance or within the period covered by any extension, the assessment becomes final, and the Department loses jurisdiction to accept a petition for correction.

MISCELLANEOUS -- ERRONEOUS APPLICATION OF A RULE. The Department's erroneous granting to William Rogers, Co. of the benefit of the Rule 111 exclusion need not be perpetuated by granting unrelated third parties the same erroneous application.

HEARING ON RECONSIDERATION -- REQUIREMENT. Neither RCW 82.01.060(4) nor WAC 458-20-228 (4)(a) requires a hearing on reconsideration.

ESTOPPEL - FAILURE TO DETECT ERROR - RELATED CORPORATIONS. The Department is not estopped from assessing tax on certain amounts although it failed to detect a related corporation's failure to pay tax on these amounts in a prior audit. A taxpayer's reliance on instructions given to another taxpayer does not form the basis for estoppel. Further, the Department's failure to detect an error in a prior audit does not estop the Department from assessing the tax in a subsequent audit.

ESTOPPEL - WEBSITE - ORAL ADVICE. For a tax to be cancelled based on estoppel, the Department must have made a misrepresentation of a material fact upon which the taxpayer reasonably relied to its detriment. A taxpayer's reliance on a general statement on the Department's website does not provide a basis for estoppel. Unsupported, alleged conversations with departmental employees also do not provide a basis for estoppel.

ESTOPPEL -- LACHES. DOR cannot grant relief on the alleged equitable grounds of estoppel or laches in contravention of a statutory requirement. Equitable principles cannot be asserted to establish equitable relief in derogation of statutory mandates.

ETA 419: ORAL INSTRUCTIONS - ESTOPPEL. The Department's long-standing policy is that oral instructions alone do not provide the quantum of proof necessary to sustain an estoppel claim.

RULE 100; RCW 82.32A.020(2): B&O TAX - WRITTEN INSTRUCTIONS - RELIANCE. B&O tax on nursing home revenue received by a public hospital district will be waived where the Department previously issued a written opinion of future tax liability to the district advising in error that revenue from nursing homes purchased by the district and operated as nonprofit corporations was exempt from B&O tax.

INTEREST -- PRIOR AUDITS -- RELIANCE ON. Interest waived where taxpayer reasonably relied on previous audits in which tax was not assessed on similar transactions.

ESTOPPEL - PRIOR AUDIT. The Department is not estopped from asserting tax liability based on an auditor’s failure to discover the taxpayer’s incorrect reporting in an earlier audit.

RCW 82.32A.020; ETA 3065.2009: ESTOPPEL - TAX WAIVER - ORAL INSTRUCTIONS. Washington law does not allow for waiver of tax based on alleged oral advice.

RCW 82.32A.020: ESTOPPEL. The Department’s failure to detect an error in a prior audit does not estop the Department from assessing a tax found to be properly due.

RCW 82.32A.020(2); ETA 3065.2009: WAIVER OF ASSESSMENT - ORAL INSTRUCTIONS. The Department lacks authority to waive assessment of taxes, penalties, and interest, based on oral instructions. RCW 82.32A.020 only provides authority to waive taxes based upon reliance on specific, official written advice or written reporting instructions from the Department.

RCW 82.32A.020: THIRD PARTY ADVICE - RELIANCE. The Department lacks authority to waive assessed taxes based on erroneous instructions from a third party. RCW 82.32A.020 provides authority to waive taxes only based upon reliance on specific, official written advice or written reporting instructions from the Department to the taxpayer.

RCW 82.32A.020; ETA 3065.2009: RETAILING B&O TAX - RETAIL SALES TAX - BAD DEBT DEDUCTION - ORAL INSTRUCTIONS. The Department lacks authority to waive the taxes based on oral instructions. RCW 82.32A.020 only provides authority to waive taxes based upon reliance on specific, official written advice or written reporting instructions from the Department.

RULE 100; RCW 82.32.160: APPEAL PROCESS - IMPACT OF BANKRUPTCY FILING. The Department’s appeal process is not an administrative or judicial proceedings stayed by 11 U.S.C.A. § 362(a), but rather is the final step in the issuance of a notice of tax deficiency authorized by 11 U.S.C.A. § 362(b)(9). Therefore, the taxpayer’s filing of a Chapter 7 Bankruptcy petition does not stay the appeal process or stay the issuance of a determination.

