MLB Advanced Media v. Nebraska Dept. of Rev.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
MLB Advanced Media, L.P., appellant and
cross-appellee, v. Nebraska Department of
Revenue and James Kamm, in his official
capacity as Nebraska Tax Commissioner,
appellees and cross-appellants.
___ N.W.3d ___
Filed June 5, 2026. 	Nos. S-25-144, S-25-145.
1. Statutes: Words and Phrases. Terms undefined in the Nebraska
Advantage Act have the same meaning as they do in the Nebraska
Revenue Act of 1967.
2. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclusion indepen-
dent of the lower court’s decision.
3. Administrative Law: Judgments: Appeal and Error. In an appeal
under the Administrative Procedure Act, an appellate court may reverse,
vacate, or modify the judgment of the district court for errors appearing
on the record.
4. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
5. Administrative Law: Statutes: Appeal and Error. The interpretation
of statutes and regulations presents questions of law, in connection with
which an appellate court has an obligation to reach an independent con-
clusion irrespective of the decision made by the court below.
6. Statutes: Legislature: Intent. The fundamental objective of statutory
interpretation is to ascertain and carry out the Legislature’s intent.
7. Statutes. Statutory interpretation begins with the text, and the text is to
be given its plain and ordinary meaning.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:46 AM CDT

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MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
8. ____. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
9. ____. To give effect to all parts of a statute, a court will attempt to rec-
oncile different provisions so they are consistent, harmonious, and sen-
sible and will avoid rejecting as superfluous or meaningless any word,
clause, or sentence.
10. Taxation. If a taxpayer fails to meet the required levels of invest-
ment for the required period under a project covered by an agree-
ment between the taxpayer and the Tax Commissioner pursuant to the
Nebraska Advantage Act, all or a portion of the incentives set forth in
the Nebraska Advantage Act shall be recaptured or disallowed.
11. ____. Except as specifically permitted in Neb. Rev. Stat. § 77-5728
(Reissue 2018), incentives allowed under the Nebraska Advantage Act
are not transferable.
12. ____. Pursuant to the Nebraska Advantage Act, incentives previously
allowed to a taxpayer and the future allowance of incentives under a
project covered by an agreement between the taxpayer and the Tax
Commissioner may be transferred where the covered project is trans-
ferred in its entirety by sale or lease to another taxpayer.
13. Jurisdiction: Appeal and Error. Where a lower court lacks jurisdiction
to adjudicate the merits of a claim, issue, or question, an appellate court
also lacks the power to determine the merits of the claim, issue, or ques-
tion presented to the lower court.
14. Statutes: Words and Phrases. Technical words and phrases and such
others as may have acquired a peculiar and appropriate meaning in the
law shall be construed and understood according to such peculiar and
appropriate meaning.
15. Taxation: Words and Phrases. As used in the first sentence of Neb.
Rev. Stat. § 77-5726(4) (Cum. Supp. 2024), “determination” and “pro-
posed determination” each mean a decision of the Tax Commissioner
regarding compliance with the Nebraska Advantage Act.
16. Taxation: Intent: Notice: Words and Phrases. Where the Tax
Commissioner has notified a taxpayer of an intent to deny a transfer
request under the Nebraska Advantage Act and provided the taxpayer
with an opportunity to respond, and then notifies the taxpayer that the
transfer request is being denied, that notification is a “proposed deter-
mination” within the meaning of Neb. Rev. Stat. § 77-5726(4) (Cum.
Supp. 2024).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
17. Administrative Law: Statutes. Agency regulations properly adopted
and filed with the Secretary of State of Nebraska have the effect of
statutory law.
18. Administrative Law: Taxation. The mere filing of a tax form with
the Nebraska Department of Revenue, unaccompanied by a request
for hearing, does not create a contested case under the Administrative
Procedure Act.
19. Statutes. Statutes pertaining to the same subject matter should be con-
strued together; such statutes, being in pari materia, must be construed
as if they were one law, and effect must be given to every provision.
20. Statutes: Presumptions: Legislature: Intent. In interpreting a statute,
a court is guided by the presumption that the Legislature intended a
sensible rather than absurd result in enacting the statute.
Appeals from the District Court for Lancaster County:
Matthew O. Mellor, Judge. Judgment in No. S-25-144
affirmed as modified. Final order in No. S-25-145 affirmed.
Matthew R. Ottemann and Nicholas K. Niemann, of McGrath
North Mullin & Kratz, P.C., L.L.O., for appellant.
Michael T. 	Hilgers, Attorney 	General, 	and 	Zachary 	B.
Pohlman for appellees.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Cassel, J.
I. INTRODUCTION
Few areas are as dense and loaded with technical jargon
as tax law. Here, a taxpayer disputed administrative actions
imposing a recapture of tax incentives after denying a proj-
ect’s purported transfer and rejecting taxpayer challenges as
untimely. Following judicial review under the Administrative
Procedure Act, 1 two taxpayer appeals reached us. One (the
transfer dispute) contests the dismissal, as untimely, of its
attempted challenge of a denial of its transfer request. The
other 	one 	(the 	deficiency 	dispute) 	challenges 	mailing 	of
1 See Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2024 & Supp. 2025).

