PART 19. ENERGY RESOURCES SURCHARGE LAW [40001. - 40216.]
Part 19 added by Stats. 1974, Ch. 991.
§§ 40001–40216 · 147 sections
CHAPTER 1. General Provisions and Definitions §§ 40001–40010 · 10 sections
- § 40001 This part is known and may be cited as the “Energy Resources Surcharge Law.”
- § 40002 Except where the context otherwise requires, the definitions given in this chapter govern the construction of this part.
- § 40003 “Surcharge” means a tax levied by this state.
- § 40004 “Person” includes any individual, firm, cooperative organization, fraternal organization, corporation, limited liability company, estate, trust, business…
- § 40005 “Board” or “department” means the California Department of Tax and Fee Administration.
- § 40006 “In this state” means within the exterior limits of the State of Caliornia and includes all territory within those limits owned by or ceded to the United…
- § 40007 “Sale” or “purchase” mean the furnishing or receiving of electrical energy for a consideration. “Sale” does not include the charging of batteries when the…
- § 40008 “Consumption” means the utilization or employment of electrical energy. The term does not include the receiving of electrical energy by an electric utility for…
- § 40009 “Consumer” means any person receiving for consumption electrical energy furnished by an electric utility and includes a person receiving electrical energy for…
- § 40010 “Electric utility” means any person engaged in producing, generating, transmitting, furnishing, distributing or delivering electrical energy for sale without…
CHAPTER 2. The Surcharge §§ 40016–40036 · 12 sections
ARTICLE 1. Imposition of Surcharge §§ 40016–40025 · 10 sections
- § 40016 (a) A surcharge is imposed on the consumption in this state of electrical energy purchased from an electric utility on and after January 1, 2003, at the rate…
- § 40018 Every person consuming electrical energy in this state purchased from an electric utility, or the United States or an agency thereof, is liable for the…
- § 40019 Every electric utility making sales of electrical energy to consumers in this state shall collect the surcharge from each consumer, other than a consumer that…
- § 40019.1 Notwithstanding the provisions of Section 40019, an electric utility may collect the surcharge from another electric utility under such terms and conditions as…
- § 40020 The surcharge required to be collected by the elecric utility from the consumer shall be added to the charges to the consumer for the electrical energy sold.…
- § 40021 The surcharge required to be collected by the electric utility, and any amount unreturned to the consumer which is not a surcharge but was collected from the…
- § 40022 Any amounts collected by an electric utility from a consumer on account of the purchase of electrical energy the consumption of which is subject to the…
- § 40023 An electric utility is relieved from liability to collect the surcharge insofar as the base upon which the surcharge is imposed is represented by accounts…
- § 40024 Notwithstanding any other provision of law to the contrary, persons subject to the jurisdiction of the Public Utilities Commission need not obtain any…
- § 40025 The rate fixed by the board pursuant to subdivision (b) of Section 40016 shall apply with respect to billing periods beginning on or after July 1, 1983.
ARTICLE 3. Registration §§ 40035–40036 · 2 sections
- § 40035 Every electric utility selling electrical energy for consumption in this state shall register with the board upon a form prescribed by the board and shall set…
- § 40036 (a) When necessary to ensure compliance with this part, the board may require any person subject to this part to place with it the security that the board…
CHAPTER 3. Special Provisions and Exemptions §§ 40041–40046 · 6 sections
- § 40041 The consumption of electrical energy which this state is prohibited from taxing under the Constitution of the United States or under the Constitution of this…
- § 40041.5 In any instances where an exemption is claimed by reason of the provisions of Section 40041, an electric utility or a consumer may request the board to issue a…
- § 40043 The consumption by an electric utility of purchased electrical energy that is used directly, lost by dissipation or unaccounted for in accordance with…
- § 40044 When an electric utility purchases electrical energy and pools in its system the energy with electrical energy generated by it, the consumption of electrical…
- § 40045 For the purpose of the proper administration of this part it shall be presumed that electrical energy sold by an electric utility in this state to other than…
- § 40046 The amount of kilowatt-hours of electrical energy determined by or stated on a billing of an electric utility in accordance with its business practices and…
CHAPTER 4. Determination of Surcharge §§ 40051–40105 · 41 sections
ARTICLE 1. Due and Payable Dates §§ 40051–40053 · 3 sections
- § 40051 The surcharges imposed by this part and the amounts thereof required to be collected by electric utilities are due quarterly on or before the last day of the…
- § 40052 Amounts due under Section 40051 for which a billing for the electrical energy is issued by an electric utility to the consumer prior to the close of a calendar…
- § 40053 Any amounts of the surcharge required to be paid or collected that are not billed in the ordinary course of the billings by an electric utility may be…
ARTICLE 2. Returns and Payments §§ 40061–40065.5 · 6 sections
- § 40061 On or before the last day of the month following each calendar quarter, a return for the preceding quarterly period shall be filed with the board in the form…
- § 40062 The return filed by an electric utility shall show the number of kilowatt-hours of electrical energy sold to consumers in this state for which billing was…
- § 40063 The board may prescribe the contents of returns of consumers subject to the surcharge. It may require the filing of returns by consumers in addition to those…
- § 40064 The person required to file the return shall deliver the return together with a remittance of the amount of the surcharge payable to the office of the board.
