Removal of tax appeals to the Superior Court

# (a)

Any appeal brought under § 329 of this title may be removed by the taxpayer or the Division of Revenue from the Tax Appeal Board to the Superior Court of this State as provided by this section.

# (b)

No action may be removed by either party unless:

# (1)

The total amount in controversy for all taxable periods which are the subject of the appeal exceeds $50,000 and a notice of removal has been filed by either party; or

# (2)

The Tax Appeal Board (hereinafter “the Board”), on motion by 1 or more parties, in its discretion grants leave to remove the action. The Board’s determination grants leave to remove the action.

# (c)

In the case of taxes determined under Chapter 11 of this title (other than taxes due under subchapter VII of said chapter), if the taxpayer is a resident of this State, the action being removed shall be removed to the Superior Court in and for the county of the taxpayer’s residence. In all other cases, the action being removed shall be removed to the Superior Court in and for New Castle County.

# (d)

The person desiring to remove an action to the Superior Court shall file with the Tax Appeal Board a notice of such removal or a motion for leave to remove. A notice of removal must be filed within 60 days after the appeal is commenced and shall state the grounds for removal. A motion for leave to remove may be filed at any time prior to the matter being submitted to the Board for decision.

# (e)

Upon the filing of a notice of removal or granting of a motion for leave to remove, the Board shall transmit all records in the appeal to the Superior Court in and for the county to which the action is removed. Except as otherwise provided in this section or as provided by Rule of the Superior Court, following the filing of such notice or the granting of such motion, the action shall continue as though it had commenced in Superior Court.

# (f)

Trials of appeals removed under this section shall be to the Superior Court without a jury.

# (g)

The taxpayer removing a case to the Superior Court pursuant to this section shall pay fees to the Superior Court as if the taxpayer had commenced the action in Superior Court. In the case of a motion for leave to remove, fees shall be paid as if the petitioner or petitioners had commenced the action in the Superior Court.

# (h)

For purposes of this section:

# (1)

“Amount in controversy” means:

a. The portion of tax as reflected on a notice of proposed assessment or notice of disallowance of refund issued under § 521 or § 542 of this title which a taxpayer contests; plus

b. Any interest reflected on said notice to the extent such interest is computed on the amount of tax which is contested; plus

c. The amount of penalty as reflected on such notice which the taxpayer contests.

# (2)

“Person” includes any natural person and any entity, including the Division of Revenue.

# (3)

“Tax” includes any tax or fee governed by § 501 of this title, but shall not include any interest or penalty.

# (4)

“Taxpayer” includes any person who is or may be liable for any tax.