§ 23-8.3. Judicial review of determination of tax commissioner.

(a)

Judicial review. Following the issuance of a final determination of the tax commissioner pursuant to section 23-8.2, the taxpayer or commissioner of the revenue may apply to the circuit court for judicial review of the determination, or any part thereof, pursuant to section 40-227. In any such proceeding for judicial review of a determination of the tax commissioner, the burden shall be on the party challenging the determination of the tax commissioner, or any part thereof, to show that the ruling of the tax commissioner is erroneous with respect to the part challenged. Neither the tax commissioner nor the Virginia Department of Taxation shall be made a party to an application to correct an assessment merely because the tax commissioner has ruled on it.

(b)

Suspension of payment of disputed amount of tax due upon taxpayer's notice of intent to initiate judicial review.

(1)

On receipt of a notice of intent to file an application for judicial review, pursuant to section 40-227, of a determination of the tax commissioner pursuant to section 23-8.2, and upon payment of the amount of the tax that is not in dispute together with any penalty and interest then due with respect to such undisputed portion of the tax, the treasurer or other collection official shall further suspend collection activity while the court retains jurisdiction unless the court, upon appropriate motion after notice and an opportunity to be heard, determines that (i) the taxpayer's application for judicial review is frivolous, as defined in this section; (ii) collection would be jeopardized by delay, as defined in this section; or (iii) suspension of collection would cause substantial economic hardship to the city. For purposes of determining whether substantial economic hardship to the city would arise from a suspension of collection activity, the court shall consider the cumulative effect of then-pending appeals filed within the locality by different taxpayers that allege common claims or theories of relief.

(2)

Upon a determination that the appeal is frivolous, that collection may be jeopardized by delay, or that suspension of collection would result in substantial economic hardship to the locality, the court may require the taxpayer to pay the amount in dispute or a portion thereof, or to provide surety for payment of the amount in dispute in a form acceptable to the court.

(3)

No suspension of collection activity shall be required if the application for judicial review fails to identify with particularity the amount in dispute.

(4)

The requirement that collection activity be suspended shall cease unless an application for judicial review pursuant to section 40-227 is filed and served on the necessary parties within thirty (30) days of the service of the notice of intent to file such application.

(5)

The suspension of collection activity authorized by this subdivision shall not be applicable to any appeal of a license tax under the chapter that is initiated by the direct filing of an action pursuant to section 40-227, without prior exhaustion of the appeals provided by sections 23-8.1 and 23-8.2.

(c)

Suspension of payment of disputed amount of refund due upon city's notice of intent to initiate judicial review.

(1)

Payment of any refund determined to be due pursuant to the determination of the tax commissioner of an appeal pursuant to section 23-8.2 shall be suspended if the locality assessing the tax serves upon the taxpayer, within sixty (60) days of the date of the determination of the tax commissioner, a notice of intent to file an application for judicial review of the tax commissioner's determination pursuant to section 40-227 and pays the amount of the refund not in dispute, including tax and accrued interest. Payment of such refund shall remain suspended while the court retains jurisdiction unless the court, upon appropriate motion after notice and an opportunity to be heard, determines that the locality's application for judicial review is frivolous, as defined in this chapter.

(2)

No suspension of refund activity shall be permitted if the locality's application for judicial review fails to identify with particularity the amount in dispute.

(3)

The suspension of the obligation to make a refund shall cease unless an application for judicial review pursuant to section 40-227 is filed and served on the necessary parties within thirty (30) days of the service of the notice of intent to file such application.

(d)

Accrual of interest on unpaid amount of tax. Interest shall accrue in accordance with the provisions of section 23-5(h) of this chapter, but no further penalty shall be imposed while collection action is suspended.

(Ord. No. 6253-06, § 1)

(Ord. No. 6253-06, § 1)