Current through September 18, 2024
A. Appearance
and Practice before the Tax Administrator.
1.
Any attorney-at-law or any person authorized by law to practice accountancy or
person who is actively enrolled to practice before the Internal Revenue
Service, may represent any taxpayer in any hearings or other proceedings before
the Tax Administrator. Attorneys who are not licensed to practice in Rhode
Island must first obtain admission pro hac vice in accordance with Rule
9(a) of
Article II of Rhode Island Supreme Court Rules. See, In re Ferrey, 774 A.2d 62
(RI 2001). Such person must officially enter his or her appearance with the Tax
Administrator and, if not accompanied by the taxpayer, must have a properly
executed power of attorney from the taxpayer.
2. Any person may appear and act for himself
or herself; or
a. for a partnership of which
he or she is a partner; or
b. for a
limited liability company of which he or she is a managing member; or
c. for a limited partnership of which he or
she is a general partner or an officer of a corporate general partner;
or
d. for a corporation of which he
or she is an officer; or
e. for an
association or other organization of which he or she is a member or official,
and being duly authorized by such association or organization to represent it,
in any hearings or other proceedings before the Tax Administrator.
3. A family member may appear and
act for another family member in any hearings provided that the person
appearing before the Tax Administrator has a properly executed power of
attorney. For purposes of this regulation, family member means a husband, wife,
child (including foster child) mother, father, brother, sister, grandparent, or
grandchild.
4. Notice of any change
of attorney, accountant, or other duly authorized representative, shall be
given promptly to the Tax Administrator. Said notice of change or withdrawal
must be consented to by the taxpayer in writing.
B. Form and Style of Papers.--All papers
filed with the Tax Administrator shall be either printed or typewritten, and if
typewritten shall be on white paper of the usual legal size (8 1/2" x 14") or
the usual letter size (8 1/2" x 11") and shall be clearly legible.
C. Request for Hearing Procedure.- Taxpayer
must request a hearing in writing. The request for hearing shall contain in
substance the following:
1. A clear and
concise statement of the nature of the tax or other material which is disputed,
objected to, or otherwise sought to be contested and of the facts on which the
taxpayer relies.
2. A clear and
concise statement of the taxpayer's objection to the assessment or
determination with which he or she is aggrieved, and of contentions of law, if
any, which the taxpayer desires to raise, including the application of any rule
or regulation which may be involved;
3. A prayer setting forth the relief sought;
and
4. The name and address of the
taxpayer, any identifying number assigned to such taxpayer with reference to
the particular tax in question, as well as the name and address of his or her
attorney or accountant, if any.
D. Filing of Request for Hearing.--The
request for hearing shall be filed in writing with the Tax Administrator and be
signed by the taxpayer or by his or her attorney or accountant. Such filing
shall be made within the statutory time limit either by making delivery by
hand, or by regular mail, postage prepaid, addressed to the Tax Administrator
at One Capitol Hill, Providence, Rhode Island, 02908-5800. Failure to conform
to the requirements of §
2.7(D) of
this Part or of the preceding §
2.7(C) of
this Part, shall be grounds, at the discretion of the Tax Administrator, for
dismissal of the request for hearing.
E. Any person aggrieved by any assessment or
determination and who has requested a hearing thereon pursuant to the
provisions of law, shall first be afforded an opportunity to have a preliminary
conference before the Tax Administrator's designee (a/k/a a preliminary
conferee) concerning said assessment or determination prior to the holding of
such hearing, and for such purpose, the Tax Administrator shall designate the
time and place for such conference. If there is no factual dispute, but only a
question of law, such preliminary conference may be waived by either party.
1. A preliminary conference is in the nature
of a settlement discussion and any evidence presented before the preliminary
conferee must be resubmitted to the hearing officer if the matter goes forward
to hearing.
2. Recording by
electronic equipment at any preliminary conference, pre-hearing or hearing will
not be permitted.
3. If a party to
fails to appear at a preliminary conference or otherwise fails to prosecute or
defend a matter as provided by these Rules, the preliminary conferee, acting on
his or her own initiative, may petition, in writing, the Tax Administrator for
a default. The party being defaulted shall be given prior written notice of the
petition and thirty (30) days therefrom to respond in writing. If default
enters, the hearing request may be deemed to have been withdrawn without the
issuance of a final decision and order. A defaulted party may request
reinstatement of their matter pursuant to a Motion for Rehearing as set forth
in §
2.7(V) of
this Part.
F.
Substitution of Parties.--In the event of the death of the taxpayer, or in the
event of insolvency or other proceedings, or for other cause, the Tax
Administrator may order the substitution of the proper parties. In the case of
the death of the taxpayer, his or her executor or administrator may appear to
prosecute the request for hearing.
