title-442•Neb. Admin. Code tit. 442 — Tax Equalization and Review Commission
Neb. Admin. Code tit. 442 — Tax Equalization and Review Commission
title-442Neb. Admin. Code tit. 442Regulation
Chapter 1 Enabling Authority
Neb. Admin. Code tit. 442, ch. 1 Enabling Authority {#sec-442-nac-1 omnilex-key=us-ne-regs-official--title-442--442 NAC 1}
001 General Provisions .
001.01 Constitutional Authority. The Tax Equalization and Review Commission has the power to review and equalize assessments of property for taxation within the state and has such other powers and performs such other duties as the Legislature may provide. Neb. Const. Art. IV, §28.
001.02 Enabling Legislation. The Tax Equalization and Review Commission may adopt and promulgate rules and regulations to carry out its constitutional or statutory purposes, powers, or authority. The Commission may adopt and promulgate rules and regulations necessary to regulate persons and proceedings within the commission’s jurisdiction and authority. Furthermore the Commission may adopt and promulgate necessary rules for discovery which are consistent with the Rules Adopted by the Supreme Court. Neb. Rev. Stat. §§ 25-1273.01, 77-5016, and 77-5021,
001.03 Accessibility to Rules and Regulations. The Commission shall cause its rules and regulations to be published in such manner as the agency shall determine to bring, as far as practicable, the existence and scope of the rules and regulations to the attention of all persons affected thereby. Neb. Rev. Stat. §84-903.
002 Limitations on Regulation Making Authority .
002.01 “The duties of the Attorney General shall be . . . To prepare and promulgate model rules of procedure appropriate for use by as many agencies as possible.” Neb. Rev. Stat. §84-205(11).
002.02 “In addition to other requirements imposed by law: (1) Each agency shall adopt rules and regulations governing the formal and informal procedures prescribed or authorized by the Administrative Procedure Act. Such rules and regulations shall include rules of practice before the agency together with the forms and instructions, and, (2) To assist interested persons dealing with it, each agency shall so far as deemed practicable supplement its rules and regulations with descriptive statements of its procedures.” Neb. Rev. Stat. §84-909.
002.03 “In accordance with the rule making and regulation making requirements of the Administrative Procedure Act, the Attorney General shall prepare and promulgate model rules of procedure appropriate for use by as many agencies as possible and shall file the model rules with the Secretary of State. The model rules shall deal with all general functions and duties performed in common by several agencies. For rules of procedure adopted on or after August 1, 1994, each agency shall adopt as many of the model rules as is practicable under its circumstances. To the extent an agency adopts the model rules, it shall do so in accordance with the rule making and regulation making requirements of the act. Any agency adopting a rule of procedure that differs from the model rules shall include in the explanatory statement provided for in section 84-907.04 a finding stating the reasons why the relevant portions of the model rules were impracticable under the circumstances.” Neb. Rev. Stat. §84-909.01.
EXPLANATORY STATEMENT
The Commission hereby finds and determines that the Model Rules of Practice and Procedure for Hearings in Contested Cases prepared and promulgated by the Attorney General are inapplicable. This finding and determination of the Commission is based on Neb. Rev. Stat. §84-912.03, which provides that the Commission is exempt from Sections 84-913 through 84-919 of the Nebraska State Statutes. (§§84-913 - 84-919 govern contested hearings before state agencies, and appeals from the decisions made by agencies in those contested cases.) Neb. Rev. Stat. §§77-5001, et seq., constitute the applicable statutes which govern hearings before the Tax Equalization and Review Commission. Since these statutes are unique to the Commission, the Model Rules adopted by the Attorney General, insofar as they apply to hearings in contested cases before the Commission, do not apply.
003 Severability Clause . If any clause, paragraph, subsection, section, or Chapter of these Rules and Regulations shall be held invalid, it shall be conclusively presumed that the Tax Equalization and Review Commission would have enacted the remainder of these regulations not directly related to such clause, paragraph, subsection, section or Chapter.
004 Construction . Unless a construction under this rule would be inconsistent with a manifest intent to the contrary these rules shall be construed in accordance with the following.
004.01 The present tense of any verb includes the future, when applicable
004.02 Gender when referring to either masculine or feminine includes the other and neuter.
004.03 Singular words may extend and be applied to several persons or things as well as one person or thing.
004.04 Plural words may extend and be applied to one person or thing as well as several persons or things.
004.05 This rule and it’s sections are not exclusive and the application of other rules or aids to construction are anticipated and may be required.
History
- Effective 2007-01-03
Chapter 2 Definitions
Neb. Admin. Code tit. 442, ch. 2 Definitions {#sec-442-nac-2 omnilex-key=us-ne-regs-official--title-442--442 NAC 2}
001 Definitions . The following definitions apply whenever the defined terms are used in the Rules and Regulations of the Commission unless the context of a term’s use requires a different definition.
001.01 Agency. The Tax Equalization and Review Commission, or when authorized, the chairperson of the Commission, acting on behalf of the Commission.
001.02 Appeal. A request, submitted on the Commission’s Appeal Form, that the Commission reverse or modify, in whole or in part, a decision, order, determination, or action the Commission is authorized to review.
001.03 Appeal Form. The form which must be used to file an appeal with the Commission.
001.04 Arbitrary. A decision is "arbitrary" when it is made in disregard of the facts and circumstances and without some basis which could lead a reasonable person to the same conclusion. Phelps Cty. Bd. of Equal. v. Graf, 258 Neb. 810, 606 N.W.2d 736, (2000).
001.05 Attorney. See “Legal Counsel.”
001.06 Cancellation Mark. See “Postmark.”
001.07 Case File. A file folder bearing the names of the parties and a unique identifying number which contains the documents maintained by the Commission regarding an appeal/petition/proceeding.
001.08 Certificate of Service. A written statement, appended to the end of any motion, request, answer or other pleading, which certifies that the party filing the pleading has served a copy of the pleading on all other parties to the action. A sample “Certificate of Service” is set forth below:
CERTIFICATE OF SERVICE
The foregoing (Insert name of document) was served upon
(Insert Name of Party) , a party herein/attorney for a party
herein, by mailing a copy to him/her at _________________
by personal delivery on_____________________
by fax on __________________ followed by mailing to him/her at
_______________________on _____________ .
/s/_
Name or, Attorney’s Name and Bar Association Number
001.9 Chairperson. A Commissioner designated Chairperson as set forth in Chapter 3 of these Rules.
001.10 Commission. The Tax Equalization and Review Commission, a quorum of the Commission, a quorum of a panel of the Commission, or when authorized, the chairperson of the Commission, acting on behalf of the Commission.
001.11 Commissioner. A member of the Commission.
001.12 Conclusions of Law. An inference on a question of law made as a result of a factual showing, no further evidence being required; a legal inference, Black’s Law Dictionary, Seventh Addition, West Publishing, pg 284 (1999).
001.13 Confession of Judgment. A statement, whether written or oral, made by an appellee/respondent, whereby the appellee/respondent agrees that judgment should be entered in favor of appellant/petitioner as to all or part of an action.
001.14 Conflict of Interest. A material difference between public interest and the private pecuniary interest of a hearing officer. A conflict of interest arises whenever:
001.14A A Commissioner, Special Master, or Referee individually or as a fiduciary, or the Commissioner’s, Special Master’s, or Referee’s spouse, parent or child, wherever residing, or any other member of the Commissioner’s, Special Master’s, or Referee’s family residing in the Commissioner’s, Special Master’s or Referee’s household has an economic interest in the subject matter in controversy or is a party to the proceeding or has any other interest that could be affected substantially by the proceeding; or,
001.14B A Commissioner’s, Special Master’s or Referee’s spouse, or person within the fourth degree of relationship to either of them, or the spouse of such person:
001.14B1 is a party to the proceeding, or an officer, director, manager, partner, employee, or trustee of a party;
001.14B2 is acting as legal counsel in the proceeding.
EXPLANATORY STATEMENT
The Rules of Professional Conduct as promulgated by the Nebraska Supreme Court establish ethical standards which require legal counsel to disqualify himself or herself under certain circumstances.
001.15 Contested Case. An appeal or petition filed with the Commission, an action brought by the Commission pursuant to Neb. Rev. Stat. §77-5020, a proceeding on a notice given pursuant to Neb. Rev. Stat. §77-5026 or any other matter before the Commission in which a final order may be issued.
001.16 Costs. The amount of the filing fee, costs of a court reporter (if required), costs of service and witness fees. Witness fees may be allowed at the amount set forth in Nebraska Revised Statutes §33-139. Employees of the State of Nebraska or its political subdivisions are prohibited from receiving witness fees in “any action or proceeding in any court in this state” when the employee is called as a witness “in connection with his or her officially assigned duties.” Attorney’s fees are not a part of “costs” which may be allowed by the Commission. Costs which may be allowed include travel expenses if the hearing site is more than fifty (50) miles from the county seat of the county in which the action arose, including, but not limited to, reasonable meal expense, hotel expense and mileage as provided under Neb. Rev. Stat. §81-1176. In the event of an appeal from a Commission decision the Court of Appeals filing fee and costs of the bill of exceptions and the official record of the proceedings may be allocated by the Court of Appeals.
001.16A Witness. For the purpose of assessing costs, a “Witness” is a person who is not a party, or a full or part-time employee of a party calling the person to appear, who appears either voluntarily or under subpoena in order to give testimony to the Commission regarding a disputed issue, unless otherwise provided in these rules.
001.17 Default Judgment, Order of. An order issued by the Commission, after a party fails to: proceed with opposition to an appeal or petition; appear; prosecute the appeal/petition; or comply with a Commission order.
001.18 Discovery: The process for obtaining information as provided in an order for hearing or in Chapter Twelve of these Rules.
001.19 Ex Parte Communications. An oral or written communication which is not on the record in a contested case with respect to which reasonable notice to all parties was not given. The following are not ex parte communications:
001.19A Communications which do not pertain to the merits of a contested case;
001.19B Communications required for the disposition of ex parte matters as authorized by law;
001.19C Communications in a rule-making proceeding;
001.19D Communications to which all parties have given consent. See, Neb. Rev. Stat. §84-901 (Reissue 1999).
001.20 Final Decision. A decision, action, order, or determination which cannot be modified by the maker of the decision, action, order, or determination and from which an appeal may be taken. A Decision of the Commission becomes final on the thirty-first day following the entry of the order in the records of the Commission, if no appeal or other legal challenge to the decision is filed in the interim. See, Neb. Rev. Stat. §77-5019(2)(a).
001.21 Final Order. Any order which (1) affects a substantial right of a party and which determines the action or prevents a judgment, (2) affects a substantial right of a party made during a special proceeding, or (3) affects a substantial right of a party made on summary application in an action after a judgment is rendered. Rohde v. Farmers Alliance Mut. Ins. Co., 244 Neb. 863, 509 N.W.2d 618 (1994); Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993); State v. Schlund, 542 N.W.2d 421, 423, 249 Neb. 173, 175 (1996).
001.22 Findings of Fact. A concise statement of the determinations made as to each contested issue of fact. Neb. Rev. Stat. §77-5018.
001.23 Formal Hearing. A hearing during which the Rules of Evidence applicable in District Court will be applied in the hearing.
001.24 Good Faith. “An honest belief, the absence of malice, and the absence of design to seek an unconscionable advantage.”Cass Const. Co., Inc. v. Brennan, 222 Neb. 69, 81, 382 N.W.2d 313, 321 (1986). A faithfulness to one’s duty or obligation. Black's Law Dictionary, Sixth Edition, West Publishing, (1990).
001.25 Hearing Officer. A Commissioner or a Special Master (as defined in these Rules) who is authorized to hear and receive evidence in a proceeding before the Commission. (See also “Presiding Hearing Officer”).
001.26 Informal Disposition. The resolution of an appeal/petition by stipulation, agreed settlement, default judgment or consent order. Neb. Rev. Stat. §77-5015.
001.27 Informal Hearing. A hearing during which most of the Rules of Evidence applicable in the District Court will not be applied in the hearing. Rules of privilege and rules prohibiting hearsay are applicable in the hearings. Rules of process and procedure are also applicable. See, ch 4 § 009 attendance at hearing ch 5 §18 conduct of a hearing and ch 5 §20 evidence of these rules and others.
001.28 Intervenor. A person with a direct and legal interest of such character that the intervenor will lose or gain by the direct operation and legal effect of a decision and order the Commission might enter. Change of Name of Davenport, 263 Neb. 614, 641 N.W.2d 379 (2002). A person whose legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding. Neb. Rev. Stat. §84-912.02(1)(b). Whether or not a person is an intervenor may be determined as provided in Chapter 5 section 4 of these rules.
001.29 Legal Counsel. A lawyer in good standing licensed to practice law in the State of Nebraska, or a non-resident lawyer who has fully complied with the requirement of Chapter 4, Section 009.01A or 009.01B of these rules.
001.30 Mailbox Rule. A statutory presumption providing that any report, claim, tax return, tax valuation, equalization, or exemption protest, tax form, petition, appeal, statement, or any payment required or authorized to be filed or made to the Commission, which is: (1) transmitted through the United States Mail; (2) mailed but not received by the Commission; or (3) received and the cancellation mark is illegible, erroneous, or omitted shall be deemed filed or made and received on the date it was mailed if the sender establishes by competent evidence that the report, claim, tax return, tax valuation, equalization, or exemption protest, or tax form, petition, appeal, or statement, or payment was deposited in the United States mail on or before the date for filing or paying. See, Neb. Rev. Stat. §§49-1201.
001.31 Notice of Hearing. Notice issued by the Chairperson served on all parties stating the date, time and place of a hearing and other information at the discretion of the Chairperson.
001.32 Order for Hearing. An order of the Chairperson setting a date, time and place for hearing and other direction or information as may be required by these rules or entered at the discretion of the Chairperson.
001.33 Order to Show Cause. An order issued by the Chairperson of the Commission, on a motion or otherwise, compelling a party to show why after a hearing that a proposed order should not be entered.
001.34 Panel of Commissioners. Any three Commissioners designated by the Chairperson to hear an appeal or petition or the three Commissioners present at the commencement of a proceeding.
001.35 Parcel. A contiguous tract of land determined by its boundaries, under the same ownership, and in the same tax district and section. Parcel also means an improvement on leased land. If all or several lots are in the same block are owned by the same person and are contained in the same tax district, they may be included in one parcel. Neb. Rev. Stat. §77-132.
