Current through Register Vol. 24-06, March 15, 2024
(1)
Introduction. The department
of revenue (department) has adopted the procedure for brief adjudicative
proceedings provided in
RCW
34.05.482 through
34.05.494, except for
RCW
34.05.491(5), for actions
involving revocation of a certificate of registration (tax registration
endorsement) pursuant to
RCW
82.32.215. This rule explains the procedure
for these brief adjudicative proceedings. This rule does not apply to the
following:
* Adjudicative proceedings under WAC
458-20-10002, which addresses
converted brief adjudicative proceedings and formal adjudicative proceedings
relating to log export enforcements;
* Nonadjudicative proceedings under
RCW
82.32.160 and
82.32.170, and WAC
458-20-100;
* Enforcement proceedings under
RCW
82.24.550 and
82.26.220; and
* Brief adjudicative proceedings for matters relating to the
revocation of reseller permits under WAC
458-20-102.
The department has not adopted
RCW
34.05.491(5), which provides
that a request for administrative review is deemed to have been denied if the
agency does not make a disposition of the matter within twenty days after the
request is submitted.
(2)
Brief adjudicative proceedings - Procedure. The following
procedure applies to the department's brief adju-dicative proceedings for
actions involving revocation of a certificate of registration, unless the
matter is converted to a formal proceeding as provided in subsection (8) of
this rule.
(a)
Notice. The
department will set the time and place of the hearing. Written notice shall be
served upon the tax-payer(s) at least seven days before the date of the
hearing. Service is to be made pursuant to subsection (5)(a) of this rule. The
notice must include:
(i) The names and
addresses of each taxpayer to whom the proceedings apply and, if known, the
names and addresses of the taxpayer's representative(s), if any;
(ii) The mailing address and the telephone
number of the person or office designated to represent the department in the
proceeding;
(iii) The official file
or other reference number and the name of the proceeding;
(iv) The name, official title, mailing
address and telephone number of the presiding officer, if known;
(v) A statement of the time, place and nature
of the proceeding;
(vi) A statement
of the legal authority and jurisdiction under which the hearing is to be
held;
(vii) A reference to the
particular sections of the statutes and/or rules involved;
(viii) A short and plain statement of the
matters asserted by the department against the taxpayer and the potential
action to be taken; and
(ix) A
statement that if the taxpayer fails to attend or participate in a hearing, the
hearing can proceed and that adverse action may be taken against the
taxpayer.
(x) When the department
is notified or otherwise made aware that a limited-English-speaking person is a
person to whom the proceedings apply, all notices, including the notice of
hearing, continuance and dismissal, must either be in the primary language of
that person or must include a notice in the primary language of the person
which describes the significance of the notice and how the person may receive
assistance in understanding and responding to the notice. In addition, the
notice must state that if a party or witness needs an interpreter, a qualified
interpreter will be appointed at no cost to the party or witness. The notice
must include a form to be returned to the department to indicate whether such
person, or a witness, needs an interpreter and to identify the primary language
or hearing impaired status of the person.
(b)
Appearance and practice at a brief
adjudicative proceeding. The right to practice before the department in
a brief adjudicative proceeding is limited to:
(i) Persons who are natural persons
representing themselves;
(ii)
Attorneys at law duly qualified and entitled to practice in the courts of the
state of Washington;
(iii)
Attorneys at law entitled to practice before the highest court of record of any
other state, if attorneys licensed in Washington are permitted to appear before
the courts of such other state in a representative capacity, and if not
otherwise prohibited by state law;
(iv) Public officials in their official
capacity;
(v) Certified public
accountants entitled to practice in the state of Washington;
(vi) A duly authorized director, officer, or
full-time employee of an individual firm, association, partnership, or
corporation who appears for such firm, association, partnership, or
corporation;
(vii) Partners, joint
venturers or trustees representing their respective partnerships, joint
ventures, or trusts; and
(viii)
Other persons designated by a person to whom the proceedings apply with the
approval of the presiding officer.
In the event a proceeding is converted from a brief
adjudicative proceeding to a formal proceeding, representation is limited to
the provisions of law and
RCW
34.05.428.
