Current through Register Vol. 23-24, December 15, 2023
(1)
Introduction. The department of revenue (department) conducts
adjudicative proceedings pursuant to chapter 34.05 Revised Code of Washington
(RCW), the Administrative Procedure Act (APA). The department will use a brief
adjudicative proceeding as provided in
RCW
34.05.482 through
34.05.494 to determine the
following issues:
(a) Whether a holder is
liable for accrued interest for failure to pay or deliver property to the
department;
(b) Whether a holder is
subject to the 10 percent penalty for failure to timely file a report or pay or
deliver any amounts or property due under a report;
(c) Whether a holder is subject to the 10
percent penalty for an assessment following an examination, of amounts unpaid
or property not delivered;
(d)
Whether a holder is subject to the five percent penalty for failure to timely
pay or deliver property due under an assessment; and
(e) Whether a holder is subject to the five
percent penalty for failing to electronically file a report or pay
electronically.
(2)
Waivers.
(a) For subsection
(1)(a) of this rule, interest may be waived for circumstances sufficient for
waiver or cancellation of interest under
RCW
63.30.690.
(b) For subsection (1) (b) through (d) of
this rule, penalties may be waived for circumstances sufficient for waiver or
cancellation of penalties under
RCW
63.30.690.
(c) For subsection (1)(e) of this rule, the
department may relieve any holder from the electronic filing requirement for
good cause as determined by the department. "Good cause" means:
(i) A circumstance or condition exists that,
in the department's judgment, prevents the holder from electronically filing
the report due under
RCW
63.30.220; or
(ii) The department determines that relief
from the electronic filing requirement supports the efficient or effective
administration of chapter 63.30 RCW.
(3)
Multiple penalties. The
assessment of more than one type of penalty against a holder will be determined
in a single brief adjudicative proceeding if those penalties were assessed in
the same notice of assessment.
(4)
Holder defined. Holder, as applied throughout this rule means a
person obligated to hold for the account of, or to deliver or pay to, the
owner, property that is subject to chapter 63.30 RCW, the Revised Uniform
Unclaimed Property Act.
(5)
Record in brief adjudicative proceedings. The record with respect
to a holder's petition for review under
RCW
34.05.482 through
34.05.485 will consist of:
(a) The holder's unclaimed property report
and electronic confirmation of report;
(b) Application for penalty and interest
waiver;
(c) Application for refund
of property, interest, or penalty;
(d) The holder's unclaimed property petition
for review;
(e) Request for relief
from electronic filing and payment requirements;
(f) Department's letter of denial for refund
or return of property, if any; and
(g) All correspondence between the holder and
the department regarding the penalty, interest, or refund in
question.
(6)
Conduct of brief adjudicative proceedings.
(a) If the department assesses penalties and
interest under chapter 63.30 RCW, it will notify the holder of the penalties
and interest in writing and state the reason for the penalties and interest. To
initiate a review of the department's assessment of penalties and interest, the
holder must file a written petition for review no later than 90 days after the
holder receives the determination from the administrator pursuant to
RCW
63.30.680 or from any extension of the due
date granted by the department, or in the case of a refund or return
application, 30 days after the department rejects the application in writing,
regardless of any subsequent action by the department to reconsider its initial
decision. The period for filing a petition for review under this section may be
extended upon a written agreement signed by the holder and the department. See
RCW
63.30.730.
(b) A form notice of petition for review is
available at dor.wa.gov or by calling 360-534-1502. The completed form must be
mailed, emailed, or faxed to the department at:
Mail:
Washington State Department of Revenue
Unclaimed Property
Section
P.O. Box 47477
Olympia, WA
98504-7477
Email: UCP@dor.wa.gov
Fax: 360-534-1498
(c) At the time the petition is filed, the
holder must submit to the unclaimed property section, all arguments and any
evidence or written material relevant to the matter that the party wishes the
presiding officer to consider. No witnesses may offer testimony.
(d) A presiding officer, who will be the
unclaimed property claims and outreach manager of the unclaimed property
section or such other person as designated by the director of the department,
will conduct brief adjudicative proceedings. The presiding officer for brief
adjudicative proceedings will have agency expertise in the subject matter but
will not otherwise have participated in the assessment of penalties on the
holder.
(e) In addition to the
record, the presiding officer for brief adjudicative proceedings may employ
agency expertise as a basis in making a decision.
(f) Within 21 days of receipt of the holder's
petition for review, the presiding officer will enter an initial order,
including a brief explanation of the decision per
RCW
34.05.485. All orders will be in writing. The
initial order will become the department's final order unless a timely petition
for review is filed with the department's administrative review and hearings
division as provided in subsection (7) of this rule.
(7)
Review of initial orders from brief
adjudicative proceeding.
