Section 41171.5 - [Operative 1/1/2028] Compromise of final surcharge liability(a) The director of the department, or their delegates, may compromise any final surcharge liability.(b) For purposes of this section, "a final surcharge liability" means any final surcharge liability arising under Part 20 (commencing with Section 41001), or related interest, additions to the surcharge, penalties, or other amounts assessed under this part.(c) Offers in compromise shall be considered only for liabilities that were generated from a business that has been discontinued or transferred, where the surcharge payer making the offer no longer has a controlling interest or association with the transferred business or has a controlling interest or association with a similar type of business as the transferred or discontinued business.(d) Offers in compromise shall not be considered where the surcharge payer has been convicted of felony tax evasion under this part during the liability period.(e) For amounts to be compromised under this section, the following conditions shall exist:(1) The surcharge payer shall establish that: (A) The amount offered in payment is the most that can be expected to be paid or collected from the surcharge payer's present assets or income.(B) The surcharge payer does not have reasonable prospects of acquiring increased income or assets that would enable the surcharge payer to satisfy a greater amount of the liability than the amount offered, within a reasonable period of time.(2) The department shall have determined that acceptance of the compromise is in the best interest of the state.(f) A determination by the department that it would not be in the best interest of the state to accept an offer in compromise in satisfaction of a final surcharge liability shall not be subject to administrative appeal or judicial review.(g)(1) Offers for liabilities with a fraud or evasion penalty shall require a minimum offer of the unpaid surcharge and fraud or evasion penalty.(2) The minimum offer may be waived if it can be shown that the surcharge payer making the offer was not the person responsible for perpetrating the fraud or evasion. This authorization to waive only applies to partnership accounts where the intent to commit fraud or evasion can be clearly attributed to a partner of the surcharge payer.(h) When an offer in compromise is either accepted or rejected, or the terms and conditions of a compromise agreement are fulfilled, the department shall notify the surcharge payer in writing. In the event an offer is rejected, the amount posted will either be applied to the liability or refunded, at the discretion of the surcharge payer.(i) When more than one surcharge payer is liable for the debt, such as with spouses or partnerships or other business combinations, including, but not limited to, surcharge payers who are liable through dual determination or successor's liability, the acceptance of an offer in compromise from one liable surcharge payer shall reduce the amount of the liability of the other surcharge payers by the amount of the accepted offer.(j) Whenever a compromise of surcharges or penalties or total surcharges and penalties in excess of five hundred dollars ($500) is approved, there shall be placed on file for at least one year in the office of the director of the department a public record with respect to that compromise. The public record shall include all of the following information: (1) The name of the surcharge payer.(2) The amount of unpaid surcharges and related penalties, additions to surcharges, interest, or other amounts involved.(4) A summary of the reason why the compromise is in the best interest of the state. The public record shall not include any information that relates to any trade secrets, patent, process, style of work, apparatus, business secret, or organizational structure, that if disclosed, would adversely affect the surcharge payer or violate the confidentiality provisions of Section 41132. A list shall not be prepared and releases shall not be distributed by the department in connection with these statements.
(k) A compromise made under this section may be rescinded, all compromised liabilities may be reestablished, without regard to any statute of limitations that otherwise may be applicable, and no portion of the amount offered in compromise refunded, if either of the following occurs: (1) The department determines that a person did any of the following acts regarding the making of the offer:(A) Concealed from the department property belonging to the estate of a surcharge payer or other person liable for the surcharge.(B) Received, withheld, destroyed, mutilated, or falsified a book, document, or record, or made a false statement, relating to the estate or financial condition of the surcharge payer or other person liable for the surcharge.(2) The surcharge payer fails to comply with any of the terms and conditions relative to the offer.(l) A person who, in connection with an offer or compromise under this section, or offer of that compromise to enter into that agreement, willfully does either of the following shall be guilty of a felony and, upon conviction, shall be fined not more than fifty thousand dollars ($50,000) or imprisoned pursuant to subdivision (h) of Section 1170 of the Penal Code, or both, together with the costs of investigation and prosecution: (1) Conceals from an officer or employee of this state property belonging to the estate of a surcharge payer or other person liable in respect of the surcharge.(2) Receives, withholds, destroys, mutilates, or falsifies a book, document, or record, or makes a false statement, relating to the estate or financial condition of the surcharge payer or other person liable in respect of the surcharge.(m) For purposes of this section, "person" means the surcharge payer, a member of the surcharge payer's family, a corporation, agent, fiduciary, or representative of, or another individual or entity acting on behalf of, the surcharge payer, or another corporation or entity owned or controlled by the surcharge payer, directly or indirectly, or that owns or controls the surcharge payer, directly or indirectly.(n) This section shall become operative on January 1, 2028.Ca. Rev. and Tax. Code § 41171.5
Amended by Stats 2022 ch 474 (SB 1496),s 65, eff. 1/1/2023.Amended by Stats 2017 ch 272 (AB 525),s 10, eff. 1/1/2018.Amended by Stats 2012 ch 285 (SB 1548),s 10, eff. 1/1/2013.Amended by Stats 2011 ch 39 (AB 117),s 68, eff. 6/30/2011.Amended by Stats 2011 ch 15 (AB 109),s 582, eff. 4/4/2011, but operative no earlier than October 1, 2011, and only upon creation of a community corrections grant program to assist in implementing this act and upon an appropriation to fund the grant program.Added by Stats 2008 ch 222 (AB 2047),s 5.5, eff. 1/1/2009, op. 1/1/2013.