Failure to file return; false or fraudulent return; mandamus; order to produce documents




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42110942-1109.  Failure to file return; false or fraudulent return; mandamus; order to produce documents

A.  If a person who is required to file a report or return fails to do so within fifteen days after written demand by the department, the department shall proceed to obtain facts and information on which to base the tax, and for such purpose the department or its agent may examine the books, records and papers of such person and may take evidence on oath of any person who it believes is in possession of facts or information pertinent to the inquiry.  The director or the director's agent may administer the oath.  As soon as the department procures such information it shall hold a hearing for the purpose of ascertaining the amount of tax payable by the person.  The department shall give at least ten days' notice in writing of the time and place of holding the hearing, which shall be mailed to the person's last known address or served personally.  The levy of the tax is final after the hearing as to any person who fails or refuses to file a return.

B.  If a taxpayer files a false or fraudulent return or fails or neglects to file a return within fifteen days after written demand by the department, the department, at any time, may require a return or a supplementary return or may make an estimate of the taxable income from any available information and may propose to assess the amount of tax, interest and penalties due.  All the provisions of this article relative to delinquent taxes apply to the tax, interest and penalties computed pursuant to this subsection.  A proceeding in court for the collection of the tax, interest and penalties provided for in this subsection may be begun without assessment at any time.  Notwithstanding section 42 1004, subsection C, the assessment of tax, interest or penalties under this subsection does not preclude subsequent deficiency assessments under section 42 1108.

C.  If an assessment is proposed under this section, the taxpayer has the right to protest the assessment, to have an oral hearing on the protest if requested and to appeal to the state board of tax appeals from the department's action on the protest.  The taxpayer shall proceed under this section in the manner and within the time prescribed by article 6 of this chapter.

D.  In addition to the remedies provided by subsection B of this section, if a taxpayer fails to file a return within sixty days of the time prescribed by this chapter, the department may petition the tax court to issue a writ of mandamus requiring the person to file a return.  The petition shall be returnable not later than ten days after filing the petition.  The petition shall be heard and determined on the return day or on such day thereafter as the court shall fix, having regard to the speediest possible determination of the case, consistent with the rights of the parties.  The court shall provide at least ten days' written notice of the hearing to the taxpayer which shall be mailed to the taxpayer's last known address or served on the taxpayer personally.  The judgment shall include costs in favor of the prevailing party.  Proceedings on such suits shall comply with the rules of procedure for special actions.

E.  If a person wilfully refuses to make available any books, papers or records for examination by the department, or wilfully refuses to attend and testify, in connection with any proceedings instituted under subsection A  of this section, the department may apply to the tax court for an order directing that person to produce the books, papers or records or to compel the person's attendance and testimony.  If the books, papers or records required by the department are in the custody of a corporation, the order of the court may be directed to any principal officer of the corporation or its registered statutory agent.  The failure to obey such an order of the court may be punished by the court as contempt. 421109





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