Could a taxpayer file a second refund claim for the same tax on a different ground after 90 days passed from denial of the first claim without a lawsuit?

Plain-English summary

The Board could not consider a second refund claim for the same tax on a different ground after it had denied the first claim and 90 days passed without a refund lawsuit.

The general three-year period for filing refund claims had not yet expired, but the letter treated the first denial as conclusive once the 90-day court-action period ran. It relied on an informal Attorney General opinion stating that the first Board action was res judicata as to the claimant and that section 6933 independently precluded the second claim.

The Board's counsel had previously acknowledged the second claim as within jurisdiction but withdrew that position after finding the older opinion. The letter said the taxpayer could attempt a superior-court action after six months from filing the second claim, while anticipating that the Attorney General would challenge the Board's jurisdiction and ask the court to decide the issue.

Common questions

Did using a different legal ground save the second claim?

No.

Did the unexpired three-year claim period preserve Board jurisdiction?

No, according to the letter.

Was the taxpayer promised success in court on the second claim?

No. The letter expected a jurisdictional challenge.

Citations and references

• California Revenue and Taxation Code section 6933 — 90-day refund-suit period and second-claim jurisdiction issue
• Informal California Attorney General opinion (June 1955) — quoted as concluding that the first denial became res judicata and barred a second claim for the same tax on a separate ground

Source

• Annotated Legal Opinions collection: https://cdtfa.ca.gov/taxes-and-fees/annotations-menu.htm
• Annotation page: https://cdtfa.ca.gov/lawguides/vol2/suta/465-0000-all.html
• Original supporting opinion: https://cdtfa.ca.gov/lawguides/annotations/465-0120.pdf

Original ruling text

465.0120

STATE OF CALIFORNIA

STATE BOARD OF EQUALIZATION

March 13, 1968
Dear Mr. ---:
Kindly refer to our letter of February 6, 1968 in which we acknowledge receipt of your client’s second claim for refund as being one which the Board has jurisdiction to act upon. When I wrote that letter, I recognized the fact that there was a question of whether or not the Board has jurisdiction to act upon the second claim for refund. This question arose from the fact that the Board had previously denied you client’s first claim for refund although it was based on different grounds than the present claim. In reviewing our files, I was unable to find any letter ruling passing upon the exact question. Believing this was a matter of first impression, I resolved it in your client’s favor. It has now, however, been brought to my attention that in June of 1955 this exact question was presented to the Attorney General who issued an informal opinion on the subject. The substance of this opinion follows: Once the Board has denied a claim for refund and 90 days has elapsed from the mailing of the notice of denial without the filing of a court action to recover the tax, the Board is without jurisdiction to entertain a second claim for the same tax upon a separate ground even though the three-year limitation period for filing claims has not yet run. The reasons given for this conclusion are that the action of the Board is res judicata as to the claimant and the second paragraph of Section 6933 of the Sales and Use Tax Law in itself precludes consideration of the second claim. It appears, accordingly, that the Board is without authority to give consideration to the claim in question. After the elapse of six months from the date of filing the second claim, you client could bring an action in the superior court upon that claim which would be referred to the Attorney General for defense. Presumably, he would raise, by demurrer, the question of the Board jurisdiction to act upon the claim which would then be ruled on by the court. Very truly yours,

Glenn L. Rigby
Tax Counsel
GLK:kc

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