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MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
a deficiency notice via first-class mail without requesting a
return receipt.
Because the taxpayer did not protest the transfer denial
determination and did not seek judicial review until years later,
we affirm the district court’s dismissal for lack of jurisdic-
tion in the transfer dispute appeal. In the deficiency dispute,
we conclude that no return receipt was required when mailing
the notice via first-class mail. Because there is no material
dispute about the date of mailing the notice, we conclude the
court erred in remanding the cause for a hearing on timeliness.
Accordingly, we affirm as modified the judgment in the defi-
ciency dispute.
II. BACKGROUND
These consolidated appeals arise out of a project under
the Nebraska Advantage Act 2 (Advantage Act). One appeal
turns on the correct interpretation of a procedural statute in
the Nebraska Revenue Act of 1967 3 (Revenue Act). In both
appeals, the taxpayer is MLB Advanced Media, L.P. (MLB).
The agency parties are the Nebraska Department of Revenue
and James Kamm, in his official capacity as Nebraska Tax
Commissioner (collectively the Department).
We begin by introducing the Advantage Act. Then we discuss
relevant statutes under the Revenue Act. After having oriented
the reader to important provisions under those acts, we set forth
the factual background of the case before us, which involves a
request to transfer an Advantage Act project, the denial of the
request, the sending of a notice of deficiency, and the filing of
a protest. Finally, we recount the Tax Commissioner’s deci-
sions and proceedings before the district court.
2 Neb. Rev. Stat. §§ 77-5701 to 77-5735 (Reissue 2018, Cum. Supp. 2024 &
Supp. 2025).
3 Neb. Rev. Stat. §§ 77-2701 to 77-27,135.01, 77-27,222, 77-27,235,
77-27,236, and 77-27,238 to 77-27,242 (Reissue 2018, Cum. Supp. 2024
& Supp. 2025).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
1. Advantage Act
The Advantage Act uses tax incentives to encourage busi-
nesses to relocate to or expand within Nebraska. 4 It promotes
the creation of “quality” jobs related to research and develop-
ment, manufacturing, and large data centers. 5 The Advantage
Act contains definitional statutes to be used. 6
[1] The Advantage Act does not define every term but
instead incorporates other definitions. It specifically provides
that “[a]ny term shall have the same meaning as used in
Chapter 77, article 27.” 7 Article 27 of chapter 77 includes the
Revenue Act. Thus, terms undefined in the Advantage Act have
the same meaning as they do in the Revenue Act.
In order to obtain the Advantage Act’s incentives, a taxpayer
must file an application requesting an agreement with the Tax
Commissioner. 8 After approval of the application, the taxpayer
and Tax Commissioner enter into a written agreement. 9 The
agreement sets forth such matters as the levels of employment
and investment required by the act for the project and the
period during which the required levels must be met. 10
The Advantage Act provides that an applicant may qualify
for benefits in one of six tiers. 11 The tiers differ based on
investment in qualified property and hiring of new employees. 12
When the taxpayer has met the required levels of employ-
ment and investment, the taxpayer is entitled to incentives. 13
4 § 77-5702.
5 § 77-5702(3).
6 See § 77-5703.
7 § 77-5704.
8 § 77-5723(1).
9 § 77-5723(6).
10 Id.
11 § 77-5725(1).
12 Id.
13 § 77-5725(2).

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Nebraska Supreme Court Advance Sheets
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MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
Incentives include a refund of sales and use taxes, 14 a credit, 15
and an exemption of certain property used in connection with
a project. 16
If a taxpayer fails to meet the required levels of employment
or investment for the project for the required period, all or a
portion of the incentives set forth in the Advantage Act shall
be recaptured or disallowed. 17
More relevant here, the Advantage Act limits the situa-
tions in which its incentives are transferable. 18 Past and future
allowance of incentives may be transferred “when a project
covered by an agreement is transferred in its entirety by sale or
lease to another taxpayer or in an acquisition of assets qualify-
ing under [a federal tax law not applicable here].” 19
We set forth the complete subsection of the Advantage Act
addressing the procedures applicable to failures to comply,
as follows:
A determination that a taxpayer is not engaged in a
qualified business or has failed to meet or maintain the
required levels of employment or investment for incen-
tives, exemptions, or recapture may be protested within
sixty days after the mailing of the written notice of the
proposed determination. If the notice of proposed deter-
mination is not protested within the sixty-day period, the
proposed determination is a final determination. If the
notice is protested, the Tax Commissioner shall issue a
written order resolving such protests. The written order
of the Tax Commissioner resolving a protest may be
14 § 77-5725(2)(a) and (b).
15 § 77-5725(3) through (5).
16 § 77-5725(8).
17 § 77-5727.
18 § 77-5728(1).
19 § 77-5728(1)(b) (emphasis supplied).

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Nebraska Supreme Court Advance Sheets
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MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
appealed to the district court of Lancaster County within
thirty days after the issuance of the order. 20
The Advantage Act does not specifically mention “service”
or address any method of mailing the notice. Thus, as did the
parties and the district court, we look to the Revenue Act.
2. Revenue Act
The Revenue Act contains numerous subparts, but we
narrow our discussion to the subparts addressing sales and
use tax 21 and general provisions. 22 In the former subpart,
one finds the terms “determine,” “determination,” and “defi-
ciency determination.” 23 In the latter, a method-of-mailing
statute 24 appears.
The 	“determination” 	provision 	authorizes 	the 	Tax
Commissioner to specify an amount due under the tax law. 25
If the Tax Commissioner is not satisfied with the return of the
tax or the amount of tax required to be paid to the state by any
person, the Tax Commissioner may “determine” the amount
required to be paid. 26 This statute also empowers the Tax
Commissioner, by means of a “deficiency determination,” to
determine if an insufficient amount has been paid. 27
A person against whom a deficiency determination is made
“may petition for a redetermination within sixty days after
service upon the person of notice thereof.” 28 If no petition
for redetermination is filed within that 60-day period, “the
20 § 77-5726(4) (emphasis supplied).
21 §§ 77-2703 to 77-2713.
22 §§ 77-27,125 to 77-27,135.01.
23 § 77-2709(1).
24 § 77-27,135.
25 § 77-2709(1).
26 Id.
27 Id.
28 § 77-2709(7).