001.36 Party. The person against whom a petition or appeal is brought; a person the valuation of whose property was challenged by another; a person allowed to intervene in a proceeding; a person whose participation has been determined to be necessary to a complete resolution of issues presented in the appeal or petition; a person directly affected by the outcome of an appeal or petition, or a person authorized by statute to appeal. A person who will be directly affected by the outcome of an appeal is one who has a real interest in the appeal or has a legal or equitable right, title, or interest in the subject of the appeal. (See, “Person” in this chapter and “Persons with Authority to File Appeals” in Chapter 5, §001, of these rules).
EXPLANATORY STATEMENT
Standing, a legal concept, is fundamental to the right to appeal. If the person bringing an appeal does not have standing, the appeal must be dismissed. The stated rule is intended to describe the test for standing. There are numerous court decisions discussing standing. Many of those decisions are listed as annotations to Neb. Rev. Stat. §25-301. The Commission is required to follow the rules as defined by the Courts. The Nebraska Supreme Court has determined for example that a taxpayer may appeal a decision of the taxpayer’s county board of equalization if the decision of the board is to lower the actual or fair market value of the property of another taxpayer. See, Ryan v. Douglas County Bd. of Equalization, 199 Neb. 291, 258 N.W.2d 626 (1977).
001.37 Perjury. A false statement made knowingly and intentionally while under oath in any deposition, action or proceeding before the Commission or its designee. Neb. Rev. Stat. §77-5016(6).
001.38 Person. Includes an individual acting on their own behalf or as an officer, director, employee or other representative capacity; a trustee; a firm, organization, company, association, partnership, joint stock association, body politic, entity, enterprise, corporation, governmental subdivision or other organization or society; or a legal representative, including a receiver, assignee, guardian, executor, administrator, conservator, or personal representative of an estate.
001.39 Petition. The initial document filed with the Commission which requests that the Commission take action other than reversal or modification of a decision, action, order, or determination by another person.
001.40 Pleading. A petition, appeal form, reply, notice, motion, stipulation, objection or other formal or informal written document filed by or with the Commission which concerns a proceeding or contested case. The technical requirements for a pleading are set forth in these Rules.
001.41 Postmark. The cancellation mark of the United States Postal Service. The mark of any private delivery or courier service (such as FedEx, Airborne, UPS, etc.) is not a postmark.
001.42 Presiding Hearing Officer. A commissioner, special master, or referee conducting a proceeding.
001.43 Procedural Order. An order establishing a date and time of hearing, requiring a pre-hearing conference, designating a panel of Commissioners, any notice, a subpoena of witnesses or documents or any other matter which does not affect a substantive right of the parties including an order allowing intervention of a party, as well as any order noticing in additional parties.
001.44 Proceeding. Any hearing or meeting held by the Commission.
001.45 Professionally or Generally Accepted Mass Appraisal Methods and Techniques. Standards and techniques for mass appraisal recognized by the International Association of Assessing Officers and the Appraisal Institute and other standards and techniques even if not contained within a IAAO or Appraisal institute publication or the Uniform Standards of Professional Appraisal Practice if evidence is presented regarding the use of a method or technique that is reliable, can be tested, is consistent with or utilizes existing professionally or generally accepted mass appraisal methods or techniques and does not conflict with statutory or regulatory provisions.
001.46 Properly Perfected. An appeal if there is timely filing of:
001.46A The Appeal is filed on the form provided by the Commission; and
001.46B The filing fee of twenty-five dollars ($25) is paid, except that no filing fee shall be required for a county assessor filing in his or her official capacity or a county board of equalization acting in its official capacity; and
001.46C A copy of the decision, action, order, determination or other information which documents the decision, order, determination, or action complained of is.
001.46D Timely Filed. See chapter 5 section 001.07 of these rules.
001.47 Property Tax Administrator. The official appointed as the chief administrative officer of the property assessment division of the department of revenue pursuant to Neb. Rev. Stat. 81-102.
001.48 Quorum. A quorum of a four member Commission panel is three commissioners. A quorum of a three member Commission panel is two commissioners. Neb. Rev. Stat. §77-5005.
001.49 Referee. A person appointed by the Commission pursuant to Neb. Rev. Stat. §77-5009 to meet with the representatives of the county and the owners of a subject property in a valuation dispute in order to facilitate agreement on facts and issues prior to hearing. As used in these rules and regulations, the term “Referee” shall not mean a person appointed by a County Board of Equalization to hear protests and recommend a course of action to the County Board of Equalization.
001.50 Regulation. A rule by which the Commission conducts its business. If the word “Regulation” is used, it will mean rule. See definition for Rule.
001.51 Rehearing, Order For. An order authorizing another hearing for a matter which has already been heard.
001.52 Rule. A “Rule” is the whole or part of a Commission governing statement or standard which is of general or particular applicability and has been adopted pursuant to the Administrative Procedures Act. A rule may be of present or future effect and is designed to implement, interpret, or prescribe policy. A rule may describe the Commission, its organization, procedures, or practice requirements.
001.53 Show Cause Hearing. A hearing at which a party is afforded an opportunity to show cause why the proposed order should not be entered by the Commission.
001.54 Single Family Residential. All parcels of real property predominantly used or intended to be used as a dwelling place or abode whether occupied by the owner, tenant or lessee, and where occupancy is for a period of time usually year-a-round as opposed to a transitory occupancy by a single family or two families.
001.55 Special Master. A person appointed by the Commission pursuant to Neb. Rev. Stat. §77-5009 to hold Hearings and act as a presiding hearing officer on behalf of the Commission. Duties of a Special Master shall not include determination of conclusions of law or the final disposition of any proceeding before the Commission.
001.56 Stipulation. A voluntary agreement between opposing parties concerning some relevant but disputed fact or issue.
001.57 Substantive Orders. Any order affecting a substantial legal right. An order affecting a substantial legal right includes any order diminishing a claim or defense that was available prior to the order.
001.58 Tax Commissioner. The official appointed and acting pursuant to Art V, § 28 of the Constitution of the State of Nebraska.
001.59 Unreasonable. A decision is unreasonable only if the evidence presented leaves no room for differences of opinion among reasonable minds. Pittman v. Sarpy Cty. Bd. of Equal., 258 Neb 390, 603 N.W.2d 447 (1999).
001.60 Vice Chairperson. A Commissioner designated Vice Chairperson as set forth in Chapter 3 of these Rules.
History
- Effective 2011-06-06
Chapter 3 Authority and Duties
Neb. Admin. Code tit. 442, ch. 3 Authority and Duties {#sec-442-nac-3 omnilex-key=us-ne-regs-official--title-442--442 NAC 3}
001 Limitation of Authority . The Commission’s authority to act is limited by statute as follows:
001.01 The Commission has no authority to affect lawful levies. County boards, city councils, school boards, and all other bodies legally authorized to make levies are free to make the rate of levy for their respective political subdivisions or municipalities at any amount not prohibited by the Constitution of Nebraska or the laws of the State.
Neb. Rev. Stat. §77-5010.
002 Powers and Duties of the Commission .
002.01 The Commission has the power, and therefore the duty, to review and equalize assessments of property for taxation within the state. The Commission reviews and equalizes assessments both within and between counties of the State. Neb. Const. Art. IV, §28.
002.02 The Commission has the power to increase or decrease the value of a class or subclass of real property in any county or taxing authority or of real property valued by the State so that all classes or subclasses of real property in all counties fall within the acceptable range. Neb. Rev. Stat. §77-5023(1).
002.03 The Commission has the power and duty to hear and determine appeals of decisions and hear and grant or deny relief on petitions as follows:
002.03A Decisions of any county board of equalization equalizing the value of individual tracts, lots, or parcels of real property so that all real property is assessed uniformly and proportionately;
002.03B Decisions of any county board of equalization granting or denying tax-exempt status for real or personal property or an exemption from motor vehicle taxes and fees;
002.03C Decisions of the Tax Commissioner and decisions of the Property Tax Administrator made before July 1, 2007, determining the taxable property of a railroad company, car company, public service entity, or air carrier within the state;
002.03D Decisions of the Tax Commissioner and decisions of the Property Tax Administrator made before July 1, 2007, determining adjusted valuation pursuant to section 79-1016;
002.03E Decisions of any county board of equalization on the valuation of personal property or any penalties imposed under sections 77-1233.04 and 77-1233.06;
002.03F Decisions of any county board of equalization on claims that a levy is or is not for an unlawful or unnecessary purpose or in excess of the requirements of the county;
002.03G Decisions of any county board of equalization granting or rejecting an application for a homestead exemption;
002.03H Decisions of the Department of Motor Vehicles determining the taxable value of motor vehicles pursuant to section 60-3,188;
002.03I Decisions of the Tax Commissioner and decisions of the Property Tax Administrator made before July 1, 2007, made under section 77-1330;
002.03J Any other decision of any county board of equalization;
002.03K Any other decision of the Property Tax Administrator made before July 1, 2007, and decisions made by the Tax Commissioner regarding property valuation, exemption, or taxation made on or after July 1, 2007;
002.03L Decisions of the Tax Commissioner pursuant to section 77-3520; and
002.03M Any other decision, determination, action, or order from which an appeal to the Commission is authorized.
002.03N The Commission has the power and duty to hear and grant or deny relief on petitions. Neb. Rev. Stat. §77-5007.
002.03N1 The Commission hears petitions to determine the taxable status of real property pursuant to Neb. Rev. Stat. §77-202.04(2).
002.03N2 The Commission hears petitions to determine whether special valuation is applicable to a parcel pursuant to Neb. Rev. Stat. §77-1345.01 (10).
002.03N3 The Commission hears petitions to determine actual value, special value, or recapture value of real property pursuant to Neb. Rev. Stat. §77-1507.01.
002.03O Final decisions of a County Board of Equalization appealed by the Tax Commissioner or Property Tax Administrator pursuant to section 77-701.
002.04 The Commission has the power to hear and decide appeals of decision(s) by the Tax Commissioner determining adjusted valuations of each class of property in a school district. Neb. Rev. Stat. §79-1016(4).
002.05 The Commission has the power to hear and decide an appeal of the decision by the Tax Commissioner to deny a claim of overpayment of tax due to clerical error, misunderstanding, or mistake. Neb. Rev. Stat. §77-1775.
002.06 The Commission has the power to hear and decide appeals from determinations of the tax exempt status of property under Neb. Rev. Stat. §60-3006 (motor vehicles) and §77-3519 (homestead).
002.07 The Commission has the power to hear and decide an appeal by a taxpayer seeking special valuation under Neb. Rev. Stat. §77-1344. Neb. Rev. Stat. §77-1345.01.
002.08 The Commission has the power to hear and decide appeals of persons denied exemption from real or tangible personal property taxation by a county board of equalization. The Commission further has the power to hear and decide appeals by a county assessor, the Tax Commissioner, or the Property Tax Administrator of the grant of an exemption from real or tangible personal property taxation. Neb. Rev. Stat. §77-202.04.
002.09 The Commission has various special administrative powers.
002.09A The Commission, through the Presiding Hearing Officer, may administer oaths. Neb. Rev. Stat. §77-5016(2).
002.09B The Commission, through its Chairperson, may issue subpoenas, compel the attendance of witnesses and the production of any papers, books, accounts, documents, statistical analysis, and testimony. Neb. Rev. Stat. §77-5016(2).
002.09C The Commission may adopt and promulgate rules of discovery which are consistent with the rules of discovery adopted by the Nebraska Supreme Court pursuant to Neb. Rev. Stat. § 25-1273.01. Neb. Rev. Stat. 77-5016(2).
002.09D The Commission has the power to invalidate the certificate of any county assessor or deputy assessor who willfully fails or refuses to comply with any order of the Commission. No certificate shall be revoked or suspended except upon a proper hearing before the Commission. Neb. Rev. Stat. §77-5020.
003 Designation of Chairperson and Vice-Chairperson . The Chairperson and Vice-Chairperson of the Commission must each be an attorney admitted to practice before the Nebraska Supreme Court. Neb. Rev. Stat. 77-5003(3).
003.01 Each Chairperson and Vice-Chairperson serves a term of two years on a rotating basis. Neb. Rev. Stat. 77-5003(3).
003.02 The term of office for each Chairperson and Vice-Chairperson commences January 1 of each even numbered year and expires on December 31 of each odd numbered year or upon: written resignation submitted by the Chairperson or Vice-Chairperson; written notice from a physician for the Chairperson or Vice-Chairperson stating that the Chairperson or Vice-Chairperson is incapable of performing the duties of Chairperson or Vice-Chairperson, and that such incapacity will continue through the duration of the Chairperson’s or Vice-Chairperson’s term of office as Chairperson or Vice-Chairperson; death of the Chairperson or Vice-Chairperson; or expiration of the Chairperson or Vice Chairperson’s term of office as a Commissioner. Neb. Rev. Stat. 77-5003(3).
003.03 In the event only one Commissioner is eligible to serve as Chairperson that member is designated Chairperson on expiration of the prior Chairperson’s term.
003.04 In the event only one Commissioner is eligible to serve as Vice-Chairperson, that member is designated Vice-Chairperson on expiration of the prior Vice-Chairperson’s term.
003.05 In the event no Commissioner is eligible to serve as Chairperson that office shall remain vacant until an eligible person is appointed by the Governor.
003.06 In the event no Commissioner is eligible to serve as Vice-Chairperson, that office shall remain vacant until an eligible person is appointed by the Governor.
003.07 In the event more than one Commissioner is eligible to serve as Chairperson or Vice-Chairperson, an election by secret ballot shall be conducted.
003.08 A Chairperson or Vice-Chairperson may resign his or her office as Chairperson or Vice-Chairperson without resigning from the Commission and may continue to serve as a Commissioner.
004 Locations Where Hearings May Be Held . The Commission may hold hearings at such places within the State of Nebraska as the Chairperson may from time to time determine.
005 Authority of Commissioners to Act Jointly or Severally .
005.01 Any investigation, inquiry, or hearing held or undertaken by the Commission may be held or undertaken by or before a panel of Commissioners with the approval of the Commission. Neb. Rev. Stat. §77-5005(3).
005.02 The Chairperson, or in the absence of the Chairperson the Vice-Chairperson, may issue any procedural order, and that order is deemed to be the order of the Commission.
