Goto previous pageGoto next page
pg. 1108

California Laws | Revenue and Taxation Code
DIVISION 2. OTHER TAXES
PART 19. ENERGY RESOURCES SURCHARGE LAW

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 unless a claim for refund or credit has been duly filed pursuant to Article 1 of this chapter. (25443)

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, the claimant may bring an action against the board on the grounds set forth in the claim in a court of competent jurisdiction in any city or city and county of this state in which the Attorney General has an office for the recovery of the whole or any part of the amount with respect to which the claim has been disallowed. (25444)

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 board of its action on the claim, consider the claim disallowed and bring an action against the board on the grounds set forth in the claim for the recovery of the whole or any part of the amount claimed as an overpayment. (25445)

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 of the judgment shall be refunded to the plaintiff. (25446)

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 illegally collected from the date of payment of the amount to the date of allowance of credit on account of the judgment or to a date preceding the date of the refund warrant by not more than 30 days, the date to be determined by the board. (25447)

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 in the name of an assignee of the person paying the amount or by any person other than the person who paid the amount. (25448)

Article 4. Recovery of Erroneous Refunds (40135-40137) (25449)(Text)

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 in a court of competent jurisdiction in the County of Sacramento in the name of the people of the State of California. (25450)

(b) As an alternative to subdivision (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 recovering any erroneous refund or credit, the board may, in its discretion, issue a deficiency determination in accordance with Article 3 (commencing with Section 40071) of Chapter 4. Except in the case of fraud, the deficiency determination shall be made by the board within three years from the date of the Controller's warrant or date of credit. (25451)

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 trial. (25452)

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 relating to service of summons, pleadings, proof, trials, and appeals shall apply to the proceedings. (25453)

CHAPTER 6. COLLECTION OF SURCHARGE (25454)(Text)

Article 1. Suit for Surcharge (40141-40145) (25455)(Text)

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 determined under Articles 3 (commencing with Section 40071), 4 (commencing with Section 40081), and 5 (commencing with Section 40091) of Chapter 4 of this part becomes due and payable, the board may bring an action in the courts of this state, of any other state, or of the United States in the name of the people of California to collect the amount delinquent together with penalties. (25456)

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, and appeals are applicable to the proceedings. (25457)

40143. In the action a writ of attachment may issue, and no bond or affidavit previous to the issuing of the attachment is required. (25458)

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 surcharge, of the delinquency of the amounts set forth, and of the compliance by the board with all the provisions of this part in relation to the computation and determination of the amounts. (25459)

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. (25460)

Article 2. Notice to Withhold (40151-40156) (25461)(Text)

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 unpaid, the board may, not later than five years after the payment became delinquent, give notice thereof personally or by first-class mail to all persons, including any officer or department of the state or any political subdivision or agency of the state, having in their possession or under their control any credits or other personal property belonging to the delinquent, or person against whom a determination has been made which remains unpaid, or owing any debts to the delinquent or such person. In the case of any state officer, department or agency, the notice shall be given to such officer, department or agency prior to the time it presents the claim of the delinquent to the State Controller. (25462)

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 their possession or under their control at the time they receive the notice until the board consents to a transfer or disposition or until 60 days elapse after the receipt of the notice, whichever period expires the earlier. (25463)

Goto previous page1108Goto next page

  

Our Mission
Objective

Our mission is to provide citizens free access to the laws and codes of their state utilizing a unique search engine that matches clients with qualified legal professionals who can help with specific issues.

Our goal is to do this in a manner that promotes open government and freedom of information, while providing attorneys with valuable tools to connect with qualified prospects in need of professional services.

Ignorance Is No Excuse
Your Right To Know The Law

All citizens have a right to have access to the laws that govern them. Citizen awareness and participation in government is fundamental to ensuring a sound democracy.

Although unfettered access to the law is a fundamental right to all citizens, there is no substitute for experienced legal counsel.

We do not recommend self-representation. We do, however, recognize that in an age where people routinely research legal matters online using everything from a smartphone to their xbox, both attorneys and clients alike can benefit from this resource.