G. Continuances of Hearings and Default of
Hearing Proceedings.
1. When notice of hearing
has been sent to a taxpayer and his or her representative, if known, the date
assigned may be postponed to an agreed upon date. Further continuances will
only be granted for valid reasons, (for example, illness of an important party
or witness, court appearance of an attorney with no other attorney available
for the hearing, etc.)
2. If the
tax has been paid, continuances as requested will be freely made. Otherwise,
inordinate delays will be cause for refusal of continuances, and the hearing
will proceed as scheduled, with or without the presence of the taxpayer or his
or her representative.
3. If a
party fails to appear at a hearing or a pre-hearing conference or otherwise
fails to prosecute or defend a matter as provided by these Rules, the opposing
party or the hearing officer, acting on his or her own initiative, may move for
a default and the hearing request may be deemed to have been withdrawn without
the issuance of a final decision and order. Notation of their default and the
grounds therefor shall be noted in the record. The defaulted party shall be
given notice by mail and may request reinstatement of the matter pursuant to a
Motion for Rehearing as set forth in Section V of this Sub-part.
H. Scope of Hearing.--The Tax
Administrator will not consider, unless equity and good conscience so require,
any issue of fact or contention of law not specifically set out in the request
for hearing.
I. Hearing Officers to
Hear Case.--Hearings shall be conducted by a hearing officer appointed by the
Tax Administrator who shall have authority to examine witnesses, to rule on
motions, and to rule upon the admissibility of evidence. He or she shall have
the authority to continue or recess any hearing, to keep the record open for
the submission of additional evidence, and to make recommendations to the Tax
Administrator. If for any reason a hearing officer cannot continue on a
contested case, another hearing officer will become familiar with the record
and perform any function remaining to be performed without the necessity of
repeating any previous proceedings in the case.
J. Conduct of Hearing.--The hearing shall be
convened by the hearing officer, appearances shall be noted, any motions or
preliminary matters shall be taken up, and then each party shall have
opportunity to present its case generally on an issue by issue basis, by
calling and examining witnesses and introducing documentary evidence. The
Division of Taxation shall first present its case followed by presentation of
the taxpayer's case. Each party shall also have opportunity to cross-examine
opposing witnesses on any matter relevant to the issue. Any objection to
testimony or evidentiary offers should be made, and the basis of the objection
stated. The hearing officer may question any party or witness for the purpose
of clarifying his or her understanding or to clarify the record. Proceedings
are not open to the public.
K.
Rules of Evidence.--The rules of evidence set forth in R.I. Gen. Laws Chapter
42-35, entitled "Administrative Procedures" shall apply in all contested cases.
Section 10 of that Act provides, as follows:
1. Rules of evidence. Official notice.--In
contested cases:
a. Irrelevant, immaterial, or
unduly repetitious evidence shall be excluded. The rules of evidence as applied
in civil cases in the Superior Courts of this State shall be followed; but,
when necessary to ascertain facts not reasonably susceptible of proof under
those rules, evidence not admissible under those rules may be submitted (except
where precluded by statute) if it is of a type commonly relied upon by
reasonably prudent men in the conduct of their affairs. Agencies shall give
effect to the rules of privilege recognized by law. Objections to evidentiary
offers may be made and shall be noted in the record. Subject to these
requirements, when a hearing will be expedited and the interests of the parties
will not be prejudiced substantially, any part of the evidence may be received
in written form;
b. Documentary
evidence may be received in the form of copies or excerpts, if the original is
not readily available. Upon request, parties shall be given an opportunity to
compare the copy with the original;
c. A party may conduct cross examinations
required for a full and true disclosure of the facts;
d. Notice may be taken of judicially
cognizable facts. In addition, notice may be taken of generally recognized
technical or scientific facts within the agency's specialized knowledge; but
parties shall be notified either before or during the hearing, or by reference
in preliminary reports or otherwise, of the material noticed, including any
staff memoranda or data, and they shall be afforded an opportunity to contest
the material so noticed. The agency's experience, technical competence, and
specialized knowledge may be utilized in the evaluation of the
evidence.
L.
Oral Evidence, Witnesses, and Penalty for False Statements. A hearing officer
may require the parties in a case to indicate the persons they expect to call
as witnesses. The testimony of witnesses shall be made under oath or
affirmation and the making of false statements may subject a person to criminal
prosecution under R.I. Gen. Laws Chapter 11-33, as amended.