006 Orders Authorized .
006.01 In resolving an appeal or petition, the Commission may make such orders as are appropriate for resolving the appeal or petition but the relief granted shall not be excessive compared to the problems addressed. Neb. Rev. Stat. §77-5017(1).
006.02 The Commission may make prospective orders requiring changes in assessment practices which will improve assessment practices or affect the general level of assessment or the measures of central tendency in a positive way. Neb. Rev. Stat. §77-5017(1).
006.03 If no other relief is adequate to resolve disputes, the Commission may order a reappraisal of property within a county, an area within a county, or classes or subclasses of property within a county. Neb. Rev. Stat. §77-5017(1).
006.04 The Commission may issue decisions and orders which are supported by the evidence and appropriate for resolving the matters in dispute. Neb. Rev. Stat. §77-5018.
006.05 Every decision and order adverse to a party to the proceeding, rendered by the Commission in a case appealed to the Commission, shall be in writing or stated in the record and shall be accompanied by Findings of Fact and Conclusions of Law. Neb. Rev. Stat. §77-5018.
006.06 A copy of the decision and/or order shall be delivered to each party or his or her lawyer of record. Neb. Rev. Stat. §77-5018.
006.07 Within seven days of issuing a decision and order, the Commission shall electronically publish such decision and order on a web site maintained by the Commission that is accessible to the general public. The full text of final decisions and orders entered after a hearing by the Commission or a panel of commissioners shall be published on the web site. Final decisions and orders that are entered (a) on a dismissal by the appellant or petitioner, (b) on a default order when the appellant or petitioner failed to appear, or (c) by agreement of the parties may be published in a summary manner identifying the parties, the case number, and the basis for the final decision and order.
007 Special Orders .
007.01 Writs of Mandamus. The Commission may issue writs of mandamus compelling compliance with its orders. Neb. Rev. Stat. §77-5008.
007.02 No writ of mandamus shall be issued unless an Order for Hearing and Notice of Hearing has been issued and an opportunity to be heard has been afforded to any party who prospectively may be directly affected by the proposed writ.
007.03 The Commission may, by writ of mandamus, compel the Tax Commissioner to enforce its orders, and may charge the party which has not complied with the Commission’s orders with costs borne by the Tax Commissioner or by the Property Tax Administrator prior to July 1. 2007. Neb. Rev. Stat. §77-5008.
008 Special Master .
008.01 A “Special Master” may hold informal hearing(s) on behalf of the Commission. At the conclusion of the hearing(s), the Special Master shall submit recommended Findings of Fact to the Commission. The duties of a Special Master shall not include the determination of Conclusions of Law or the final determination of any case or controversy. Neb. Rev. Stat. §77-5009.
008.01A The recommended Findings of Fact of the Special Master shall be provided to the parties in writing.
008.01B The parties may, with the consent of the Commission, be afforded an opportunity to be heard before the Commission regarding the recommended Findings of Fact of the Special Master. The Commission may, with or without holding a hearing, adopt the recommended Findings of Fact in whole or in part. The Commission, in the alternative, may reject the Special Master’s recommended Findings of Fact, and hold further hearings or request further evidence, as the Commission may determine.
008.02 A Special Master may also serve as the presiding hearing officer in a Formal or Informal Hearing. In any case where a Special Master is serving as a presiding hearing officer, that Special Master may make recommended findings of fact but shall not determine conclusions of law or participate in determining the disposition of the appeal.
008.03 Qualifications of Special Master. The Commission may seek to employ as Special Masters persons having such qualification as the Commission may determine.
008.04 Compensation. A Special Master appointed by the Commission will be compensated as the Commission and the Special Master may agree. Such compensation shall only be made in accordance with the provisions of Neb. Rev. Stat. §77-5009.
008.05 Conflict of Interest.
008.05A An individual shall not be appointed as a Special Master if that individual has a conflict of interest as defined in Chapter 2, § 001.14 of these rules.
008.05B A Special Master shall disqualify himself/herself in the case of a conflict of interest as defined in Chapter 2, § 001.14 of these rules.
009 Referee .
009.01 For the purposes of mediating valuation disputes between the county and the owner of a property, the Commission may appoint or contract with a “Referee” to meet with the parties and facilitate agreement on facts and issues prior to the hearing on the appeal. Neb. Rev. Stat. §77-5009.
009.02 Referee Conference. A Referee shall meet with the parties to facilitate agreement on facts and issues within 60 days of his or her appointment.
009.03 Referee Reports. A Referee shall, at the conclusion of the Referee Conference, prepare a written report to be submitted to the Commission. This Referee’s report shall be signed by the Referee and each of the parties and shall specify the following:
009.03A That the parties resolved their differences. If the parties resolve their differences at the Referee Conference the Referee Report shall contain a recitation of the agreed upon facts, issues, and valuation for the appealed property as determined by the parties to the appeal; or
009.03B That the parties have failed to resolve their differences. If the parties have failed to resolve their differences the Referee Report shall identify:
009.03B1 The unresolved factual matters and issues to be submitted to the Commission for its determination.
009.03B2 All of the facts and issues which have been agreed to by the parties and are not, or are no longer, in dispute.
009.04 Action of the Commission upon receipt of Referee Report.
009.04A If the parties fail to resolve their differences, the matter shall proceed to a hearing before the Commission.
009.04B If the parties resolve their differences, the Commission shall enter an order that reflects the agreement of the parties as set forth in the Referee’s Report.
009.05 Compensation. A Referee appointed by the Commission may be paid a salary or fee in the discretion of the Commission. If a salary is paid, the amount paid shall be fixed by the Commission, and if a fee is paid, the amount paid shall be in accordance with the value of the service rendered and shall be agreed upon and approved by the Commission before the referee renders service under his or her appointment. Such compensation shall only be made in accordance with the provisions of Neb. Rev. Stat. §77-5009.
009.06 Conflict of Interest.
009.06A An individual shall not be appointed as a Referee if that individual has a conflict of interest as defined in Chapter 2, § 001.14 of these rules.
009.06B A Referee shall disqualify himself/herself in the case of a conflict of interest as defined in Chapter 2, § 001.14 of these rules.
009.07 Confidentiality. The referee may not be called as a witness in a hearing on the merits nor may evidence of any statements made by the parties or the referee pertaining to or at the referee meeting be received by the commission at a hearing on the merits.
History
- Effective 2011-06-06
Chapter 4 General Rules of Practice
Neb. Admin. Code tit. 442, ch. 4 General Rules of Practice {#sec-442-nac-4 omnilex-key=us-ne-regs-official--title-442--442 NAC 4}
001 Pleadings .
001.01 Oath or Affirmation on all Appeals or Petitions. Each appeal or petition filed with the Commission shall be deemed to include an oath, affirmation, or statement to the effect that its representations are true and correct to the best of the knowledge and belief of the person signing the appeal or petition.
001.02 Form and Content of Pleadings Other Than the Commission’s Appeal Form.
001.02A A pleading shall contain a heading specifying the name of the Commission, the names of the parties, their roles in the appeal, the case number, if assigned, and the title or nature of the pleading.
001.02B The pleading shall state material factual allegations and the action the Commission is requested to take.
001.02C The pleading shall contain the name and address of the party on whose behalf the pleading is filed.
001.02D If the pleading is filed by legal counsel, the pleading shall contain the name, address, telephone number, and Nebraska State Bar Association Number of legal counsel in good standing, licenced to practice in the State of Nebraska and the name, address, and telephone number of any other legal counsel associated with them for the proceeding.
001.02E All pleadings shall be filed on white, letter sized (i.e., 8 ½ x 11 inches) paper, and shall be legibly typewritten, photostatically reproducible, printed, or handwritten. If handwritten, a pleading must be legibly written in blue or black ink. (See, Chapter 2, section 001.40 of these rules for the definition of a pleading.)
001.03 Service of Pleadings Required. Pleadings filed with the Commission, except the Appeal Form and initial petition, must be served simultaneously upon the opposing party or parties and a certificate of service filed with the Commission. (See, Chapter 2, Section 001.08 of these rules).
001.04 Signature Requirements. Any pleading including the appeal form filed with the Commission must contain original signature(s) of a party, legal counsel for a party, or a person authorized by law or through rules. An unsigned pleading will be removed from the case file unless omission of a signature is corrected promptly after being called to the attention of the filer.
001.05 Construction of Pleadings All pleadings will be construed as to do substantial justice.
001.06 Amendment of Pleadings Including the Appeal Form
001.06A Pleadings, including the appeal form may be amended once as a matter of course. The name of the person signing the appeal/petition may not be amended nor may a party be substituted by amendment. Other amendments may be made upon leave granted by the Commission or by consent of all adverse parties. Leave to amend shall be freely given.
001.06B Amendments to Conform to the Evidence. When issues not raised by the pleadings are heard by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after entry of an order and decision; but failure so to amend does not affect the result of the hearing of these issues. If evidence is objected to at a hearing on the ground that it is not within the issues raised by the pleadings, the Commission may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the pleading will be subserved thereby and the objecting party fails to satisfy the Commission that the admission of such evidence would prejudice the party in maintaining the party's pleading or defense upon the merits. The Commission may grant a continuance to enable the objecting party to respond to such evidence.
002 Authority of the Chairperson and Vice-Chairperson . The Chairperson may:
002.01 Call regular or special meetings of the Commission at such times as its business may require. Neb. Rev. Stat. §77-5011.
002.02 Administer oaths and affirmations and perform all other procedural duties in the name of the Commission.
002.03 Attest all orders, certificates, and process with the official seal of the Commission.
002.04 Sign and issue, Notices of Hearings, Orders for Hearing, Orders to Show Cause, Notices of Show Cause Hearings, Consolidation Orders, Orders Allowing Withdrawal of Counsel, Orders granting leave to to Confess Judgment, Certificates, Subpoenas, Orders dismissing an appeal/petition at the request of the appellant/petitioner, together with other procedural orders, notices, or processes. Substantive orders may only be entered by a quorum unless otherwise provided for in these rules.
002.05 Determine the Commission’s hearing schedule.
002.06 Adopt an appeal form for use by all persons filing appeals.
002.07 Execute contracts on behalf of the Commission.
002.08 Perform all functions and make all determinations required or allowed by the Nebraska Information System.
002.09 Supervise the day to day operations of the Commission and its staff.
002.10 Submit the Commission’s biennial budget and any subsequent requests for modification.
002.11 Delegate any responsibility as he or she may determine.
002.12 Order that a proceeding be conducted by a panel of Commissioners and designate members of the panel.
002.13 Order that a proceeding be conducted by a single Commissioner if authorized by law.
002.14 Designate a primary presiding hearing officer for a proceeding and an alternate.
002.15 Adopt a fee schedule for copying in any format and for other services, but not including the filing fee prescribed by statute.
002.16 Consolidate appeals for hearing.
002.17 Consolidate appeals for refund of the filing fee.
002.18 Give and publish notice of any proceeding of the Commission.
002.19 The Vice Chairperson may discharge any responsibility of the Chairperson in his or her absence or inability to act.
003 Offers to Confess Judgment and Stipulations .
003.01 Confessions. A County Board of Equalization, with the consent of the Commission, may offer to confess judgment for part of the value claimed or part of the causes involved in the action. Neb. Rev. Stat. 77-1510.01
003.01A If (1) the appellant is present and refuses to accept such confession of judgment in full satisfaction of his or her demands against the board in such action or the appellant fails to attend having had reasonable notice that the offer would be made, its amount, and the time of making it, and (2) at the hearing the appellant does not recover more than was offered to be confessed, the appellant shall pay all the costs and fees the board incurred after making the offer. Neb. Rev. Stat. §77-1510.01. See, Chapter 3 section 004.03 Determination of Costs Procedure
003.01B Refusal to Grant Motion for Permission to Offer to Confess Judgment. The Commission may not grant a motion for permission to make an offer to confess judgment affecting taxable or equalized taxable value of a parcel prior to a hearing on the merits, unless the motion is supported by an affidavit issued by or on behalf of the County Assessor attesting that the offer to be made represents taxable or equalized taxable value of the parcel.
003.01C Nothing in this rule shall prevent any other appellee/respondent other than a County Board of Equalization from offering to confess judgment at any time.
003.01D An offer to confess judgment shall not be deemed to be an admission of the cause of action or relief to which the appellant/petitioner is seeking, and the offer shall not be given in evidence at the hearing.
003.01E An offer to confess judgment made prior to a hearing before the Commission must be made by a pleading.
003.01F Acceptance of an offer to confess judgment prior to a hearing before the Commission must be made by a pleading.
004 Costs
004.01 Mandatory Award of Costs.
004.01A Refusal to accept a confession of judgment made by a County Board of Equalization. If a recovery greater than the offer is not obtained after hearing on the appeal an award of costs to the County will result. A Motion for Costs is not necessary for costs to be assessed under Neb. Rev. Stat. §77-1510.01 (See Chapter 4, §004.02 of these rules for allowable costs.)
004.01B Court reporter for a formal hearing. Fees and costs of a court reporter in a formal proceeding shall be paid by the party or parties against whom a final decision is rendered, other costs shall be allocated as the Commission may determine. Neb. Rev. Stat. §77-5016(1).
004.01B1 The party requesting a formal hearing is liable for payment of court reporter appearance fees pending a final decision. Neb. Rev. Stat. §77-5016(1).
004.02 Permissive Assessment of Costs. Except as provided in Neb. Rev. Stat. §§ 77-1510.01 and 77-5016(11) the costs of any appeal, including the costs of witnesses, may be taxed by the Commission as it deems just unless the appellant is the county assessor or county clerk in which case the costs shall be paid by the county, or if the appellant is the Tax Commissioner or the Property Tax Administrator in which case the costs shall be paid by the state. Neb. Rev. Stat. §§77-1510.01 and 77-5016(11). (See Chapter. 2, §001.16 for definition of costs).
004.02A Guidelines for Permissive Assessment of Costs. Except as provided in Neb. Rev. Stat. §§77-1510.01 and 77-5016(1), the Commission may consider the following guidelines for assessment of costs:
004.02A1 The Commission may assess costs of a non-offending party against a party who willfully or intentionally fails, neglects, or refuses to comply with an Order of the Commission or a Notice of Hearing issued by the Commission.
004.02A2 The Commission may assess costs when a party fails to appear for a duly noticed hearing.