(c)
Hearings by telephone. With
the concurrence of the presiding officer and all persons involved in the
proceedings, a hearing may be conducted telephonically. The conversation will
be recorded and will be made a part of the record of the hearing.
(d)
Presiding officer.
(i) The presiding officer must be an
assistant director of the department's compliance division, or such other
person as the director of the department may designate.
(ii) The presiding officer shall conduct the
proceeding in a just and fair manner and before taking action, the presiding
officer shall provide the taxpayer an opportunity to be informed of the
department's position on the pending matter.
(iii) The presiding officer has all authority
granted under
chapter
34.05 RCW.
(e)
Entry of orders.
(i) When the presiding officer issues a
decision, the presiding officer shall briefly state the basis and legal
authority for the decision. Within ten days of issuing the decision, the
presiding officer shall serve upon the parties, the initial order and
information regarding any departmental administrative review that may be
available.
(ii) The decision and
the brief written statement of the basis and legal authority for it is an
initial order. The initial order will become a final order if no review is
requested as provided in subsection (3) of this rule.
(3)
Review of initial orders
from brief adjudicative proceeding. The following procedure applies to
the department's review of a brief adjudicative proceeding conducted pursuant
to subsection (2) of this rule unless the matter is converted to a formal
proceeding as provided in subsection (8) of this rule.
(a)
Request for review of the initial
order. A party to a brief adjudicative proceeding under subsection (2)
of this rule may request review of the initial order by filing a written
petition for review, or making an oral request for review, with the
department's administrative review and hearings division within twenty-one days
after service of the initial order is received by the party. The address and
telephone number of the administrative review and hearings division is:
Administrative Review and Hearings Division
Washington State Department of Revenue
P.O. Box 47460
Olympia, Washington 98504-7460
Telephone Number: 360-534-1335
Fax: 360-534-1340
(i)
When a petition of review of the initial order is made, the taxpayer must
submit to the administrative review and hearings division at the time the
petition is filed any evidence or written material relevant to the matter that
the party wishes the reviewing officer to consider. If the petition for review
is made by oral request, the taxpayer must also submit any evidence or written
material to the administrative review and hearings division on the same day
that the oral request is made.
(ii)
The department may, on its own motion, conduct an administrative review of the
initial order as provided for in
RCW
34.05.491.
(b)
Reviewing officer. The
administrative review and hearings division shall appoint a reviewing officer
who shall make such determination as may appear to be just and lawful. The
reviewing officer shall provide the taxpayer and the department an opportunity
to explain their positions on the matter and shall make any inquiries necessary
to ascertain whether the proceeding should be converted to a formal
adjudicative proceeding The review by the administrative review and hearings
division shall be governed by the brief adjudicative procedures of
chapter
34.05 RCW and this rule;
or WAC 458-20-10002 in the event a brief
adjudicative hearing is converted to a formal adjudicative proceeding, and not
by the processes and procedures of WAC
458-20-100. The reviewing officer
shall have the authority of a presiding officer as provided in this
rule.
(c)
Record
review. Review of an initial order is limited to the evidence considered
by the presiding officer, the initial order, the recording of the initial
proceeding, and any records and written evidence submitted by the parties to
the reviewing officer. However, the agency record need not constitute the
exclusive basis for the reviewing officer's decision.
(i) The reviewing officer may request
additional evidence from either party at any time during its review of the
initial order. Once the reviewing officer requests evidence from a party, that
party has seven days after service of the request to supply the evidence to the
reviewing officer, unless the reviewing officer, in his or her discretion,
allows additional time to submit the evidence.
(ii) In addition to requesting additional
evidence, the reviewing officer may review any records of the department
necessary to confirm that the tax warrant upon which the initial order of
revocation was based remains unpaid. In the event that the tax warrant has been
satisfied subsequent to the entry of the initial order, but before the issuance
of the final order, the reviewing officer shall reinstate the taxpayer's
certificate of registration.
(iii)
If the reviewing officer determines that oral testimony is needed, he/she may
schedule a time for both parties to present oral testimony. Notice of the oral
testimony must be given to the parties in the same manner as the notice
provided in subsection (2)(a) of this rule. Oral statements before the
reviewing officer shall be by telephone, unless specifically scheduled by the
reviewing officer in his or her discretion to be in person.