(a) A holder
may request a review by the department of an initial order issued per
subsection (6) of this rule by filing a written petition for review with the
department's administrative review and hearings division within 21 days of
service of the initial order on the holder. See
RCW
34.05.488. At the time the petition is filed,
the holder must submit to the administrative review and hearings division all
arguments and any evidence or written material relevant to the matter that the
party wishes the reviewing officer to consider.
(b) An unclaimed property petition for review
of an initial order per subsection (6) of this rule is available at dor.wa.gov.
The completed petition must be mailed, emailed, or faxed to the department at:
Mail:
Washington State Department of
Revenue
Administrative Review and Hearings Division
P.O. Box 47460
6400 Linderson Way S.W.
Olympia,
WA 98504-7460
Email: DORARHDadmin@dor.wa.gov
Fax: 360-534-1340
(c) A reviewing officer, who will be either
the assistant director of the administrative review and hearings division or
such other person as designated by the director, will conduct a brief
adjudicative proceeding and determine whether the department's initial order
issued per subsection (6) of this rule was correct based on the criteria set
forth in RCW 63.30.690. The reviewing
officer will review the record and, if needed, convert the proceeding to a
formal adjudicative proceeding in accordance with subsection (8) of this
rule.
(d) The agency record need
not constitute the exclusive basis for the reviewing officer's decision. The
reviewing officer will have the authority of a presiding officer.
(e) The reviewing officer will issue a
written order that includes a brief statement of the reasons for the decision,
within 20 days of the date the petition for review was filed. The order will
include a notice that judicial review may be available. The order of the
reviewing officer represents the final decision of the department.
(f) A request for review is deemed denied if
the department does not issue an order on review within 20 days after the
petition for review is filed, unless a continuance is issued under subsection
(12) of this rule. See
RCW
34.05.491(5).
(8)
Conversion of a brief
adjudicative proceeding to a formal proceeding. The presiding officer or
reviewing officer may convert the brief adjudicative proceeding to a formal
proceeding at any time on motion of the holder, the department, or the
presiding or reviewing officer's own motion.
(a) The presiding or reviewing officer will
convert the proceeding when it finds that the 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 holder and department, or when the issues and interests
involved warrant the use of the procedures of
RCW
34.05.413 through
34.05.479.
(b) When a proceeding is converted from a
brief adjudication to a formal proceeding, the director may become the
reviewing officer or may designate a replacement reviewing officer to conduct
the formal proceedings upon notice to the holder and the department.
(c) In the conduct of the formal proceedings,
WAC 458-20-10002(2)
will apply to the proceedings.
(9)
Court appeal.
(a) A holder may appeal a final order of the
department under Part V, chapter 34.05 RCW, when a review of the initial
decision has been requested under subsection (7) of this rule and all other
administrative remedies have been exhausted. See
RCW
34.05.534.
(b) A holder who has already paid or
delivered property to the department may appeal directly to the superior court
of Thurston County for a refund of such payment or property instead of
appealing to the department. See
RCW
63.30.740.
(10)
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 to be included. The
last day of the period is to be included, unless it is a Saturday, Sunday or a
legal holiday, in which event the period runs until the next day which is not a
Saturday, Sunday or legal holiday. When the period of time prescribed is less
than seven days, intermediate Saturdays, Sundays and holidays are excluded in
the computation. Service as discussed in subsection (11) of this rule is deemed
complete upon mailing.
(11)
Service. All notices and other pleadings or papers filed with the
presiding or reviewing officer must be served on the holder, their
representatives/agents of record, and the department's representative.
(a) Service is made by one of the following
methods:
(i) In person;
(ii) By first-class, registered or certified
mail;
(iii) By fax and same-day
mailing of copies;
(iv) By
commercial parcel delivery company; or
(v) By electronic delivery.
(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
holder and to their representative/agent of record must be to the address(es)
shown on the petition for review.
(g) Service to the department's
representative must be to the unclaimed property section at the address shown
in subsection (6) of this rule.
(h)
Service to the reviewing officer must be to the administrative review and
hearings division at the address shown in subsection (7) of this
rule.
(i) Where proof of service is
required, the proof of service must include a certificate, 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 to (names); and that the service was
accomplished by a method of service as provided in this subsection.
(j) Failure to serve documents on all parties
of record in the proceeding in a manner prescribed by this subsection will
result in an unlawful ex parte contact. An ex parte contact cannot constitute
evidence of any fact at issue in the matter unless the party complies with
RCW
34.05.455(5).
(12)
Continuance. The
presiding officer or reviewing officer may extend any filing deadline or move
the date of any hearing by motion of the holder, the department, or on its own
motion.
Adopted by
WSR
18-11-103, Filed 5/21/2018, effective
6/21/2018
Amended by
WSR
23-08-003, Filed 3/22/2023, effective
4/22/2023