- § 40065 (a) Except as provided in subdivision (b), the board for good cause may extend not to exceed one month the time for making any return or paying any amount…
- § 40065.5 (a) Subject to subdivision (c), if the Governor issues a state of emergency proclamation, the department may extend the time, for a period not to exceed three…
ARTICLE 2.1. Payment by Electronic Funds Transfer §§ 40067–40069.5 · 4 sections
- § 40067 (a) Any person whose estimated surcharge liability under this part averages twenty thousand dollars ($20,000) or more per month, as determined by the board…
- § 40068 If the board finds that a person’s failure to make payment by an appropriate electronic funds transfer in accordance with board procedures is due to reasonable…
- § 40069 (a) “Electronic funds transfer” means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, that is…
- § 40069.5 (a) Any return, declaration, statement, or other document required to be made under this part that is filed using electronic media shall be filed and…
ARTICLE 3. Deficiency Determinations §§ 40071–40079 · 9 sections
- § 40071 If the board is not satisfied with return or returns of the surcharge or the amount of surcharge required to be paid to the state by any person, it may compute…
- § 40072 The amount of the determination, exclusive of penalties, shall bear interest at the modified adjusted rate per month, or fraction thereof, established pursuant…
- § 40073 In making a determination the board may offset overpayments for a period or periods, together with interest on the overpayments, against underpayments for…
- § 40074 If any part of the deficiency for which a deficiency determination is made is due to negligence or intentional disregard of this part or authorized rules and…
- § 40075 If any part of the deficiency for which a deficiency determination is made is due to fraud or an intent to evade this part or authorized rules and regulations,…
- § 40076 The department shall give to the electric utility or person consuming electrical energy written notice of its determination. The notice shall be served in one…
- § 40077 Except in the case of fraud, intent to evade this part or authorized rules and regulations, or failure to make a return every notice of a deficiency…
- § 40078 In the case of a deficiency arising under this part during the lifetime of a decedent, a notice of deficiency determination shall be served within four months…
- § 40079 If, before the expiration of the time prescribed in Section 40077 for serving a notice of deficiency determination, the taxpayer has consented in writing to…
ARTICLE 4. Determinations If No Return Made §§ 40081–40085 · 5 sections
- § 40081 If any person fails to make a return, the board shall make an estimate of the amount of kilowatt-hours sold for consumption by the person, or, as the case may…
- § 40082 In making a determination the board may offset overpayments for a period or periods, together with interest on the overpayments, against underpayments for…
- § 40083 The amount of the determination, exclusive of penalties, shall bear interest at the modified adjusted rate per month, or fraction thereof, established pursuant…
- § 40084 If the failure of any person to file a return is due to fraud or an intent to evade this part or rules and regulations, a penalty of 25 percent of the amount…
- § 40085 Promptly after making its determination the department shall give to the person written notice of the estimate, determination, and penalty, the notice to be…
ARTICLE 5. Redeterminations §§ 40091–40097 · 7 sections
- § 40091 Any person against whom a determination is made under Article 3 (commencing with Section 40071) or 4 (commencing with Section 40081) of this chapter may…
- § 40092 Every petition for redetermination shall be in writing and shall state the specific grounds upon which the petition is founded. The petition may be amended to…
- § 40093 If a petition for redetermination is filed within the 30-day period, the board shall reconsider the determination and, if the person has so requested in his…
- § 40094 The board may decrease or increase the amount of the determination before it becomes final, but the amount may be increased only if a claim for the increase is…
- § 40095 The order or decision of the board upon a petition for redetermination becomes final 30 days after service upon the petitioner of notice thereof.
