Current through Register Vol. 46, No. 12, March 20, 2024
(a) Purpose. The purpose of the pleadings is
to give the parties and the Division of Tax Appeals fair notice of the matters
in controversy and the basis for the parties' respective positions. All
pleadings shall be liberally construed so as to do substantial
justice.
(b) Answer.
(1) The office of counsel shall serve an
answer on the petitioner or the petitioner's representative, if any, within 75
days from the date the supervising administrative law judge acknowledged
receipt of a petition in proper form. Upon written request, the supervising
administrative law judge may extend the time to serve an answer to no more than
90 days. A copy of the answer with proof of service on the petitioner or
petitioner's representative, if any, shall be filed with the supervising
administrative law judge within the same period prescribed for serving the
answer.
(2) The answer as drawn
shall contain numbered paragraphs corresponding to the petition, and shall
fully and completely advise the petitioner and the Division of Tax Appeals of
the defense. It shall contain:
(i) a specific
admission or denial of each statement contained in the petition; however, if
the Division of Taxation is without knowledge or information sufficient to form
a belief as to the truth of a statement, then the answer shall so state, and
such statements shall have the effect of a denial;
(ii) a statement of any additional facts to
be proven by the Division of Taxation either as a defense, or for affirmative
relief, or to sustain any issue raised in the petition upon which the Division
of Taxation has the burden of proof; and
(iii) the relief sought by the Division of
Taxation.
(3) Material
allegations of fact set forth in the petition which are not expressly admitted
or denied in the answer shall be deemed to be admitted.
(4) Where the Division of Taxation fails to
answer within the prescribed time all material allegations of fact set forth in
the petition shall be deemed to be admitted.
(c) Reply. The petitioner may serve a reply
on the office of counsel. A copy of the reply with proof of service on the
office of counsel shall be filed with the supervising administrative law judge
within the period prescribed for service of the reply. When a reply has been
filed, or after expiration of the 20 days, the controversy shall be deemed to
be at issue and will be scheduled for a hearing.
(d) Amended pleadings.
(1) General. Either party may amend a
pleading once without leave at any time before the period for responding to it
expires, or within 20 days after service of a pleading responding to it. After
such time, a pleading may be amended only by the written consent of the adverse
party or by the consent of the supervising administrative law judge or the
administrative law judge or presiding officer assigned to the matter. Leave
shall be freely given upon such terms as may be just, including the granting of
continuances. Except as otherwise ordered by the supervising administrative law
judge or the administrative law judge or presiding officer assigned to the
case, there shall be an answer or reply to an amended pleading if an answer or
reply is required to the pleading being amended. Service of such answer shall
be made within 75 days after service of the amended petition, and service of a
reply shall be made within 20 days after service of the amended pleading to
which it responds. No amendment shall be allowed under this subdivision after
the expiration of the time for filing the petition, if such amendment would
have the effect of conferring jurisdiction on the division of tax appeals over
a matter which otherwise would not come within its jurisdiction under the
petition as then on file.
(2)
Amendment to conform to the evidence.
(i)
Issues tried by consent. When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. The administrative law
judge or presiding officer, upon motion of any party at any time, may allow
such amendment of the pleadings as may be necessary to cause them to conform to
the evidence and to raise these issues; but failure to amend does not affect
the result of the trial of these issues.
(ii) Other evidence. If evidence is objected
to at the hearing on the ground that it is not within the issues raised by the
pleadings, then the administrative law judge or presiding officer may receive
the evidence and at any time allow the pleadings to be amended to conform to
the proof, and shall do so freely when justice so requires and the objecting
party fails to satisfy the administrative law judge or presiding officer that
the admission of such evidence would prejudice such party in maintaining such
party's position on the merits.
(3) Relation back of amendments. When an
amendment of a pleading is permitted, it shall relate back to the time of
filing of that pleading, unless the administrative law judge or presiding
officer shall order otherwise either on motion of a party or on his or her own
initiative.