Town Square

Setting a CA tax penalty precedent - help please!

Original post made by California Citizen, Another Palo Alto neighborhood, on Aug 16, 2007

I had an appeal before the State Board of Equalization, because my husband and I were assessed a very large demand penalty for filing late, even though we had overpaid our taxes on time, and tried requesting extensions throughout. (We have reasonable cause for late filing.)

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Posted by qq
a resident of Barron Park
on Aug 16, 2007 at 3:54 am

I suggest you contact Dewey, Cheatem & Howe.

Web Link

They advertise on Car Talk every Sunday.

Good Luck!


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Posted by Bebe
a resident of Midtown
on Aug 16, 2007 at 6:32 am

You seem to know the issues well, and obviously are engaged in the matter enough to spend a lot of time researching the matter.

If you can't fing a lawyer, why don't you do the work yourself. There's no bar to representing yourself in california, and if the facts of the matter are as you state them, you might find a sympathetic judge willing to listen to you.

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Posted by California Citizen
a resident of Another Palo Alto neighborhood
on Aug 16, 2007 at 9:17 am

I wish I could do it myself, unfortunately that's not in the cards. The clarity of the facts I think are why the tax clinic was willing to give it a go in the request for rehearing.

qq, do you know anyone at Dewey, Cheatem & Howe ;-) - put in a good word for me!

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Posted by Danny Kumano
a resident of another community
on Apr 17, 2008 at 10:55 am


Just wondering if you reach any resolution with this case. I have a similar situation with my client and am looking for a way to argue the "demand penalty" with the FTB. Please email me at to discuss. Thanks

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Posted by Tap
a resident of Menlo Park
on Dec 31, 2011 at 11:22 am

I plan on fighting my demand penalty. What was the outcome of your case?

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Posted by John
a resident of Midtown
on Dec 31, 2011 at 1:19 pm

These situations are inevitable examples of the tyranny of the income tax. Replace the income tax with a consumer tax, paid to the seller, at each purchase...a sales tax at point of sale. Then move on with you life, without any tax worries.

The income tax is an inverse trojan horse, where we allow it through our gates, with the knowledge that it will kill us, one by one, but we agree, because it promises a general welfare.

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Posted by KatieJ
a resident of another community
on Jan 5, 2012 at 1:37 pm

I've hunted for the original poster's case but can't identify it. The SBE publishes very few decisions nowadays, and although many unpublished decisions are available on RIA or CCH, and the SBE's hearing agendas for that time frame are available on its web site, I haven't been able to identify the poster's case. She argues that the SBE does have the power to decide constitutional issues because it is a "quasi-judicial" agency. The 2004 California Supreme Court case that she references, I believe, is Lockyer v. San Francisco, 33 Cal. 4th 1055; 95 P.3d 459; 17 Cal. Rptr. 3d 225, Aug. 12, 2004. That's the case in which the court held that Gavin Newsome did not have the authority to refuse to enforce the California Defense of Marriage Act (by directing the county clerk to issue marriage licenses to same-sex couples) because he determined that it violated the federal or California constitution. The decision notes that BEFORE the passage of Proposition 5 in June 1978, quasi-judicial state agencies such as the Public Utilities Commission could make such a determination, based on Southern Pacific Transportation v. Public Utilities Com. (1976) 18 Cal.3d 308, 134 Cal. Rptr. 189. Proposition 5, which added Article III, Sec. 3.5 to the state constitution, was placed on the ballot for the purpose of overturning Southern Pacific. Article III, Sec. 3.5 provides that NO state agency has the power to declare a statute unconstitutional. This is the provision the SBE cites to support its inability to decide constitutional issues, such as the poster's due process argument with respect to Sec. 19133.

So I think the poster misunderstood the court's observation in Lockyer, which is dictum in any case because the court also determined that the mayor was not a "state agency" that would have qualified under Southern Pacific even if it had still been in effect. The bottom line is that if the Sec. 19133 penalty is challenged on due process grounds, it will have to be in court. The only alternative would be to get it repealed through the legislature or an initiative petition.

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Posted by Another Victim of FTB
a resident of Stanford
on Jul 29, 2013 at 11:12 am

The Government and State of California imprisoned Al Capone, so that they can institute Franchise Tax Board instead.

In my view, FTB is the epitome of how Institutionalized Taxing Authorities can victimize taxpayers at will. I truly wish that hte state would go bankrupt and all FTB personnel are either fired, or lose their money sucking scam, and be forced to get real jobs instead of being such blood-sucking leaches that they are,... Amen!!!!