Mississippi Administrative Code › Title 35 - Department of Revenue › Part 1 - Administrative › Chapter 01 - Administrative Practices and Procedures for the Department of Revenue › Section 35-1-01-108 - Requests for Guidance › Section 35-1-01-108.03 - Declaratory Opinions

Current through June 25, 2024
1. Scope of the
				  rules
These sections set forth the Agency's rules governing the
					 form and content of requests for declaratory opinions, and the Agency's
					 procedures regarding the requests, under Mississippi Code Ann. Section
					 25-43-2.103.
2. Persons who may request declaratory
				  opinions
Any person with a substantial interest in the subject
					 matter on which he is requesting information may submit a written request to
					 the Agency for a declaratory opinion by following the procedures specified
					 below. Substantial interest in the subject matter means that the interest must
					 be direct, immediate, not remote in consequence, and must surpass the common
					 interest of all citizens.
3.
				  Subjects that may be addressed in declaratory opinions
The Agency will issue declaratory opinions regarding
					 subject matters that are within the primary administrative responsibilities of
					 the Agency. Subject matters within the oversight of the Agency include the
					 applicability of specified facts to a statute administered or enforced by the
					 Agency, or a rule promulgated by the Commissioner. The Agency will not issue a
					 declaratory opinion regarding a statute or rule beyond the administrative
					 responsibility of the Agency.
4. Circumstances in which declaratory
				  opinions will not be issued
The Agency may, for good cause, refuse to issue a
					 declaratory opinion. Without limiting the generality of the foregoing sentence,
					 the circumstances in which declaratory opinions will not be issued include, but
					 are not necessarily limited to:
a. The
				  matter is outside the primary jurisdiction of the Agency.
b. The question presented lacks clarity, the
				  facts provided are insufficient to provide a conclusive determination, or the
				  information is too vague or too broad to provide an answer.
c. A pending or active audit, criminal tax
				  investigation, anticipated litigation, administrative action, or other
				  determination before the Agency, Board of Tax Appeals or a court of law, which
				  may either answer the question presented or otherwise make an answer
				  unnecessary.
d. The statute, rule
				  or order on which a declaratory opinion is sought is clear and does not require
				  interpretation in order to answer the question presented.
e. The confidentiality waiver on the
				  Declaratory Opinion Transmittal Form is not signed and provided to the Agency
				  with the request for a declaratory opinion.
f. The request fails to contain the
				  information required by these rules, or the requestor failed to follow the
				  procedure set forth in these rules.
g. The request seeks to resolve issues that
				  have become moot, are abstract or involve multiple hypotheticals such that the
				  requestor is not substantially affected by the rule or statute on which a
				  declaratory opinion is sought.
h.
				  The request pertains to a hypothetical situation, the underlying facts of which
				  do not, and are not anticipated to, affect or pertain to the requesting
				  party.
i. The question presented
				  concerns the legal validity of a statute or rule.
j. The requesting party is not directly
				  affected by the application of the statute, rule or regulation.
k. No clear answer is determinable.
l. The question presented involves the
				  application of a criminal statute or facts that may constitute a
				  crime.
m. The answer to the
				  question presented would require the disclosure of information that is
				  privileged or otherwise protected by law from disclosure.
n. The request involves an issue that may
				  adversely affect the interests of the State, the Agency or any of the Agency's
				  officers or employees in any litigation that is pending or may reasonably be
				  expected to arise.