(iv) The department will have an opportunity
to respond to the taxpayer's request for review and may also submit any other
relevant evidence and written material to the reviewing officer. The department
must submit its material within seven days of service of the material submitted
by the party requesting review of the initial order. The department must also
serve a copy of all evidence and written material provided to the reviewing
officer to the taxpayer requesting review according to subsection (5) of this
rule. Proof of service is required under subsection (5)(h) of this rule when
the department submits material to the taxpayer under this
subsection.
(d)
Failure to participate. If a party requesting review of an initial
order under this subsection fails to participate in the proceeding or fails to
provide documentation to the reviewing officer upon his or her request, the
reviewing officer may uphold the initial order based upon the record.
(e)
The final orders.
(i) The reviewing officer may issue two final
orders. The first final order (the "final order") must include the decision of
the reviewing officer and a brief statement of the basis and legal authority
for the decision. This order may contain confidential taxpayer information
under RCW
82.32.330, and, therefore, cannot be
disclosed by the department, except to the taxpayer.
(ii) The reviewing officer may issue a second
final order (the "posting order"). The posting order will be issued when the
reviewing officer has ordered the revocation of the tax registration
certificate. The posting order will state what certificate of registration is
being revoked, the listing of the tax warrants involved, and what jurisdictions
the tax warrants were filed in.
(iii) Unless specifically indicated
otherwise, the term "final order" as used throughout this rule shall refer to
both the final order and the posting order.
(iv) The parties can expect that, absent
continuances, the final order and posting order will be entered within twenty
days of the petition for review.
(f)
Reconsideration. Unless
otherwise provided in the reviewing officer's order, the reviewing officer's
order represents the final position of the department. A reconsideration of the
reviewing officer's order may be sought only if the right to a reconsideration
is contained in the final order.
(g)
Judicial review. Judicial
review of the final order of the department is available under Part V,
chapter
34.05 RCW. However,
judicial review may be available only if a review of the initial decision has
been requested under this subsection and all other administrative remedies have
been exhausted. See
RCW
34.05.534.
(4)
Rules of evidence - Record of the
proceeding.
(a) Evidence is admissible
if in the judgment of the presiding or reviewing officer it is the kind of
evidence on which reasonably prudent persons are accustomed to rely on in
conducting their affairs. The presiding and reviewing officer should apply
RCW
34.05.452 when ruling on evidentiary issues
in the proceeding.
(b) All oral
testimony must be recorded manually, electronically, or by another type of
recording device. The agency record must consist of the documents regarding the
matters that were considered or prepared by the presiding officer, or by the
reviewing officer in any review, and the recording of the hearing. These
records must be maintained by the department as its official record.
(5)
Service. All
notices and other pleadings or papers filed with the presiding or reviewing
officer must be served on the taxpayer, their representatives/agents of record,
and the department.
(a) Service is made by one
of the following methods:
* In person;
* By first-class, registered, or certified mail;
* By fax and same-day mailing of copies;
* By commercial parcel delivery company; or
* By electronic delivery pursuant to
RCW
82.32.135.
(b) Service by mail is regarded as completed
upon deposit in the United States mail properly stamped and
addressed.
(c) Service by
electronic fax is regarded as completed upon the production by the fax machine
of confirmation of transmission.
(d) Service by commercial parcel delivery is
regarded as completed upon delivery to the parcel delivery company, properly
addressed with charges prepaid.
(e)
Service by electronic delivery is regarded as completed on the date that the
department electronically sends the information to the parties or
electronically notifies the parties that the information is available to be
accessed by them.
(f) Service to a
taxpayer, their representative/agent of record, the department, and presiding
officer must be to the address shown on the notice described in subsection
(3)(a) of this rule.
(g) Service to
the reviewing officer must be to the administrative review and hearings
division at the address shown in subsection (3) of this rule.
(h) Where proof of service is required, the
proof of service must include:
* An acknowledgment of service;
* A certification, signed by the person who served the
document(s), stating the date of service; that the person did serve the
document(s) upon all or one or more of the parties of record in the proceeding
by delivering a copy in person to (names); and that the service was
accomplished by a method of service as provided in this subsection.
