136.315. Litigation expenses may be allowed in certain tax cases, when, definitions, procedure--award may be denied or reduced.
Litigation expenses may be allowed in certain tax cases, when,definitions, procedure--award may be denied or reduced.
136.315. 1. As used in this section the following terms shall mean:
(1) "Party", a natural person or sole proprietorship with a Missouriadjusted gross income of less than seventy-five thousand dollars in each ofthe two taxable years preceding the date of filing; a corporation orpartnership with a federal taxable income of less than one hundred thousanddollars in each of the two taxable years preceding the date of filing; or anassociation, labor union or not-for-profit organization with less than fiftyemployees on the date of filing; provided, however, that a corporation that isa subsidiary or affiliate of a corporation with a federal taxable income ofone hundred thousand dollars or more in each of the two taxable yearspreceding the date of filing is not a "party" under this section;
(2) "Prevail", to obtain disposition by final judgment or order,dismissal, or default which is favorable on all or substantially all issues;
(3) "Proceeding", a case before the administrative hearing commission ora court with respect to a tax imposed under chapter 143, RSMo, or any sales oruse tax imposed by chapter 144, RSMo, or section 43(a) of article IV of theMissouri Constitution;
(4) "Reasonable litigation expenses", those actual expenses, not inexcess of ten thousand dollars, that the administrative hearing commission orcourt finds were reasonably incurred in opposing the department's action,including, but not limited to, court costs, attorneys' fees and fees forexpert and other witnesses.
2. When a party prevails in a proceeding filed after January 1, 1984,the court or administrative hearing commission may award the party reasonablelitigation expenses if it finds that the position of the state was vexatiousor was not substantially justified. Fees and expenses shall not be awarded ifthe final disposition is substantially the same as a settlement previouslyoffered by the department to the taxpayer.
3. A party seeking an award for fees and other expenses pursuant to thissection shall, not later than thirty days after final disposition is made inthe proceeding, submit to the court or administrative hearing commission anapplication which provides evidence of eligibility for an award pursuant tothis section, alleges in what particulars the department was vexatious or notsubstantially justified in its position and which specifies the amount sought. If the amount sought includes an attorney's fee or the fee for an expertwitness, the application shall include an itemized statement for each such feeindicating the actual time expended in service to the applicant and the rateat which the fees were computed. The burden of proof shall be on the partyseeking an award under this section to demonstrate the facts required as acondition to recovery.
4. The court or administrative hearing commission, in its discretion,may reduce the amount to be awarded pursuant to this section, or deny anaward, to the extent that the prevailing party, during the course of theproceedings, engaged in conduct which unduly and unreasonably protracted thefinal resolution of the matter in controversy or when an overriding publicinterest exists which would make an award unjust.
(L. 1983 1st Ex. Sess H.B. 10 § 4)Effective 1-1-84