Substitute House Bill No. 5889

Public Act No. 00-230

An Act Implementing The Legislative Commissioners' Recommendations For Technical Revisions To The Tax Statutes.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Subsection (f) of section 12-53 of the general statutes, as amended by section 5 of public act 99-189, is repealed and the following is substituted in lieu thereof:

(f) Upon receipt of notice from the assessor or board of assessors of the addition of property to the declaration of any owner, or an increase in the assessment of any property included in such owner's declaration, the tax collector of the town shall, if such notice is received after the normal billing date, not later than thirty days thereafter mail or hand a bill to such owner based upon the addition of property to said owner's declaration or the increase in the assessment of any property that had been included in such owner's declaration added by the assessor or board of assessors. Such tax shall be due and payable and collectible as other municipal taxes and subject to the same liens and processes of collection, except that (1) such tax for the current fiscal year shall be due and payable in an initial or single instalment due and payable not sooner than thirty days after the date such bill is mailed or handed to such owner and in any remaining, regular instalments as the same are due and payable, and the several instalments of the tax so due and payable, shall be equal, and (2) such tax for any prior fiscal year [,] shall be payable not sooner than thirty days after the date such bill is mailed or delivered to such owner [,] and shall include interest from the date or dates such tax for the corresponding grand list would have been due.

Sec. 2. Subdivision (10) of subsection (b) of section 12-63 of the general statutes, as amended by section 1 of public act 99-290, is repealed and the following is substituted in lieu thereof:

(10) If the assessor determines that the value of any item of personal property produced by the application of the schedules set forth in this subsection [do] does not accurately reflect the present true and actual value of such item, the assessor shall adjust such value to reflect the present true and actual value of such item.

Sec. 3. Subsection (b) of section 12-71 of the general statutes, as amended by section 12 of public act 99-189 and section 3 of public act 99-272, is repealed and the following is substituted in lieu thereof:

(b) All property subject to this section shall be valued at the same percentage of its then actual valuation as the assessors have determined with respect to the listing of real estate for the same year, except that any motor vehicle for which number plates have been issued under section 14-20 and any aircraft manufactured prior to January 1, 1946, shall be assessed at a value of not more than five hundred dollars except when otherwise provided by law. The provisions of this section shall not include money or property actually invested in merchandise or manufacturing carried on out of this state or machinery or equipment which would be eligible for exemption under subdivision (72) of section 12-81 once installed and which cannot begin or which has not begun manufacturing, processing or fabricating; or which is being used for research and development, including experimental or laboratory research and development, design or engineering directly related to manufacturing [;] or being used for the significant servicing, overhauling or rebuilding of machinery and equipment for industrial use or the significant overhauling or rebuilding of other products on a factory basis [;] or being used for measuring or testing or metal finishing [;] or [being used] in the production of motion pictures, video and sound recordings.

Sec. 4. Section 12-305 of the general statutes, as amended by section 4 of public act 99-109, is repealed and the following is substituted in lieu thereof:

All (1) unstamped cigarettes upon which taxes are imposed by this chapter, or which are in the course of transport within this state and are not properly supported by invoice or delivery tickets as required by section 12-306a, and (2) cigarettes, the stamping of which is prohibited by subsection (b) of section 12-302 or subsection (b) of section 12-303, which are in the possession, custody or control of any person for the purpose of being consumed, sold or transported in this state, for the purpose of evading or violating the provisions of this chapter, or with intent to avoid payment of the tax imposed hereunder, and any automobile, truck, conveyance or other vehicle used in the transportation of such cigarettes, and all paraphernalia, equipment or other tangible personal property, incident to the use of such purposes, found in the place, building, vehicle or vehicles where such cigarettes are found, are declared to be contraband goods; and any house, building or other premises and any vehicle or other conveyance suspected of containing such contraband goods may be searched under due process of law; and any such contraband goods may be seized by the commissioner, agents or employees of the commissioner, or by any peace officer of this state when directed by the commissioner to do so, without a warrant, provided nothing in this section shall be construed to require the commissioner to confiscate unstamped cigarettes or property when the commissioner has reason to believe that the owner thereof is not wilfully or intentionally evading the tax imposed by this chapter. Any property seized under the provisions of this chapter may, at the commissioner's discretion and except as otherwise provided by this section, be offered by the commissioner for sale at public auction to the highest bidder after advertisement, as provided in section 12-307, or the commissioner may dispose of such property in a manner [in] which the commissioner deems to be in the best interest of the state. The commissioner shall deliver to the State Treasurer the proceeds of any sale made under the provisions of this section. Before delivering any cigarettes so sold to the purchaser, the commissioner shall require such purchaser to affix to the packages the amount of stamps required by this chapter. The seizure and sale of any cigarettes or other property under the provisions of this section shall not relieve any person from a fine or other penalty for violation of this chapter. Any sale of cigarettes by the commissioner, the stamping of which is prohibited by subsection (b) of section 12-302 or subsection (b) of section 12-303, may only be made to the manufacturer and solely for purpose of export.

