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REG-33-001 SCOPE AND APPLICATION
001.01 These regulations govern the practice and procedure before the Nebraska Department of Revenue arising from and as required under any revenue law administered by the Nebraska Department of Revenue. These tax laws include:
001.01A The Nebraska Revenue Act of 1967, as amended, consisting of sales, use, income, franchise, withholding, and estimated tax (Sections 77-2701 through 77-27,141),
001.01B Local Option Revenue Act (Sections 77-27,142 through 77-27,148, R.R.S. 1943),
001.01C Motor vehicle fuels tax (Chapter 66, article 4),
001.01D Interstate motor carrier>s fuel tax (Chapter 66, article 4),
001.01E Aircraft fuels tax (Chapter 3, article 1),
001.01F Mechanical Amusement Device Tax Act (Chapter 77, article 30),
001.01G Special Fuels Tax Act (Chapter 66, article 6),
001.01H Air and Water Pollution Control Tax Refund Act (Sections 77-27,149 through 77-27,155, R.R.S. 1943),
001.01I Litter fee (Sections 81-1534 through 81-1566, R.R.S. 1943),
001.01J Lodging tax (Sections 81-1245 through 81-1264, R.R.S. 1943),
001.01K Cigarette tax (Chapter 77, article 26),
001.01L Estate tax (Chapter 77, article 21),
001.01M Inheritance tax (Chapter 77, article 20),
001.01N Oil and gas severance tax (Chapter 57, article 7),
001.01O Documentary Stamp Act (Chapter 76, article 9),
001.01P Pari-mutuel wagering tax (Chapter 2, article 12),
001.01Q In-lieu-of tax (Chapter 70, article 6),
001.01R All taxes levied and administrative authority exercised under Chapter 77, including the valuation of all property valued by the state under articles 6, 8, and 12, property taxes, motor vehicle excise taxes, in-lieu-of taxes, and withholding payments to counties, but excluding articles 20, 21, 26, 27, and 30.
The tax laws enumerated under Reg-33-001.01K through Reg-33-001.01R shall be grouped, for purposes of these regulations, into one category and referred to as "other taxes." All liabilities mentioned in these regulations include penalty and interest where applicable.
(Sections 3-149, 57-712, 66-440, 66-629, 76-906, 77-375, 77- 378, 77-1201, 77-1615, 77-1701, 77-2008, 77-27,142, 77-27,154, 77- 3006, 77-3112, 81-1262, 81-1559, and 84-909, R.R.S. 1943. Sections 2-1208.01, 77-202, 77-602, 77-629, 77-801, 77-1301, 77-1506, 77- 2105, 77-2612, 77-2711(1)(a), and 77-27,119, R.S.Supp., 1985. January 3, 1990.)
002.01 Commissioner, Tax Commissioner, and State Tax Com missioner or his authorized representative shall mean the Nebraska Department of Revenue, unless the context requires otherwise.
002.02 Hearing Officer shall mean the State Tax Commissioner or his authorized representative, whoever presides over the hearing.
002.03 Parties shall mean the petitioner, taxpayer, permit holder, licensee, or county official and the Nebraska Department of Revenue or the State Tax Commissioner.
002.04 Person shall be defined in accordance with the statutes governing the tax under consideration. If the term is not specifically defined in the statutes governing the tax, person shall be defined to include bodies politic and corporate, county officials, societies, communities, the public generally, individuals, partnerships, joint stock companies, and associations.
002.05 Petition shall mean:
002.05A A written protest filed by the petitioner of a Notice of Proposed Deficiency Determination issued by the Nebraska Department of Revenue,
002.05B A written claim filed by the petitioner for a refund of tax,
002.05C A written request filed by the petitioner for a redetermination of a disapproved application, property valuation assessment, a waiver of penalty for failure to list personal property, or situs between two counties,
002.05D A written request filed by the petitioner for a declaratory ruling or the promulgation, amendment, or repeal of a regulation, revenue ruling, or form published by the Nebraska Department of Revenue.
002.06 Petitioner shall mean the taxpayer, his representative, or authorized successor in interest who timely files a petition for a proceeding before the Nebraska Department of Revenue.
002.07 Proceeding shall mean a hearing conducted by the Hearing Officer on:
002.07A A petition as defined in this regulation,
002.07B A matter where a person fails to comply with the statutory provisions of any tax program administered by or any administrative authority exercised by the Nebraska Department of Revenue and the Nebraska Department of Revenue initiates action thereon.
002.08 Security shall mean any of the following when supplied in the amount required by the Nebraska Department of Revenue.
002.08A Surety bonds executed by a surety company duly licensed and authorized to do business within this state.
002.08B Bonds or other obligations of the United States, the State of Nebraska, or any city or county of the state based upon their actual market value.
002.08C Certificates of deposit issued by a bank doing business in this state and insured by the Federal Deposit Insurance Corporation in amounts not exceeding the federally insured amount.
002.08D Investment certificates or share accounts issued by a savings and loan association doing business in this state and insured by the Federal Savings and Loan Insurance Corporation in amounts not exceeding the federally insured amount.