M. Requests for Subpoena Duces Tecum. Any
party may request a hearing officer to issue a subpoena duces tecum or the
hearing officer may do so on his or her own motion. Said request shall set
forth, in detail, the information sought, the relevance thereof, and the
reasonableness of the scope of the subpoena. The party requesting the issuance
of said subpoena shall have the burden of showing the relevance and
reasonableness of the scope of the subpoena. A subpoena duces tecum may be
quashed after its issuance if it is subsequently determined that the matters
sought to be adduced are not relevant or the subpoena is not reasonable in
scope.
N. Documentary
Evidence.--Documentary evidence of exhibits will be marked for identification.
Copies or excerpts of documents are permissible.
O. Consolidated Hearings.--A party may file a
written motion to have two or more cases consolidated for purposes of hearing,
whether on written submission or oral; or the hearing officer may, on his or
her own motion, consolidate two or more cases. The motion should state the
basis for consolidation.
P.
Severance.--Where two or more cases have been consolidated for purposes of
hearing, a party may move to sever his or her case for cause. Severance will
lie within the discretion of the hearing officer.
Q. Ex Parte Communications.--There shall be
no verbal communications with the hearing officer regarding any issue of fact
or law in a case, without notice and opportunity for all parties to
participate. And there shall be no written communications that are not
transmitted at the same time to all parties, except that an individual involved
in rendering the decision in a case may communicate ex parte with employees of
the agency who have not participated in any hearing in the case for the purpose
of utilizing their special skills or knowledge in evaluating the
evidence.
R. Agreed Statement of
Facts.--The parties may, by stipulation in writing, filed with the Tax
Administrator, agree upon any facts involved in any request for hearing. Where
an agreed statement of facts is contemplated, a proposed statement shall be
submitted on behalf of the taxpayer well in advance of the hearing date. To the
extent that all the facts are not agreed upon, testimony or exhibits may be
presented at the oral proceedings. If for any reason the parties are unable to
reach agreement on the facts prior to the scheduled date of the hearing, the
oral proceedings shall go forward as scheduled without further notice to the
parties unless postponed in accordance with §
2.7(G) of
this Part heretofore stated.
S.
Transcript of Oral Proceedings. Proceedings in a pending hearing may be
recorded by one of two ways:
1. The
proceedings may be recorded transcribed by a stenographer at the discretion of
the hearing officer or at the initiative of any party.
a. If stenographic recording is ordered by
the hearing officer, the costs of such recording shall be charged to the Tax
Division. The stenographic notes of hearings taken and transcripts thereof
shall be for the information reference and use of the hearing officer. Copies
of said transcripts may be obtained only by the taxpayer and/or his
representative from the Tax Administrator at his reproduction costs or from the
stenographer upon the terms and conditions fixed by the stenographer.
b. If a stenographic is ordered by a party,
the costs of the recording shall be borne by the requesting party or upon the
terms and conditions agreed upon between the parties. The hearing officer shall
be provided an original copy of the transcript at no cost for his or her own
reference and use.
2.
The proceedings may be recorded by audiotape, digital recorder or similar
electronic device by the hearing officer. Any party may request a copy of such
recordings from the hearing officer and they may convert such recordings into a
written transcript at their own cost. The hearing officer may request a copy of
such transcripts at no cost for his or her reference and use.
T. Findings of Fact.--Requests for
proposed findings of fact (R.I. Gen. Laws §
42-35-12) must
be submitted in a separate document and be so headlined. A statement of facts
included in a brief or memorandum of law will be considered only to represent
the proponent's version of the facts.
U. Briefs.--Briefs may be filed either before
or at the time of the hearing, or after the hearing within a time to be fixed
by the hearing officer.
V. Requests
for Rehearing.
1. A request for rehearing
which is submitted prior to the issuance of the final decision of the hearing
officer and/or the Tax Administrator, should be made in writing, setting forth
the substance of the additional evidence to be offered, and the reason for
failure of the party to offer it at the prior proceedings.
2. A request for rehearing which is submitted
after the issuance of the final decision must be made within thirty (30) days,
after such issurance, and must state the grounds for the request, setting forth
the substance of the evidence to be offered, and the reason for failure of the
party to offer it at the prior proceeding.
3. Rehearing will be denied if the proffered
evidence does not bear on any issue in contest in the original proceedings, or
if the request appears to be merely for delay. A second request for rehearing
after the granting or denial of a prior request for rehearing will not be
permitted.
4. Stays Pending
Appeal---Judicial review of final decisions of the Tax Administrator are by
trial de novo before the Sixth Division District Court pursuant to RI Gen. Laws
§§
8-8-24 et. seq. Accordingly, a motion for a stay of a license or permit revocation or
suspension pending appeal is made as a preliminary motion accompanying the
complaint filed with the reviewing court.
