§ 31-36-9. Assessment on determination of incorrectness of report or on failure to file report.
(1) Deficiency determination; interest. If the tax administrator is not satisfied with any statement or report or the amount
of tax paid to the tax administrator by any person, the tax administrator may compute
and determine the amount required to be paid upon the basis of the facts contained
in the statement or report or upon the basis of any information in the tax administrator's
possession or that may come into the tax administrator's possession. One or more deficiency
determinations may be made of the amount due for one or for more than one month. The
amount of the determination, exclusive of penalties, shall bear interest at the annual
rate provided by § 44-1-7, as amended, from the twenty-fifth day after the close of the month for which the
amount, or any portions of it, should have been paid until the date of payment.
(2) Pecuniary penalties for deficiencies. If any part of the deficiency for which a deficiency determination is made is due
to negligence or intentional disregard of the provisions of this chapter, a penalty
of ten percent (10%) of the amount of the determination shall be added to it. If any
part of the deficiency for which a deficiency determination is made is due to fraud
or an intent to evade the provisions of this chapter, a penalty of fifty percent (50%)
of the amount of the determination shall be added to it.
(3) Notice of determination. The tax administrator shall give to the distributor or other person against whom any
claim is asserted a written notice of the tax administrator's determination. Except
in the case of fraud, intent to evade the provisions of this article, failure to make
a return, or claim for additional amount pursuant to subsections (6) to (9) of this
section, every notice of a deficiency determination shall be mailed within three (3)
years after the twenty-fifth day of the calendar month following the month for which
the amount is proposed to be determined or within three (3) years after the return
is filed, whichever period expires later, unless a longer period is agreed upon by
the tax administrator and the taxpayer.
(4) Determination without report; interest and penalties. If any person fails to file a report, the tax administrator shall make an estimate
of the amount (number of gallons) of fuels purchased, sold or used which is subject
to tax. The estimate shall be made for the month or months in respect to which the
person failed to file a report and shall be based upon any information which is in
the tax administrator's possession or may come into the tax administrator's possession.
Upon the basis of this estimate, the tax administrator shall compute and determine
the amount required to be paid to the state, adding to the sum thus arrived at a penalty
equal to ten percent (10%) of it. One or more determinations may be made for one or
for more than one month. The amount of the determination, exclusive of penalties,
shall bear interest at the annual rate provided by § 44-1-7, as amended, from the twenty-fifth day after the close of the month for which the
amount or any portion of it should have been paid until the date of payment. If the
failure of any person to file a report is due to fraud or an intent to evade the provisions
of this chapter, a penalty of fifty percent (50%) of the amount required to be paid
by the person, exclusive of penalties, shall be added to it in addition to the ten
percent (10%) penalty provided in this section. After making his or her determination
the tax administrator shall mail a written notice of the estimate, determination,
and penalty.
(5) Jeopardy determinations. If the tax administrator believes that collection of any tax or any amount of tax
required to be collected and paid to the state or of any determination will be jeopardized
by delay, the tax administrator shall thereupon make a determination of the tax or
amount of tax required to be collected, including interest and penalties, if any,
noting that fact upon the determination. The amount so determined shall be due and
payable immediately upon the mailing by the tax administrator of the notice of that
determination.
(6) Finality of determination; time payment due. Unless a hearing shall have been requested as provided in subsection (7) of this section,
any determination made by the tax administrator under subsections (1) — (4) of this
section shall become final and shall be paid within ten (10) days after mailing by
the tax administrator of the notice of the determination. If the determination is
not so paid, a further penalty of ten percent (10%) of the amount of the determination,
exclusive of interest and other penalties, shall be added to it.
(7) Hearing by administrator on application. Any person aggrieved by any assessment, deficiency, or otherwise, shall notify the
tax administrator in writing within thirty (30) days from the date of mailing by the
tax administrator of the notice of the assessment and shall request a hearing relative
to it. The tax administrator shall, as soon as practicable, fix a time and place for
the hearing and shall, after the hearing, determine the correct amount of the tax,
interest, and penalties; provided, that when a jeopardy assessment or determination
shall be made the hearing shall not be had unless the jeopardy assessment with penalties
and interest shall have been paid. The tax administrator may decrease or increase
the amount of any determination.
(8) Petition for judicial review; citation and hearing. After a hearing, and provided all taxes, interest, and penalties as determined by
the tax administrator have been paid, any person aggrieved by the determination may,
within fifteen (15) days from the date of mailing by the tax administrator of the
determination, petition the sixth division of the district court, setting forth the
reasons why the assessment is alleged to be erroneous and praying relief from it.
The clerk of the court shall then issue a citation, substantially in the form provided
in § 44-5-26, to summon the tax administrator to answer the petition, and the court shall proceed
to hear the petition and to determine the correct amount of the tax, interest, and
penalties.
(9) Judgment on review. If, upon final determination of the petition, it shall appear that the tax administrator's
assessment was correct, the court shall confirm the assessment; or, if incorrect,
the court shall determine the proper amount of the tax, interest, and penalties, and
it shall appear that the petitioner, by reason of the payment of the tax, interest,
and penalties, is entitled to recover the payment or any part of it, the court may
order a refund with interest at the annual rate provided by § 44-1-7, as amended, or order a credit, as the circumstances may warrant. If a refund is
so ordered, it shall be paid by the general treasurer upon certification of the tax
administrator with the approval of the director of administration. If it shall appear
that the state is entitled to a greater amount of tax, interest, and penalties than
assessed or determined by the tax administrator and paid by the petitioner, the court
shall order the payment by the petitioner of any additional amount that the court
shall determine, and the petitioner shall immediately pay the amount to the tax administrator.
A party aggrieved by a final order of the court may seek review thereof in the supreme
court by writ of certiorari in accordance with the procedures contained in § 8-8-32.
(10) Interest and penalties on delinquent payments. Any person who fails to pay any tax to the state or any amount of tax required to
be collected and paid to the state, except amounts of determinations made by the tax
administrator under subsections (1) — (4) of this section within the time required,
shall pay a penalty of ten percent (10%) of the tax or amount of the tax, in addition
to the tax or amount of the tax, plus interest at the annual rate provided by § 44-1-7, as amended, from the date on which the tax or amount of the tax required to be collected
became due and payable to the state until date of payment.