ORDERS:
CONSENT ORDER OF REMAND
The
parties, by and through their undersigned counsel, have agreed to a remand of
this matter to the South Carolina Department of Revenue (Department or
Respondent) pursuant to S.C. Code Ann. § 12-60-510(A)(2) (Supp. 2008). Specifically,
the Department issued a Proposed Assessment to Verde Bio Fuels, Inc. (Verde or
Petitioner) on December 23, 2008. The Proposed Assessment stated that if
Verde disagreed with the Proposed Assessment, a protest must be filed with the
Department within 90 days of the date of the Proposed Assessment. See S.C.
Code Ann. § 12-60-450(A) (Supp. 2008). The Petitioner failed to timely protest
the proposed assessment for the reasons stated in its request for contested
case hearing.
Section 12-60-510(A)(2) provides the following:
(A) Before a
taxpayer may seek a contested case hearing before the Administrative Law Court,
he shall exhaust the prehearing remedy.
*
* *
(2) If a taxpayer
fails to file a protest with the department within ninety days of the date of
the proposed assessment, the taxpayer is in default, and the department must
issue an assessment for the taxes. The assessment may be removed by the
Administrative Law Court for good cause shown, and the matter may be remanded
to the department.
Although
“good cause” is not defined in Chapter 60 of Title 12 of the South Carolina
Code, Black’s Law Dictionary has defined it in part as “a legally
sufficient reason.” Black’s Law Dictionary, 213 (7th ed.
1990). In addition, the courts in South Carolina have considered the
promptness with which the party sought relief, the existence of a meritorious
defense, and possible prejudice to other parties as factors to consider in
weighing “good cause” in the context of a motion for relief from an entry of
default under Rule 55(c), SCRCP. See, e.g. New Hampshire Ins. Co. v. The
Bey Corp., 312 S.C. 47, 435 S.E.2d 377 (Ct. App. 1993).
The
Petitioner has asserted, among other reasons, that the controlling shareholder,
and only corporate officer authorized to sign for Verde, was out of the country
on an extended business trip on March 23, 2009, and, thus, unable to timely
protest the Proposed Assessment. The Petitioner purports that the
controlling shareholder remained out of the country on the date of filing and
his absence has delayed the execution of a Power of Attorney. Therefore,
in order to protect his client’s interest, Petitioner’s Counsel filed a request
for contested case hearing on March 27, 2008, some four days after the protest
deadline, requesting that the matter be remanded to the Department pursuant to §
12-60-510(A)(2). Further, the Petitioner alleges that it can assert a
meritorious defense and that the Department will not be prejudiced upon remand.
The
Department recognizes that the facts, as set forth in the Petitioner’s request
for a contested case hearing, may establish sufficient cause to remand this
matter for good cause shown. Thus, in the interest of judicial economy and
based on the foregoing, the parties agree that the matter should be remanded to
the Department for further consideration.
IT
IS HEREBY ORDERED that this case is Remanded to the Department to complete
exhaustion of the Petitioner’s prehearing remedies.
AND IT IS SO
ORDERED.
Ralph
King Anderson, III
Administrative
Law Judge
April 21, 2009
Columbia, SC
WE CONSENT:
__________________________ __________________________
William M. Hogan Amelia
Furr Ruple
Attorney for Verde Bio Fuels, Inc. Attorney
for South Carolina
Department
of Revenue
April _________, 2009 April
________, 2009
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