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Nebraska Supreme Court Advance Sheets
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MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
determination becomes final at the expiration of the period.” 29
But if a petition for redetermination is timely filed, the Tax
Commissioner must reconsider the determination and grant
an oral hearing if the petition requested a hearing. 30 The
Tax Commissioner’s decision upon a petition for redetermi-
nation becomes final 30 days after the petitioner is served
notice of the decision. 31 But “[a]ny final action of the Tax
Commissioner may be appealed, and the appeal shall be in
accordance with the Administrative Procedure Act.” 32
The Tax Commissioner must notify the taxpayer of a
recapture determination or a deficiency determination. The
Advantage Act contemplates that written notice of a proposed
determination of recapture will be mailed to a taxpayer and
that if the notice of proposed determination is not protested
within 60 days of the mailing, the determination becomes
“final.” 33 Under the Revenue Act, if the Tax Commissioner
makes a deficiency determination, he or she shall give “written
notice” of the determination. 34 If the notice is served by mail,
“the service is complete at the time of deposit in the United
States post office.” 35
This leads us to the Revenue Act statute at the heart of the
controversy, which specifies the method of mailing notice. At
the relevant time, this statute stated, “Whenever any notice
required to be given by the Tax Commissioner under the pro-
visions of the [Revenue Act] may be given by mail, it shall
be given by first-class, registered, or certified mail, return
29 Id.
30 § 77-2709(8).
31 § 77-2709(10).
32 § 77-27,127.
33 See § 77-5726(4).
34 § 77-2709(5)(a).
35 § 77-2709(5)(b).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
receipt requested.” 36 This statute has since been amended, 37
but the pertinent mailings occurred prior to that amendment.
Throughout this opinion, we refer to the version of the statute
in effect in 2021, unless otherwise noted.
3. Project and Transfer Request
MLB and the Tax Commissioner entered into an agree-
ment under § 77-5725(1)(e) of the Advantage Act concerning
a “[t]ier 5” data center project. It required MLB to invest a
minimum of $37 million. In return, MLB would be entitled to
a refund of the sales and use taxes paid on purchases or leases
for use at the project.
MLB later sought to transfer its project and the correspond-
ing incentives to BAMTech, LLC. MLB filed a tax form with
the schedule to be used for any changes to a project under
the Advantage Act. A checkmark on the schedule indicated
that MLB “sold [the project] in its entirety” to BAMTech.
A letter from BAMTech reported that it agreed to “take on
the project.”
Correspondence ensued. By a letter dated September 16,
2019, the Tax Commissioner informed MLB of an “intent
to deny [MLB’s] request to transfer MLB[’s] project to
BAMTech.” The letter stated that MLB had failed to respond
to the Department’s repeated requests for information related
to 	the 	disposition 	of 	project 	assets—information 	which,
the letter stated, the Department needed in order to verify
transfer of the entirety of the project. Shortly thereafter,
MLB responded, explaining that some servers and hardware
were not transferred to BAMTech, but that those assets
“were retired by MLB[] as shown on the [tax form].” No
protest was filed within 60 days after the September 16 letter.
The parties instead focus on communications in February and
March 2021.
36 § 77-27,135 (Reissue 2018) (emphasis supplied).
37 See 2024 Neb. Laws, L.B. 146, § 2.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
On February 24, 2021, the Tax Commissioner informed
MLB by letter that the Department “has denied your request to
transfer MLB[’s] project to BAMTech.” This letter stated, “The
reasons for this denial were outlined in the [September 2019]
letter which was previously sent to you . . . .” It explained,
“Your request to transfer the project is denied because the
project was not transferred in its entirety . . . .”
The February 2021 letter also informed MLB of the con-
sequences of the Department’s denial of the transfer request.
It stated:
Due to the denial of the request for the project to
be 	transferred, 	MLB 	remains 	the 	project 	owner. As
the 	project 	owner, 	MLB 	has 	failed 	to 	maintain 	the
required investment and employment levels beginning
on September 25, 2017. As required by Neb. Rev. Stat.
§77-5727(2), [the Department] will subsequently issue
a Notice of Deficiency Determination to recapture a
portion of the benefits MLB has received under this
program. MLB will have the opportunity to protest the
Notice of Deficiency Determination within 60 days of
receipt of that notice.
No protest was filed within 60 days after the February 2021
letter.
4. Notice of Deficiency Determination
The Tax Commissioner issued MLB a “Notice of Deficiency
Determination” (the notice) dated March 10, 2021. The notice
was sent via first-class mail. No return receipt was requested.
The Department’s internal “Audit Case Management” and
“Taxpayer Case Management” systems both showed that the
notice was mailed on March 10.
The notice stated that the project was in recapture and that
MLB must repay Nebraska sales and use tax and interest total-
ing nearly $2.5 million. The notice explained:
On or about September 25, 2017, a portion of the
investment at the project was sold to another entity outside