(Sections 66-404, 77-303(2), and 84-909, R.R.S. 1943, and sections 49-801(16), 77-2711(1)(a), and 77-27,119, R.S.Supp., 1980. August 4, 1980.)
REG-33-003 COMMENCEMENT OF PROCEEDINGS: GENERAL
003.01 These rules shall be followed by a petitioner filing a petition with the Department of Revenue.
003.01A Request for oral hearing. A protest petition, request for redetermination of a property valuation assessment, or a request for a declaratory ruling, or the promulgation, amendment or repeal of a regulation, revenue ruling, or form shall be presumed to be a request for an oral hearing unless the petitioner specifically states that he does not desire an oral hearing. A claim for refund or request for redetermination of a disapproved tax application, waiver of penalty, or situs between two counties shall not be presumed to be a request for an oral hearing. The Tax Commissioner shall grant a taxpayer or his authorized representative an opportunity for an oral hearing if the taxpayer so requests. In this latter case, the request for an oral hearing should be made at the time of filing the claim for refund or request for redetermination. For example, the following language will be considered a request for an oral hearing on a claim for refund: "Before any denial of this claim for refund, an oral hearing is requested."
003.01B Amendment of petition. A petitioner may at any time up to or during the proceeding amend his petition. The request to prepare or receipt of an amended petition shall be considered good cause for a continuance and the Hearing Officer, on his own motion or on the motion of any of the parties, may continue the hearing. If a continuance is granted, a copy of such order will be directed to all parties.
003.01C Joinder of parties. If Notices of Proposed Deficiency Determinations are mailed to a number of persons, based on similar or identical legal grounds, they may not join in filing one protest petition, except where a joint Notice of Proposed Deficiency Determination is sent to parties who filed a joint return; however, a Motion for Consolidation may be considered after the protest petitions have been filed. Parties may be joined with the approval of the Commissioner under any of the other types of proceedings.
003.01D Filing date. A petition is considered filed with the Commissioner on the date that it is received by the Commissioner, or if delivered by the United States Mail after the due date, the petition is considered filed with the Commissioner on the date of the postmark of the United States post office stamped on the envelope. Postmarks made by other than the United States post office will not be accepted as conclusive evidence of the filing date of any petition received after the due date. When the last day for filing falls on Saturday, Sunday, or an approved holiday, the filing will be considered timely if received on the next succeeding day which is not a Saturday, Sunday, or an approved holiday. The period fixed by statute within which to file a petition cannot be extended. If a petition is not filed within the statutory period, it will not be considered by the Commissioner but will be returned certified mail, return receipt requested.
(Sections 3-149, 57-712, 66-410.06(2), 66-418(2), 66-440, 66-623, 66-629, 77-1201, 77-2105, 77-2776, 77-2795, 77-27,135, 77-27,147, 77-3006, and 84-909, R.R.S. 1943. Sections 77-601, 77-602, 77-624, 77-2612, 77-2711(1)(a), 77-27,119, and 77-27,125 R.S.Supp., 1985. January 26, 1986.)
REG-33-004 COMMENCEMENT OF PROCEEEDINGS: PROTEST PETITION
004.01 These rules shall be followed when filing a protest petition to a Notice of Deficiency Determination issued by the Commissioner.
004.01A Content. This information shall be supplied by the petitioner when filing a protest petition with the Commissioner. The petition shall:
004.01A(1) Identify the petitioner,
004.01A(2) Identify the determination of the Commissioner which is being protested,
004.01A(3) Set forth each ground under which redetermination is requested together with facts sufficient to acquaint the Commissioner of the exact basis thereof,
004.01A(4) Demand the relief which the petitioner considers himself entitled to,
004.01A(5) Be in writing.
004.01B Filing date.
004.01B(1) A protest petition of a Sales and Use Tax, Local Option Sales and Use Tax, Interstate Motor Carrier’s Fuel Tax, Motor Vehicle Fuel Tax, Special Fuel Tax, Aircraft Fuel Tax, or "other taxes" Notice of Proposed Deficiency Determination must be filed with the Commissioner on or before the 30th day following the mailing of the Notice of Deficiency Determination by the Commissioner.
004.01B(2) In the event the Tax Commissioner issues a Notice of Proposed Sales and Use Tax Jeopardy Determination, a protest petition together with such security as the Commissioner considers necessary to ensure compliance must be filed with the Commissioner on or before the 10th day following the mailing of a Notice of Proposed Jeopardy Determination.
004.01B(3) A protest petition of an Income or Franchise Tax Notice of Proposed Deficiency Determination must be filed with the Commissioner on or before the 90th day following the mailing of the Notice of Proposed Deficiency Determination by the Commissioner or if the petitioner was outside the United States as of the date of the mailing of the Notice of Proposed Deficiency Determination his protest petition must be filed on or before the 150th day following the mailing of the Notice of Proposed Deficiency Determination by the Commissioner.
004.01B(4) In the event a Notice of Proposed Income or Franchise Tax Jeopardy Determination has been issued by the Commissioner, a protest petition together with such security as the Tax Commissioner considers necessary to insure compliance must be filed with the Commissioner on or before the 10th day following the mailing of a Notice of Proposed Jeopardy Determination by the Commissioner.
