§ 67-1-1808 — Offset of the taxpayer's refund of taxes by the amount of debt owed to a claimant

(a) As used in this section, unless the context otherwise requires: (1) "Claimant" means any state agency, department, board, bureau, commission, or authority to which a taxpayer owes any debt listed in subsection (d) or that acts on behalf of a person to collect such debt. Such term may also include a clerk who serves a court of criminal jurisdiction, if the clerk has determined to participate in the offset provisions of this section; (2) "Debt" means any money, unpaid account, or sum due and owing any claimant by a taxpayer, or any money, unpaid account, or sum that is due and owing any person and is legally enforceable by the claimant; (3) "Debtor" means a person owing a debt to a claimant and who files a claim for a tax refund, subject to the further requirements of this section; (4) "Offset" or "set off" means the application of all or part of a taxpayer's refund of taxes to pay a taxpayer's debt owed to a claimant; and (5) "Person" or "taxpayer" means every individual, firm, partnership, joint venture, association, corporation, limited liability company, cooperative, trust, regulated investment company, receiver, and syndicate. (b) Whenever a taxpayer has, on the date of payment, paid taxes in error or paid taxes against any statute, rule, regulation or clause of the constitution of the state or of the United States, and is due a refund pursuant to this part, and the taxpayer reports to be a debtor in the manner provided by § 67-1-1802(a)(1)(B)(ii) , the commissioner shall offset the taxpayer's refund of taxes by the amount of the debt as provided in this section. (c) This section shall apply to any claim for refund of state taxes filed by any taxpayer in the amount of two hundred dollars ($200) or more that is not eligible for automatic credit or refund pursuant to § 67-1-1802(a)(1)(A) . A tax refund shall not be offset to pay the debt of any person who is not the taxpayer due the refund. Whenever a claim for refund is filed by two (2) or more persons, who were jointly and severally liable for the taxes paid, the entire refund amount shall be subject to offset to pay the debt or debts of one (1) or more of the taxpayers. (d) The following debts shall be used to offset a refund of taxes: (1) State tax liabilities due pursuant to this title; (2) Child support due pursuant to title 36, chapters 2, 5, or 6, or pursuant to title 37, chapter 1; (3) Amounts owed to the unemployment compensation fund pursuant to title 50, chapter 7; (4) Obligations owing to the bureau of TennCare for overpayment of medical assistance benefits pursuant to title 71, chapter 5; (5) Student loan or other obligation due to the Tennessee student assistance corporation pursuant to title 49, chapter 4; (6) Fees, costs or restitution collected by a clerk who serves a court of criminal jurisdiction, if reported pursuant to subsection (f); (7) Costs of incarceration due pursuant to title 41, chapter 21, part 9; (8) Judgments and liens in favor of a claimant; and (9) All other debts owed to any other claimant. (e) In the event that a taxpayer owes debts to several claimants, priority of set off against any refund shall be as follows: (1) State tax liabilities; (2) Child support; (3) Judgments and liens in favor of a claimant in order of the date entered or perfected; and (4) All other debts owed to any other claimant in the order in which the debt was incurred. (f) (1) When a taxpayer reports that any debt is owed to a claimant in the manner provided by § 67-1-1802(a)(1)(B)(ii) , and if the commissioner determines such taxpayer is entitled to a refund, then the commissioner shall notify the treasurer and each claimant identified in the documentation accompanying the claim for refund of the department's intent to issue a refund. Such notification shall also include: (A) The name and address of the taxpayer; (B) The original tax refund amount; (C) The proposed offset amount; and (D) The proposed net tax refund amount. (2) The notification to the treasurer may include any other information that would assist the treasurer in determining whether the taxpayer may be the owner of unclaimed property held in trust on the owner's behalf. Following receipt of the notification, the treasurer shall verify to the department whether or not the taxpayer is the owner of unclaimed property. The amount of the debt owing to a claimant shall be set off against the amount of the unclaimed property otherwise due the taxpayer. (3) Following receipt of the notification provided in subdivision (f)(1) and prior to an offset of a tax refund, a claimant shall provide written notice to the debtor, and to the commissioner of revenue, of the claimant's intent to set off all or part of the tax refund to pay the debt. Such notice shall set forth the: (A) Original tax refund amount; (B) Proposed offset amount; (C) Proposed net tax refund amount; (D) Basis for a claim to the debt and set off; (E) Taxpayer's right to appeal the proposed offset as provided in subsection (g); and (F) A toll-free telephone number or other contact information which the debtor may use in obtaining information from the claimant concerning the debt and the proposed offset action. (g) (1) (A) If any debt has been previously determined to exist and to be due and owing as a result of a final order issued pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, or