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
the unitary group. As stated in [the Department’s] letter
dated February 24, 2021 (copy enclosed), the project
cannot be transferred to the purchaser of the other property
because the project was not sold in it’s [sic] entirely [sic].
The request to transfer the project was denied. Thus, the
investment levels reported by MLB . . . would determine
whether the project maintained levels.
According to the notice, MLB’s tax form for 2017 reported
investment of less than $37 million. Further, MLB did not
file tax forms for 2018 and 2019, and its return for 2019 was
marked as a final return.
The notice informed MLB of its options to send payment
or to file a protest. It stated: “[A] petition for redetermination
(protest) may be filed with [the Department by mail or by fil-
ing electronically]. This determination becomes final and can-
not be reconsidered by the Tax Commissioner unless a protest
is properly filed within sixty days from the postmark date of
this notice.” The record is silent regarding the postmark date.
5. Protest and Nonacceptance
On May 28, 2021—79 days after March 10—MLB elec-
tronically submitted a petition for redetermination, i.e., a
protest. MLB stated that it was protesting all aspects of the
notice, including the denial of the project’s transfer. MLB
also asserted that “the Notice was not valid and was not
properly issued by the Department, was not issued within
the time required by law, and is therefore void ab initio.”
MLB requested “an informal conference and a formal admin-
istrative hearing before the Department.” It further stated,
“Notwithstanding that the Department may contend that this
petition should be denied based on a contention that the
60-day filing date was not met, a hearing is still required
under Nebraska case law.”
Thereafter, the Tax Commissioner informed MLB by let-
ter that the Department “does not accept the filing of your
Petition for Redetermination . . . dated May 28, 2021, as it

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
was not timely filed.” The nonacceptance letter stated that the
Department had “issued a final determination that the project
was not duly transferred in its entirety” and that “MLB did
not file an appeal with the district court within 30 days of
the February 24, 2021 final determination lettter [sic].” The
nonacceptance letter advised MLB to submit any additional
evidence related to the filing of its protest and to provide a
copy of the envelope if MLB asserted that the Department
mailed the notice on a date other than March 10, 2021. MLB
responded, but it did not assert a mailing date other than March
10. Instead, it challenged the lack of a hearing and the Tax
Commissioner’s interpretation that a return receipt was not
needed when mailing by first-class mail.
In April 2024, the Tax Commissioner again notified MLB
by letter that the Department did not accept the protest because
it was not timely filed. The correspondence further stated that
“[t]his letter is a final action of the Tax Commissioner” and
that the Department “is not required to hold a hearing before
making this determination.” The letter noted that MLB had
not provided any evidence to dispute the date the notice was
mailed. It also stated that in the February 2021 letter, the
Department had “ma[de] a final determination that the project
was not duly transferred in its entirety.”
6. Petitions for Review
Twenty-nine days later, MLB filed two petitions for review
under the Administrative Procedure Act. Both were filed in the
district court for Lancaster County.
One, the transfer dispute, challenged the Tax Commissioner’s
denial of MLB’s request to transfer the project to BAMTech.
It asserted that the failure to provide MLB with a hearing
violated due process, the Department’s regulations, and the
Administrative Procedure Act.
The other, the deficiency dispute, addressed the notice. It
set forth seven bases for relief, including that MLB was not

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MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
properly served, that it was error to deny the petition without a
hearing, and that the notice was void ab initio.
7. District Court’s Decisions
In the transfer dispute, the court entered an “Order of
Dismissal.” The order stated that MLB was purporting to
appeal from the denial of its transfer request in February 2021
and that assuming the February 2021 decision was appealable,
MLB did not timely appeal. Accordingly, the court dismissed
the petition for review for lack of jurisdiction.
In the deficiency dispute, the court entered a “Judgment
on Petition for Judicial Review.” First, the court engaged in
statutory interpretation on the issue of whether § 77-27,135
required a return receipt for notices sent by first-class mail and
determined that “‘return receipt requested’ does not modify
‘first-class . . . mail.’” Thus, the court concluded that the
Department could serve MLB with the notice by sending it via
first-class mail without a return receipt.
Then, the court turned to MLB’s arguments that it had a
right to a hearing. The court stated that no statute or regula-
tion specifically gave taxpayers the right to a hearing on the
timeliness of their protests or petitions for redetermination
and that “the answer depends on whether due process requires
a hearing.” Ultimately, the court concluded that due process
entitled MLB to a hearing on the timeliness of its protest.
The court emphasized that its holding was limited to the facts
of this case—where the taxpayer specifically alleged that its
protest was timely and specifically requested a hearing on the
timeliness of its petition.
The court did not reach MLB’s argument that the notice
was void ab initio. It stated that it could not do so until the
threshold jurisdictional issue of the timeliness of MLB’s peti-
tion was resolved.
The court remanded the cause to the Department for further
proceedings. It ordered the Department to hold a hearing lim-
ited to whether MLB timely protested the notice.

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MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
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8. Appeals
MLB filed an appeal in each case. The deficiency dispute
was docketed as case No. A-25-144, and the transfer dis-
pute was docketed as case No. A-25-145. After the appeals
were consolidated for briefing and oral argument, we moved
them to our docket. 38 Despite the docketing order, we address
the transfer dispute first, as it presents a question of jurisdiction.
III. ASSIGNMENTS OF ERROR
In the transfer dispute, MLB assigns, reordered, that the
court erred in (1) failing to find that the Department had not
issued a final determination on the transfer request, (2) deter-
mining that it lacked jurisdiction because MLB’s appeal was
untimely, and (3) failing to remand the transfer request back to
the Department for a hearing.
In the deficiency dispute, MLB alleges that the court erred
in (1) finding that the Department’s service of the deficiency
notice complied with § 77-27,135, (2) failing to find that the
Department did not acquire personal jurisdiction over MLB
when MLB was not properly served, (3) failing to find that the
notice was void because it was not properly served on MLB,
(4) failing to find that the notice was void because it was based
on a transfer request that had not been actually denied, and (5)
limiting its remand to timeliness of the May 2021 petition.
On cross-appeal in the deficiency dispute, the Department
assigns that because the record reveals no dispute of any mate-
rial jurisdictional fact, the court erred in remanding the defi-
ciency dispute for a hearing.
IV. STANDARD OF REVIEW
[2] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law,
which requires the appellate court to reach a conclusion inde-
pendent of the lower court’s decision. 39
38 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).
39 Hauxwell v. Middle Republican NRD, 319 Neb. 28, 21 N.W.3d 21 (2025).