Sec. 5. Subparagraph (C) of subdivision (2) of section 12-408 of the general statutes, as amended by section 8 of public act 99-48 and section 14 of public act 99-173, is repealed and the following is substituted in lieu thereof:

(C) (i) Any person required to collect tax in accordance with this subsection who demonstrates to the satisfaction of the Commissioner of Revenue Services by July first of any year that, in any two quarterly periods as described in section 12-414, within the most recent four consecutive quarterly periods, such person was a materialman as such term is used in chapter 847, who has at least fifty per cent of such person's sales of building materials to contractors, subcontractors or repairmen for the improvement of real property, and is authorized by said chapter to file a mechanic's lien upon such real property and improvement shall, with respect to such sales made through the quarterly period ending the succeeding June thirtieth, collect tax due on such sales, and on sales to such contractors, subcontractors or repairmen of services described in subdivision (2) of section 12-407 with respect to such building materials, for such purpose and made during such July first through June thirtieth period, at the time and to the extent that such person receives the receipts from, or consideration for, such sales from such contractors, subcontractors or repairmen, provided if such person receives a portion of such receipts or consideration, such person shall collect the tax due on such portion at the time the portion is received. The taxes imposed by this chapter on such receipts and consideration shall be deemed imposed, solely for purposes of determining when such person is required to collect and pay over such taxes to the commissioner under section 12-414, when such person has received payment of such receipts or consideration in money, or money's worth, from such contractor, subcontractor or repairman. A contractor, subcontractor or repairman who purchases building materials or services from such person pursuant to this subparagraph shall, at the time such contractor, subcontractor or repairman pays any portion of the purchase price, pay to the person the tax due on the portion of the purchase price so paid. (ii) In the event that a materialman described in this subparagraph factors any portion of such materialman's receivables, such materialman shall be deemed to have received payment of such receipts or consideration in money or money's worth, from the contractor, subcontractor or repairman and shall be required to pay over tax on such sale with the next return due, with a credit against such tax for any tax already paid over with respect to such sale. Any such amount of tax paid over shall be on account of the tax required to be collected on the sale to which it relates and such materialman may take a credit against any tax paid by such contractor, subcontractor or repairman in the future on such sale, to ensure that tax paid over with respect to such sale does not exceed the amount of tax imposed on such sale as if the entire purchase price had been paid at the time of sale. (iii) A materialman described in this subparagraph who has not collected the tax due on the full purchase price for a sale described in this subparagraph from a contractor, subcontractor or repairman within one year from the date of such sale, shall pay over to the commissioner the tax due on any balance of such full purchase price with such materialman's return for the period which includes the date which is one year after the date of such sale. (iv) The commissioner may assess additional tax due with respect to a sale described in this subparagraph not later than three years from the date the tax is required to be paid over to the commissioner pursuant to this subparagraph, and in the case of a wilfully false or fraudulent return with intent to evade the tax, or where no return has been filed such taxpayer shall be subject to the provisions of section 12-428.

Sec. 6. Subdivision (3) of section 12-426 of the general statutes, as amended by section 28 of public act 99-173, is repealed and the following is substituted in lieu thereof:

(3) (A) Every seller, every retailer as defined in [subdivision (b)] subparagraph (B) of [subsection] subdivision (12) of section 12-407 and every person storing, accepting, consuming or otherwise using in this state services or tangible personal property purchased from a retailer shall keep such records, receipts, invoices and other pertinent papers in such form as the commissioner requires.