004.01C Bonding requirements. If a party has been required by the Commissioner to provide security when filing a petition, the petition will be considered filed only when such security is provided in the amount and form so required by the Commissioner. This security must be maintained during the course of the proceeding before the Commissioner. If during the course of any proceeding before the Commissioner the security so provided is withdrawn, the petition will not be considered to be in proper form and will be subject to dismissal by the Commissioner.
(Sections 3-149, 57-712, 66-410.06, 66-418, 66-440, 66-623, 66-629, 77-2105, 77-2709, 77-2710, 77-2776, 77-2777, 77-2778, 77- 27,111, 77-27,119, 77-27,125, 77-27,131, 77-27,147, 77-3006, and 84-909(1), R.R.S. 1943. Sections 77-2612 and 77-2711(1)(a), R.S.Supp., 1982. December 5, 1982.)
REG-33-005 COMMENCEMENT OF PROCEEDINGS: CLAIMS FOR REFUND
005.01 These rules shall be followed when filing a claim for refund of tax.
005.01A Content. This information shall be supplied by a petitioner filing a claim for refund of tax with the Nebraska Department of Revenue. The claim shall:
005.01A(1) Identify the petitioner,
005.01A(2) Set for each ground under which the refund is requested together with facts sufficient to acquaint the Nebraska Department of Revenue with the exact basis thereof,
Before applying for a refund of Nebraska sales and use taxes paid for a pollution control facility under the Air and Water Pollution Control Tax Refund Act, the applicant shall receive approval of the Department of Environmental Control. The refund claim must also be accompanied by a descriptive listing of the equipment acquired, including the name and address of each supplier furnishing equipment incorporated into the project, the net cost of such equipment purchased from each supplier and the amount of sales tax paid to each supplier. See Reg-1-084.
005.01A(3) Demand the amount of tax to which the petitioner considers himself entitled,
005.01A(4) Be in writing.
005.01B Filing date.
005.01B(1) Sales and use tax, lodging tax, and litter fee. A claim for refund of sales and use tax, lodging tax, or litter fee must be filed with the Nebraska Department of Revenue by the person who made the overpayment or his attorney, assignee, executor, or administrator within three years from the last day of the month following the close of the period for which the overpayment was made, or within six months after any determination became final under the provisions of section 77-2709, R.R.S. 1943, or within six months from the date of overpayment with respect to such determinations, whichever of these three periods expires the later unless the credit relates to a period for which a waiver has been given.
005.01B(2) Sales and use tax under the Air and Water Pollution Control Tax Refund Act. A claim for refund of sales or use tax under the Air and Water Pollution Control Tax Refund Act must be filed with the Nebraska Department of Revenue within three years from the date the pollution control facility becomes operational; provided, that an air pollution control facility must be originally made operational subsequent to April 13, 1974.
005.01B(3) Income or franchise tax. A claim for refund of income or franchise tax must be filed with the Nebraska Department of Revenue within three years from the time the return was filed or within two years from the date of payment of the tax, whichever is later. A return filed before the due date of the return will be presumed filed on the last day of the filing period. If no return was filed, the refund claim together with the request for hearing must be filed within two years from the date the tax was paid. If an agreement for an extension of an assessment period was signed for the parties within the time otherwise allowed for refund claims, the written claims for refund must be filed within six months after the expiration of the agreement or within the time otherwise provided above, whichever is later. If the petitioner‘s claim for refund is based upon a change in federal income tax liability, it must be filed within two years from the date when the notice of amended return was so required to be filed.
005.01B(4) Special fuels tax. A claim for credit or refund of special fuels tax must be filed with the Nebraska Department of Revenue within one year from the date of payment of the tax.
005.01B(5) Aircraft fuels tax. A claim for refund of aircraft fuels tax must be filed with the Nebraska Department of Revenue within seven months from the date of purchase or invoice.
005.01B(6) Estate tax. A claim for refund of estate tax must be filed with the Nebraska Department of Revenue within four years after the date of such overpayment.
005.01B(7) Motor vehicle fuels tax or interstate motor carrier’s fuel tax. A claim for credit or refund of motor vehicle fuels tax or interstate motor carrier‘s fuel tax must be filed with the Nebraska Department of Revenue within two years from the date of payment of the tax.
005.01B(8) Documentary stamp tax and "other taxes" where Nebraska statutes do not provide for refund. A claim for credit or refund of documentary stamp tax or any "other tax" where Nebraska statutes do not provide for a refund must be filed with the Nebraska Department of Revenue within two years from the date of payment of the tax.
005.01C Limitation. The Nebraska Department of Revenue will not refund a taxpayer’s overpayment of tax under any program administered by the Department when the amount is less than $2.00.
(Sections 3-151, 66-410.04, 66-413, 66-447, 66-627, 76-906, 77-369, 77-1735, 77-2106.01, 77-2610, 77-2708(2), 77-2775, 77-2793, 77-27,119, 77-27,150, 77-27,154, 81-1260, 81-1559, and 84-909(1), R.R.S. 1943. Sections 77-2711(1)(a), and 77-2715(3)(a), R.S.Supp., 1982. December 5, 1982.)