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MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
Cite as 321 Neb. 515
[3,4] In an appeal under the Administrative Procedure Act,
an appellate court may reverse, vacate, or modify the judgment
of the district court for errors appearing on the record. 40 When
reviewing an order of a district court under the Administrative
Procedure Act for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable. 41
[5] The interpretation of statutes and regulations presents
questions of law, in connection with which an appellate court
has an obligation to reach an independent conclusion irrespec-
tive of the decision made by the court below. 42
V. ANALYSIS
1. Basic Principles of Advantage Act
On two previous occasions, this court has considered the
Advantage Act. 43 The appeals now before us present novel
issues related to the denial of a transfer request and the method
of mailing a notice of deficiency. We have already provided
an overview. From the Advantage Act and the Revenue Act,
we derive principles of law applicable to the tax incentives at
issue here.
[6-8] To do so, we apply well-settled principles of statu-
tory interpretation. The fundamental objective of statutory
interpretation is to ascertain and carry out the Legislature’s
intent. 44 Statutory interpretation begins with the text, and the
40 Precision Castparts Corp. v. Nebraska Dept. of Rev., 317 Neb. 481, 10
N.W.3d 707 (2024).
41 Id.
42 Ash Grove Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947, 947
N.W.2d 731 (2020).
43 See, id.; Archer Daniels Midland Co. v. State, 290 Neb. 780, 861 N.W.2d
733 (2015).
44 Flinn v. Strode, 320 Neb. 813, 30 N.W.3d 661 (2026).

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MLB ADVANCED MEDIA v. NEBRASKA DEPT. OF REV.
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text is to be given its plain and ordinary meaning. 45 It is not
within the province of a court to read a meaning into a statute
that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unam-
biguous out of a statute. 46
[9] Another principle is sometimes referred to as the canon
against superfluity. To give effect to all parts of a statute, a
court will attempt to reconcile different provisions so they are
consistent, harmonious, and sensible and will avoid rejecting
as superfluous or meaningless any word, clause, or sentence. 47
[10-12] Using those interpretive principles, we set forth
four Advantage Act rules—one governing recaptures and three
addressing transfers of incentives. If a taxpayer fails to meet
the required levels of investment for the required period under
a project covered by an agreement between the taxpayer and
the Tax Commissioner pursuant to the Advantage Act, all or a
portion of the incentives set forth in the Advantage Act must
be recaptured or disallowed. 48 Except as specifically permitted
in § 77-5728, incentives allowed under the Advantage Act are
not transferable. Pursuant to the Advantage Act, incentives
previously allowed to a taxpayer and the future allowance of
incentives, under a project covered by an agreement between
the taxpayer and the Tax Commissioner, may be transferred
where the covered project is transferred in its entirety by sale
or lease to another taxpayer. 49
“Entirety” is not specifically defined by either the Advantage
Act or the Revenue Act. The plain and ordinary meaning of
“entirety” is “the state of being entire or complete.” 50 In turn,
45 Id.
46 Id.
47 Id.
48 See §§ 77-5723(6) and 77-5727.
49 See §§ 77-5723(6) and 77-5728(1)(b).
50 Merriam-Webster’s Collegiate Dictionary 417 (11th ed. 2020).

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“entire” means “having no element or part left out.” 51 As used
in § 77-5728(1)(b), “entirety” means the whole of a project,
including all of its component parts.
These principles underlie enforcement of project require-
ments and transfers. Other statutes more directly govern the
respective disputes.
2. Transfer Dispute
[13] Because the transfer dispute was dismissed for lack of
jurisdiction, we address it first. The district court determined
that it lacked jurisdiction because MLB filed the petition for
review too late. Where a lower court lacks jurisdiction to
adjudicate the merits of a claim, issue, or question, an appel-
late court also lacks the power to determine the merits of the
claim, issue, or question presented to the lower court. 52
MLB advances four reasons to support its contention that
the February 2021 letter was not a final determination regard-
ing MLB’s transfer request. First, it argues that treating it as
such would have deprived MLB of due process by denying
a hearing. Second, by denying a hearing, it would have vio-
lated the Administrative Procedure Act. Third, it would have
violated § 77-5726(4). Finally, it would have violated the
Department’s regulations. We are not persuaded.
MLB points to the correct statute, but we disagree with
MLB’s interpretation. We quoted § 77-5726(4) in full above.
Now we concentrate on the first two sentences, which apply
here. In doing so, we rely upon another principle of statu-
tory interpretation.
[14] A statute addresses “technical words and phrases.” 53
Thus, we have said that technical words and phrases and such
others as may have acquired a peculiar and appropriate mean-
ing in the law shall be construed and understood according to
51 Id.
52 Johnson v. Village of Polk, 319 Neb. 352, 23 N.W.3d 96 (2025).
53 Neb. Rev. Stat. § 49-802(5) (Reissue 2021).