004.02A3 The Commission may assess as costs all or part of the costs incurred by a party when an opposing party takes action, if the Commission finds and determines that the action complained of was solely designed and undertaken in order to harass, annoy, or offend a person or opposing party, or when the action undertaken was frivolous or dilatory.
004.02A4 The Commission may assess as costs all or part of the costs incurred by a party when an opposing party seeks to have a hearing continued within three (3) days of the scheduled hearing. The Commission may assess these costs on its own motion or on the motion of the opposing party if the Commission grants the continuance.
004.03 Determination of Costs Procedure.
004.03A Offer to Confess. Estimate of Costs. Any county board of equalization which has made an offer to confess judgment for all or part of the value claimed or part of the causes involved in a proceeding may file a written estimate of the costs and fees to be incurred from the time of the making of the offer to confess judgment, with the Commission and all parties to the appeal, within at least five (5) business days prior to the date of the hearing.
004.03B Bill of Costs. The Commission may order a party to submit a bill of costs. A bill of costs, if submitted, shall be verified by attaching a signed statement, made under penalty of perjury, that such items and amounts are correct and have been necessarily incurred in the proceeding and are eligible for award as costs.
004.03C Objection to Motion for Costs or Bill of Costs. Any Party against whom costs may be assessed may make any objections within 10 days of the date a bill of costs is filed with the Commission.
004.04 Order Awarding Costs and Fees. The Commission may, after receiving the Bill of Costs, and any objection thereto, award costs and fees as part of the final decision in the proceeding.
004.05 Payment of Costs and Fees. Payment of costs and fees ordered by the Commission shall be submitted and made payable to the Tax Equalization and Review Commission, unless the Commission orders otherwise.
004.06 Discovery. Costs may be awarded pursuant to Chapter 12 of these Rules.
004.07 Enforcement. An order awarding costs may be enforced in the District Courts. Neb. Rev. Stat. §77-5011.
005 Stipulations . Parties to any proceeding before the Commission may agree upon any fact or issue involved in the controversy, either by written stipulation entered into the record as an exhibit, or by oral agreement stated on the record. The Commission is not bound by a stipulation. See, Ireland v. Stalbaum, 162 Neb. 630, 77 N.W.2d 155, (1956).
006 Decision and Order
006.01 A copy of any decision and order of the Commission shall be served on all parties of record either in person or by regular United States mail, postage prepaid. The Chairperson may also cause any decision and order to be served on the parties by certified mail, and may request a return receipt on the certified mail.
006.02 Within seven days of issuing a decision and order, the Commission shall electronically publish such decision and order on a web site maintained by the Commission that is accessible to the general public. The full text of final decisions and orders entered after a hearing by the Commission or a panel of commissioners shall be published on the web site. Final decisions and orders that are entered (a) on a dismissal by the appellant or petitioner, (b) on a default order when the appellant or petitioner failed to appear, or (c) by agreement of the parties may be published in a summary manner identifying the parties, the case number, and the basis for the final decision and order.
006.03 A copy of the decision and order shall be certified to the county treasurer and to the officer charged with preparing the tax list, when such decision and order becomes final, and such officers shall correct their records accordingly. Neb. Rev. Stat. §77-5018.
007 Cross-Appeals . If an appeal of a decision, action, order or determination has been perfected to the Commission, any subsequent appeal of that decision, action, order or determination by another party will be deemed a cross appeal. An appeal deemed to be a cross-appeal is subject to all of the provisions of these rules pertaining to an appeal and must be perfected in accordance with these rules and Neb. Rev. Stat. §77-5013.
008 Disqualification of Hearing Officer .
008.01 Any party may, by motion filed with the Commission, request the disqualification of any presiding hearing officer, hearing officer, special master, or referee.
008.02 Unless the presiding hearing officer, hearing officer, special master, or referee voluntarily disqualifies himself or herself, a hearing shall be held on the motion.
008.03 Disqualification shall only be ordered where there is an actual conflict of interest (as that term is defined in these Rules) on the part of the presiding hearing officer, hearing officer, special master, or referee, or when the moving party demonstrates by clear and convincing evidence that a reasonable person who knew the circumstances of the case would question the presiding hearing officer, hearing officer, special master or referee’s impartiality under an objective standard of reasonableness. State v. Pattno, 254 Neb. 733, 579 N. W. 2d 503 (1998).
009 Subpoenas .
009.01 The Commission may issue subpoenas, and compel the attendance of witnesses and the production of any papers, books, accounts, documents, statistical analysis, and testimony. Neb. Rev. Stat. §77-5016(2).
009.02 Subpoenas may be enforced in the district courts. Neb. Rev. Stat. §77-5011.
009.03 Failure of a witness to comply with the terms of a subpoena is a criminal offense. Neb. Rev. Stat. §77-5016.08.
009.04 The Chairperson of the Commission may, on application of any person having a cause or any matter pending before the Commission, issue a subpoena for witnesses under the seal of the Commission inserting all the names required by the applicant in one subpoena.
009.05 The subpoena of the Commission shall be directed to the person named therein, requiring him or her to attend at a particular time and place, to testify as a witness. The subpoena may contain a clause directing a witness to bring with him or her any book, writing, or other thing under his or her control, which he or she is bound by law to produce as evidence.
009.06 When the attendance of a witness before any officer authorized to take depositions (i.e., a notary public) is required, then the subpoena shall be issued by such officer.
009.07 The subpoena shall be served in the manner requested by the applicant; by either (1) personally serving a copy, or (2) by restricted or certified mail, return receipt requested, not less than six (6) days before the hearing or deposition which said witness is required to attend. The person making such service shall make a return thereof showing the manner of service. A subpoena may be served by any person not interested in the matter or by the sheriff. When served by any person other than a sheriff, proof of service shall be shown by affidavit, but no costs of serving shall be allowed, except when served by a sheriff.
009.08 Witnesses cannot be compelled to attend a hearing out of the state where they are served or at a distance of more than one hundred miles from the place of their residence or from the place where they are served with a subpoena, unless within the same county. Witnesses shall not be obliged to attend a deposition outside the county of their residence or outside the county where the subpoena is served.
009.09 Witness Fees. The Chairperson of the Commission may, upon deposit with the Commission of sufficient money to pay the legal fees and mileage and reasonable expenses for hotel and meals of a witness who attends at points so far removed from his or her residence as to make it reasonably necessary that such expenses be incurred, order a subpoena to issue requiring attendance at a hearing, but excluding a deposition appearance, of the witness from a greater distance within the state than that set forth in these Rules. Witness fees shall be determined in accordance with Neb. Rev. Stat. §33-139. Mileage shall be computed at the rate provided for state employees by Nebraska State Law. The subpoena shall show that it was issued under the provisions of this rule. After the appearance of the witness in response to any such subpoena, the Chairperson of the Commission shall enter an order directing the payment to the witness from the deposit of legal fees, mileage, and the actual expenses for hotel and meals incurred by the witness. If the deposit is not adequate for such purpose, the Commission or hearing officer shall direct the party procuring the issuance of the subpoena to pay the deficiency to the witness. Costs may be recovered as provided for in these Rules. Legal fees, as that term is used in this subsection, do not include attorney fees.
009.10 Employees of the State of Nebraska or its political subdivisions are prohibited from receiving witness fees when the employee is called as a witness in connection with his or her officially assigned duties. Neb. Rev. Stat. §33-139.01.
009.11 When a subpoena is issued at the request of any agency of state government, the witness shall not be entitled to demand his or her traveling fees and fee for one day’s attendance but shall be required to obey the subpoena if, at the time of service upon him or her, he or she is furnished a statement prepared by the agency advising him or her of the rate of travel fees allowable, the fee for each day’s attendance pursuant to the subpoena, and that he or she will be paid at such rates following his or her attendance.
009.12 Except as provided above a witness may demand his or her traveling fees and fee for one day’s attendance when the subpoena is served upon him or her, and if the same is not paid the witness shall not be obliged to obey the subpoena. The fact of such demand and nonpayment shall be stated on the return.
009.13 At the commencement of each day, after the first day, a witness may demand his or her fees for that day’s attendance in obedience to a subpoena, and if the same is not paid he or she shall not be required to remain
010 Attendance at Hearing . An appellant or petitioner must be present at any hearing on the merits of an appeal or petition with or without legal counsel, to avoid dismissal or relief by default unless their presence is waived by the Commission. Individuals required to be present by this rule are:
010.01 Natural Person. If an appellant or petitioner is a natural person, that person or their “guardian” or “conservator” or “next friend” as those terms are defined in Nebraska State Law and Nebraska Supreme Court decisions.
010.02 Legal Entity. If an appellant or petitioner is a corporation, partnership, limited partnership, limited liability company or other legal entity, an officer, partner, general partner, member, manager, or other person holding similar authority or a full-time salaried employee of the entity.
010.03 Trustee. If an appellant or petitioner is a trustee, that trustee.
010.04 Union, Association, or Other Organization. If an appellant or petitioner is a union, association, or any other organization, a director, officer, or full-time salaried employee of the union, association, or other organization
010.05 More Than One Property Owner. If property is owned by more than one person, one of the property owners as provided in this rule.
010.06 Government. If an appellant or petitioner is an elected or appointed official, officer, director, manager, that person, or if the appellant or petitioner is a political subdivision or state agency, a director, officer or full time employee of the political subdivision or state agency.
010.07 Other Persons. If an appellant or petitioner is any other person including but not limited to a successor in interest, lessee, licensee, any bankruptcy trustee, receiver, personal representative, or any other person appointed by a Nebraska Court or a Court of the United States, that person.
010.08 Failure to Appear. If an appellant/petitioner is not present at any hearing before the Commission within fifteen (15) minutes of a time for hearing, for which notice has been provided to the appellant/petitioner, the Commission may enter an order dismissing the appeal/petition or order relief by default.
010.9 Legal Counsel. Legal counsel may appear on behalf of a party.
010.10 Unauthorized Practice of Law. Only a person authorized to sign a pleading may appear before the Commission as a party or on behalf of a party, except as may be allowed by these rules or decisions of the Nebraska Supreme Court. (See, Chapter 5, Section 001.04).
010.10A Nonresident Legal Counsel. A lawyer admitted in another jurisdiction and not disbarred or suspended from practice in any jurisdiction, may, on motion served on all parties to the appeal/petition, appear on behalf of a party in an appeal/petition before the Commission provided that:
010.10A1 Prior to undertaking any legal representation a written motion is filed with the Commission requesting an order granting nonresident attorney’s motion to appear on behalf of a party;
010.10A2 A nonresident attorney shall, if the motion to appear is granted, take the oath required by Neb. Rev. Stat. § 7-104; and,
010.10A3 A written showing is filed with the Commission stating that legal services will be provided on a temporary basis and are (1) undertaken in association with a lawyer who is admitted to practice in Nebraska and who will actively participate in the proceeding; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer of person the lawyer is assisting is authorized by law or order to appear in such proceedings or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in Nebraska or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice; (4) are not within (2) or (3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. See Rule 5.5(c) of the Nebraska Rules of Professional Conduct as promulgated by the Nebraska Supreme Court.
010.10B A lawyer admitted in another United States jurisdiction and not disbarred or suspended from practice in any jurisdiction, may appear before the Commission if the legal services provided are provided to the lawyer’s employer or its organizational affiliates; or are services that the lawyer is authorized to provide by federal law or the laws of Nebraska. See Rule 5.5(d) of the Nebraska Rules of Professional Conduct as promulgated by the Nebraska Supreme Court.
010.12 Withdrawal of Legal Counsel. Upon timely motion stating good cause shown and an affidavit which recites that legal counsel has served a copy of the motion on his or her client and all parties, legal counsel shall be permitted to withdraw.
EXPLANATORY STATEMENT
The unauthorized practice of law in Nebraska is prohibited by statute. Neb. Rev. Stat. § 77-101. Rules and decisions of the Nebraska Supreme Court define the term unauthorized practice of law. Legal Counsel and the attorney members of the Commission are required to act in accordance with the statute, and the rules and decisions of the Court.
011 Ex Parte Communication Prohibited . In all contested cases before the Commission the following shall apply to ex parte communication:
011.01 No party to a contested case or other person outside the Commission having an interest in the contested case shall make or knowingly cause to be made any ex parte communication to a Commissioner, Special Master, Referee, or Commission employee who is or may reasonably be expected to be involved in the decision making process of the contested case.
011.02 No Commissioner, Special Master, Referee, or Commission employee who is or may reasonably be expected to be involved in the decision making process of a contested case shall make or knowingly cause to be made an ex parte communication to any party in a contested case or other person outside the Commission having an interest in the contested case.
011.03 No Commissioner, Special Master, Referee or Commission employee engaged in the investigation or enforcement of a contested case shall make or knowingly cause to be made an ex parte communication to a Commissioner, Special Master, Referee or Commission employee who is or may reasonably be expected to be involved in the decision making process of the contested case.
011.04 Any Commissioner, Special Master, Referee, or Commission employee who is or may reasonably be expected to be involved in the decision making process of a contested case who receives or knowingly causes to be made an ex parte communication shall file in the record of the contested case (i) all such written communications, (ii) memoranda stating the substance of all such oral communications, and (iii) all written responses and memoranda stating the substance of all oral responses to all the ex parte communications. The filing shall be made within two working days of the receipt of making of the ex parte communication. Notice of the filing, with an opportunity to respond, shall be given to all parties of record.
011.05 The prohibitions of this chapter shall apply from the time an initial pleading in a contested case is filed with the Commission or at such time it is reasonably certain that an initial pleading will be filed with the Commission until a final decision in a contested case is issued by the Commission from which no appeal can be taken.
012 Panels of Commissioners .
012.01 Any proceeding commenced with a Commissioner excused is a proceeding undertaken by a panel of commissioners approved by the Commission. The Chairperson or presiding hearing officer may excuse a Commissioner from participation in a proceeding.
012.02 The Chairperson may order that any proceeding be heard by a panel of Commissioners.
012.03 Any Commissioner may notify the Chairperson in writing of his or her desire to serve as a hearing officer in any or all appeals or other matters heard by the Commission.
014 Examination of Records . The case file and other records of the Commission are matters of public record. Public records may be examined during regular business hours of the Commission. Neb. Rev. Stat §84-712 et. seq.