(B) In addition any records required pursuant to subparagraph (A) of this subdivision, each materialman collecting tax as allowed under the provisions of subparagraph (C) of subdivision (2) of section 12-408 shall keep the following records with respect to each sale of building materials or services described in said subparagraph (C): (i) The date of such sale; (ii) proof that the sale meets the qualifications described in said subparagraph (C); (iii) the amount of credit, if any, extended by such materialman to such contractor, subcontractor or repairman for each such sale; (iv) the terms for payment of the purchase price or repayment of any such credit; and (v) the date or dates on which such purchase price is paid or such credit is repaid, in whole or in part, and the amount of each such payment or repayment. Such records shall be kept for a period of three years from the date the tax on each such sale is paid over to the commissioner in full, provided the commissioner may consent to their destruction within that period or may require that they be kept longer.

Sec. 7. Subdivision (2) of subsection (a) of section 12-436 of the general statutes, as amended by section 15 of public act 99-121, is repealed and the following is substituted in lieu thereof:

(2) The commissioner may, in the commissioner's discretion, refuse to issue a license if the commissioner has reasonable ground to believe that the distributor has wilfully made any false statement of substance with respect to such application for a license, that the distributor has neglected to pay any taxes due to this state or that the distributor has been convicted of violating any of the alcoholic beverages tax laws of this or any other state or the alcoholic beverages tax laws of the United States or has such a criminal record that the commissioner reasonably believes that such distributor is not a suitable person to be issued a license, provided no refusal shall be rendered under this subdivision except in accordance with the provisions of sections 46a-80 and 46a-81.

Sec. 8. Section 12-540 of the general statutes, as amended by section 49 of public act 99-173, is repealed and the following is substituted in lieu thereof:

Whenever used in this chapter:

(1) "Person" means and includes any individual, firm, copartnership, joint venture, association of persons however formed, social club, fraternal organization, corporation, limited liability company, estate, trust, fiduciary, receiver, trustee, syndicate, the United States, this state or any political subdivision thereof or any group or combination acting as a unit, and any other individual or officer acting under the authority of any court in this state;

(2) "Taxpayer" means any person as defined in [subsection] subdivision (1) of this section who is subject to any tax imposed by this chapter;

(3) "Admission charge" means the amount paid, whether in the form of a ticket price, license fee, skybox, luxury suite or club seat rental charge or purchase price, or otherwise, for the right or privilege to have access to a place or location where amusement, entertainment or recreation is provided, exclusive of any charges for instruction, and including any preferred seat license fee or any other payment required in order to have the right to purchase seats or secure admission to any such place or location. Places of amusement, entertainment or recreation include, but are not limited to, theaters, motion picture shows, auditoriums where lectures and concerts are given, amusement parks, fairgrounds, race tracks, dance halls, ball parks, stadiums, amphitheaters, convention centers, golf courses, miniature golf courses, tennis courts, skating rinks, swimming pools, bathing beaches, gymnasiums, auto shows, boat shows, camping shows, home shows, dog shows and antique shows;

(4) "Dues" shall include assessment charges to members irrespective of the purpose for which made and any charges for social, athletic or sporting privileges or facilities for any period of more than six days but not including charges made for instruction or charges for special assessments made (A) for the construction or reconstruction of any social, athletic or sporting facility or any increase in charges made after June 29, 1999, which increase is to be used for the acquisition of land provided such land is "farm land", "open space land" or "forest land", as defined in section 12-107b, and further provided that an application or applications pursuant to section 12-107c, 12-107d or 12-107e are made for the assessment list next following the acquisition of such land, or (B) for the construction or reconstruction of any capital addition to any such facility, or (C) furnishings or fixtures, including installation charges, for any such facility, to the extent that such furnishings or fixtures are required, by reason of the construction or reconstruction described in [subdivision] subparagraph (A) or (B) of this [subsection] subdivision, for the use of such facility upon completion of such construction or reconstruction; except that, in the case of any such amount which is not expended for such construction, reconstruction, furnishings or fixtures, including installation charges, within three years after the date of payment of such amount, the exemption provided by this [subsection] subdivision shall cease to apply upon the expiration of such three-year period, and the club shall be liable for any tax imposed by section 12-543 in respect of such payment, as if such payment had been made on the first day following the expiration of such three-year period;

(5) "Initiation fees" shall include any payment, contribution or loan required as a condition precedent to membership whether or not any such payment, contribution or loan is evidenced by a certificate of interest or indebtedness or share of stock;

(6) "Operating under a lodge system" means carrying on activities under a form of organization that comprises local branches, chartered by a parent organization and largely self-governing, called "lodges", "chapters" or any similar title;

(7) "Club" means any organization which is either owned or operated by its members, or both.