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such peculiar and appropriate meaning. 54 The two sentences
here use such words, drawn from the Revenue Act.
The first sentence uses technical words to establish a dead-
line for filing a protest. It states, “A determination that a
taxpayer . . . has failed to . . . maintain the required levels of
. . . investment for incentives, exemptions, or recapture may
be protested within sixty days after the mailing of the written
notice of the proposed determination.” 55
The second sentence likewise uses technical terminology
to specify the consequence of a failure to protest. It reads, “If
the notice of proposed determination is not protested within
the sixty-day period, the proposed determination is a final
determination.” 56
The final two sentences of § 77-5726(4) apply only where
a protest is timely filed. MLB does not dispute that no protest
was filed within 60 days of the February 2021 letter.
Context matters. The September 2019 letter advised MLB
of the Department’s “intent to deny” MLB’s request to trans-
fer the project. That letter afforded an opportunity to submit
contrary evidence. Although MLB attempted to persuade the
Department that it had transferred the project’s entirety, it
failed in that effort. The Department’s February 2021 letter
reiterated its view of the facts and the resulting effects.
[15,16] The first sentence of § 77-5726(4) equates “deter-
mination” with “proposed determination.” In other words, as
used in the first sentence of § 77-5726(4), “determination”
and “proposed determination” mean the same thing—a deci-
sion of the Tax Commissioner regarding compliance with the
Advantage Act. Where the Tax Commissioner has notified
a taxpayer of an intent to deny a transfer request under the
Advantage Act and provided the taxpayer with an opportunity
to respond, and then notifies the taxpayer that the transfer
54 Precision Castparts Corp. v. Nebraska Dept. of Rev., supra note 40.
55 § 77-5726(4) (emphasis supplied).
56 Id. (emphasis supplied).

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request is being denied, that notification is a “proposed deter-
mination” within the meaning of § 77-5726(4). It follows
that the Department’s February 2021 letter was a “deter-
mination” or “proposed determination” within the meaning
of § 77-5726(4).
That leads to inescapable consequences. A proposed deter-
mination was mailed on February 24, 2021. Because the 60th
day thereafter fell on a Sunday, the last day to file a protest was
Monday, April 26, 2021. MLB did not do so. Thus, the deter-
mination then became a “final determination.” 57 MLB did not
file a petition for review in the district court until 2024, long
after expiration of the time for filing such. 58 The district court
correctly determined that it lacked jurisdiction of the petition
for review in the transfer dispute.
MLB’s other arguments require little discussion. Its argu-
ments regarding due process, the Administrative Procedure
Act, and the Department’s regulations are all premised on the
denial of a hearing. But MLB had the opportunity for a hearing
by means of filing a protest. It did not do so.
[17] The Department’s regulations generally require that a
hearing be requested. 59 The regulations do not define “pro-
test,” but they use the term “protest petition” 60 and define
“[p]etition” as
the initial document filed with the Department that sets
forth a request for action, including:
001.02M(1) A written request for redetermination of a
notice of proposed deficiency determination issued by the
Department that includes a request for hearing;
57 See § 77-5726(4).
58 See, § 84-917(2)(a)(i); Ahmann v. Correctional Ctr. Lincoln, 276 Neb.
590, 755 N.W.2d 608 (2008).
59 See, e.g., 316 Neb. Admin. Code, ch. 33, §§ 001.02M, 002.01A(5),
002.03, 002.04, 003.01A(6), 003.02A(6), 003.05, 004.05A, 004.08, and
005.01 (2014).
60 Id., §§ 003.06, 011.03A(2)(a), and 013.01C.

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001.02M(2) A written request for a redetermination
of a disapproved application that includes a request for
hearing;
001.02M(3) A written request for a hearing regarding
any action initiated by the Department under section
33-004 of these regulations;
001.02M(4) A written request to intervene in a contested
case. 61
Agency 	regulations 	properly 	adopted 	and 	filed 	with 	the
Secretary of State of Nebraska have the effect of statutory
law. 62 For that reason, MLB was on notice of the requirement
that an administrative hearing be requested. By failing to file a
timely protest, it forfeited its right to a hearing.
Nonetheless, MLB contends that it was entitled to a hearing
because its transfer request, without a request for hearing, cre-
ated a contested case. We disagree.
[18] MLB’s contention is refuted by the Department’s
regulations. They provide that “[c]ontested [c]ase means a
proceeding before the Department in which the legal rights,
duties, or privileges of specific parties are required by law
or constitutional right to be determined after a hearing before
the Department.” 63 They also specify how a contested case is
initiated: “A contested case begins with the filing of a peti-
tion or claim and request for hearing, if applicable, with the
Department. The petition or claim is the initial document
filed by or with the Department that sets forth a request for
Department action.” 64 The mere filing of a tax form with
the Department, unaccompanied by a request for hearing,
does not create a contested case under the Administrative
Procedure Act.
61 Id., § 001.02M (emphasis supplied).
62 See Becton, Dickinson & Co. v. Nebraska Dept. of Rev., 276 Neb. 640, 756
N.W.2d 280 (2008).
63 316 Neb. Admin. Code, supra note 59, § 001.02D.
64 Id., § 005.01.

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MLB’s assignments of error in the transfer dispute lack
merit. The district court’s order dismissing that petition for
review must be affirmed.
3. Deficiency Dispute
Our discussion of the deficiency dispute encompasses three
divisions. We start by addressing MLB’s first three assign-
ments of error, which turn upon whether the method-of-notice
statute 65 permits notice by first-class mail without requesting
a return receipt. Then, we observe that our disposition of the
transfer dispute forecloses MLB’s fourth assignment. Finally,
we consider MLB’s last assignment—asserting that the dis-
trict court’s remand was insufficient—and the Department’s
cross-appeal—contending 	that 	the 	court 	erred 	in 	making
any remand.
(a) Not Required to Request Return Receipt
for Notice Sent First-Class Mail
The foremost issue in the deficiency dispute is whether the
Department’s March 2021 notice, sent via first-class mail,
required a return receipt. The parties focus on the language of
§ 77-27,135 then in effect stating that notice by mail “shall be
given by first-class, registered, or certified mail, return receipt
requested.” MLB contends that “return receipt requested” mod-
ifies “first-class,” but the Department disagrees.
We digress to observe that there is no real dispute that MLB
received the mailed notice. The Department requested a copy
of the envelope bearing the postmark, but MLB did not pro-
duce it. Nor did MLB represent that the envelope could not be
produced. MLB made no assertions that the postmark date was
different from March 10, 2021. And at oral argument, MLB
conceded that the notice was sent via first-class mail. Thus,
MLB presents a purely technical argument.
The statutory terms here are technical terms used by the
U.S. Postal Service (USPS). Based on the text of § 77-27,135,
65 See § 77-27,135.

