Mentioned in
American Bar Association, March 8, 2018
“Interestingly, tax cases do not often take advantage of these administrative challenges. This is surprising when ambiguities in tax statutes are generally construed against the state, giving taxpayers an advantage…”
Bibliographic info
(a)
Any interested person may obtain a judicial declaration as to the validity of any regulation or order of repeal by bringing an action for declaratory relief in the superior court in accordance with the Code of Civil Procedure. The right to judicial determination shall not be affected by the failure either to petition or to seek reconsideration of a petition filed pursuant to Section 11340.7 before the agency promulgating the regulation or order of repeal. The regulation or order of repeal may be declared to be invalid for a
substantial failure to comply with this chapter, or, in the case of an emergency regulation or order of repeal, upon the ground that the facts recited in the finding of emergency prepared pursuant to subdivision (b) of Section 11346.1 do not constitute an emergency within the provisions of Section 11346.1.
(b)
In addition to any other ground that may exist, a regulation or order of repeal may be declared invalid if either of the following exists:
(1)
The agency’s determination that the regulation is reasonably necessary to effectuate the purpose of the statute, court decision, or other provision of law that is being implemented, interpreted, or made specific by the regulation is not supported by substantial evidence.
(2)
The agency declaration pursuant to paragraph (8) of subdivision (a) of Section 11346.5 is in
conflict with substantial evidence in the record.
(c)
The approval of a regulation or order of repeal by the office or the Governor’s overruling of a decision of the office disapproving a regulation or order of repeal shall not be considered by a court in any action for declaratory relief brought with respect to a regulation or order of repeal.
(d)
In a proceeding under this section, a court may only consider the following evidence:
(1)
The rulemaking file prepared under Section 11347.3.
(2)
The finding of emergency prepared pursuant to subdivision (b) of Section 11346.1.
(3)
An item that is required to be included in the rulemaking file but is not included in the rulemaking file, for the
sole purpose of proving its omission.
(4)
Any evidence relevant to whether a regulation used by an agency is required to be adopted under this chapter.