History
- Effective 2011-06-06
Chapter 5 Rules of Practice and Procedure for Hearings
Neb. Admin. Code tit. 442, ch. 5 Rules of Practice and Procedure for Hearings {#sec-442-nac-5 omnilex-key=us-ne-regs-official--title-442--442 NAC 5}
001 Commencement of the Appeal or Petition Process .
001.01 Appeal Form Required. For all appeals, a signed appeal form with a copy of the decision, order, determination, or action appealed from or other information that documents the decision, order, determination, or action appealed from must be filed for each decision, order, determination, or action appealed from.
001.01A Real Property. An appeal form or petition is required for each parcel of real property. If a decision, order, determination, or action concerns more than one parcel of real property an appeal or petition must be filed for each parcel. See Chapter 2 § 001.35 of these rules for a definition of parcel.
001.01B Personal Property. An appeal form or petition is required for each taxable tangible personal property list on which a decision, order, determination, or action appealed from is based.
001.01C Other. An appeal form or petition is required for each decision, order, determination, or action appealed from.
001.01D Other Information that Documents the Decision, Order, Determination, or Action Appealed From. Other information may include, but is not limited to, any of the following:
001.01D1 A copy of minutes of a board of equalization meeting or other hearing or meeting which records the decision, order, determination, or action appealed from;
001.01D2 A transcript of a board of equalization meeting or other hearing or meeting which records the decision, order, determination, or action appealed from;
001.01D3 Written notice which records the decision, order, determination, or action appealed from;
001.01D4 If notification of the decision, order, determination, or action appealed from is not required to be provided to a party with standing to appeal to the Commission, the party may offer a written statement setting forth the decision, order, determination, or action appealed from, the identity of the person or body making the decision, order, determination appealed from, and the date the decision, order, determination, or action appealed from was made. Any party offering a written statement setting forth the decision, order, determination, or action appealed from shall as soon as is practicable present documentation which shows the decision, order, determination, or action appealed from.
001.01D5 A Form 422 or other notice completed by the county clerk or county assessor setting forth the action taken by the county board of equalization.
001.02 Other Appeal Form Information. An appeal form must contain the following information:
001.02A Name, Address, and Daytime Telephone Number for the Appellant (where the Appellant or Legal Counsel for the Appellant may be reached by the Commission).
001.02B Reasons for the appeal.
001.03 Form of Appeals or Petitions.
001.03A Appeal Form. Appeals must be filed on forms approved by the Commission. Appeal forms as approved by the Commission will be made available at the Commission’s office in Lincoln, Nebraska, and on the Commission’s web site.
001.03B Petition Form. A petition must identify the property to which it pertains. A petition may be filed using the Commission’s appeal form.
001.04 Appeal or Petition, Signature Required. An appeal or petition must be signed by a party, legal counsel for a party, or a person authorized by law or these rules. See Chapter 2 of these rules for a definition of party.
001.05 Categories of Persons Who May Sign an Appeal or Petition. Persons who are parties and may sign an appeal or petition can be identified as follows:
001.05A Property Owner. A property owner may sign an appeal or petition concerning that owner’s property. Neb. Rev. Stat. §§ 77-202.04, 77-1345.01(5), 77-1507.01, 77-1502, 77-1504 and 77-1510.
001.05B Taxpayers. Any taxpayer in a county may file an appeal of a final decision of that county’s board of equalization reducing the taxable value of the property of another taxpayer.
001.05C Natural Person. If a party is a natural person, that person or the “guardian” or “conservator” or “next friend” (as those terms are defined in Nebraska state law and Nebraska Supreme Court decisions) of that person may sign an appeal or petition.
001.05D Legal Entity. If a party is a corporation, limited liability company, partnership, limited partnership, or other legal entity, association, union, or organization, the entity or organization may sign an appeal or petition through a director, an officer, a full-time salaried employee, a member or manager of a limited liability company, or other individual authorized by law or the governing documents of the entity, association, or organization.
001.05E Trust. A trustee may sign an appeal or petition.
001.05F Elected Officials, Political Subdivisions, Governmental Agencies and Officers. If a party is an elected official, director, officer, or other official of a political subdivision or government agency, the elected official, director, officer, or other official may sign an appeal or petition if authorized by law, or applicable rules, practices, or procedures.
001.05G County Assessor. A county assessor may sign an appeal in his or her official capacity. Neb. Rev. Stat. § 77-5007.01.
001.05H Other Persons. Any other person who is a party, including but not limited to a successor in interest, lessee, licensee, bankruptcy trustee, receiver, personal representative, or any other person appointed by a Nebraska court or a court of the United States, may sign an appeal or petition.
001.05I Legal Counsel. Legal Counsel for a party may sign an appeal or petition.
001.06 Class Actions. No person may sign an appeal or petition on behalf of a class or subclass of property owners.
001.07 Filing an Appeal or Petition. Properly filing an appeal or petition requires that the appeal form or petition be signed, that any required documentation be filed with the appeal or petition, that if applicable the filing fee be paid, and that the filing be timely. See Time for Filing an Appeal or Petition, section 001.08 of these rules below. ]
001.07A Appeals or Petitions Delivered in Person. Appeals or petitions can be delivered to the Commission at its office by 5:00 p.m. each business day.
001.07B Appeals or Petitions Filed by Mail. An appeal or petition is deemed to have been filed when the filing fee if required, the signed appeal form with required documentation, or the petition are mailed to the Commission at its office in Lincoln, Nebraska, by United States Mail, postage prepaid.
001.07B1 Inadequate Postage. The Commission will not receive an appeal or petition mailed with inadequate postage. An appeal or petition returned to the sender due to inadequate postage is not considered filed until the date the appeal or petition is mailed to the Commission with adequate postage prepaid, as shown by a postmark affixed by the United States Postal Service.
001.07C Appeals or Petitions Filed by Facsimile Transmission Prohibited. Facsimile copies of an appeal or petition will not be accepted for filing by the Commission.
001.08 Time for Filing an Appeal or Petition. Times for filing appeals and petitions are governed by statute.
001.08A 77-1502. Appeals of decisions made pursuant to Neb. Rev. Stat. § 77-1502 must be filed on or before August 24 unless the protest hearing deadline has been extended. The protest hearing deadline can be extended by a county board of equalization in a county having a population of more than 100,000 as of the last federal decennial census. If the deadline for hearing protests has been extended, an appeal from a decision on the protest must be filed on or before September 10. Neb. Rev. Stat. § 77-1510.
001.08B 77-1504. Appeals of decisions made pursuant to Neb. Rev. Stat. § 77-1504 must be filed on or before October 15, unless the protest hearing deadline has been extended. The protest hearing deadline can be extended by a county board of equalization in a county having a population of more than 100,000 as of the last federal decennial census. If the deadline for hearing protests has been extended, an appeal from a decision on the protest must be filed on or before October 30. Neb. Rev. Stat. § 77-1504.
001.08C Other Appeals. All appeals except those for which a specific appeal date has been specified by statute must be filed within thirty days of the date of the decision, action, order, or determination appealed from.
001.08D Failure of Notice Petitions. Petitions pursuant to Neb. Rev. Stat. §§ 77-202.04(2), 77-1345.01(10), or 77-1507.01 must be filed on or before December 31 of the applicable year.
001.08E County Petitions. Petitions pursuant to Neb. Rev. Stat. § 77-1504.01 must be filed on or before July 26 of each year. See Chapter 9 of these rules.
001.08F Weekend or Holiday. If a filing deadline is on a weekend or state or federally recognized holiday, the next business day becomes the filing deadline. Neb. Rev. Stat. § 49-1203.
001.09 Payment of Filing Fee. Any appeal or petition which is presented for filing without the filing fee, if required, is not deemed perfected.
001.09A Method of Payment. The filing fee shall be paid in United States funds. Payment shall be made by cash, check, money order, certified check, or other guaranteed funds. Cash shall be accepted only when personally presented at the Office of the Commission. A filing fee paid in cash by mail will not be accepted. The Commission accepts no liability for cash sent through the United States mail or any other non-personal means of delivery of cash.001.09B Dishonored Check. If the filing fee is paid in the form of a check, and the check is dishonored, then the appeal or petition shall be deemed to be an appeal or petition for which no fee has been received.
001.09B1 Returned Check Fee. Any party making payment of a filing fee by check which is dishonored and returned shall be responsible for a returned check or returned automated clearing house debit transaction fee as determined by the State Treasurer.
001.09B2 Notice of Dishonor. The person filing the appeal or petition shall be notified of the dishonor if the filing deadline has not expired. The person filing the appeal or petition shall have no right to perfect the appeal or petition by paying the filing fee after the filing deadline has passed.
001.09B3 Redemption of Payment. If the deadline for filing the appeal or petition has not yet passed at the time of dishonor, the person filing the appeal or petition shall be allowed an opportunity to redeem the check until the filing deadline has passed. Redemption of a check shall include payment of any returned check or returned automated clearing house debit transaction fee.
001.10 Receipt for Funds. The Commission shall cause a receipt to be issued for the amount of the filing fee. The receipt may be incorporated into that part of the appeal form returned to the appellant as acknowledgment of the filing of the appeal. A receipt shall be prepared and delivered for the filing fee paid for filing a petition.
001.11 Refund of Filing Fee. The Commission shall not refund any filing fee.
001.12 Filing Fee Not Required. The filing fee is not required for appeals or petitions filed by a county assessor acting in his or her official capacity, the Tax Commissioner acting in his or her official capacity, the Property Tax Administrator acting in his or her official capacity, or a county board of equalization acting in its official capacity. Neb Rev. Stat. § 77-5013(3).
002 Appeals or Petitions Not Properly Filed or Perfected .
002.01 The Commission may hold a hearing on any appeal or petition to determine whether the appeal or petition meets the requirements of these rules for execution of an appeal or petition and whether the Commission has jurisdiction to hear the appeal or petition. The Commission may issue an order finding jurisdiction, an order dismissing the appeal or petition, or an order requiring any defects in the execution of the appeal or petition to be cured within a reasonable time.
002.02 If an appeal or petition is filed that does not appear to meet the requirements of law for the Commission to take jurisdiction over the appeal or petition, legal counsel for the Commission may by letter advise the appellant or petitioner that he or she may request a hearing to determine whether the Commission has jurisdiction to hear the appeal or \petition. If a hearing is not requested within 30 days of the date of the letter, the Commission may dismiss the appeal or petition.
002.03 If an appeal or petition is filed that does not appear to meet the requirements of these rules for executing an appeal or petition, legal counsel for the Commission may by letter advise the appellant or petitioner of the deficiency. The letter may advise the appellant or petitioner that he or she may, within 30 days of the date of the letter, cure the deficiency or request a hearing to determine whether the filing met the requirements for executing an appeal or petition. If the deficiency is not cured and a hearing is not requested within 30 days of the date of the letter, the Commission may dismiss the appeal or petition.
002.04 If an order is issued dismissing an appeal or petition for lack of jurisdiction or failure to meet the requirements of these rules for execution of an appeal, that order may be served upon the appellant by any method specified in section 008.01 of this chapter.
002.05 If an order is issued for a hearing to determine whether an appeal or petition was properly executed or whether the Commission has jurisdiction over an appeal or petition, that order constitutes notice of the appeal or petition and shall include a copy of the appeal form or petition and any supporting documentation.
002.06 Any order for hearing issued pursuant to this section shall be served upon the appellant by certified mail, return receipt requested, and may be served upon all other parties by any method specified in section 008.01 of this chapter.
002.07 Any hearing conducted pursuant to this section shall be conducted in accordance with the provisions of section 018 of this chapter.
002.08 If the appellant fails to appear at a hearing ordered pursuant to this section, the Commission may dismiss the appeal.
003 Notice of Appeal or Petition . For each properly perfected appeal or petition the Chairperson of the Commission shall issue notice of the appeal or petition addressed to each appellee or respondent. A copy of the appeal form and or the petition shall accompany the notice. If an order is issued for a hearing to determine whether an appeal or petition was properly executed or whether the Commission has jurisdiction over an appeal or petition, that order constitutes notice of the appeal or petition and shall include a copy of the appeal form or petition.
003.01 Documents issued pursuant to this section shall be served on: each appellee or respondent or their legal counsel, and on the Tax Commissioner and Property Tax Administrator when the Tax Commissioner and Property Tax Administrator have a statutory right to intervene.
003.02 Notice of the appeal or petition may be served on the parties in person, by mail, by fax, by email, or by any other method reasonably designed to result in actual notice of the appeal.
004 Intervention .
004.01 Intervention by Parties Other Than the Tax Commissioner or Property Tax Administrator. Persons who qualify for intervention and file timely petitions for intervention may intervene in proceedings. For all purposes of section 84–912.02 the Chairperson of the Commission is the hearing officer.
004.01A A petition for intervention shall be granted if:
004.01A1 A petition is submitted in writing, with copies mailed to all parties named in the Order for Hearing and Notice of Hearing, at least five days before the hearing;
004.01A2 The petition states facts demonstrating that the petitioner's legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the petitioner qualifies as an intervenor under any provision of law; and
004.01A3 The Chairperson of the Commission determines that the interests of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.
004.01B The Chairperson of the Commission may grant a petition for intervention at any time upon determining that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.
004.01C If a petitioner qualifies for intervention, the Chairperson of the Commission may impose conditions upon the intervenor’s participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Conditions may include:
004.01C1 Limiting the intervenor’s participation to designated issues in which the intervenor has a particular interest demonstrated by the petition;
004.01C2 Limiting the intervenor’s use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and
004.01C3 Requiring two or more intervenors to combine their presentation of evidence and argument, cross-examination, discovery, and other participation in the proceedings.
004.01D The Chairperson of the Commission, at least twenty-four hours before the hearing, shall issue an order granting or denying each pending petition for intervention, specifying any conditions and briefly stating the reasons for the order. The Chairperson of the Commission or his or her designee may modify the order at any time, stating the reasons for the modification. The Chairperson of the Commission or his or her designee shall promptly give notice of an order granting, denying, or modifying intervention to the petitioner for intervention and to all parties. Neb. Rev. Stat. § 84-912.02.
004.02 The Chairperson of the Commission may, at his or her discretion, hold a hearing to determine whether to grant the petition for intervention. If such a hearing is held, all parties named in the appeal or petition and petition for intervention shall be afforded an opportunity to be heard regarding the petition for intervention.
004.03 Statutory Right to Intervene by the Tax Commissioner or Property Tax Administrator. The Tax Commissioner or the Property Tax Administrator may each, in his or her discretion, intervene in an appeal by any person from a county board of equalization concerning exemption or taxation of real or tangible personal property. Neb. Rev. Stat §§ 77-202.04& 77-202.12.
