Ask the Advocate
Quite often we receive questions from taxpayers and practitioners on issues relating to the interpretation of provisions of the R&TC as well as policies and procedures of our department. We receive these questions through our various telephone call centers and when we are present at public engagements. We routinely get questions as to what level of reliance does the taxpayer have that the answer provided will be accepted should the taxpayer’s position become questioned. I state, "If you want guaranteed reliance you need to get it in writing." Now the big question, what do I mean get it in writing?
On October 12, 2009, we issued two FTB Notices, 2009-08, Franchise Tax Board Ruling Guidelines, and 2009-09, Reliance upon Written Advice - Relief under Taxpayers’ Bill of Rights. These notices were issued to update communications on guidelines relating to the issuance of written advice by us and reliance upon that written advice under the Taxpayers’ Bill of Rights.
We provide the following types of guidance:
- Chief Counsel Rulings - Taxpayer specific and must be requested by the taxpayer in writing using the required procedures set forth in FTB Notice 2009-08.
- Legal Ruling - A Legal Ruling is issued by our Legal Division and interprets California law and is the equivalent to an IRS Revenue Ruling.
- FTB Notices - An FTB Notice is issued by the Legal Division and may be a written statement regarding procedures that affect taxpayers, it may provide information regarding statutes or court decisions, or it may provide information about other matters that should be brought to the attention of the public. Notices are equivalent to an IRS Revenue Procedure or IRS Notice or Announcement.
- Other Guidance - News releases, Tax News, responses to media inquires, and similar matters published by us involving an explanation of California tax laws, decisions, or other events. These are not issued by the Legal Division or the Chief Counsel and cannot be relied upon as substantive guidance.
- Oral Advice - Our personnel are available to discuss verbally a variety of issues. Such discussion, however, will not be binding on us in general or on the Legal Division and cannot be relied upon as a basis to obtain relief where that verbal advice was relied upon.
In general, if you relied on erroneous written advice from us, we may, in some cases, relieve you of tax, interest, penalties, or additions to tax. For tax, interest, penalties, or additions to tax to be waived, certain conditions must be satisfied, including, but not limited to:
- You or your client made a written request for advice from us as to whether a particular activity or transaction is subject to tax.
- We responded in writing with our advice.
- You reasonably relied on that advice.
- You did not remit the tax due.
If such abatement is requested, then you must provide all of the following:
- A copy of the original written request and a copy of our written advice.
- A statement made under penalty of perjury that outlines the facts on which the claim for abatement is based.
- Any other information we may require.
We will not, however, abate tax, interest, penalties, or additions to tax where there was a misrepresentation or omission of material facts.
For further details on relief when taxpayers rely upon written advice from us, please refer to FTB Notice 2009-09. To obtain this notice, go to ftb.ca.gov and search for Notice 2009-09, or write to us at:
Request for Written Advice
Franchise Tax Board
PO Box 1720
Rancho Cordova, CA 95741-1720
The request should specify "Taxpayers’ Bill of Rights - Request for Written Advice." While this is just a brief write-up on the issue, I encourage you to read FTB Notices 2009-08 and 2009-09.
Steve Sims, EA
Taxpayers’ Rights Advocate
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