RULE 100; RCW 82.32A.020: TAXPAYER RIGHTS AND RESPONSIBILITIES - RELIANCE ON SPECIFIC, OFFICIAL WRITTEN ADVICE. A taxpayer cannot rely upon a letter ruling where the facts of the taxpayer’s business activities are not the same as the facts stated in the letter ruling.

RCW 82.32A.020(2); ETA 3065.2009: WAIVER OF ASSESSMENT - ORAL INSTRUCTIONS. The Department lacks authority to waive assessment of taxes, penalties, and interest, based on oral instructions. RCW 82.32A.020 only provides authority to waive taxes based upon reliance on specific, official written advice or written reporting instructions from the Department.

RCW 82.32.145: ASSESSMENT LIMITED LIABILITY BUSINESS ENTITY - APPEAL PERIOD - ISSUANCE OF TFAA. When a limited liability business entity is assessed, the assessment may be appealed only within 30 days of its issuance or in a petition for refund after the taxes have been paid, and the issuance of a TFAA does not re-open the appeal period.

WAC 458-20-100: TFAA - RIGHT TO APPEAL FOR RECONSIDERATION. A corporation has 30 days to petition for reconsideration of a determination or the determination becomes final.

WAC 458-20-100: TFAA - APPEAL RIGHTS. Appeals within 30 days of a TFAA may not challenge the assessment against the limited liability business entity, but may protest matters only as to the issuance of the TFAA itself, such as whether one is a “responsible party” under RCW 82.32.145

3 WTD 231; 6 WTD 317: ESTOPPEL - CERTIFICATE OF PAYMENT OF STATE EXCISE TAXES BY PUBLIC WORKS CONTRACTOR. The Department issued the certificate solely based on the information the taxpayer and the contractor provided. The certificate neither precludes the Department from assessing the tax that is due nor does it provide that there is no additional tax due. The Department is not estopped from issuing a tax assessment for additional tax due.

RCW 82.32.160 - APPEALS - ASSESSMENT --- PETITION FOR CORRECTION -- FINALITY - JURISDICTION. If a petition for correction of an assessment is not filed within thirty days after the assessment’s issuance, or within the period covered by any extension, the assessment becomes final, and the Department lacks authority to accept a petition for correction

RCW 82.32A.020(2); ETA 3065.2009: WAIVER OF ASSESSMENT - ORAL INSTRUCTIONS. The Department lacks authority to waive assessment of taxes, penalties, and interest, based on oral instructions. RCW 82.32A.020 only provides authority to waive taxes based upon reliance on specific, official written advice or written reporting instructions from the Department.

APPEAL PROCEDURES -- TIME LIMITS. Once the time limit for appeal of a Determination has passed, with no further appeal filed, the Determination becomes final and cannot later be challenged.

USE TAX -- INTEREST -- ESTOPPEL -- MISINFORMATION FROM OTHER STATE AGENCIES. The Department of Revenue is not estopped from collecting taxes when the failure of a taxpayer to pay was due to misinformation supplied to the taxpayer by another state agency.

B&O TAX -- EXEMPTION -- MULTIPLE ACTIVITIES -- REFUNDS -- RETROACTIVITY. The Washington Supreme Court in National Can Corporation v. Department of Revenue and Tyler Pipe Industries, Inc. v. Department of Revenue, 109 Wn 2d 878, (1988) held that the U. S Supreme Court decision in Tyler Pipe, which invalidated the multiple activities exemption of the B&O tax, applied prospectively only, and that RCW 82.04.4286 and 82.32.060 did not require the State to refund taxes paid or excuse taxes owed before the court decision.

B&O TAX -- EXEMPTION -- MULTIPLE ACTIVITIES -- REFUNDS -- UNCONSTITUTIONAL TAX -- RETROACTIVITY. The Washington Supreme Court in National Can Corporation v. Department of Revenue and Tyler Pipe Industries, Inc. v. Department of Revenue, 109 Wn 2d 878, cert. denied, 56 U.S.L.W. 3828 (1988) held that the U.S. Supreme Court decision in Tyler Pipe, which invalidated the multiple activities exemption of the B&O tax, applied prospectively only. The Department will follow that finding. Accord: Det. No. 87-215AÂ WTD (1988).

