North Dakota Administrative Code
Title 81 - Tax Commissioner
Article 81-01.1 - Practice and Procedure
Chapter 81-01.1-01 - General Provisions
Section 81-01.1-01-11 - Opinion of the tax commissioner

Universal Citation: ND Admin Code ยง 81-01.1-01-11

Current through Supplement No. 394, October, 2024

1. An "opinion of the tax commissioner" means an opinion issued under this section with respect to prospective tax liability. It does not include ordinary correspondence of the commissioner or a final determination of the commissioner arising from a request for administrative review of an assessment or a claim for refund.

2. If a taxpayer requests in writing an opinion from the tax commissioner as to whether or how certain property, income, source of income, or a certain activity or transaction will be taxed, the commissioner's written response is an "opinion of the tax commissioner" and binds the commissioner, in accordance with subsections 3, 7, and 8, provided all of the following conditions are satisfied:

a. The taxpayer's request fully discloses the specific facts or circumstances relevant to a determination of the taxability of the property, income, source of income, activity, or transaction, and if an activity or transaction, all parties involved in the activity or transaction are clearly identified by name, location, or other pertinent facts.

b. The commissioner's response is signed by the commissioner and designated as an "opinion of the tax commissioner".

3. An opinion of the tax commissioner remains in effect and protects the taxpayer for whom the opinion was prepared and who reasonably relies on it from liability for any taxes, penalty, or interest for any tax year that may be specified in the opinion or until the earliest of the following dates:

a. The effective date of a written revocation by the commissioner sent to the taxpayer by certified mail, return receipt requested. The effective date of the revocation is the taxpayer's date of receipt.

b. The effective date of any legislative amendment or enactment that is inconsistent with the opinion.

c. The date on which a court issues an opinion which establishes or changes relevant case law that is inconsistent with the opinion.

d. If the opinion of the commissioner was based on the interpretation of federal law, the effective date of any change in the relevant federal statutes or regulations, or the date on which a court issues an opinion establishing or changing relevant case law with respect to federal statutes or regulations inconsistent with the opinion.

e. The effective date of any change in the taxpayer's material facts or circumstances.

f. The effective date of the expiration of the opinion, if specified, in the opinion.

4. A taxpayer is not relieved of liability for any activity or transaction related to a request for an opinion that contained any misrepresentation or omission of one or more material facts.

5. If the commissioner provides written advice under this section, the opinion must include a statement that:

a. The tax consequences stated in the opinion may be subject to change for any of the reasons stated in subsection 3.

b. It is the duty of the taxpayer to be aware of such changes.

6. The commissioner may refuse to offer an opinion on any request received under this section.

7. This section binds the commissioner only with respect to opinions of the commissioner issued on or after January 1, 1991.

8. An opinion of the commissioner binds the commissioner only with respect to the taxpayer for whom the opinion was prepared.

9. If a commissioner rescinds a written opinion of a previous commissioner, the commissioner shall, by certified mail, notify the taxpayer of the intent to rescind the opinion at least thirty days before the effective date of the rescission. The rescission is effective prospectively only.

10. The commissioner shall make available the text of all opinions issued under this section, except those opinions prepared for a taxpayer who has requested that the text of the opinion remain confidential. In no event may the text of an opinion be made available until the commissioner has removed all information that identifies the taxpayer and any other parties involved in the activity or transaction.

11. An opinion of the commissioner issued under this section is not a final determination of the commissioner and may not be appealed to the North Dakota district court.

General Authority: NDCC 28-32-02

Law Implemented: NDCC 57-01-02

Disclaimer: These regulations may not be the most recent version. North Dakota may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.