004.03A Notice of an appeal or petition shall be served on the Tax Commissioner notifying him or her of an appeal concerning exemption or taxation of real or tangible personal property. If the Tax Commissioner exercises his or her statutory right to intervene, written notice of the same shall be served on the Commission and all parties within thirty days of receipt of the notice by the Tax Commissioner. If the Tax Commissioner does not give notice of a determination to exercise his or her statutory right to intervene, the Commission may make Findings of Fact and Conclusions of Law determining that the Tax Commissioner has waived his or her right to intervene in the appeal.
005 Joinder of Other Persons to an Appeal . If the Commission determines that a “person” (as that term is defined in these rules) not named in an appeal should be made a party to the proceedings, notice of the appeal or petition shall be issued to that person.
005.01 If the county assessor appeals a county board of equalization’s final decision granting an exemption from property taxation, the person, corporation, or organization granted such exemption by the county board of equalization shall be made a party to the appeal and shall be issued a notice of the appeal by the Commission within thirty days after the appeal is filed. Neb. Rev. Stat. 77-202.01 (1).
005.02 If the Tax Commissioner or Property Tax Administrator appeals a decision of a county board of equalization granting or denying an exemption of real or personal property from taxation, the person, corporation, or organization granted or denied the exemption by the county board of equalization shall be made a party to the appeal and shall be issued a notice of the appeal by the Commission within thirty days after the appeal is filed. Neb. Rev. Stat. § 77-701(4).
006 Substitution of a Party . An appeal or petition shall not be dismissed by reason of the death or other disability of a party or by the transfer of any interest in property during its pendency. Neb. Rev. Stat. § 77-5016.09.
006.01 Motion. Substitution of a party may be requested by motion.
007 Consolidation of Cases for Hearing . Whenever the Chairperson determines that two or more appeals or petitions from the same county involve the same or substantially similar issues as well as the same or similar property classes or subclasses, the Chairperson may issue an order consolidating the cases for hearing. Consolidation of appeals or petitions for hearing does not eliminate the requirement for separate filing fees.
007.01 A party may by motion request that two or more appeals or petitions meeting the requirements for consolidation be consolidated for hearing.
007.02 Two or more parties maintaining appeals or petitions meeting the requirements for consolidation may by motion request that their appeals or petitions be consolidated for hearing.
007.03 A cross-appeal will be consolidated for hearing with all other appeals of the same decision, action, order, or determination.
008 Order for Hearing and Notice of Hearing . An Order for Hearing and Notice of Hearing will be issued for a hearing on the merits of each appeal or petition unless it is dismissed or an order on the merits as agreed to by the parties has been entered.
008.01 The Order for Hearing and Notice of Hearing on the merits may be served on the parties in person, by mail, by fax, by email, or by any other method reasonably designed to result in actual notice of the hearing.
008.02 The Order for Hearing and Notice of Hearing on the merits may advise the parties of the following:
008.02A The type of hearing (formal, informal, or single commissioner). See Chapter 2 §§ 001.23 and 001.27 for definitions of formal and informal hearings; see also Neb. Rev. Stat. § 77-5015.02.
008.02B The date, time, and place of hearing. 008.02C That all parties shall be present at the hearing within 15 minutes of the scheduled time and that a default judgment may be entered, or an appeal may be dismissed, if any party fails to appear within that time.
008.02D That parties are not required to have legal counsel.
008.02E The name or names of the hearing officer(s), and the name of the presiding hearing officer unless excused prior to the hearing, and that the hearing may be held before a panel of the Commission or a quorum of a panel of the Commission.
008.02F The manner in which the hearing record will be made.
008.02G If the hearing is an informal hearing, that although the formal rules of evidence will not be used during an informal hearing, the presiding hearing officer has the right to, and may, pursuant to Neb. Rev. Stat. § 77-5016, admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs, exclude evidence that is incompetent, irrelevant, immaterial, and unduly repetitious and give effect to the rules of privilege recognized by law but shall not otherwise be bound by the usual common law or statutory rules of evidence. If the hearing is a formal hearing, that the rules of evidence applicable in the district courts will be applied.
008.02H That every party has the right to examine each witness who testifies for another party and the right to submit rebuttal evidence.
008.02I The time allocated to each party for a presentation.
008.02J The deadline for submission of exhibits to the Commission and opposing parties.
008.02K The deadline for disclosure of the names of expert witnesses and their expected testimony.
008.02L Other information or direction as the Chairperson may determine.
008.03 The Order for Hearing and Notice of Hearing is a Notice of Hearing.
009 Recording Proceedings .
009.01 Commission Record of Proceedings. The Commission shall record all proceedings unless a court reporter is provided by the Commission or by a party requesting a formal hearing.
009.01A Retention of Recordings. When the Commission records a proceeding it shall preserve the recording according to the Tax Equalization and Review Commission Record Retention Schedule as filed with the Secretary of State. The Commission shall maintain the recordings in its care and custody.
010 Transcription of Recordings
010.01 Requests for Transcription without an Appeal. Parties desiring a transcription of the recording shall make such request in writing. If the cost of the transcription is estimated to be more than fifty dollars the Commission shall require the party requesting the transcription to furnish a deposit for the estimated cost of the transcription. Neb. Rev. Stat. § 84-712(3)(f).
010.02 Transcription on Appeal. See Chapter 6 of these rules.
011 Recording of Proceedings Prohibited . The Commission shall record all proceedings by court reporter or by such recording device as the Commission may deem necessary to preserve a record of the proceeding for purposes of appeal. The Commission may use video or broadcast technology as it deems appropriate to conduct a hearing by videoconference or enable public access to a hearing. The Commission’s recording shall be the official record of a proceeding. No other recording or broadcasting is allowed. Cameras, still cameras, photographic equipment of any kind, audio tape recorders, or other recording devices shall not be permitted in the hearing room during a proceeding, other than those approved by the Commission for its official record keeping.
012 Formal Hearing .
012.01 Motion for Formal Hearing. Any party to an appeal filed under Neb. Rev. Stat. § 77-5007 may request a formal hearing by motion.
012.01A Payment of Costs. The motion for formal hearing shall contain a statement that the requesting party accepts liability for the payment of fees and costs of a court reporter pending a final decision.
012.01B Cost of the court reporter as estimated by the Commission shall be prepaid by the party requesting the formal hearing.
012.02 Formal Hearing Procedure.
012.02A The hearing on the merits will be held before the entire Commission, rather than a panel of commissioners.
012.02B The rules of evidence applicable in district court will be applied in the hearing. Neb Rev. Stat. § 77-5016(1).
012.02C A court reporter will be retained to record the proceeding.
012.02D Fees and costs of a court reporter in a formal proceeding shall be paid by the party or parties against whom a final decision is rendered; other costs shall be allocated as the Commission may determine. Neb. Rev. Stat. § 77-5016(1).
013 Pre-hearing Conference .
013.01 A pre-hearing conference may be required by the Commission.
013.02 Resolved and unresolved issues determined as fully as possible, the identification of exhibits that may be received without objection, objections, if any, to other exhibits, a statement of all matters that may aid in the simplification of the presentation of the evidence or aid in the ultimate disposition of the appeal, and other information as may be ordered by the Commission shall be included in a report of the conference to be provided to the Commission.
014 Motions and Objections to Motions .
014.01 Form. Motions and objections to motions, except those made during a proceeding, are pleadings and subject to the rules concerning the form and content of pleadings. See Chapter 4, § 001.02 of these rules. The Commission may waive these requirements in the interest of justice and the orderly and prompt conduct of the proceedings at its discretion.
014.02 Service. Each motion or objection to a motion, except those made during a proceeding, must be served on opposing parties or their legal counsel by its proponent and a certificate of that service be included with a filing of the motion or objection. A motion or an objection to a motion may be served by personal delivery, fax, if the original is mailed or delivered personally within twenty four (24) hours of the facsimile transmission, by email with the consent of the party to be served, or by mail at the address shown in the Commission’s records. See Ch. 2 § 001.08 for a sample certificate of service.
014.03 Filing. Each motion or objection to a motion, except those made during a proceeding, must be filed with the Commission. Filing of a motion or objection and its certificate of service with the Commission may be made by personal delivery, fax, email, or mail.
014.03A Delivered in Person. A motion or an objection to a motion may be delivered to the Commission at its office in Lincoln, Nebraska.
014.03B Mail. A motion or objection to a motion filed by mail is deemed to have been filed when received by the Tax Equalization and Review Commission.
014.03C Fax. Any motion or objection to a motion may be filed with the Commission by facsimile if the original is mailed or delivered to the Commission within twenty-four hours of the facsimile transmission.
014.03D Email. A motion or objection to a motion may be filed with the Commission by email only with the permission of Commission staff or by order of the Commission.
014.04 Request for Stay. A party may request a stay of scheduling a hearing at any time prior to an Order for Hearing and Notice of Hearing being issued. A Motion for Stay received after that date will be deemed a Motion to Continue.
014.05 Motion to Continue. A motion to continue a hearing shall be filed at least seven business days prior to the date set for hearing except upon a showing of prospective settlement or exceptional cause.
014.06 Other Motions. Motions other than Motions for Stay or Continuance must be filed not less than ten business days prior to a scheduled hearing except upon a showing of exceptional cause.
014.07 Objections to Motions. If an opposing party objects to the granting of a motion, except those made during a proceeding, the objection shall be filed within five business days of the date the motion was served on them as shown in the certificate of service or within one business day prior to the scheduled hearing on the merits if the motion is mailed less than seven days prior to the hearing date.
014.07A The Commission may grant or deny a motion for continuance without allowing time for objections.
014.08 Order for Hearing on a Motion. If a hearing on a motion is deemed necessary, an order for hearing and notice of hearing on the motion will be issued by the Chairperson of the Commission.
014.08A The Order for Hearing and Notice of Hearing on the motion may be served on the parties in person, by mail, by fax, by email, or by any other method reasonably designed to result in actual notice of the hearing.
014.08B The Order for Hearing and Notice of Hearing on the motion may advise the parties of the following:
014.08B1 The date, time, place, and manner of hearing.
014.08B2 That all parties shall be present at the hearing within 15 minutes of the scheduled time and that an order may be entered against an absent party.
014.08B3 The deadline for submission of exhibits to the Commission and opposing parties.
014.08B4 Other information or direction as the Chairperson may determine.
014.09 Consideration of a Motion. The Commission may, with or without a hearing, consider any motion or objection and grant or deny the motion.
014.10 Hearing on a Motion. The Commission may, in its sole discretion, hold a hearing on a motion by telephone or video conference. Hearings on motions are subject to these rules for conduct of a hearing and subject to the rules of evidence applicable to the Commission.
014.11 Delivery of an Order for Hearing on a Motion or Order after Consideration of a Motion. An order for hearing on a motion or an order after consideration of the motion may be served on the parties in person, by mail, by fax, by email, or by any other method reasonably designed to result in actual notice of the decision.
014.12 Motions Deemed Denied. Any motion, request, or other pleading requesting Commission action, if not heard, or if an order without hearing is not issued within 30 days of the date upon which the motion, request, or other pleading was filed with the Commission, is deemed to have been denied.
015 Waiver of Hearing . The parties to an appeal or petition may request in writing that an appeal or petition be submitted for the Commission’s decision without a hearing.
015.01 Written Waiver by Each Party Required. Each party to the appeal or petition wishing to submit a matter for decision without a hearing shall submit a written waiver of the rights afforded by Neb. Rev. Stat. § 77-5016(4). If any party fails to submit a written waiver, the Commission shall deny the request.
015.02 Evidence and Argument. The parties shall submit by joint stipulation the exhibits or other evidence to be considered by the Commission. Each party shall submit any written argument the party may wish to offer.
015.03 Time Matter is Deemed Submitted. The matter shall be deemed to be submitted for the Commission’s decision as of the day and time the request, waiver, and evidence are filed with the Commission.
016 Subject Matter Jurisdiction . The Commission has jurisdiction to hear appeals and petitions as provided by statute.
016.01 The Commission may determine any question raised in the proceeding upon which an order, decision, determination, or action appealed from is based. Neb. Rev. Stat. § 77-5016(7).
016.02 The Commission may consider all questions necessary to determine taxable value of property as it hears an appeal or cross appeal. Neb. Rev. Stat. § 77-5016(7).
016.02A The Commission may consider and find a taxable value in excess of the highest taxable value for which notice was given by the County Assessor, the County Board of Equalization, or the Property Tax Administrator if notice of a higher taxable value and the intent to offer proof in its support is given by a party. Notice of a higher taxable value and the intent to prove that taxable value must be served on all other parties and the Commission no later than the date for an initial exchange of evidence as set forth in a Commission Order for Hearing and Notice of Hearing on the merits. Notice of a higher taxable value and intent to offer proof in its support is a pleading and shall be served as a motion or objection to a motion as provided in section 15 of this chapter. If the Commission determines either on a motion or its own initiative based on evidence presented at a hearing on the merits that a notice of intent to prove a higher value was not given in good faith it may tax all costs of opposing parties to the party giving notice of a higher value and intent to offer proof of that higher value.
016.03 If the board, agency, or person which made a decision, order, or determination or took an action that is appealed to the Commission lacked subject matter jurisdiction, then the Commission cannot acquire subject matter jurisdiction. See Arcadian Fertilizer, L.P. v. Sarpy County Bd. of Equal., 7 Neb. App. 499, 583 N.W.2d 353 (1998), Bartlett v. Dawes County Bd. of Equalization 259 Neb. 954, 613 N.W.2d 810 (2000), Creighton St. Joseph Regional Hosp. v. Nebraska Tax Equalization and Review Commission, 260 Neb. 905, 620 N.W.2d 810 (2000), Falotico v. Grant County Bd. of Equal., 262 Neb. 292 (2001).
017 Personal Jurisdiction .
017.01 Lack of Personal Jurisdiction. Objections to the jurisdiction of the Commission over a party shall be made by filing a motion to dismiss for lack of personal jurisdiction. A party making such a motion shall designate the specific defects upon which the party relies. If no objection to the jurisdiction of the Commission is made prior to the hearing on the merits, or at any other time appearances at a hearing before the Commission are made, personal jurisdictional defects are waived. If a motion to dismiss for lack of personal jurisdiction is overruled, the objection to the Commission’s jurisdiction must be renewed in order to preserve the issue for purposes of appeal.