006.01 These rules shall be followed when filing a request for a redetermination of a disapproved tax application, property valuation assessment, waiver of penalty for failure to list personal property, or situs between two counties.
006.10A Content. This information shall be supplied by petitioner when filing a request for redetermination. The request shall:
006.01A(1) Identify the petitioner,
006.01A(2) Identify the disapproved application, penalty requested to be waived, the situs dispute, or property valuation assessment,
006.01A(3) Set forth all reasons for believing the item under consideration should be predetermined, with facts sufficient to acquaint the Commissioner of the exact basis thereof. Regarding property valuation assessments, the request must also include the amount of the valuation claimed to be unjust and inequitable and the amount the valuation should be,
006.01A(4) Demand the relief to which the petitioner considers himself entitled,
006.01A(5) Be in writing.
006.01B Filing date.
006.01B(1) Application. Petitioner must file a written request for redetermination of a disapproved application with the Department within thirty (30) days from date of disapproval if a lesser time period has not been provided for by statute,
006.01B(2) Waiver of penalty. Petitioner must file with the State Tax Commissioner a written request regarding waiver of penalty considerations within thirty (30) days from the date of receipt of the unfavorable notice of the decision of the State Tax Commissioner, county assessor, or board of equalization if a lesser time period has not been provided for under the applicable property tax statutes.
006.01B(3) Property valuation assessments. An appeal of a property valuation assessment must be filed with the State Tax Commissioner within thirty (30) days from the date of the assessment except in the case of valuation of railroad property which appeal must be filed prior to August 1. In lieu of filing an appeal with the State Tax Commissioner, a railroad may prior to August 1 appeal a property valuation assessment de novo to the district court.
006.01B(4) Situs dispute. Either county may petition the Commissioner for determination of the situs of personal property for any tax year at any time so long as the personal property shall remain subject to assessment.
(Sections 77-369, 77-629, 77-1216(2), 77-1239.01, 77-1247, 77- 1320.05, and 84-909, R.R.S. 1943. Sections 77-612 and 77-801, R.S.Supp., 1985. January 26, 1986.)
007.01 These rules shall be followed when filing a request for hearing or declaration ruling on the promulgation, amendment or repeal of any regulation, revenue ruling, or form published by the Department of Revenue.
007.01A Content. This information shall be supplied by petitioner when filing a request of this nature with the Commissioner. The request shall:
007.01A(1) Identify the petitioner,
007.01A(2) Set forth sufficient facts so as to identify the item under consideration,
007.01A(3) Set forth sufficient reasons for believing the item under consideration should be promulgated, reviewed, amended, or repealed so as to acquaint the Commissioner with the exact basis thereof,
007.01A(4) If filed for promulgation or amendment of an existing regulation, revenue ruling, or form, include a copy of the petitioner‘s proposed regulation, revenue ruling, or form,
007.01A(5) Demand the relief to which the petitioner considers himself entitled,
007.01A(6) Be in writing.
007.01B Filing date. At any time the petitioner may file a written request regarding current regulations, revenue rulings, and forms published by the department, or the promulgation of those not published.
(Sections 3-149, 66-402, 66-418.02, 66-440, 66-447, 66-618, 76-903, 77-370, 77-371, 77-412, 77-1328, 77-1705, 77-2008, 77-2105, 77-2603, 77-27,119, 77-3006, 77-3112, 84-909, 84-910, 84-912, R.R.S. 1943. Sections 77-2612 and 77-2711, R.S.Supp., 1982. December 5, 1982.)
REG-33-008 PROCEEDINGS INITIATED BY THE NEBRASKA DEPARTMENT OF REVENUE
008.01 The Nebraska Department of Revenue may initiate a proceeding against a person who has failed to comply with the tax laws administered by the Department.
008.01A Revocation hearing for sales and use tax permit, lodging tax permit, or litter fee license. Whenever the holder of a sales and use tax permit, lodging tax permit, or litter fee license fails to comply with any provision of the sales and use tax portion of the Nebraska Revenue Act of 1967, as amended, the Nebraska Visitors' Development Act, the Nebraska Litter Reduction and Recycling Act, or with any rule or regulation of the Nebraska Department of Revenue with regard to sales and use tax, lodging tax, or litter fee, the Nebraska Department of Revenue may initiate a hearing after giving the sales and use tax or lodging tax permitholder or litter fee licensee 20 days notice for the purpose of requiring the permitholder or licensee to show cause why his permit or license should not be revoked.
008.01A(1) The notice must be in writing specifying the time and place of the hearing and will be sent by certified mail, return receipt requested.
008.01A(2) The Nebraska Department of Revenue may suspend or revoke any or all of the permits or licenses at the conclusion of the hearing.
