Tax Boards and Written Decisions

California’s tax departments, when issuing written formal opinions, must comply with Revenue and Taxation Code Section 40. Section 40 applies to the California Department of Tax and Fee Administration, Office of Tax Appeals, and State Board of Equalization.

Section 40 requires CDTFA, OTA, and SBE to publish on their Internet Websites a written formal opinion, a written memorandum opinion, or a written summary decision for each decision of the CDTFA, OTA, and SBE in which the amount in controversy is $500,000 or more, within 120 days of the date upon which the entity rendered its decision.

Section 40 does not apply to decisions that are consent calendar actions. Each formal opinion, memorandum opinion, and summary decision is required to include the following provisions:

• Findings of fact.

• The legal issue or issues presented.

• Applicable law.

• Analysis.

• Disposition.

• Names of adopting board members.

Section 40 allows a member to submit a dissenting opinion setting forth his or her rationale for disagreeing with the memorandum opinion or formal opinion. In addition, a board member may submit a concurring opinion setting forth the board member’s rationale.

Finally, Section 40 specifies that a formal opinion or memorandum opinion adopted by the board may be cited as precedent in any matter or proceeding before the board, unless the opinion has been depublished, overruled, or superseded. However, a summary decision may not be cited as precedent in any matter or proceeding before the board.