Section 35-1-01-108.03 - Declaratory Opinions1. 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.
35 Miss. Code. R. 1-01-108.03