a judgment entered by any court of record, then a debtor shall be afforded an opportunity for a hearing to determine the continued existence of the debt and whether it remains outstanding. No hearing shall be conducted as provided in this subdivision (g)(1)(A) unless the time limits for appealing any prior final order or judgment have expired as provided by law. (B) Any debtor who desires a hearing shall submit to the department of revenue a written request for a hearing within twenty (20) days of receipt of the notice provided in subdivision (f)(3). If a hearing is requested, then it shall be held by the commissioner of revenue or the commissioner's designee as provided in the Uniform Administrative Procedures Act. The commissioner may request that an administrative judge or hearing officer employed in the office of the secretary of state conduct the hearing as provided in the Uniform Administrative Procedures Act. (2) (A) If any debt has not been determined to exist, or to be due and owing as a result of a prior final order or judgment, as provided in subdivision (g)(1)(A), then a debtor shall be afforded an opportunity for a hearing, in accordance with subdivision (g)(2)(B), to determine the existence of the debt, and if so, whether the claimed debt asserted as due and owing is correct. (B) Any debtor who desires a hearing shall submit to the claimant a written request for a hearing within twenty (20) days of receipt of the notice provided in subdivision (f)(3). The claimant shall notify the department of revenue as to whether the taxpayer filed a timely request for hearing upon the expiration of the twenty-day period for filing such request or receipt of a request for a hearing. If a hearing is requested, then it shall be held by the claimant or the claimant's designee as provided in the Uniform Administrative Procedures Act. If the amount due is incorrect, a proper adjustment shall be made. After entry of a final order following any hearing, the claimant shall send a copy of the final order to the commissioner of revenue. (3) All final orders issued pursuant to the Uniform Administrative Procedures Act, as provided in subdivision (g)(1) or (g)(2), shall set forth the amount owed by the taxpayer to the claimant that is subject to set off. (h) (1) The commissioner of revenue shall set off the appropriate amount of a debt against the tax refund if a taxpayer fails to file a timely request for a hearing, or upon receipt of a final order, or as soon thereafter as practicable. Any portion of a tax refund remaining after the offset shall be refunded or credited to a taxpayer, as requested in the claim for refund. The commissioner shall ensure that the appropriate amount of the refund subject to set off is used to satisfy any debts owed by the taxpayer. (2) The commissioner of revenue shall notify the taxpayer in writing and provide an accounting of the action taken on any refund whenever the commissioner sets off a taxpayer's refund pursuant to this section. (3) The commissioner of revenue may require a claimant to pay a fee to reimburse the department of revenue's costs of collecting the debt on behalf of a claimant; provided, that the fee shall not exceed five dollars ($5.00) per offset action. (i) (1) On an annual basis, the department of revenue shall submit to the following claimants a list of taxpayers for the previous year who filed claims for refunds and received such refunds in the amount of two hundred dollars ($200) or more and for which no debts were reported in accordance with § 67-1-1802(a)(1)(B)(i) : (A) Department of human services; (B) Department of labor and workforce development; (C) Bureau of TennCare; (D) Tennessee student assistance corporation; (E) Administrative office of the courts; and (F) Attorney general and reporter. (2) If any such claimant receiving such list has information in its records verifying that a named taxpayer owed a debt as of the date of the claim for refund, such claimant shall notify the department of revenue of the name of the debtor, the amount of the debt, and the date on which the debt was incurred. The clerk who serves a court of criminal jurisdiction shall notify the department if the clerk has determined to participate in the offset provisions of this section. Notwithstanding any other law to the contrary, the department of revenue shall make an assessment against the taxpayer to recover the amount of the debt that would have otherwise been offset against the refund payment. The procedures established in subsection (g) to challenge a proposed offset shall be the sole and exclusive remedies for challenging an assessment made pursuant to this subsection (i); provided, that the debtor is provided information in the notice of assessment about the procedures for challenging such assessment and the twenty-day period for requesting a hearing shall begin from the date of the notice of assessment. Nothing in this section shall require any state agency or its employees or officers to violate strict standards of confidentiality set forth in applicable federal or state law or regulations. (j) Notwithstanding part 17 of this chapter, or any other law prohibiting disclosure of a taxpayer's identity or tax information, all information exchanged among the department of revenue, the department of treasury, and any claimant necessary to accomplish the purpose of this section is lawful.

Legislative History

Acts 2010, ch. 1113, § 7.