008.01B Suspension or revocation hearing for mechanical amusement device, motor vehicle fuels, interstate motor carrier's fuels, special fuels, aircraft fuels, cigarette, and grain and seed tax licenses or permits. In order to insure compliance with the tax laws, the Nebraska Department of Revenue may suspend or revoke a license or permit issued under the statutory provisions of the tax laws enumerated in Reg-33-008.01B by giving notice by certified mail, return receipt requested, to the permitholder or licensee.
008.01B(1) The licensee or permitholder may file a written petition with the Nebraska Department of Revenue within 30 days from the mailing of the suspension or revocation notice requesting reconsideration of such suspension.
008.01B(2) The content of the petition shall be similar to that found in Reg-33-004.01A.
008.01B(3) The Nebraska Department of Revenue has 10 days in which to grant a hearing on the petition.
008.01B(4) If a petition is not filed within the 30 day period, the suspended or revoked license or permit shall be canceled by the Nebraska Department of Revenue.
008.01C Suspension or revocation of county assessor certificates. Whenever a county assessor fails to attend and complete a course of instruction approved by the State Tax Commissioner pursuant to sections 77-415 through 77-420, R.R.S. 1943, and any applicable regulations, the State Tax Commissioner may hold a hearing after due notice to revoke or suspend the assessor's certificate.
008.01C(1) The county assessor will be given at least 10 days notice of the time and place of the hearing.
008.01C(2) Notice of the hearing will be sent by certified mail, return receipt requested.
008.01C(3) Subsequent to the hearing, the State Tax Commissioner will issue a findings and order in regard to the suspension or revocation.
008.01C(4) If the findings and order is adverse to the county assessor, the county assessor may appeal to the District Court of Lancaster County within 30 days after service of the findings and order. The findings and order will be served by mailing a copy by certified mail, return receipt requested. Service will be completed when the findings and order is deposited in the mail.
008.01D Hearing to determine fraud or error by county's reporting taxes levied in county for distribution of Local Government Revenue Fund.
008.01D(1) Whenever it appears to the State Tax Commissioner that any county official fraudulently or erroneously certified the taxes levied within the county for purposes of distribution of the Local Government Revenue Fund, the State Tax Commissioner shall notify, by certified mail, return receipt requested, the county official concerned and the county board of the county involved setting forth the fraud or error.
008.01D(2) If such error is not corrected within 14 calendar days, the State Tax Commissioner shall schedule a hearing with five days notice, by certified mail, return receipt requested, being given to the county official concerned and to the chairperson of the county board.
008.01D(3) A copy of the notice of hearing will be sent to the State Treasurer, who will withhold transfer of all money to which the county may be entitled from the Local Government Revenue Fund until the State Tax Commissioner makes a decision.
008.01D(4) If it is determined that fraud or error has occurred, the State Tax Commissioner shall notify the State Treasurer of the proper amount of the Local Government Revenue Fund to be distributed to the county.
If it determined that no fraud or error has occurred, the entire amount withheld shall be distributed to the county.
008.01D(5) After the hearing the State Tax Com missioner shall make an order specifying the fraud or error that has occurred, whether such fraud or error has been corrected, if such error has not been corrected, and what corrective measures must be taken by the county.
008.01D(6) All parties will be notified by certified mail, return receipt requested, of the State Tax Commissioner's decision within ten days from the date of the hearing.
008.01D(7) The county may appeal the decision of the State Tax Commissioner to the district court of the county within 20 days after receipt of notice of the decision of the State Tax Commissioner in the same manner as appeals are taken from action of the County Board of Equalization under sections 77- 1510 and 77-1511, R.R.S. 1943. The appeal will be heard de novo without a jury.
008.01E Hearings to withhold distribution of money under Chapter 77, article 35, for failure of a county official to follow revenue laws, rules, and regulations.
008.01E(1) The Nebraska Department of Revenue shall notify, by certified mail, return receipt requested, the official concerned and the county board of the county involved setting forth any violation of rules, regulations, or revenue laws by a county official.
008.01E(2) If such violation is not corrected within 14 calendar days, the Nebraska Department of Revenue shall schedule a hearing with five days notice, by certified mail, return receipt requested, to the county official or officials concerned and the chairperson of the county board.
008.01E(3) The Nebraska Department of Revenue shall notify the Department of Administrative Services and the State Treasurer of such hearing and the State Treasurer will withhold distribution of all money that such county may be entitled to under the provisions of Chapter 77, article 35, until the Nebraska Department of Revenue has made a determination in regard to this matter.
008.01E(4) The Nebraska Department of Revenue shall enter an order setting forth the specific nature of the violation, whether the violation has ceased, and if not, what corrective actions must be taken.
008.01E(5) All parties concerned shall be immediately notified by certified mail, return receipt requested, of the Nebraska Department of Revenue's decision.
008.01E(6) The Nebraska Department of Revenue may, after five calendar days have elapsed from the date of hearing, determine whether or not corrective measures have been taken. If such corrective actions have been taken, all parties concerned will be notified by certified mail, return receipt requested.