018 Conduct of a Proceeding .
018.01 Presiding Hearing Officer. Each proceeding before the Commission will be conducted by a presiding hearing officer.
018.01A Rulings. The presiding hearing officer shall rule on the admissibility of evidence and any motions or objections made during a hearing before the Commission.
018.01B Oaths. The presiding hearing officer is authorized to administer oaths on behalf of the Commission.
018.02 The presiding hearing officer may conduct any hearing before the Commission as follows:
018.02A The proceeding is called to order.
018.02B Exhibits are offered and objections, if any, are ruled on or a ruling is reserved for testimony.
018.02C The parties are advised of any information regarding the conduct of the hearing which the presiding hearing officer may deem relevant.
018.02D Any preliminary motions are heard, and stipulations or agreed orders are entered.
018.02E Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.
018.02F Presentation of Evidence.
018.02F1 Evidence shall be presented in the following order:
018.02F1a Evidence is presented by the appellant/petitioner.
018.02F1b Evidence is presented by the appellee/respondent.
018.02F1c Rebuttal evidence is presented by the appellant/petitioner.
018.02F1d Surrebuttal evidence is presented by the appellee/respondent.
018.02F2 Witnesses. With regard to each witness who testifies, the following examination may be conducted:
018.02F2a Direct examination conducted by the party who called the witness.
018.02F2b Cross-examination by the opposing party.
018.02F2c Questioning by Commissioners.
018.02F2d Redirect examination by the party who called the witness.
018.02F2e Re-cross examination by the opposing party.
018.02F2f Further questioning by Commissioners.
018.02F3 Closing Statements. After the evidence is presented, each party shall have the opportunity to make a closing statement. Closing statements shall be made in the same order as the presentation of evidence. The presiding hearing officer may request that the parties submit briefs in addition to or in lieu of closing statements.
018.02F4 Briefs. One or more of the Parties may request the opportunity to file briefs at any time before the matter is submitted for the Commission’s decision. The presiding hearing officer may in his or her sole discretion, deny or grant the request. If granted, the presiding hearing officer shall set a briefing schedule and notify the parties of that schedule and the requirements for delivery to the Commission and any opposing party.
019 Discovery . Discovery may be conducted in any proceeding pending before the Commission in accordance with the rules for discovery set forth in Chapter 12 of these rules. Orders issued by the Commission regarding discovery may be enforced in the district courts. See Neb. Rev. Stat. § 77-5011.
020 Evidence .
020.01 Evidentiary Standard. The evidentiary standard varies with the type of hearing being held.
020.01A Informal Hearing. During an informal hearing the Commission may:
002.01A1 Admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs excluding incompetent, irrelevant, immaterial and unduly repetitious evidence and shall give effect to the privileges rules of evidence in Neb. Rev. Stat. § 27-501 to 27-513 but shall not otherwise be bound by the usual common law or statutory rules of evidence. Neb. Rev. Stat. § 77-5016(1).
002.01A2 Exclude hearsay evidence. Neb. Rev. Stat § 77- 5016(4)
020.01B Formal Hearing. During a formal hearing the rules of evidence applicable in the district courts will apply.
020.01C Single Commissioner Hearing.
020.01C1 A proceeding held before a single commissioner shall be informal. The usual common law or statutory rules of evidence, including rules of hearsay, shall not apply, and the commission may consider and utilize all matters presented at the proceeding in making his or her determination.
020.01C2 Documents necessary to establish jurisdiction of the commission shall constitute the record of a proceeding before a single commissioner. No recording shall be made of a proceeding before a single commissioner.
20.21C3 Persons providing information at single commissioner hearings shall not be required to make an oath or affirmation, and shall not be deemed witnesses as that term is used elsewhere in this chapter.
020.02 Statutory Materials. The Commission may consider and utilize the provisions of the Constitution of the United States, the Constitution of Nebraska, the laws of the United States, the laws of Nebraska, the Code of Federal Regulations, the Nebraska Administrative Code, any decision of the several courts of the United States or the state of Nebraska, and the legislative history of any law, rule, or regulation, without making the document a part of the record. The Commission may without inclusion in the record consider and utilize published treatises, periodicals, and reference works pertaining to the valuation or assessment of real or personal property or the meanings of words and phrases as set forth in this chapter. Neb. Rev. Stat. § 77-5016(3).
020.03 Statutory Notice. The Commission may take notice of judicially cognizable facts and in addition may take notice of general, technical, or scientific facts within its specialized knowledge or statistical information regarding general levels of assessment within a county or a class or subclass of real property within a county and measures of central tendency within such county or classes or subclasses within such county which have been made known to the Commission. Neb. Rev. Stat. § 77-5016(6).
020.03A Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of the material so noticed. The parties shall thereafter be afforded an opportunity to contest the facts so noticed. Neb. Rev. Stat. § 77-5016(6).
020.04 Evaluation of Evidence. The commission may utilize its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it. Neb. Rev. Stat. § 77-5016(6).
020.05 Testimonial Evidence.
020.05A Testimony: How Taken and Procured. Testimony of witnesses may be taken in four modes: (1) deposition; (2) oral examination; (3) affidavit, or (4) video of an examination conducted prior to the time of hearing for use at the hearing in accordance with procedures provided by the laws of the State of Nebraska. Evidence by affidavit shall be limited to proof of service of a notice or other process, publication of a required notice, in support of motions for a stay, continuance or dismissal, procedural motions or motions provided for in Chapter 12 of these rules.
020.05B Witnesses to be Sworn. All witnesses giving testimony at any proceeding shall make an oath or affirmation to tell the truth under penalties of perjury.
020.05C Opportunity to Cross Examine. Every party has the right to cross examine witnesses who testify, except at single commissioner hearings.
020.06 Documentary Evidence.
020.06A Documentary evidence may be received in the form of copies, excerpts, or by incorporation by reference. Copies must be legible and true and accurate representations of the original.
020.06B Materials in Books, Papers or Documents. Relevant portions of books, papers, or documents shall be plainly designated and distinguished from all irrelevant portions before the relevant materials may be offered into evidence. Where irrelevant material in a book, paper, or document is voluminous so as to encumber the record, the book, paper or document must be marked for identification and relevant material read into the record or the relevant material indexed and designated for consideration. Upon the discretion of the presiding hearing officer, a true copy of the relevant matter may be received as an exhibit, provided copies are delivered to all parties to a matter and all parties are afforded an opportunity to examine the book, paper, or document, and to offer into evidence in like manner other portions thereof, if found to be material and relevant.
020.07 Non-Documentary Evidence.
020.07A Photographs. Photographs may be provided to the Commission and other parties if the subject of the photograph is clearly set forth and the subject is available for inspection and photographing by the other parties to the proceeding.
020.07B Video Exhibits and Depositions. Video exhibits and video depositions may be submitted on a write protected DVD or CD, a USB flash drive, or another medium with authorization of the Commission. The proponent shall provide at their expense the appropriate equipment for playback. DVDs or CDs shall be created in a manner which will allow playback on standard DVD-Video or CD players and the format used to create the video, e.g. mpeg, .avi, .mov, etc., must be stated on the DVD, CD, USB drive, other medium, or on the packaging or accompanying documents.
020.07C Audio Exhibits and Depositions. Audio exhibits and depositions may be submitted on a write protected Audio CD, CD-R, USB flash drive, or other medium with the authorization of the Commission, in either .mp3 or .wav format. If an audio recording is presented the proponent of the exhibit or deposition shall provide at their expense the appropriate equipment for playback.
020.08 Rebuttal Evidence. Every party has the right to submit rebuttal evidence. Neb. Rev. Stat. § 77-5016(5).
020.08A Rebuttal Evidence Defined. Rebuttal evidence consists of written or documentary evidence that tends to explain, contradict or disprove evidence offered by an opposing party.
020.09 Required Evidence.
020.09A County. In any appeal from a county board of equalization concerning real property, the county shall deliver three complete and legible copies of the Property Record File for the property described in the appeal to the Commission and one copy to each party. If the appeal concerns valuation of real property, the Property Record File shall include the Property Record Card, worksheets, all supporting documents which establish the value of the property described in the appeal for the tax year at issue, and the property valuation protest form (Form 422) or similar document and materials maintained by the county pursuant to Neb. Rev. Stat. § 77-1502(5). If the appeal concerns exemption of real property from taxation, copies of the form 451, or 451A, shall be provided to the Commission and the opposing party or parties.
020.09B Comparable Properties. Any party utilizing comparable properties as evidence of value or for purposes of demonstrating equalization or a lack of equalization shall provide complete and legible copies of the County Assessor's Property Record File for those comparable properties for the tax year at issue.
020.10 Disclosure of Evidence.
020.10A Documentary and Photographic Evidence. Each party shall deliver to each opposing party one complete and legible copy of all documentary and photographic exhibits that the party intends to offer at the hearing. The original and two complete and legible copies of a documentary or photographic exhibit delivered to an opposing party shall be delivered to the Commission.
020.10B Other Tangible Evidence. Each party shall notify any opposing party of their intention of offering a physical exhibit that is not a document or photograph and make the item available for inspection not less 21 days prior to a hearing on the merits.
020.10C Expert Witnesses. Each party shall deliver to the Commission an original and to each opposing party one legible copy of a written list of every expert, if any, they might call as a witness, a copy of any documents or other information that the expert might refer, and a statement of the substance of each expert witness’s testimony.
020.10D Failure to Disclose. Exhibits which have not been delivered as required by this rule within the time provided for in an Order for Hearing will not be received at the hearing in the absence of good cause shown or by agreement of the parties. Testimony of an expert witness whose identity, reference documents, and the substance of their expected testimony has not been disclosed in accordance with this rule within the time prescribed in an Order for Hearing will not be received at the hearing in the absence of good cause shown or by agreement of the parties.
020.11 Exhibit Page Numbering.
020.11A Exhibit Numbers. The Commission will attach an exhibit sticker to each exhibit. The exhibit sticker will show a docket number and page number identifying the case, an exhibit number, the number of pages in the exhibit, and the date of hearing.
020.11B Exhibit Page Numbers. Each page of a document delivered to the Commission will be numbered by the Commission unless the exhibit is a fee appraisal prepared for a hearing and the appraisal has been numbered as provided in the following section or the exhibit is delivered by a county board of equalization. Page Ch. 5, Page 28 numbers will be assigned by the Commission in sequential Arabic numerals commencing with the number one (1). A cover page may be excluded unless signed or if it contains an opinion, information supporting an opinion, or an explanation of an opinion. Blank pages or tab pages that do not contain an opinion, information supporting an opinion, or an explanation of an opinion may be excluded.
020.11C Page Numbering of Fee Appraisals. Each fee appraisal performed in preparation for a hearing before the Commission shall bear sequential Arabic numerals commencing with the number one (1). A cover page may be excluded unless signed or if it contains an opinion, information supporting an opinion, or an explanation of an opinion. Blank pages or tab pages that do not contain an opinion, information supporting an opinion, or an explanation of an opinion may be excluded.
020.12 Custody of Exhibits. The Commission shall keep all original exhibits in its care and custody, unless required for purposes of appeal to a court of appropriate jurisdiction as herein provided. Original exhibits may be returned to the party who offered the exhibit upon request, so long as the time for final appeal of the decision has expired, the final decision has been certified by the Commission, and the Commission is not required to retain the exhibit by the Tax Equalization and Review Commission Record Retention Schedule as filed with the Secretary of State.
020.13 Objections to Evidence. The Commission may exclude evidence based on objection from an opposing party or based on its own determination.
020.13A Evidentiary Rulings. The presiding hearing officer shall rule on the admissibility of testimony and exhibits.
020.13B Offer of Proof. After the Commission has sustained an objection or otherwise excluded evidence, the aggrieved party may make an offer of proof. An offer of proof is a presentation of evidence showing the substance of the testimony or other evidence the aggrieved party would be able to produce if not precluded by the Commission’s ruling excluding the evidence, consisting of three parts: (1) the evidence itself, (2) an explanation of the purpose for which it is offered (relevance), and (3) an argument supporting admissibility. An offer of proof may be made to preserve the evidence on the record for purposes of appeal.
021 Motion to Dismiss During a Hearing: Procedure . When the Commission considers a motion to dismiss at the close of the appellant or petitioner’s evidence, the Commission must resolve every controverted fact in favor of the nonmoving party and grant the nonmoving party every reasonable inference that may be drawn from the evidence.
022 Standard of Review . In all appeals, excepting those arising under Neb. Rev. Stat. § 77-1606, if the appellant or petitioner presents no evidence to show that the order, decision, determination or action appealed from is incorrect, the Commission shall deny the appeal. If the appellant or petitioner presents any evidence to show that the order, decision, determination, or action appealed from is incorrect, such order, decision, determination or action shall be affirmed unless evidence is adduced establishing that the order, decision, determination or action was unreasonable or arbitrary. Neb. Rev. Stat. § 77-5016(9).
023 Rehearing .
023.01 Motion by a Party. Any party to a proceeding heard by a panel of Commissioners may file a motion for rehearing with the full Commission for a rehearing of the proceeding within thirty days of the date that the Decision and Order was filed. No hearing shall be held on the motion. The Motion for Rehearing must be approved by a majority of the Commissioners holding office at the time the motion is filed. The filing of a motion for rehearing tolls the thirty-day appeal period provided by Neb. Rev. Stat. § 77-5019.
023.02 Commission. The Commission may issue an order for rehearing at any time prior to issuance of its order and decision.
023.03 Rehearing of Appeal Heard by a Single Commissioner. Any party to a proceeding heard by a single commissioner may file a motion for rehearing within thirty days of the date a decision and order was issued, except for an order dismissing an appeal or petition for failure of the appellant or petitioner to appear at a hearing on the merits. The commission shall grant a rehearing on the merits before the commission. The filing of a motion for rehearing tolls the thirty-day appeal period provided by Neb. Rev. Stat. § 77-5019.
024 Reconsideration of Merits on the Commission’s Own Motion . The Commission may, on its own motion, reconsider an order and decision until an aggrieved party files an appeal or the statutory appeal period expires.
025 Corrections to Findings and Order . The Commission may, on its own motion, modify or change its findings or orders, at any time before an appeal and within ten days after the date of such findings or orders, for the purpose of correcting any ambiguity, clerical error, or patent or obvious error. The time for appeal shall not be lengthened because of the correction unless the correction substantially changes the findings or order. Neb. Rev. Stat. 77-5018(2).
