Current through Register Vol. 46, No. 12, March 20, 2024
(a) Notice. After issue is joined (see
section
3000.4[c]
of this Part), the administrative law judge unit shall schedule the controversy
for a hearing. The parties shall be given at least 30 days' notice of the first
hearing date, and at least 10 days' notice of any adjourned or continued
hearing date. A request by any party for a preference in scheduling will be
honored to the extent possible.
(b)
Adjournment; default.
(1) At the written
request of either party, made on notice to the other party and received 15 days
in advance of the scheduled hearing date, an adjournment may be granted where
good cause is shown. In the event of an emergency, an adjournment may be
granted on less notice. Upon continued and unwarranted delay of the proceedings
by either party, the administrative law judge shall render a default
determination against the dilatory party.
(2) In the event a party or the party's
representative does not appear at a scheduled hearing and an adjournment has
not been granted, the administrative law judge shall, on his or her own motion
or on the motion of the other party, render a default determination against the
party failing to appear.
(3) Upon
written application to the supervising administrative law judge, a default
determination may be vacated where the party shows an excuse for the default
and a meritorious case.
(c) Administrative law judge. The hearing
shall be conducted by an impartial administrative law judge who is authorized
to:
(1) administer oaths and
affirmations;
(2) sign and issue
subpoenas as provided in section
3000.7 of
this Part;
(3) regulate the course
of the hearings, set the time and place for continued hearings, and fix the
time for filing of legal memoranda and other documents;
(4) rule upon questions of evidence; such
rulings shall be deemed incorporated in the administrative law judge's
determination for purposes of review by the tribunal; and
(5) render determinations after
hearings.
(d) Conduct of
hearing.
(1) At the hearing, the parties may
call and examine witnesses, introduce exhibits, cross-examine opposing
witnesses on any matter relevant to the issues even though the matter was not
covered in direct examination, impeach any witness regardless of which party
first called the witness to testify, and rebut the evidence against them. All
witnesses shall testify under oath or by affirmation. The office of counsel
shall introduce a copy of each statutory notice at issue or satisfactory
evidence that each such statutory notice has in fact been issued. A copy of a
Federal determination relating to the issues may be received in evidence to
show such determination. Affidavits as to relevant facts may be received, for
whatever value they may have, in lieu of the oral testimony of the persons
making such affidavits. Technical rules of evidence will be disregarded to the
extent permitted by the decisions of the courts of this State, provided the
evidence offered appears to be relevant and material to the issues. However,
effect shall be given to the rules of privilege recognized by law. Objections
to evidentiary offers may be made and shall be noted in the record. Upon a
finding of good cause, the administrative law judge may order that any witness
be examined separately and apart from all other witnesses, except those who are
parties. The administrative law judge may, where the record appears unclear,
ask questions of the parties or of witnesses for the purpose of clarifying the
record.
(2) Where books, records,
papers or other documents have been received in evidence, the substitution of a
copy thereof may be permitted. Where original exhibits have been received in
evidence, the party who offered such exhibits may be permitted to withdraw them
after the determination of the administrative law judge or the decision of the
tribunal is final.
(3) If a party
refuses or fails without reasonable cause to obey any subpoena or subpoena
duces tecum issued by an administrative law judge, the administrative law judge
shall have the power to preclude the noncomplying party from introducing any
proofs concerning such witnesses, documents or things, or from introducing them
in evidence and may draw the inference that the precluded evidence is
unfavorable to the noncomplying party's position.
(4) For purpose of expedition, stipulation
and submission of evidence is encouraged, provided the interests of parties
will not be substantially prejudiced thereby. Although objections to a
particular part of a stipulation should be noted therein, the administrative
law judge will give consideration to any objection to irrelevancy of stipulated
facts made at the hearing (see section
3000.11
of this Part).
(5) The burden of
proof shall be upon the petitioner, except as otherwise provided by
law.
(6) After the parties have
completed the submission of the evidence, they may orally argue the
applicability of the law to the facts. If the parties also wish to submit
briefs, they may do so, within the time restrictions fixed by the
administrative law judge. Each party shall serve a copy thereof on the other
party. The parties may also submit proposed findings of fact and conclusions of
law. The proposed findings of fact shall refer, wherever possible, to the
relevant pages of the transcript of hearing and exhibits.
(7) The hearing will be stenographically
reported. A transcript thereof will be made available for examination at the
offices of the Division of Tax Appeals in Albany, or may be purchased pursuant
to section
3000.19 of this
Part. If either party deems the transcript to be inaccurate in any material
respect, the party shall promptly notify the administrative law judge, setting
forth specifically the alleged inaccuracies. The administrative law judge shall
specify the corrections to be made in the transcript, and such corrections
shall be made a part of the record.
(e) Determination.
(1) Issuance of determination. The
administrative law judge shall review the evidence and render a determination
which will contain findings of fact and conclusions of law. The administrative
law judge will render a determination within six months after completion of the
hearing or the submission of briefs, whichever is later. The administrative law
judge may extend such six-month period, for good cause shown, to no more than
an additional three months. The Division of Tax Appeals will serve a copy of
the determination on the petitioner, the petitioner's representative and the
office of counsel.
(2) Effect of
determination. The determination of the administrative law judge shall finally
decide the matters in controversy unless a party takes exception by timely
requesting review by the tribunal (see section
3000.17 of
this Part). Determinations of administrative law judges are not considered
precedent, nor are they given any force or effect in other proceedings in the
Division of Tax Appeals.
(f) Assignment of another administrative law
judge. Whenever an administrative law judge is disqualified, or it becomes
impractical for him or her to continue the hearing, another administrative law
judge may be assigned to continue with the case, unless it is shown that
substantial prejudice to a party will result therefrom.