008.01E(7) If it is determined that rules, regulations, directives, or laws were violated on the date of notice of hearing and are still being violated on the date of the hearing, the Department of Administrative Services, upon the completion of the necessary corrective action, shall distribute 80 percent of the money that has been withheld to the county with the balance being forfeited to the state general fund. If the corrective measures have not been completed by the date of the hearing, but corrective action has been taken by the date of the hearing, 90 percent of the amount so withheld shall be distributed to the county with the balance being forfeited to the state general fund. If the determination is that no rules, regulations, directives, or laws have been violated, the full amount of funds shall be distributed to the county.
008.01E(8) The county may appeal de novo the decision of the Nebraska Department of Revenue to the district court of the county within 20 days after receipt of notice of the decision of the Nebraska Department of Revenue in the same manner as appeals are taken from actions of the County Board of Equalization under sections 77-1510 and 77-1511, R.R.S. 1943.
008.01F Enforcement hearing for income and franchise tax and for "other taxes" which do not statutorily require issuance of permits or licenses. The Nebraska Department of Revenue may initiate a hearing for the purpose of enforcing the income tax provisions of the Nebraska Revenue Act of 1967, as amended, and the statutory provisions of any of the "other taxes" not specifically mentioned in Reg-33-008.
008.01G Collection of delinquent taxes from a responsible corporate officer or employee. The Nebraska Department of Revenue may collect delinquent sales, use, income, or withholding taxes from any corporate officer or employee who is required to collect, truthfully account for, or pay over any tax imposed under the Nebraska Revenue Act of 1967, as amended, and who willfully fails to do so. The imposition of personal liability for delinquent corporate taxes directly upon a responsible corporate officer or employee enables the Nebraska Department of Revenue to reach those primarily responsible for the corporation=s failure to remit sales, use, income, or withholding taxes which are due and owing to the State of Nebraska.
A written notice and demand for payment must be mailed to the responsible corporate officer or employee by certified mail, return receipt requested, requesting payment of the taxes within 60 days. Any corporate officer or employee seeking to challenge the Nebraska Department of Revenue's determination as to his personal liability for the corporation's delinquent taxes must:
008.01G(1) Pay the full amount of the notice or pay a specified minimum amount as indicated in the letter and post a bond for the remainder.
008.01G(2) File a claim for refund of the amount so paid in accordance with the refund procedures set out in Reg-33-005 within 60 days of the demand for payment.
008.01H If the preceding requirements are satisfied, the Nebraska Department of Revenue will abate collection proceedings pending the outcome of the refund claim. However, if the Nebraska Department of Revenue determines that further delay in collection of the delinquent taxes from the responsible corporate officer or employee will jeopardize collection proceedings, nothing in this regulation will prevent the immediate collection of the taxes.
(Sections 57-709, 66-614, 77-303(2), 77-303.01, 77-415 through 77-420, 77-425, 77-2622, 77-2713(7), 77-27,118, 77-27,135, 77-3006, 81-1262, 81-1559, and 84-909(1), R.R.S. 1943, sections 77-2105, 77- 2612, and 77-2705(6), R.S.Supp., 1984, sections 3-149, 66-418.03, 77-202, 77-2711(1)(a), and 77-27,119, R.S.Supp., 1985. January 3, 1990.)
009.01 In general. Representation before the Commissioner is governed by the applicable statutes and the decisions of the Nebraska Supreme Court. These rules shall not, however, prohibit anyone from transacting his own affairs or the affairs of any taxpayer whom he could duly represent in any conference or hearing before the Internal Revenue Service.
009.02 Power of attorney. Any person appearing on behalf of a taxpayer as his duly authorized representative with regard to sales and use, income, franchise, estate, inheritance, special fuels matters, and property tax matters which relate to real property statements or personal property schedules must have on file with the Department of Revenue a Power of Attorney. Once a Power of Attorney has been given for a hearing, the Tax Commissioner will presume that it is valid until notice of its revocation is served.
(Sections 66-633, 76-214, 77-303(2), 77-1231.01, 77-2711, 77-27,119, and 84-909, R.R.S. 1943. September 15, 1975.)
REG-33-010 PREHEARING PROCEDURE
010.01 Informal conference. Any party may request that an informal conference be held for the purpose of resolving issues of fact and attempting to resolve the matter in whole or in part without a formal hearing, or otherwise assisting in the preparation of a formal hearing.
010.02 Stipulations. It is expected that before a formal hearing, all parties will stipulate to evidence to the fullest extent so that a complete or qualified agreement can be reached regarding all material facts that are not or should not fairly be in dispute.
(Section 77-303(2), 77-2711(1)(a), 77-27,119, and 84-909(1), R.R.S. 1943. September 15, 1975.)
011.01 All notices required under the Practice and Procedure Regulations, other than notices scheduling informal conferences, shall be mailed certified mail, return receipt requested, to the last known address of the party, or served personally.
(Sections 77-303(2), 77-27,135, and 84-909, R.R.S. 1943. September 15, 1975.)
REG-33-012 PROCEDURE FOR PROCEEDING BEFORE THE COMMISSIONER
012.01 Scheduling of hearings. The time and place of any hearing shall be set by the Commissioner or his authorized representative after proceedings have commenced. The hearing shall be scheduled as soon as practicable. Written notice of the time and place of any hearing shall be given at least ten (10) days prior to the date of hearing unless notice is waived by the parties.