- § 40096 All determinations made by the board under Article 3 (commencing with Section 40071) or Article 4 (commencing with Section 40081) are due and payable at the…
- § 40097 Any notice required by this article shall be served in the manner prescribed for service of notice of a deficiency determination.
ARTICLE 6. Interest and Penalties §§ 40101–40105 · 7 sections
- § 40101 (a) Any person who fails to pay any surcharge to the state or any amount of surcharge required to be collected and paid to the state, except amounts of…
- § 40101.5 (a) If the department finds, taking into account all facts and circumstances, that it is inequitable to compute interest at the modified adjusted rate per…
- § 40102 (a) If the department finds that a person’s failure to make a timely return or payment is due to reasonable cause and circumstances beyond the person’s…
- § 40103 (a) If the department finds that a person’s failure to make a timely report or payment was due to a disaster, and occurred notwithstanding the exercise of…
- § 40103.5 (a) The board, in its discretion, may relieve all or any part of the interest imposed on a person by this part where the failure to pay the surcharge is due in…
- § 40104 (a) If the board finds that a person’s failure to make a timely return or payment is due to the person’s reasonable reliance on written advice from the board,…
- § 40105 (a) Under regulations prescribed by the board, if: (1) A surcharge liability under this part was understated by a failure to file a return required to be filed…
CHAPTER 5. Overpayments and Refunds §§ 40111–40137 · 21 sections
ARTICLE 1. Claim for Refund §§ 40111–40117 · 10 sections
- § 40111 (a) If the department determines that any amount, penalty, or interest has been paid more than once or has been erroneously or illegally collected or computed,…
- § 40112 (a) Except as provided in subdivision (b), no refund shall be approved by the board after three years from the last day of the month following the close of the…
- § 40112.1 (a) The limitation period specified in Section 40112 shall be suspended during any period of a person’s life that the person is financially disabled. (b) (1)…
- § 40112.2 Notwithstanding Section 40112, a refund of an overpayment of any surcharge, penalty, or interest collected by the board by means of levy, through the use of…
- § 40112.3 (a) A claim for refund that is otherwise valid under Sections 40112 and 40113 that is made in the case in which the amount of surcharge determined has not been…
- § 40113 Every claim shall be in writing and shall state the specific grounds upon which the claim is founded.
- § 40114 Failure to file a claim within the time prescribed in this article constitutes a waiver of any demand against the state on account of overpayment.
- § 40115 Within 30 days after disallowing any claim in whole or in part the board shall give notice of its action to the claimant in the manner prescribed for service…
- § 40116 Interest at the modified adjusted rate per month established pursuant to Section 6591.5, shall be paid upon any overpayment of any amount of surcharge from the…
- § 40117 (a) If the board determines that any overpayment has been made intentionally or by reason of carelessness, it shall not allow any interest thereon. (b) If any…
ARTICLE 2. Cancellations § 40121 · 1 section
- § 40121 If any amount has been illegally determined either by the person filing the return or by the department, the department shall set forth that fact in its…
ARTICLE 3. Suit for Refund §§ 40125–40131 · 7 sections
- § 40125 No injunction, or writ of mandate, judgment of declaratory relief, or other legal or equitable process shall issue in any suit, action, or proceeding in any…
- § 40126 No suit or proceeding shall be maintained in any court for the recovery of any amount alleged to have been erroneously or illegally determined or collected…
- § 40127 Within 90 days after the mailing of the notice of the board’s action upon a claim filed pursuant to Article 1 (commencing with Section 40111) of this chapter,…
- § 40128 If the board fails to mail notice of action on a claim within six months after the claim is filed, the claimant may, prior to the mailing of notice by the…
- § 40129 If judgment is rendered for the plaintiff, the amount of the judgment shall first be credited on any surcharge due and payable from the plaintiff. The balance…
- § 40130 In any judgment, interest shall be allowed at the modified adjusted rate per annum established pursuant to Section 6591.5, upon the amount found to have been…
- § 40131 A judgment shall not be rendered in favor of the plaintiff in any action brought against the board to recover any amount paid when the action is brought by or…
ARTICLE 4. Recovery of Erroneous Refunds §§ 40135–40137 · 3 sections
- § 40135 (a) The board may recover any refund or part thereof that is erroneously made, and any credit or part thereof that is erroneously allowed, in an action brought…
- § 40136 In any action brought pursuant to subdivision (a) of Section 40135, the court may, with the consent of the Attorney General, order a change in the place of…
- § 40137 The Attorney General shall prosecute any action brought pursuant to subdivision (a) of Section 40135, and the provisions of the Code of Civil Procedure…
CHAPTER 6. Collection of Surcharge §§ 40141–40169 · 21 sections
ARTICLE 1. Suit for Surcharge §§ 40141–40145 · 5 sections
- § 40141 At any time within 10 years after any surcharge or any amount of surcharge required to be collected becomes due and payable, and at any time after any amount…
- § 40142 The Attorney General shall prosecute the action, and the provisions of the Code of Civil Procedure relating to service of summons, pleadings, proof, trials,…
- § 40143 In the action a writ of attachment may issue, and no bond or affidavit previous to the issuing of the attachment is required.