Sec. 9. Section 10 of public act 99-2 of the June special session is repealed and the following is substituted in lieu thereof:

From the effective date of [this act] section 10 of public act 99-2 of the June special session, until June 30, 2001, the chief executive officer of a municipality [,] may certify in writing to the president of the Connecticut Lottery Corporation that a "Powerball Emergency" has occurred. The president shall independently verify the existence of such emergency and upon making such determination may order a suspension of sales of Powerball tickets in that municipality for a twenty-four-hour period. Such period shall commence on the next succeeding day of Powerball sales. For the purposes of this section, a "Powerball Emergency" shall exist only if it is found that the sales of Powerball tickets are so great as to impede traffic, limit the movement of emergency vehicles and equipment and create a risk of imminent breach of the peace and the threat to public health and safety.

Sec. 10. Subsection (a) of section 12-702 of the general statutes, as amended by section 5 of public act 99-173, is repealed and the following is substituted in lieu thereof:

(a) (1) (A) Any person, other than a trust or estate, subject to the tax under this chapter for any taxable year who files under the federal income tax for such taxable year as a married individual filing separately or, for taxable years commencing prior to January 1, 2000, who files income tax for such taxable year as an unmarried individual shall be entitled to a personal exemption of twelve thousand dollars in determining Connecticut taxable income for purposes of this chapter.

(B) In the case of any such taxpayer whose Connecticut adjusted gross income for the taxable year exceeds twenty-four thousand dollars, the exemption amount shall be reduced by one thousand dollars for each one thousand dollars, or fraction thereof, by which the taxpayer's Connecticut adjusted gross income for the taxable year exceeds [the] said amount. In no event shall the reduction exceed one hundred per cent of the exemption.

(2) For taxable years commencing on or after January 1, 2000, any person, other than a trust or estate, subject to the tax under this chapter for any taxable year who files under the federal income tax for such taxable year as an unmarried individual shall be entitled to a personal exemption in determining Connecticut taxable income for purposes of this chapter as follows:

(A) For taxable years commencing on or after January 1, 2000, but prior to January 1, 2001, twelve thousand two hundred fifty dollars. In the case of any such taxpayer whose Connecticut adjusted gross income for the taxable year exceeds twenty-five thousand dollars, the exemption amount shall be reduced by one thousand dollars for each one thousand dollars, or fraction thereof, by which the taxpayer's Connecticut adjusted gross income for the taxable year exceeds [the] said amount. In no event shall the reduction exceed one hundred per cent of the exemption;

(B) For taxable years commencing on or after January 1, 2001, but prior to January 1, 2002, twelve thousand five hundred dollars. In the case of any such taxpayer whose Connecticut adjusted gross income for the taxable year exceeds twenty-six thousand dollars, the exemption amount shall be reduced by one thousand dollars for each one thousand dollars, or fraction thereof, by which the taxpayer's Connecticut adjusted gross income for the taxable year exceeds [the] said amount. In no event shall the reduction exceed one hundred per cent of the exemption;

(C) For taxable years commencing on or after January 1, 2002, but prior to January 1, 2003, twelve thousand seven hundred fifty dollars. In the case of any such taxpayer whose Connecticut adjusted gross income for the taxable year exceeds twenty-seven thousand dollars, the exemption amount shall be reduced by one thousand dollars for each one thousand dollars, or fraction thereof, by which the taxpayer's Connecticut adjusted gross income for the taxable year exceeds [the] said amount. In no event shall the reduction exceed one hundred per cent of the exemption;

(D) For taxable years commencing on or after January 1, 2003, but prior to January 1, 2004, thirteen thousand dollars. In the case of any such taxpayer whose Connecticut adjusted gross income for the taxable year exceeds twenty-eight thousand dollars, the exemption amount shall be reduced by one thousand dollars for each one thousand dollars, or fraction thereof, by which the taxpayer's Connecticut adjusted gross income for the taxable year exceeds [the] said amount. In no event shall the reduction exceed one hundred per cent of the exemption;