012.02 Motions:
012.02A General form and procedure. Motions may be filed with the Commissioner by any party or upon the Commissioner‘s own motion as soon as either party becomes aware of facts requiring the motion. The motion must state specifically the facts as to why it is necessary. If the motion is made orally, the Commissioner may request that it be reduced to writing and filed with him. To avoid a hearing on the motion, it is advisable to secure the consent of the opposite party to the motion is not obtained, a hearing on the motion will be scheduled and the parties notified. The burden will be on the party filing the motion to show good cause why the motion should be granted. Notice will be given to all parties of the ruling of the Hearing Officer on the motion.
012.02B Types of motions. Types of motions which may be made by either party include but are not limited to:
012.02B(1) Motion for continuance.
012.02B(2) Motion for dismissal, which may be made on the following grounds for:
012.02B(2)(a) Lack of jurisdiction including but not limited to whether the petitioner is the proper party in the proceeding, whether there was a deficiency determination or whether the protest petition was filed within the statutory time limit,
012.02B(2)(b) Failure of party to state a cause of action, for if all facts alleged by the party are true, the operation of law will in no way change the notice of proposed deficiency determination,
012.02B(2)(c) Failure of a party to comply with these Practice and Procedure Regulations.
012.02B(3) Motion for default judgment may be filed and may be sustained whenever the party having the burden of proof fails to appear at a hearing,
012.02B(4) Motion for consolidation may be made in the following instances:
012.02B(4)(a) The same taxpayer has received separate deficiency notices relating to different taxable years or companies and, instead of contesting them in one petition at the outset, has filed a separate petition for each notice.
012.02B(4)(b) Different taxpayers receiving deficiency notices based on the same general issues may request consolidation of the cases, especially if they are represented by the same attorney or accountant. Even where separately represented, they may, by agreement, request consolidation of the cases. Some examples are:
012.02B(4)(b)(i) Stockholder’s deficiency notices as to basis of stock sold or exchanged, gain or loss on reorganization, status of dividends received,
012.02B(4)(b)(ii) Partners,
012.02B(4)(b)(iii) Affiliated corporations,
012.02b(4)(b)(iv) Husband and wife who received separate deficiency notices,
012.02B(4)(b)(v) Transferees,
012.02B(4)(b)(vi) Lessor and Lessee,
012.02B(4)(b)(vii) Corporations involved in reorganizations,
012.02B(4)(b)(viii) Beneficiaries of estates or trusts,
012.02B(4)(b)(ix) Trusts created by the same grantor,
012.02B(4)(b)(x) Officers of corporation as to status of salaries disallowed the corporation as a deduction,
012.02B(4)(b)(xi) Corporation and stockholder.
012.02B(4)(c) The same taxpayer has received separate deficiency notices as to his own tax and as to his liability as transferee, or separate deficiency notices as to his liability as transferee of two transfers.
012.02B(4)(d) Different corporations, having the same stockholders, have received separate deficiency notices for each or all of the corporations.
012.03 Oath. All testimony presented before the Hearing Officer shall be given under oath which the Hearing Officer will have the authority to administer.
012.04 Production of evidence and testimony. The Hearing Officer may issue subpoenas, as permitted by law, compelling the attendance of witnesses and the production of records, papers, books, and accounts and documents, and cause the taking of depositions in accordance with District Court rules.
012.04A Subpoena. When a subpoena is desired, the proper party shall indicate to the Hearing Officer the name of the case and names and last known addresses of the witnesses to be called. If evidence other than oral testimony is required, each item to be produced must be adequately described. When properly prepared, the subpoena will be returned to the requesting party for service. Service may be made either by mailing a copy thereof by certified mail, return receipt requested, not less than six (6) days before the hearing date of the cause which the witness is required to attend or, personally, by any person not interested in the action. No costs for serving a subpoena will be allowed.
012.05 Admissibility of evidence.
012.05A Evidence having probative value. The Hearing Officer may admit and give probative effect to evidence which possesses probative value commonly accepted among reasonably prudent men in the conduct of their own affairs. Incompetent, irrelevant, immaterial, and unduly repetitious evidence may be excluded.
012.05B Evidence of a federal determination. Evidence of a federal determination whether it be a Treasury Department ruling or regulation or determination letter, a federal court decision or an Internal Revenue Service Assessment relating to issues raised in the proceeding shall be presumed to have conceded the accuracy of it unless the petitioner specifically states wherein it is erroneous.
012.05C Copies as evidence. A copy of any book, record, paper, or document may be offered directly in evidence in lieu of the original, where the original is unavailable or where there is no objection, and where the original is admitted in evidence, a copy may be substituted later for the original or such part thereof as may be material or relevant upon leave granted in the discretion of the Hearing Officer.
012.06 Exhibits.
012.06A Identification of exhibits. Exhibits attached to a stipulation or entered in evidence which are offered by a petitioner shall be numbered serially, i.e., 1, 2, 3, etc., whereas, those offered by the Department of Revenue shall be lettered serially, i.e., A,B,C, etc; and those offered jointly shall be numbered and lettered, i.e., 1-A, 2-B, 3-C, etc.