- § 40144 In the action a certificate by the board showing the delinquency shall be prima facie evidence of the determination of the surcharge or the amount of…
- § 40145 In any action brought under this part process may be served according to the Code of Civil Procedure and the Civil Code of this state.
ARTICLE 2. Notice to Withhold §§ 40151–40156 · 6 sections
- § 40151 If any person is delinquent in the payment of the amount required to be paid by him or in the event a determination has been made against him which remains…
- § 40152 After receiving the notice the person so notified shall neither transfer nor make any other disposition of the credits, other personal property, or debts in…
- § 40153 All persons so notified shall forthwith after receipt of the notice advise the board of all such credits, other personal property, or debts in their…
- § 40154 If, during the effective period of the notice to withhold, any person so notified makes any transfer or disposition of the property or debts required to be…
- § 40155 (a) The department may, by notice of levy, served personally, by first-class mail, or by electronic transmission or other electronic technology, require all…
- § 40156 (a) Notwithstanding Article 7 (commencing with Section 706.151) of Chapter 5 of Title 9 of Part 2 of the Code of Civil Procedure, if the board determines upon…
ARTICLE 2.5. Priority and Lien of Surcharge §§ 40157–40158 · 2 sections
- § 40157 The amounts required to be paid by any person under this part together with interest and penalties shall be satisfied first in any of the following cases: (a)…
- § 40158 (a) If any person fails to pay any amount imposed under this part at the time that it becomes due and payable, the amount thereof, including penalties and…
ARTICLE 3. Warrant for Collection §§ 40161–40163 · 3 sections
- § 40161 At any time within five years after any person is delinquent in the payment of any amount required to be paid under this part the board or its authorized…
- § 40162 The board shall pay the sheriff or marshal, upon the completion of his or her services pursuant to a warrant, the same fees, commissions, and expenses for his…
- § 40163 The fees, commissions, and expenses are the obligation of the person required to pay any amount under this part and may be collected from him by virtue of the…
ARTICLE 4. Miscellaneous §§ 40166–40169 · 5 sections
- § 40166 The board shall not be subject to subdivisions (c) and (d) of Section 16307 of the Corporations Code unless, at the time of application for or issuance of a…
- § 40167 (a) The board may, in its discretion, enter into a written installment payment agreement with a person for the payment of any surcharges due, together with…
- § 40167.5 The board shall, beginning no later than January 1, 2001, provide each taxpayer who has an installment payment agreement in effect under Section 40167 an…
- § 40168 (a) A collection cost recovery fee shall be imposed on any person that fails to pay an amount of surcharge, interest, penalty, or other amount due and payable…
- § 40169 (a) Notwithstanding Sections 706.071, 706.073, 706.080, 706.101, and 706.105 of the Code of Civil Procedure, the California Department of Tax and Fee…
CHAPTER 7. Administration §§ 40171–40216 · 36 sections
ARTICLE 1. Regulations, Records and Reports §§ 40171–40177.4 · 11 sections
- § 40171 The board shall enforce the provisions of this part and may prescribe, adopt, and enforce rules and regulations relating to the administration and enforcement…
- § 40172 Every electric utility engaged in generating, purchasing, transmitting, distributing, consuming or selling electrical energy in this state shall keep such…
- § 40173 Every electric utility shall keep and maintain such records of meter readings and other records as may be necessary for the accurate determination of the…
- § 40174 The board or its authorized representative may make such examination of the records, meters and equipment of any person generating, transmitting, distributing,…
- § 40175 In addition to any other reports or returns required under this part, the board may by rule or otherwise require additional, supplemental or other reports from…
- § 40176 (a) Except as otherwise provided by law, any person who is engaged in the business of preparing, or providing services in connection with the preparation of,…
- § 40177 (a) The board shall determine which electric utility’s accounts are eligible for the managed audit program in a manner that is consistent with the efficient…
- § 40177.1 An electric utility’s account is eligible for the managed audit program only if the electric utility meets all of the following criteria: (a) The electric…
- § 40177.2 (a) If the board selects an electric utility’s account for a managed audit, all of the following apply: (1) The board shall identify all of the following: (A)…
- § 40177.3 Nothing in the article limits the board’s authority to examine the records, meters, and equipment of an electric utility under Section 40174.