(E) For taxable years commencing on or after January 1, 2004, but prior to January 1, 2005, thirteen thousand five hundred dollars. In the case of any such taxpayer whose Connecticut adjusted gross income for the taxable year exceeds twenty-nine thousand dollars, the exemption amount shall be reduced by one thousand dollars for each one thousand dollars, or fraction thereof, by which the taxpayer's Connecticut adjusted gross income for the taxable year exceeds [the] said amount. In no event shall the reduction exceed one hundred per cent of the exemption;

(F) For taxable years commencing on or after January 1, 2005, but prior to January 1, 2006, fourteen thousand dollars. In the case of any such taxpayer whose Connecticut adjusted gross income for the taxable year exceeds thirty thousand dollars, the exemption amount shall be reduced by one thousand dollars for each one thousand dollars, or fraction thereof, by which the taxpayer's Connecticut adjusted gross income for the taxable year exceeds [the] said amount. In no event shall the reduction exceed one hundred per cent of the exemption;

(G) For taxable years commencing on or after January 1, 2006, but prior to January 1, 2007, fourteen thousand five hundred dollars. In the case of any such taxpayer whose Connecticut adjusted gross income for the taxable year exceeds twenty-nine thousand dollars, the exemption amount shall be reduced by one thousand dollars for each one thousand dollars, or fraction thereof, by which the taxpayer's Connecticut adjusted gross income for the taxable year exceeds [the] said amount. In no event shall the reduction exceed one hundred per cent of the exemption;

(H) For taxable years commencing on or after January 1, 2007, fifteen thousand dollars. In the case of any such taxpayer whose Connecticut adjusted gross income for the taxable year exceeds thirty thousand dollars, the exemption amount shall be reduced by one thousand dollars for each one thousand dollars, or fraction thereof, by which the taxpayer's Connecticut adjusted gross income for the taxable year exceeds [the] said amount. In no event shall the reduction exceed one hundred per cent of the exemption.

Sec. 11. Subdivision (1) of subsection (c) of section 12-702 of the general statutes, as amended by section 3 of public act 99-48, is repealed and the following is substituted in lieu thereof:

(c) (1) Any husband and wife subject to tax under this chapter for any taxable year who file a return under the federal income tax for such taxable year as married individuals filing a joint [returns] return or any person who files a return for such taxable year as a surviving spouse, as defined in Section 2(a) of the Internal Revenue Code, shall be entitled to a single personal exemption of twenty-four thousand dollars in determining Connecticut taxable income for purposes of this chapter. Any husband and wife who elect to file a joint return under the federal income tax for any taxable year shall be required to file jointly with respect to such taxable year for purposes of this chapter, in which event their tax liability under this chapter shall be joint and several, except as otherwise provided in section 12-702a, and any husband and wife who elect to file separately under the federal income tax for any taxable year shall be required to file separately with respect to such taxable year for purposes of this chapter, provided (A) if either the husband or wife is a resident and the other is a nonresident, separate taxes shall be determined on their separate Connecticut taxable incomes on separate forms as married individuals filing separately unless such husband and wife determine their federal taxable income jointly and both elect to determine their joint Connecticut taxable income as if both were residents, or (B) if any husband and wife, both of whom are nonresidents, elect to file a joint return under the federal income tax for any taxable year and only one of them has income derived from or connected with sources within this state during such taxable year, only the spouse with income derived from or connected with sources within this state shall be required to file a return in this state and, if only the spouse with income derived from or connected with this state files such a return in this state, a separate tax shall be determined on such spouse's separate Connecticut taxable income as a married individual filing separately unless such husband and wife both elect to determine their joint Connecticut taxable income as if both had income derived from or connected with sources within this state.

Sec. 12. Subsection (a) of section 4 of public act 99-48 is repealed and the following is substituted in lieu thereof:

(a) Any individual who has made a joint return under chapter 229 of the general statutes may elect to seek relief under the provisions of subsection (b) of this section and if such individual is eligible to elect the application of subsection (c) of this section, such individual [,] may, in addition to any election under subsection (b) of this section, elect to limit such individual's liability for any deficiency with respect to such joint return in the manner prescribed under subsection (c) of this section.