012.06B Disposition of exhibits. After a Findings and Order has become final, either party desiring the return, at his own expense, of any exhibit belonging to him shall make application in writing to the Hearing Officer within thirty (30) days suggesting a practical manner of delivery; otherwise, exhibits may be disposed of as the Hearing Officer deems advisable.
012.07 Official notice of evidence. The Hearing Officer may take notice of judicially recognizable facts and of general, technical, or scientific facts within the specialized knowledge of the Commissioner‘s office. Parties to a proceeding shall be notified either before or during the hearings of the facts so noticed and shall be afforded an opportunity to contest such facts.
012.08 Evidence outside the record. Except as provided by these regulations, the Hearing Officer will not consider factual information or evidence in the determination of any proceeding unless the same shall have been offered and made a part of the record in the proceeding.
012.09 Presentation of evidence and testimony.
012.09A Presentation. In any hearing, every party thereto shall have the right to present evidence and testimony of witnesses and to cross-examine any witness who testifies in behalf of an adverse party. Opportunity shall be afforded every party to present evidence and testimony as rebuttal to evidence presented by another party, except that repetitious evidence shall be excluded.
012.09B Rules of evidence. Any party may request that the proceeding be bound by the rules of evidence applicable in a District Court of Nebraska. Such party shall file with the Hearing Officer, at least three (3) days prior to the date of the scheduled hearing, a written request that the hearing be so conducted. The request for the application of District Court rules of evidence shall be in writing and include an agreement by the requesting party that he shall pay the cost incurred by the request and that he shall procure at his own cost and on his own initiative, the court reporting services for the hearing.
012.10 Conduct of hearing. A hearing shall be conducted by a Hearing Officer who, among other things, will open the proceedings, take appearances, administer oaths, and subpoena witnesses; hear the evidence and rule on the motions and objections; interrogate witnesses; and close the proceedings. If the petitioner is not represented by anyone qualified to make an appearance, the Hearing Officer shall explain to the petitioner the Rules of Practice and Procedure and generally shall conduct the hearing in a less formal manner than that used when a petitioner has a representative qualified to appear. It should be the purpose of the Hearing Officer to assist any petitioner who appears without such a representative to the extent necessary to allow him to fairly present his evidence, testimony, and arguments on the issues.
012.11 Arguments as to law. The parties should be prepared to make oral argument as to the law at the conclusion of a hearing. A written memorandum of law may be filed at the time of the hearing at the discretion of any party or at a subsequent time if the Hearing Officer so directs.
012.12 Records. The petitioner may request and obtain a certified copy of the record of the hearing. Charges for preparing the certified copy of the record shall be paid by the party requesting it. Testimony in any hearing may be taken by tape recording. The official record will consist of the exhibits and transcription of said recording, except where a party has requested that the District Court rules of evidence apply to the hearing.
(Sections 3-148, 57-712, 66-408, 66-410.05, 66-630, 77-375, 77-376, 77-2605, 77-2709(8), 77-27,119, 84-909, 84-913, 84-914, 84- 915, R.R.S. 1943. Section 77-2711, R.S.Supp., 1982. December 5, 1982.)
013.01 The burden of proof in any proceeding shall be on the taxpayer or permitholder except for the following issues wherein the burden of proof shall be on the Commissioner:
013.01A Whether the petitioner has been guilty of fraud with attempt to evade tax,
013.01B Whether the petitioner is liable as the transferee of property of a taxpayer (the burden of proof on the issue of the transferor’s liability remains with the petitioner),
013.01C Whether the petitioner is liable for any increase in a deficiency which is proposed after a notice of deficiency was mailed and after a protest was filed, except that the burden of proof on issues relating to increases resulting from changes or corrections of federal taxable income reportable under Section 77-2775, R.R.S. 1943, shall remain with the petitioner if the Commissioner had no notice of the federal change when he mailed the notice of deficiency,
013.01D Whether a responsible corporate officer has willfully failed to pay tax due from the corporation.
(Sections 77-303(2), 77-2703, 77-2711(1)(a), 77-2714, 77-2781, 77-27,119, and 84-909, R.R.S. 1943. September 15, 1975.)
REG-33-014 DETERMINATION BY THE COMMISSIONER
014.01 Notification of the Findings and Order of the Commissioner under all proceedings shall be served on the petitioner. Notice shall be in writing and shall state the findings of fact and conclusions of law reached by the Commissioner. The findings of fact shall consist of a concise statement of the conclusions upon each contested issue of fact. The petitioner may initiate an appeal after service is made of the Tax Commissioner‘s decision or Findings and Order. If service is by certified mail, return receipt requested, service upon the petitioner will be considered to have been completed as of the date of deposit in the United States post office. If notice is served personally, service upon the petitioner will be considered to have been completed as of the date of delivery.
(Sections 77-303, 77-27,126, 77-27,127, 77-27,128, 84-915, and 84-917, R.R.S. 1943. September 15, 1975.)