- § 40177.4 Upon completion of the managed audit and verification by the board, interest on any unpaid liability shall be computed at one-half the rate that would…
ARTICLE 2. Disposition of Proceeds §§ 40181–40182 · 2 sections
- § 40181 All amounts required to be paid to the state under this part shall be paid to the board in the form of remittances payable to State Board of Equalization of…
- § 40182 All money deposited in the Energy Resources Surcharge Fund under this part shall upon order of the Controller be drawn therefrom and transferred to pay the…
ARTICLE 3. Violations §§ 40186–40188 · 3 sections
- § 40186 Any person who fails or refuses to file a return or report required to be made or who fails or refuses to furnish a supplemental report or other data required…
- § 40187 Notwithstanding any other provision of this part, any person who violates this part with intent to defeat or evade the determination of an amount due required…
- § 40188 Any prosecution for violation of any of the penal provisions of this part shall be instituted within three years after commission of the offense or within two…
ARTICLE 4. Notices § 40191 · 1 section
- § 40191 A certificate by the board or an employee of the board stating that a notice required by this part was given by mailing or personal service shall be prima…
ARTICLE 5. The California Taxpayers’ Bill of Rights §§ 40200–40216 · 19 sections
- § 40200 The board shall administer this article. Unless the context indicates otherwise, the provisions of this article shall apply to this part.
- § 40201 (a) The board shall establish the position of the Taxpayers’ Rights Advocate. The advocate or his or her designee shall be responsible for facilitating…
- § 40202 (a) The board shall develop and implement an education and information program directed at, but not limited to, all of the following groups: (1) Taxpayers…
- § 40203 The board shall conduct an annual hearing before the full board where industry representatives and individual taxpayers are allowed to present their proposals…
- § 40204 The board shall prepare and publish brief but comprehensive statements in simple and nontechnical language that explain procedures, remedies, and the rights…
- § 40205 (a) The total amount of revenue collected or assessed pursuant to this part shall not be used for any of the following: (1) To evaluate individual officers or…
- § 40206 The board shall develop and implement a program that will evaluate an individual employee’s or officer’s performance with respect to his or her contact with…
- § 40207 The board shall, in cooperation with the Taxpayers’ Rights Advocate, and other interested taxpayer-oriented groups, develop a plan to reduce the time required…
- § 40208 Procedures of the board, relating to appeals staff review conferences before a staff attorney of supervising tax auditor independent of the assessing…
- § 40209 (a) Every taxpayer is entitled to be reimbursed for any reasonable fees and expenses related to a hearing before the board if all of the following conditions…
- § 40210 (a) An officer or employee of the board acting in connection with any law administered by the board shall not knowingly authorize, require, or conduct any…
- § 40211 (a) It is the intent of the Legislature that the department, its staff, and the Attorney General pursue settlements as authorized under this section with…
- § 40211.5 (a) (1) Beginning on January 1, 2007, the executive director and chief counsel of the board, or their delegates, may compromise any final surcharge liability…
- § 40212 (a) The California Department of Tax and Fee Administration shall release any levy or notice to withhold issued pursuant to this part on any property in the…
- § 40212.5 (a) Except in any case where the board finds collection of the tax to be in jeopardy, if any property has been levied upon, the property or the proceeds from…
- § 40213 Exemptions from levy under Chapter 4 (commencing with Section 703.010) of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure shall be adjusted for…
- § 40214 (a) A taxpayer may file a claim with the board for reimbursement of bank charges and any other reasonable third-party check charge fees incurred by the…
- § 40215 (a) At least 30 days prior to the filing or recording of liens under Chapter 14 (commencing with Section 7150) or Chapter 14.5 (commencing with Section 7220)…
- § 40216 (a) If any officer or employee of the board recklessly disregards board-published procedures, a taxpayer aggrieved by that action or omission may bring an…