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we believe the Legislature intended the terms to be inter-
preted based on USPS meanings. The USPS’ Domestic Mail
Manual (DMM) 66 has been incorporated by reference into
the Code of Federal Regulations 67 and has the force of law.
As we have done previously, 68 we take judicial notice of the
DMM. We refer to the version of the DMM in effect when
the Legislature added the relevant language via 2012 Neb.
Laws, L.B. 727. 69
Four bases persuade us that the Department is correct:
the in pari materia principle, the canon against superfluity,
the application of technical terms, and ultimately, our percep-
tion of the Legislature’s intent. We also touch on the last-
antecedent rule.
[19] Although we have recited numerous principles of statu-
tory interpretation, one more applies at this point. Statutes
pertaining to the same subject matter should be construed
together; such statutes, being in pari materia, must be con-
strued as if they were one law, and effect must be given to
every provision. 70
The version of § 77-27,135 at issue here was part of a
comprehensive revision of statutes. 71 Many of the statutes
were amended to substitute “mail,” “mails,” “mailed,” or
“mailing” for more specific designations. 72 The most common
aspect, including statutes that would not have been subject to
66 See Mailing Standards of the United States Postal Service, Domestic
Mail Manual (2026), https://pe.usps.com/text/dmm300/welcome.htm (last
visited May 28, 2026).
67 See 39 C.F.R. § 111.1(a) (2025).
68 See Lozier Corp. v. Douglas Cty. Bd. of Equal., 285 Neb. 705, 829 N.W.2d
652 (2013).
69 See DMM (2012), https://pe.usps.com/archive/html/dmmarchive20120122/
dmm300_landing.htm (last visited May 28, 2026).
70 Flinn v. Strode, supra note 44.
71 See 2012 Neb. Laws, L.B. 727.
72 See id., §§ 1 through 15, 23, 27, 28, 30 through 33, and 40 through 52.

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§ 77-27,135, was to remove specific references to certified
or registered mail. This demonstrates the legislative intent to
move away from a mandate of registered or certified mail.
The canon against superfluity (recited in the transfer dispute
section above) also supports the Department’s reading. Before
the 2012 amendment, § 77-27,135 (Reissue 2009) stated that
notice shall be given “by either registered or certified mail,
return receipt requested, and not otherwise.” MLB’s reading
not only gives no practical effect to the addition of first-class
mail; it also ascribes no meaning to the deletion of the words
“and not otherwise.” 73 In our view, however, the deletion of
those words demonstrates an intent to expand, in a meaningful
way, the permissible means of giving notice.
We turn briefly to the technical words employed by the
USPS (rivaling tax law in density and jargon). The DMM then
in effect showed that retail mail could be sent by five differ-
ent mail services—express mail, priority mail, first-class mail,
parcel post, or media mail and library mail. 74
“First-Class Mail (including Priority Mail) [was] the only
class of mail eligible to receive the following extra ser-
vices: Registered Mail service and Certified Mail service.” 75
Registered mail and certified mail were extra services that
provided a sender with “a mailing receipt and, upon request,
electronic verification that an article was delivered or that a
delivery attempt was made.” 76
Return receipt service was available for first-class mail only
“when purchased at the time of mailing with Certified Mail,
COD, insured mail (for more than $200.00), or Registered
73 See § 77-27,135 (Reissue 2018).
74 See DMM, supra note 69, § 100 et seq., https://pe.usps.com/archive/html/
dmmarchive20120122/100_tab.htm.
75 See id., § 133.2.2.4, https://pe.usps.com/archive/html/dmmarchive20120122/
133.htm#1041530.
76 See id., §§ 503.2.2.1 and 503.3.2.1, https://pe.usps.com/archive/html/
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Mail service.” 77 Thus, based on the DMM, a sender at that
time could not request a return receipt for an item sent
by first-class mail unless the sender added an additional
service, such as registered mail or certified mail. While a
sender could obtain return receipt service with “COD” (i.e.,
collect on delivery) mail or with mail insured for more than
$200, 78 those services would be entirely illogical for mailing a
tax deficiency notice.
Because a sender cannot request a return receipt for first-
class mail without paying for extra services—such as registered
or certified mail—an option to send notice via “first-class”
mail would be superfluous. The parties have not directed us to,
nor have we uncovered, any current statute in Nebraska speci-
fying “first-class mail, return receipt requested.”
[20] Ultimately, our interpretation is based upon our percep-
tion of the Legislature’s intent. In interpreting a statute, a court
is guided by the presumption that the Legislature intended a
sensible rather than absurd result in enacting the statute. 79 MLB
contends that the language of § 77-27,135—“by first-class,
registered, or certified mail, return receipt requested”—means
that all notices must be mailed with a return receipt requested.
However, it would be senseless for the Legislature to require a
sender to request a return receipt for first-class mail, when that
cannot be done without paying for an extra service.
In order for a court to inquire into a statute’s legislative
history, the statute in question must be open to construction,
and a statute is open to construction when its terms require
interpretation or may reasonably be considered ambiguous. 80
77 See id., § 503.6.2.2.b.
78 See id.
79 Wisner v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d 698 (2018)
(superseded by statute on other grounds as stated in Castillo v. Libert Land
Holdings 4, 316 Neb. 287, 4 N.W.3d 377 (2024)).
80 Amorak v. Cherry Cty. Bd. of Comrs., 318 Neb. 723, 18 N.W.3d 782
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A statute is ambiguous if it is susceptible of more than
one reasonable interpretation, meaning that a court could
reasonably interpret the statute either way; otherwise, the
statute is unambiguous. 81 But we do not read this statutory
language as having more than one reasonable interpreta-
tion. Although we do not rely on legislative history, in
the interest of thoroughness, we recognize that it supports the
Department’s position. 82
For the sake of completeness, we note that both parties
cite the last-antecedent rule. “The last antecedent is ‘the
last word, phrase, or clause that can be made an anteced-
ent without impairing the meaning of the sentence.’” 83 The
last-antecedent rule provides that “[r]eferential and qualify-
ing words and phrases, where no contrary intention appears,
refer solely to the last antecedent.” 84 Thus, the Department
argues that in § 77-27,135, “return receipt requested” modi-
fies only “certified mail.” MLB, on the other hand, relies on
a treatise’s explanation that “[a] qualifying phrase separated
from antecedents by a comma is evidence that the qualifier is
supposed to apply to all the antecedents instead of only to the
immediately preceding one.” 85 Based on comma placement,
MLB contends that “return receipt requested” in § 77-27,135
applies to first-class mail, registered mail, and certified mail.
But a review of Nebraska statutes shows that even when
“certified mail” is the only type of mail service referred to,
81 Dirt Road Development v. Hirschman, 316 Neb. 757, 7 N.W.3d 438
(2024).
82 See, Committee Statement, L.B. 727, Revenue Committee, 102d Leg., 2d
Sess. (Jan. 18, 2012); Revenue Committee Hearing, L.B. 727, 102d Leg.,
2d Sess. (Jan. 18, 2012).
83 2A Norman J. Singer & Shambie Singer, Statutes and Statutory
Construction § 47:33 at 494-97 (7th ed. 2014).
84 Id. at 494.
85 Id. at 499-500.

