34 Tex. Admin. Code § 9.4307 - Dismissal
(a) A protest shall be dismissed if there is
any jurisdictional defect in submission of the petition. If a petition is filed
and there is a jurisdictional defect, the division may file a motion to dismiss
with the State Office of Administrative Hearings (SOAH) and a request to
docket. Following receipt of the request to docket, SOAH shall assign the case
a docket number and assign an Administrative Law Judge (ALJ). On the same date
as the date the division files the motion to dismiss with SOAH, the division
shall serve a copy of the motion to dismiss with the petitioner via hand
delivery, overnight delivery service, facsimile, email or an electronic filing
and service system utilized by SOAH.
(b) The petitioner may file a response with
SOAH no later than seven calendar days from the date the motion to dismiss is
filed. On the same date the petitioner files a response to the division's
motion to dismiss, petitioner shall serve a copy of the response to the
division director and legal counsel for the division via hand delivery,
overnight delivery service, facsimile, email or an electronic filing and
service system utilized by SOAH.
(c) The division will have seven calendar
days from the date petitioner files a response to file a reply to the response
with SOAH. On the same date the division files its reply to petitioner's
response, the division shall serve a copy of the reply to the petitioner via
hand delivery, overnight delivery service, facsimile, email or an electronic
filing and service system utilized by SOAH.
(d) Arguments shall be limited to the
jurisdictional issues presented in the motion to dismiss filed with SOAH.
Neither the division nor the petitioner shall be permitted to submit any
additional information or evidence for consideration by the ALJ.
(1) No oral hearing will be held, except upon
a ruling by an ALJ pursuant to §
9.4314(c) of
this title (relating to Administrative Law Judge's Powers).
(2) Motions for oral hearing shall be decided
solely upon the written motions for oral hearing and responses, if any,
submitted to the ALJ for ruling pursuant to §
9.4314(c) of
this title.
(e) After
time for the division to file a reply has expired, the assigned ALJ shall
consider the motion, any timely filed response, and any timely filed reply, and
no later than 14 calendar days after time for the division to file a reply has
expired, issue a proposal for decision to the deputy comptroller stating the
ALJ's recommendation for a final decision on the motion and the reasons for the
proposed decision.
(1) The ALJ's proposal for
decision shall be issued to the deputy comptroller by filing the proposal for
decision with the comptroller's Special Counsel for Tax Hearings via hand
delivery, overnight delivery service, facsimile, email or an electronic filing
and service system utilized by SOAH.
(2) On the same date the ALJ issues the
proposal for decision to the deputy comptroller, the ALJ shall serve a copy of
the proposal for decision on all other parties via hand delivery, overnight
delivery service, facsimile, email or an electronic filing and service system
utilized by SOAH
(f) A
party to the protest may, within seven calendar days after the date the
proposed final decision is served, file with the deputy comptroller exceptions
to the proposal for decision.
(1) Exceptions
to the proposal for decision, if any, shall be filed with the deputy
comptroller by filing the exceptions with the comptroller's Special Counsel for
Tax Hearings via hand delivery, overnight delivery service, facsimile, or
email.
(2) On the same date as the
date exceptions to the proposal for decision are filed, the excepting party
shall serve a copy of the exceptions on all other parties via hand delivery,
overnight delivery service, facsimile, or email.
(g) Within seven calendar days after the
exceptions are filed and served in accordance with subsection (f) of this
section, all parties not filing exceptions may file replies to the exceptions
with the deputy comptroller.
(1) Replies to
the exceptions to the proposal for decision, if any, shall be filed with the
deputy comptroller by filing the replies with the comptroller's Special Counsel
for Tax Hearings via hand delivery, overnight delivery service, facsimile, or
email.
(2) On the same date the
replies to exceptions to the proposal for decision are filed with the deputy
comptroller, the party filing the replies shall serve a copy of the replies to
all other parties via hand delivery, overnight delivery service, facsimile, or
email.
(h) After
considering all timely filed exceptions and timely filed replies to exceptions,
the deputy comptroller shall issue a final order and, in doing so, may adopt,
amend, or reject the ALJ's proposal for decision. A decision is final on the
date signed by the deputy comptroller. The deputy comptroller shall deliver
written notice of the final decision to each party to the protest via hand
delivery, overnight delivery service, facsimile, or email.
(i) The petitioner bears the burden of proof
on all jurisdictional matters.
(j)
If a motion to dismiss is denied, the petition will be otherwise processed in
accordance with this subchapter.
Notes
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