Sec. 43.05.242. Judicial appeal challenging validity of tax.

480 words·~2 min read·/ak/title-43/chapter-5/43-05-242·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(a)Within 30 days after a decision resulting from the informal conference, a person aggrieved by the action of the department under AS 43.05.240 on a ground specified in this section may appeal to the superior court.

(b)An appeal under this section may be taken from an informal conference decision only with respect to an issue in the assessment for tax, interest, and penalties that the taxpayer raises upon the ground that a tax statute or tax regulation is

(1)violative of the United States Constitution;

(2)violative of the state constitution; or

(3)preempted by federal statute, regulation, or treaty.

(c)An appeal of an issue under this section may not be taken from an informal conference decision if

(1)there is a dispute of material fact;

(2)a factual record is necessary to decide the question of law raised;

(3)development of a factual record will render it unnecessary to reach the question of law raised; or

(4)the taxpayer challenges the assessment of the tax related to the issue on a ground other than one listed in

(b)of this section.

(d)An issue may not be presented to the superior court unless the issue first has been presented in writing to the department at or before the informal conference. The department shall prepare a record of that portion of the informal conference relevant to the issue on appeal. The superior court shall

(1)resolve a question of law in the exercise of the independent judgment of the superior court judge;

(2)defer to the department on a question of law for which discretion is legally vested in the department unless not supported by a reasonable basis.

(e)An appeal of the informal conference decision under this section is exclusive as to the issue raised. The taxpayer electing to appeal under this section may not pursue an appeal of the issue under AS 43.05.241 or pursue any other action under another statute on the issue.

(f)When an appeal is taken under this section, the taxpayer shall be given access to the file of the department in the matter for preparation of the appeal.

(g)In an appeal under this section, the amount due shall be paid within 30 days after the date of the service of the informal conference decision. In place of payment of the amount due, the taxpayer may file a bond with the court or otherwise obtain relief from payment in accordance with the Alaska Rules of Appellate Procedure.

(h)Venue for an appeal filed under this section shall be set under rules adopted by the supreme court.

(i)If it is determined that appeal was improperly filed under this section, the appeal shall be transferred to the office of administrative hearings ( AS 44.64 ) for further proceedings under AS 43.05.405 — 43.05.499.