Sec. 13. Subsection (e) of section 32-613 of the general statutes, as amended by section 23 of public act 99-241, is repealed and the following is substituted in lieu thereof:

(e) (1) Any hearing regarding all or any part of any project, provided for by this section, shall be conducted by the particular commissioner having jurisdiction over the applicable license, permit, approval or other administrative action. Legal notice of such hearing shall be published in a newspaper having general circulation in an area which includes the municipality in which the particular part of such project is proposed to be built or is being built not more than ten nor less than five days in advance of such hearing.

(2) In rendering any decision in connection with any project, provided for by this section, the commissioner shall weigh all competent material and substantial evidence presented by the applicant and the public in accordance with the applicable statute. The commissioner shall issue written findings and determinations upon which [its] the commissioner's decision is based. Such findings and determinations shall consist of evidence presented including such matters as the commissioner deems appropriate, provided such matters, to the extent applicable to the particular permit, shall include the nature of any major adverse health and environmental impact of any project. The commissioner may reverse or modify any order or action at any time on the commissioner's own motion. The procedure for such reversal or modification shall be the same as the procedure for the original proceeding.

(3) Any administrative action taken by any commissioner in connection with any project, provided for by this section, may be appealed by an aggrieved party to the superior court for the judicial district of Hartford in accordance with the provisions of section 4-183. Such appeal shall be brought within ten days of the date of mailing to the parties to the proceeding of a notice of such order, decision or action by certified mail, return receipt requested, and the appellant shall serve a copy of the appeal on each party listed in the final decision at the address shown in such decision. Failure to make such service within such ten days on parties other than the commissioner who rendered the final decision may not, in the discretion of the court, deprive the court of jurisdiction over such appeal. Within ten days after the service of such appeal, or within such further time as may be allowed by the court, the commissioner [which] who rendered such decision shall cause any portion of the record that had not been transcribed to be transcribed and shall cause either the original or a certified copy of the entire record of the proceeding appealed from to be transmitted to the reviewing court. Such record shall include the commissioner's findings of fact and conclusions of law, separately stated. If more than one commissioner has jurisdiction over the matter, such commissioners shall issue joint findings of fact and conclusions of law. Such appeal shall state the reasons upon which it is predicated and, notwithstanding any provisions of the general statutes, shall not stay the development of any project. The commissioner who rendered such decision shall appear as the respondent. Such appeals to the superior court shall each be a privileged [matters] matter and shall be heard as soon after the return date as practicable. A court shall render its decision not later than twenty-one days after the date that the entire record, with the transcript, is filed with the court by the commissioner who rendered the decision.

(4) The court shall not substitute its judgment for that of the commissioner as to the weight of the evidence presented on a question of fact. The court shall affirm the decision of the commissioner unless the court finds that substantial rights of the party appealing such decision have been materially prejudiced because the findings, inferences, conclusions or decisions of the commissioner are in violation of constitutional or statutory provisions, in excess of the statutory authority of the commissioner, made upon unlawful procedure, affected by an error of law, clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(5) If the court finds material prejudice, it may sustain the appeal. Upon sustaining an appeal, the court may render a judgment which modifies the decision of the commissioner, orders particular action [of] by the commissioner or orders the commissioner to take such action as may be necessary to effect a particular action and the commissioner may issue a permit consistent with such judgment.

(6) An applicant may file an amended application and the commissioner may consider an amended application for an order, permit or other administrative action following court action.

Sec. 14. Section 25 of public act 99-241 is repealed and the following is substituted in lieu thereof:

The state shall protect, save harmless and indemnify the Capital City Economic Development Authority and its directors, officers and employees from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment based upon any alleged act or omission of the authority or any such director, officer or employee in connection with, or any other legal challenge to, the overall project, as defined in section 27 of [this act] public act 99-241, facility operations, as defined in section 27 of [this act] public act 99-241, public act 98-1 of the December special session or [this act] public act 99-241, including without limitation the preparation by the authority of the environmental impact evaluation contemplated by subsection (j) of section 41 of [this act] public act 99-241, provided [, in the case of] any such director, officer or employee is found to have been acting in the discharge of such director, officer or employee's duties or within the scope of such director, officer or employee's employment and any such act or omission is found not to have been wanton, reckless, wilful or malicious.

Approved June 1, 2000