(a) If an employing unit’s failure to make a timely return or payment is due to the person’s reasonable reliance on written advice from the department, the employing unit may be relieved of the taxes assessed, or any interest, additions to tax, or penalties added thereto, as follows:
(1) Taxes or any interest, additions to tax, or penalties added thereto, shall only be relieved if the employing unit’s failure to make a timely return or payment was due to the employing unit’s reasonable reliance on the written advice of a ruling by the director or his or her designee, and only if the department itself finds all the conditions described in subdivision (b) are satisfied.
(2) In the event that the employing unit relied on written advice of other than a ruling of the director or his or her designee, taxes shall not be relieved. Interest, additions to tax, or penalties may be waived if the department staff finds all the conditions described in subdivision (b) are satisfied.
(b) For purposes of subdivision (a), relief shall be granted if all of the following conditions are satisfied:
(1) The employing unit or the employing unit’s representative requested in writing that the department advise him or her whether a particular activity or transaction is subject to tax under the tax laws administered by the department, and the specific facts and circumstances of the employment relationship, activity, or transaction were fully described in the request.
(2) The department responded in writing to the person regarding the written request for advice, stating whether or not the described employment relationship, activity, or transaction is subject to tax, or stating the conditions under which the activity or transaction is subject to tax.
(3) In reasonable reliance on the department’s written advice, the person did not remit the tax due.
(4) The liability for taxes applied to a particular activity or transaction that occurred before the department rescinded or modified the advice so given, by sending written notice to the person of the rescinded or modified advice.
(5) The tax consequences expressed in the department’s written advice were not subsequently changed by any of the following:
(A) A change in state or federal statutory law or case law.
(B) A change in a federal administrative ruling or regulation where the department’s written advice was based on that federal administrative ruling or regulation.
(C) A change in material facts or circumstances relating to the taxpayer.
(c) Any person seeking relief under this section shall file with the department all of the following:
(1) A copy of the person’s written request to the department and a copy of the department’s written advice.
(2) A statement signed under penalty of perjury, setting forth the facts on which the claim is based.
(3) Any other information which the department may require.
(d) Only the person making the written request shall be entitled to rely on the department’s written advice to that person.
(e) If written advice is issued pursuant to this section, it shall include a declaration that the tax consequences expressed in the advice may be subject to change for any of the reasons specified in paragraph (5) of subdivision (b) and that it is the duty of the requester to be aware of any of these possible changes.
(f) This section shall not apply if the requester’s request for written advice pursuant to paragraph (1) of subdivision (b) contained a misrepresentation or omission of one or more material facts.
(g) For purposes of subdivision (a), the department shall waive only that portion of tax, penalties, interest, or additions to tax attributable to the actions taken by the employing unit after receipt of the written advice of the department which were in reasonable reliance on the written advice.
(h) When a request is made for a legal ruling, the request shall specifically so state. Director rulings shall be issued as provided in published guidelines. When a director ruling is issued, the ruling shall be signed by the director or his or her designee.
(i) This section shall not apply to an employing unit that is a nonprofit organization or a governmental agency.
(j) Notwithstanding any other provision of this section, no relief from unemployment insurance taxes imposed pursuant to Article 3 (commencing with Section 976) of Chapter 4 of Part 1, other than relief from interest and penalties, shall be granted pursuant to this section unless Section 1234, as enacted by the act enacting this section, becomes operative.
(Added by Stats. 1995, Ch. 541, Sec. 6. Effective January 1, 1996.)