1. Scope of the
rules
These sections set forth the Agency's rules governing the
form and content of requests for declaratory opinions, and the Agency's
procedures regarding the requests, under Mississippi Code Ann. Section
25-43-2.103.
2. Persons who may request declaratory
opinions
Any person with a substantial interest in the subject
matter on which he is requesting information may submit a written request to
the Agency for a declaratory opinion by following the procedures specified
below. Substantial interest in the subject matter means that the interest must
be direct, immediate, not remote in consequence, and must surpass the common
interest of all citizens.
3.
Subjects that may be addressed in declaratory opinions
The Agency will issue declaratory opinions regarding
subject matters that are within the primary administrative responsibilities of
the Agency. Subject matters within the oversight of the Agency include the
applicability of specified facts to a statute administered or enforced by the
Agency, or a rule promulgated by the Commissioner. The Agency will not issue a
declaratory opinion regarding a statute or rule beyond the administrative
responsibility of the Agency.
4. Circumstances in which declaratory
opinions will not be issued
The Agency may, for good cause, refuse to issue a
declaratory opinion. Without limiting the generality of the foregoing sentence,
the circumstances in which declaratory opinions will not be issued include, but
are not necessarily limited to:
a. The
matter is outside the primary jurisdiction of the Agency.
b. The question presented lacks clarity, the
facts provided are insufficient to provide a conclusive determination, or the
information is too vague or too broad to provide an answer.
c. A pending or active audit, criminal tax
investigation, anticipated litigation, administrative action, or other
determination before the Agency, Board of Tax Appeals or a court of law, which
may either answer the question presented or otherwise make an answer
unnecessary.
d. The statute, rule
or order on which a declaratory opinion is sought is clear and does not require
interpretation in order to answer the question presented.
e. The confidentiality waiver on the
Declaratory Opinion Transmittal Form is not signed and provided to the Agency
with the request for a declaratory opinion.
f. The request fails to contain the
information required by these rules, or the requestor failed to follow the
procedure set forth in these rules.
g. The request seeks to resolve issues that
have become moot, are abstract or involve multiple hypotheticals such that the
requestor is not substantially affected by the rule or statute on which a
declaratory opinion is sought.
h.
The request pertains to a hypothetical situation, the underlying facts of which
do not, and are not anticipated to, affect or pertain to the requesting
party.
i. The question presented
concerns the legal validity of a statute or rule.
j. The requesting party is not directly
affected by the application of the statute, rule or regulation.
k. No clear answer is determinable.
l. The question presented involves the
application of a criminal statute or facts that may constitute a
crime.
m. The answer to the
question presented would require the disclosure of information that is
privileged or otherwise protected by law from disclosure.
n. The request involves an issue that may
adversely affect the interests of the State, the Agency or any of the Agency's
officers or employees in any litigation that is pending or may reasonably be
expected to arise.
5.
Form of the request for a declaratory opinion
a. A written request for a Declaratory
Opinion, including a completed Declaratory Opinion Transmittal Form, is
required. Each request must be printed or typewritten, or must be in legible
handwriting. Each request must be submitted on standard business letter-size
paper. Requests may be in the form of a letter addressed to the Office of Tax
Policy or in the form of a pleading as might be addressed to a court.
b. All requests must be mailed or delivered
to the Office of Tax Policy. The request and the envelope in which it is
delivered shall clearly state that it is a request for declaratory opinion.
Oral, telephonic, or facsimiled requests are not acceptable. The request must
include a completed transmittal form as prescribed by the Commissioner and an
executed confidentiality waiver signed by the taxpayer or person requesting the
declaratory opinion.
c. Each
request must include the full name, telephone number and mailing address of the
requestor. Each request shall be signed by the person filing the request or a
duly authorized representative. The signing party shall attest that the request
complies with the requirements set forth in these rules. A declaratory opinion
will have no effect if it is later determined the request did not comply with
the requirements of this rule.
d. A
request must be limited to a single set of facts and each request shall contain
the following:
i. Clear identification of the
statute, rule or order at issue;
ii. A concise statement of the issue or
question presented for the declaratory opinion;
iii. A complete and accurate statement of all
facts relevant to a resolution of the question presented;
iv. The identity of all known persons
involved or impacted by the factual situation described in the request,
including their relationship to the facts, their names, their mailing
addresses, and their telephone numbers;
v. A statement sufficient to show that the
person making the request is substantially affected by the statute, rule, or
regulation.
e. A request
may contain relevant information to support a position or proposed opinion
suggested by the requestor. The argument may be submitted in the form of a
brief containing a full discussion of the basis for the request, including any
legal authorities in support of the position of the requestor.
f. The Agency may request that additional
information be submitted by any interested party.
6. Time for Mississippi Department of
Revenue's response
a. Within forty-five (45)
days after the receipt of a request for a declaratory opinion that complies
with the requirements of these rules, the Agency will respond in writing by one
of the following methods:
i. Issue an opinion
declaring the applicability of the specified statute, rule, or order to the
specified circumstances;
ii.
Decline to issue a declaratory opinion, stating the reasons for its
action;
iii. Agree to issue a
declaratory opinion or a written decision by a specified time later than
forty-five (45) days but no later than ninety (90) days after receipt of the
written request.
b. The
forty-five (45) day period will begin on the first business day after the
request is received by the Agency.
c. The response may be sent to the authorized
representative in lieu of the requesting party or the person signing the
request.
7. Public
availability of requests and declaratory opinions.
Declaratory opinions and requests for declaratory opinions
are available for public inspection. The taxpayer must sign a confidentiality
waiver to authorize the Agency to disclose the contents of a declaratory
opinion.
