Current through September 17, 2024
206.01 Schedule of Hearings
The time and place of any hearings shall be set by the State
Tax Commissioner or his or her authorized representative after proceedings have
commenced. The hearing shall be scheduled as soon as practical. Hearings on
contract suspensions, terminations and administrative penalties will be held
within thirty (30) days of receipt of petition for redetermination. Written
notice of the time, date, 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.
206.02 Motions
206.02A
General Form and
Procedure. Motions may be filed with the State Tax Commissioner by any
party or upon the State Tax Commissioner's own motion as soon as either party
becomes aware of the facts requiring the motion. The motion must state
specifically the facts as to why it is necessary. If the motion is made orally,
the State Tax Commissioner may request that it be reduced to writing and filed
with the Department. To avoid a hearing on a motion, it is advisable to secure
the consent of the opposing party prior to filing a motion. If consent of the
opposing party to a motion is not obtained, a hearing on the motion may 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.
206.02B
Types of
Motions. Types of motions which may be made by either party include, but
are not limited to:
206.02B(1) Motion for
Dismissal, which may be made on the following grounds for:
206.02B(1)(a) Lack of jurisdiction,
including, but not limited to, whether the petitioner is the proper party in
the proceeding, or whether the petition was filed within the statutory time
limit;
206.02B(1)(b) Failure of a
party to state a cause of action; or
206.02B(1)(c) Failure of a party to comply
with these practice and procedure regulations.
206.02B(2) Motion for default judgement may
be filed and may be sustained whenever the party having the burden of proof
fails to appear at a hearing;
206.02B(3) Motion for consolidation may be
made when substantially similar issues affect different parties.
206.03 Oath
All testimony presented before the Hearing Officer shall be
given under oath which the Hearing Officer will have the authority to
administer.
206.04
Production of Evidence and Testimony
The Hearing Officer may issue subpoenas, as permitted by law,
compelling the attendance of witnesses, in the production of records, papers,
books, accounts, and documents, and cause the taking of depositions in
accordance with the District Court Rules.
206.04A
Subpoena. When a
subpoena is desired to effectuate discovery or to compel testimony at a
hearing, the proper parties shall indicate to the Hearing Officer the name of
the case, and the 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, no less
than six (6) days before the hearing date of the cause which the witnesses are
required to attend or personally, by any person not interested in the
action.
206.05
Admissibility of Evidence
206.05A
Evidence having probative value. The Hearing Officer may admit
evidence which possesses probative value commonly accepted among reasonably
prudent men or women in the conduct of their own affairs. Incompetent,
irrelevant, immaterial, and unduly repetitious evidence may be excluded. A
party may request that the Nebraska Rules of Evidence in use by the District
Courts be used at hearing in accordance with Reg-206.09B.
206.05B
Copies as Evidence. A
copy of any book, record, paper, or document may be offered directly in
evidence in lieu of their original where the original is unavailable or where
there is no objection and where the original is admitted into 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.
206.06 Exhibits
206.06A
Identification of
Exhibits. Exhibits entered into evidence shall be numbered in the order
in which they are received.
206.06B
Disposition of Exhibits. After a Findings and Order has become
final, either party desiring the return, at his or her own expense, of any
exhibit belonging to him or her 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.
206.07
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 State Tax Commissioner's office. Parties to a
proceeding shall be notified either before or during the hearing of the facts
so noticed and shall be afforded an opportunity to contest such
facts.
206.08 Evidence
outside the Record
Except as provided by these practice and procedure
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.
206.09 Presentation of Evidentiary Testimony
206.09A
Presentation. At any
hearing, every party thereto shall have the right to present evidence and
testimony of witnesses and to cross-examine any witness who testifies on 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.
206.09B
Rules of Evidence. Any
party may request that the proceeding be bound by the Rules of Evidence
applicable in a District Court in 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. A request for the
application of District Court Rules of Evidence shall be in writing and include
an agreement by the requesting party that he or she shall pay the cost incurred
by the request if a final decision is rendered against the requesting party.
206.09B(1) All costs of a formal hearing,
except as set out below, shall be paid by the party or parties against whom a
final decision is rendered. The party requesting the District Court Rules of
Evidence may procure at his or her own cost and on his or her own initiative
the court reporting services for the hearing.
206.10 Conduct of hearing
Hearings 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 party is
not represented by anyone qualified to make an appearance, the Hearing Officer
shall explain to the party the rules of practice and procedure, and shall
generally conduct a hearing in a less formal manner than that used when a party
has a representative qualified to appear. It should be the purpose of the
Hearing Officer to assist any party who appears without such a representative
to the extent necessary to allow him or her to fairly present his or her
evidence, testimony, and arguments on the issues.
206.11 Arguments as to Law
The parties should be prepared to make oral arguments 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 time
subsequent to the hearing if the Hearing Officer so directs.
206.12 Records
A party 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 exhibits and transcriptions
of said recording.
