HAR § 18-237D-9-01 — Assessment upon failure to make return; limitation period; extension by agreement

(a) In general. If any operator or plan manager fails to make a return as required by this chapter, the director shall proceed to assess the tax due based upon the best information available and impose any applicable penalty and interest upon the operator or plan manager. (b) Presumption. The assessment shall be presumed to be correct unless the contrary shall be clearly proven by the person assessed upon an appeal duly taken as provided in section 237D-11, HRS. The burden of proof is upon the person assessed to disprove the correctness of the assessment. (c) Application of the three-year statute of limitations. Except as otherwise provided by this section or section 237D-7.5, HRS, the amount of tax imposed under this chapter shall be assessed or levied within three years after the annual tax return was filed or within three years of the due date prescribed for the filing of the tax return, whichever is later. No proceeding in court without assessment for the collection of any such taxes shall be begun after the expiration of the period. (1) Tax returns filed before the due date. For tax returns filed before the due date, the limitations period on assessment begins to run as of the last day prescribed for filing. The filing of an amended tax return shall not extend the statute. (2) The statute of limitations shall begin to run only upon the filing of a tax return which is complete and meets all legal requirements. (3) No annual tax return or filing of a fraudulent tax return. The assessment of tax or proceeding for collection without assessment shall not be barred by the statute of limitations and the tax may be assessed or levied at anytime if no annual tax return is filed or if a false or fraudulent tax return is filed with intent to evade tax liability, and the tax may be assessed or levied at anytime. In the case of a return claimed to be false or fraudulent with intent to evade tax, the claim shall first be determined by the circuit court as provided in section 235-111(c), HRS. (d) Extension by agreement. At anytime prior to the expiration of the limitations period, the period may be extended by a written agreement in a form prescribed by the department and signed by both (1) the operator or plan manager and (2) a representative of the department. The period agreed upon may be extended by subsequent written agreements made before the expiration of the period previously agreed upon.