B&O TAX -- EXEMPTION -- MULTIPLE ACTIVITIES -- REFUNDS -- RETROACTIVITY. The Washington Supreme Court in National Can Corporation v. Department of Revenue and Tyler Pipe Industries, Inc. v. Department of Revenue, 109 Wn 2d 878, cert. denied, 56 U.S.L.W. 3828 (1988) held that the U.S.

APPEAL PROCEDURES. Department of Revenue is not required to hold a conference between the taxpayer and the auditor's supervisor prior to the issuance of an assessment. Taxpayer failed to show actual injury where conference occurred eight days after issuance of the assessment and where such conference resulted in adjustments to the assessment in taxpayer's favor.

APPEALS -- HEARINGS -- ENTITLEMENT -- DISCRETION. Under RCW 82.32.160 and WAC 458-20-100(8), the Department is vested with the discretion to grant or deny hearings. Any right to a hearing is vested in the Board of Tax Appeals or the Thurston County Superior Court.

B&O TAX -- EXEMPTION -- MULTIPLE ACTIVITIES -- REFUNDS -- RETROACTIVITY. The Washington Supreme Court in National Can Corporation v. Department of Revenue and Tyler Pipe Industries, Inc. v. Department of Revenue, 109 Wn2d 878, cert. denied 56 U.S.L.W. 3828 (1988) held that the U.S.

ADMINISTRATIVE RULINGS -- OBITER DICTUM -- PARENT LOANS TO SUBSIDIARY COMPANIES -- "BUT FOR" ASSUMPTION. An incidental opinion expressed in an administrative determination is not a binding rule of the case and is not the basis for challenging the dispositive findings and conclusions of the determination. The assumption that, but for its borrowing money from a parent company a subsidiary would borrow from a financial institution is obiter dictum. THIS DETERMINATION HAS BEEN OVERRULED OR MODIFIED IN WHOLE OR PART BY DET.NO. 93-269ER, 14 WTD 153 (1995).

B & O TAX -- EXEMPTION -- MULTIPLE ACTIVITIES -- UNCONSTITUTIONAL TAX -- PROSPECTIVE APPLICATION -- ASSESSMENTS ISSUED BUT NOT COLLECTED. The Washington Supreme Court in National Can Corporation v. Department of Revenue and Tyler Pipe Industries, Inc. v. Department of Revenue,109 Wn.2d 878, cert. denied, 56 U.S.L.W. 3828, (1988), held that the U.S. Supreme Court decision in Tyler Pipe, which invalidated the multiple activities exemption of the B&O tax, applied to prospective taxes only.

APPEAL PROCEDURES -- REFUSAL TO COOPERATE OR TO PRODUCE RECORDS. Taxpayer is required to inform himself of the tax ramifications of his business activities in this state. That other taxpayers fail to comply with this state's tax laws is immaterial with regard to this taxpayer, and his refusal to produce records or to cooperate bar him from questioning the assessment.

APPEAL PROCEDURES -- REFUSAL TO COOPERATE OR TO PRODUCE RECORDS. Taxpayer is required to inform itself of the tax ramifications of its business activities in this state. Refusal to produce records or to cooperate bar taxpayer from questioning the assessment.

MISCELLANEOUS -- ESTOPPEL -- ORAL INSTRUCTIONS FROM DEPARTMENT. On narrow facts presented, taxpayer has supported its account of instructions given during two telephone conversations with the Department sufficiently to justify permitting it to amend its reporting methods prospectively.

B&O TAX -- MISINFORMATION -- BY DEPARTMENT EMPLOYEE -- EXCISE TAX RETURN -- ESTOPPEL. Where a Department employee filled out a taxpayer's excise tax return incorrectly by using a line for an inapplicable B&O category, the taxpayer was entitled to rely on that writing. The Department is estopped from collecting B&O tax at a different, higher classification where the taxpayer relied on such instruction to its detriment.