California Attorney General Opinion 23-701

Syllabus

QUESTIONS: When adjudicating a taxpayer appeal, does the Office of Tax Appeals have the authority to issue a written opinion in which it concludes that applying a particular tax regulation—promulgated by a different state agency and approved by the Office of Administrative Law—to that taxpayer's circumstances would conflict with governing statutes and to decline to apply the regulation to the taxpayer on that basis? CONCLUSIONS: When adjudicating a taxpayer appeal, the Office of Tax Appeals has the authority to issue a written opinion in which it concludes that applying a particular tax regulation to that taxpayer's circumstances would conflict with governing statutes and to decline to apply the regulation to the taxpayer on that basis. In making this determination, the Office must afford appropriate deference to the agency that promulgated the regulation. The Office has no authority to remove a regulation from the California Code of Regulations, or to enforce its view of a regulation's validity or applicability outside the context of adjudicating a particular taxpayer appeal.