(6)
Interpreters. When a party or witness requires an interpreter,
chapters
2.42 and 2.43 RCW will
apply. When those statutes are silent on an issue before the presiding or
reviewing officer, the provisions regarding interpreters in WAC
10-08-150 apply.
(7)
Informal settlements. The
department encourages informal settlement of issues in proceedings under its
jurisdiction. The presiding or reviewing officer may not order settlement of
the proceedings. Settlement is at the discretion of the parties. Settlement of
a proceeding may be concluded by:
(a) A
stipulation signed by the taxpayer and the department, or their respective
representatives, and/or recited into the record of the proceedings. If the
stipulation provides for a payment agreement, the presiding or reviewing
officer may order a continuance of the proceedings during the period of
repayment and dismissal when all payments have been made. An order providing
for the reconvening of the proceedings if the payment agreement is breached is
allowed so long as the proceeding is not held less than seven days after notice
of the reconvening is provided. Except as provided in this subsection, the
presiding or reviewing officer must enter an order in conformity with the terms
of the stipulation; or
(b) The
entry of an order dismissing the proceedings if the department withdraws the
revocation of the certificate of registration.
(8)
Conversion of a brief adjudicative
proceeding to a formal proceeding. The presiding or reviewing officer
may at any time, on motion of the taxpayer, the department, or the officer's
own motion, convert the brief adjudicative proceeding to a formal proceeding.
(a) The presiding or reviewing officer may
convert the proceeding if the officer finds that use of the brief adjudicative
proceeding:
* Violates any provision of law,
* The protection of the public interest requires the agency to
give notice to and an opportunity to participate to persons other than the
parties, or
* The issues and interests involved warrant the use of
procedures governed by
RCW
34.05.413 through
34.05.476 or
34.05.479.
(b) WAC
458-20-10002 applies to formal
proceedings. In proceedings to revoke a taxpayer's certificate of registration,
the converted proceeding is itself the independent administrative review by the
department of revenue as provided in
RCW
82.32A.020(6).
(9)
Computation of
time. In computing any period of time prescribed by this rule, the day
of the act or event after which the designated period is to run is not
included. The last day of the period is included, unless it is a Saturday,
Sunday, or a state legal holiday, in which event the period runs until the next
day which is not a Saturday, Sunday, or state legal holiday. When the period of
time pre-scribed is less than seven days, intermediate Saturdays, Sundays, and
holidays will be excluded in the computation.
(10)
Posting of a final order of
revoking a tax registration endorsement - Revocation not a substitute for other
collection methods or processes available to the department. When an
order revoking a tax registration endorsement is a final order of the
department, the department shall post a copy of the posting order in a
conspicuous place at the main entrance to the taxpayer's place of business and
it must remain posted until such time as the warrant amount has been paid.
(a) It is unlawful to engage in business
after the revocation of a tax registration endorsement. A person engaging in
the business after a revocation may be subject to criminal sanctions as
provided in
RCW
82.32.290.
RCW
82.32.290(2) provides that a
person violating the prohibition against such engaging in business is guilty of
a Class C felony in accordance with
chapter
9A.20 RCW.
(b) Any certificate of registration revoked
shall not be reinstated, nor a new certificate of registration issued until:
(i) The amount due on the warrant has been
paid, or provisions for payment satisfactory to the department of revenue have
been entered; and
(ii) The taxpayer
has deposited with the department of revenue as security for taxes, increases
and penalties due or which may become due under such terms and conditions as
the department of revenue may require, but the amount of the security may not
be greater than one-half the estimated average annual tax liability of the
taxpayer.
(c) Revocation
proceedings will not substitute for, or in any way curtail, other collection
methods or processes available to the department.
Statutory Authority:
RCW
82.32.300 and
82.01.060(2).
11-17-094, § 458-20-10001, filed 8/22/11, effective 9/22/11. Statutory
Authority:
RCW
82.32.300 and
82.01.060. 11-04-056, §
458-20-10001, filed 1/26/11, effective 2/26/11. Statutory Authority:
RCW
82.32.300 and
34.05.410. 95-07-070, §
458-20-10001, filed 3/14/95, effective
4/14/95.