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the Legislature typically includes a comma before “return
receipt requested.” 86
MLB’s first three assignments of error relate to the service
of the notice and the lack of a mailing with return receipt
requested. Because we determine that the notice sent via first-
class mail did not have to be mailed with a return receipt
requested, these arguments fail.
(b) Notice Not Void Ab Initio
MLB next argues that notice was void ab initio because it
was based on a legal determination that the Department could
not make. According to MLB, the February 2021 letter was
not a final determination on the transfer request. But in our
resolution of the transfer dispute, we have rejected this inter-
pretation of § 77-5726(4). For the same reason, MLB’s argu-
ment here fails.
(c) Remand for Hearing on
Timeliness Not Required
The district court determined that the deficiency dispute
should be remanded to the Tax Commissioner for a hearing
limited to whether MLB timely filed its protest. MLB chal-
lenges the limited nature of the hearing, contending that a full
hearing should be held on its petition for redetermination. On
cross-appeal, the Department contends that the court erred in
remanding the matter for a hearing.
As noted above, the record reveals no real dispute concern-
ing the timeliness of MLB’s protest. “Due process requires an
86 See Neb. Rev. Stat. §§ 2-10,103.04, 8-1,134, and 16-130 (Reissue 2022);
16-202 (Cum. Supp. 2024); 17-407, 17-503, and 18-2115.01 (Reissue
2022); 32-1409 (Supp. 2025); 37-1282, 42-364.10, and 43-3336 (Reissue
2016); 44-4062, 45-103.02, 45-738, 48-1120.01, 52-601.01, and 54-2311
(Reissue 2021); 60-149 (Cum. Supp. 2024); 60-164 (Supp. 2025); 60-2410
(Reissue 2021); 68-990, 76-856, and 76-2325 (Cum. Supp. 2024); 76-3217
(Reissue 2018); 79-2,118, 83-4,133, 85-9,170, 85-1636, 85-2418, 86-143,
86-644, and 89-187.08 (Reissue 2024); and Neb. U.C.C. § 9-513A (Reissue
2020).

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evidentiary hearing only if there is a factual dispute.” 87 Without
a factual dispute about when the Department mailed the notice,
an administrative hearing “would serve no purpose.” 88 That rea-
soning applies to the district court’s remand to the Department
for a hearing. We therefore modify the district court’s judgment
to eliminate the remand.
VI. CONCLUSION
For the reasons explained above, we conclude the following:
• The district court correctly determined that it lacked jurisdic-
tion of the petition for review in the transfer dispute. Under
§ 77-5726(4), because the Tax Commissioner’s February 2021
denial of MLB’s transfer request was a “determination” or “pro-
posed determination,” MLB needed to file a protest within 60
days, but it failed to do so. Upon the expiration of that 60-day
period, the determination became a “final determination.”
• Applying principles of statutory interpretation, we conclude
that § 77-27,135 did not require the sender of a notice of
deficiency determination sent via first-class mail to request a
return receipt.
• Because the record reveals no material dispute concerning the
date of mailing of the notice of deficiency and the untimeliness
of MLB’s protest, the court erred in remanding for a hearing
on timeliness.
Accordingly, we affirm the district court’s order dismissing
the transfer dispute for lack of jurisdiction. In the deficiency
dispute appeal, we affirm the district court’s judgment as
modified to eliminate its remand for a hearing on the issue of
timeliness.
Judgment in No. S-25-144 affirmed as modified.
Final order in No. S-25-145 affirmed.
87 16D C.J.S. Constitutional Law § 1968 at 102 (2015).
88 Becton, Dickinson & Co. v. Nebraska Dept. of Rev., supra note 62, 276
Neb. at 652, 756 N.W.2d at 290.