026 Affidavits of Service Prepared by the Commission . Whenever the Commission desires to provide proof of service as to any document, pleading, order, or notice, the Commission may do so by filing an Affidavit of Service in the case file.
027 Decision and Order . Every substantive action of the Commission adverse to a party shall be entered as a decision and order of the Commission.
027.01 The Commission may issue a decision and order on the record, or in written form.
027.02 When the Commission issues a decision and order on the record, the Commission shall file a written recitation of that decision and order in the form of a docket entry.
027.03 The Chairperson of the Commission may issue any docket entry under seal.
027.04 Any decision and order must contain findings of fact and conclusions of law. Neb. Rev. Stat. § 77-5018.
027.05 A decision and order is effective on the date stated in the order. All Commissioners who participate in a decision shall sign a decision and order indicating their agreement or disagreement.
027.05A Copies of the decision and order may be signed by the use of a signature stamp, if the original kept in the Commission’s case file bears the original signature of a Commissioner or Commissioners.
027.06 Mailing to Parties/Legal Counsel. A copy of any decision and order, whether in the form of a docket entry or otherwise, shall be delivered or mailed to each party or his or her legal counsel. Neb. Rev. Stat. 77-5018.
027.07 Within seven days of issuing a decision and order, the Commission shall electronically publish such decision and order on a web site maintained by the Commission that is accessible to the general public. The full text of final decisions and orders entered after a hearing by the Commission or a panel of commissioners shall be published on the web site. Final decisions and orders that are entered (a) on a dismissal by the appellant or petitioner, (b) on a default order when the appellant or petitioner failed to appear, or (c) by agreement of the parties may be published in a summary manner identifying the parties, the case number, and the basis for the final decision and order.
028 Exemption Hearings . If the appeal concerns a decision of a county board of equalization that a property is, in whole or in part, exempt or not exempt from taxation, the Commission shall only determine the tax-exempt status of the property. The decision shall not determine the taxable value of the property unless stipulated by the parties during the hearing before the Commission, or, in the case of property owned by the state or a political subdivision, there has been a final determination of the value of the property. Neb. Rev. Stat. §§ 77-5016(10), (11), 77-5017(2).
028.01 Exemption Granted by County Affirmed by the Commission. If the Commission determines that property found to be exempt, in whole or in part, from property taxation by a county board of equalization should be exempt from property taxation, the Commission shall issue an order affirming the decision of the county board of equalization.
028.02 Exemption Granted by the County Reversed by the Commission. If the Commission determines that property found to be exempt, in whole or in part, from property taxation by a county board of equalization was improperly exempted from property taxation, the Commission shall issue an order reversing the decision of the county board of equalization and directing the county board of equalization to determine the taxable value of the property utilizing the procedures for omitted property. Neb. Rev. Stat §§ 77-5016 (10), (11), 77-5017(2).
028.02A Contents of Order. Any order to determine value issued pursuant to this subsection shall require the county board of equalization to:
028.02A1 Determine the taxable value of the property pursuant to Neb. Rev. Stat. § 77-1507; and
028.02A2 Send notice of the taxable value pursuant to Neb. Rev. Stat. § 77-1507 within ninety days after the date the commission’s order is certified pursuant to Neb. Rev. Stat. § 77-5018; and further
028.02A3 Apply interest at the rate specified in Neb. Rev. Stat. § 45-104.01, but no penalty, to the taxable value as of the date the Commission’s order was issued or the date the taxes were delinquent, whichever is later. Neb. Rev. Stat. 77–5017(2).
028.02B Any determination of the taxable value of the property made by a county board of equalization pursuant to an order pursuant to this subsection may be appealed to the Commission within thirty (30) days of the board’s decision. Neb. Rev. Stat. § 77-5017(3).
028.03 Exemption Denied by County. If the Commission determines that property found to be subject, in whole or in part, to property taxation by a county board of equalization should be subject to property taxation the Commission shall issue an order affirming the decision of the county board of equalization. If the Commission determines that property found to be, in whole or in part, subject to property taxation by a county board of equalization should be exempt from taxation, the Commission shall issue an order reversing the decision of the county board of equalization.
029 Show Cause Hearings . The Chairperson may issue an order to show cause why a proposed order should not be entered when he or she determines that a proposed order should be considered by the Commission.
029.01 Order for Hearing and Notice of Hearing. An Order to Show Cause and Notice of Hearing shall be issued. This order shall direct the parties to be present in person, by videoconference, or by telephone on the hearing date at the time and in the manner shown, to show cause why the Commission should not enter an order as proposed in the Order to Show Cause and Notice of Hearing.
029.02 Service of Order to Show Cause and Notice of Hearing. A copy of the Order to Show Cause and Notice of Hearing shall be served on all parties through the United States Postal Service by certified mail, postage prepaid; a return receipt may be requested.
029.02A Refusal of Service. If delivery of service by certified mail, postage prepaid, is refused by the party to whom service is directed, a reasonable attempt at service is deemed to have been made.
029.02B Inability to Serve. If service by certified mail, postage prepaid, is returned by the United States Postal Service as undeliverable or as unclaimed, a reasonable attempt at service is deemed to have been made.
029.03 If a party to a proceeding at a show cause hearing does not appear within fifteen minutes of the time for hearing, the proposed order may be issued if the record demonstrates that notice has been provided to the party against whom the Order to Show Cause is issued, or a reasonable attempt to provide notice has been made.
029.04 The parties, at the show cause hearing, shall be afforded an opportunity to show cause, through evidence and argument, why the proposed order should or should not be entered by the Commission.
029.05 The provisions of this rule are not applicable to show cause hearings held pursuant to Chapter 9, Equalization Duties, of these rules.
030 Videoconferencing and Teleconferencing .
030.01 Videoconferencing. The Commission may conduct an informal hearing on the merits of an appeal or petition or other proceedings via videoconference.
030.01A Attendance at Videoconference Hearing. Parties, counsel and witnesses shall appear as directed in the Commission’s order for hearing.
030.01B Formal Hearings. The Commission shall not conduct a formal hearing via videoconference.
030.01C Objection to Videoconference. An objection to the use of videoconferencing for conduct of a hearing must be made by motion pursuant to Chapter 5, § 015 of these rules.
030.02 Teleconferencing. The Commission may conduct hearings, other than a hearing on the merits, via telephone conference. The Commission shall not conduct any hearings on the merits of an appeal or petition via telephone conference call.
030.01C Objection to Teleconference. An objection to the use of teleconferencing for conduct of a hearing must be made by motion pursuant to Chapter 5, § 015 of these rules.
031 Laws, Published Treatises, Periodicals, and Reference Works .
031.01 Laws. The Commission may consider and utilize the following during the course of any hearing or proceeding or as part of its decision making process without making the document a part of the record: the Constitution of the United States; the Constitution of the State of Nebraska; the laws of the United States; the laws of the State of Nebraska; the Code of Federal Regulations; the Nebraska Administrative Code; any decision of the several courts of the United States, whether state or federal; the legislative history of any law, rule, or regulation. Neb. Rev. Stat. § 77-5016(3).
031.02 Published Treatises. Pursuant to Neb. Rev. Stat. § 77-5016(3), the Commission may without inclusion in the record consider and utilize the following published treatises pertaining to the valuation or assessment of real or personal property during the course of any hearing or proceeding or as part of its decision making process: the Nebraska Assessor’s Reference Manual revised annually; the Reports and Opinions of the Property Tax Administrator for each of the 93 counties, published annually, the for each of the 93 counties as published by the United States Department of Agriculture or its subdivisions; the quarterly editions of the Marshall & Swift Residential Cost Handbook; the quarterly editions of the Marshall Valuation Service; Dollars and Cents of Shopping Centers, published annually by the Urban Land Institute; Property Assessment Valuation, Third Edition, International Association of Assessing Officers, (2010); Property Appraisal and Assessment Administration, International Association of Assessing Officers, (1990); Mass Appraisal of Real Property, International Association of Assessing Officers, (1999); Issues Confronting Properties Affected by Contamination or Environmental Problems, International Association of Assessing Officials, (2002), The Valuation of Subsidized Housing, International Association of Assessing Officials (2003), The Appraisal of Real Estate, Fourteenth Edition, Appraisal Institute, (2013); Appraisal of Residential Properties, Appraisal Institute, 4th Edition, (2007); The Appraisal of Rural Property, Second Edition, Appraisal Institute, (2000); Income Property Valuation, Dearborn Financial Publishing, Inc., (1994); Shopping Center Appraisal and Analysis, Appraisal Institute, (2009); Analysis and Valuation of Golf Courses and Country Clubs, by Arthur E. Gimmy, MAI, & Buddie A. Johnson, Appraisal Institute, (2003); Standard on the Valuation of Properties Affected by Environmental Contamination, International Association of Assessing Officers, (2001); Standard on Ratio Studies, International Association of Assessing Officers (2010); Standard on Mass Appraisal of Real Property, International Association of Assessing Officials 2008; Nebraska Farm Real Estate Market Developments, published annually by Nebraska Cooperative Extension Office; Uniform Standards of Professional Appraisal Practice, published annually by the Appraisal Foundation; and Valuation and Market Studies for Affordable Housing, Appraisal Institute, 2003.
031.03 Reference Works. Pursuant to Neb. Rev. Stat. § 77-5016(3), the Commission may consider and utilize the following reference works pertaining to the meaning of words and phrases: The Dictionary of Real Estate Appraisal, Fourth Edition (2002), Appraisal Institute; Black's Law Dictionary, Sixth Edition, West Publishing, (1990); Webster's Third New International Dictionary, Merriam-Webster, Inc., (2002).
031.04 Statutory Notice in General. The Commission may offer and make a part of the record records or documents of which it desires to avail itself. Neb. Rev. Stat. § 77-5016(4).
032 Personal Conduct Before the Commission . Any person present for any proceeding before the Commission as a party, counsel, or witness, or in any other capacity, including spectator, shall conduct themselves with civility and courtesy. The presiding hearing officer shall require all persons present at a proceeding to refrain from manifesting by words or conduct, bias or prejudice against parties, witnesses, counsel, or others based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status unless relevant to the proceeding.
032.01 Exclusion from the Hearing Room. The presiding hearing officer may exclude any person from a proceeding when that person is disrupting the proceeding.
History
- Effective 2021-06-07
Chapter 6 Appeals from the Commission
Neb. Admin. Code tit. 442, ch. 6 Appeals from the Commission {#sec-442-nac-6 omnilex-key=us-ne-regs-official--title-442--442 NAC 6}
001 Appeals . Appeals from Final Decisions of the Commission are governed by statute and the rules of the reviewing courts. The statutory provisions governing appeals from final decisions of the Commission are found at Neb. Rev. Stat. §77-5019. See, Chapter 5 for Motions to Reconsider.
002 Exhibits for an Appeal All original exhibits will be forwarded to the Court of Appeals or Supreme Court. Copies of all exhibits, other than tape recordings, shall be retained by the Commission. The costs of preparing the official record shall include any costs necessary to preserve copies of said exhibits. Should original tape recordings be submitted to the appellate court, the costs of preparing the official record shall include all costs necessary to reproduce the tape recordings, in order to preserve those recordings in the records of the Commission. Any copies of exhibits preserved by the Commission, including tape recordings, shall bear copies of the original exhibit information, including docket and page, exhibit number, date of hearing, and in addition shall bear a legend indicating that the item is a copy of the original.
003 Transcription of Recording for Appeal All tape recorded proceedings shall be transcribed. Costs of the transcription are a part of the cost of preparing the official record unless and until otherwise ordered by a court of competent jurisdiction.
History
- Effective 2007-10-10
Chapter 8 Petition for Rulemaking
Neb. Admin. Code tit. 442, ch. 8 Petition for Rulemaking {#sec-442-nac-8 omnilex-key=us-ne-regs-official--title-442--442 NAC 8}
EXPLANATORY STATEMENT
Pursuant to Neb. Rev. Stat. §84-909.01 the Attorney General shall promulgate model rules of procedure appropriate for use by as many agencies as possible. For rules of procedure adopted on or after August 1, 1994, each agency shall adopt as many of the model rules as is practicable under the circumstances. Agencies may adopt regulations which vary from the model rules; however, any agency adopting a rule of procedure that differs from the model rule shall include in the agency’s explanatory statement the reasons why the relevant portions of the Attorney General’s model rules are impracticable under the circumstances. This chapter is based upon the Attorney General’s model rules.
001 Rulemaking Petition .
001.01 Petition. Any person may petition the Commission, requesting the promulgation, amendment, or repeal of a rule or regulation as it relates to the powers and duties of the Commission.
001.02 Form. The petition shall:
001.02A Be addressed to the Commission;
001.02B Be clearly designated as a petition for a rules change;
001.02C Set forth the desired rule in its entirety, in cases of a proposed rule or an amendment to an existing rule; or
001.02D Be clearly designated as a petition for repeal of an existing rule and set forth the entire rule to be repealed or refer to it by title, chapter and number, under the Nebraska Administrative Code; and
001.02E Describe the reason for the rules change;
001.02F Include an address and telephone number where the petitioner can be reached during regular business hours; and
001.02G Be signed by:
001.02G1 The petitioner or his or her lawyer, in which case the lawyer shall also state his or her address, telephone number, facsimile transmission number, and Nebraska State Bar Association Number;
001.02G2 A duly authorized officer of the petitioner, if petitioner is a corporation or other legal entity.
002 Petition Consideration and Disposition . Within sixty (60) days after submission of a petition the Commission shall:
002.01 Deny the petition in writing, stating its reasons therefor; or,
002.02 Initiate rulemaking or regulationmaking proceedings in accordance with the administrative procedures act, or
002.02 If otherwise lawful, adopt a rule or regulation.
History
- Effective 2007-01-03
Chapter 9 Equalization Duties
Neb. Admin. Code tit. 442, ch. 9 Equalization Duties {#sec-442-nac-9 omnilex-key=us-ne-regs-official--title-442--442 NAC 9}
001 Authority .
001.01 The Commission has the power to review and equalize assessments of property for taxation within the state, and shall have such other powers and perform such other duties as the Legislature may provide. Neb. Const. Article IV, §28.
001.02 The Commission shall annually equalize the assessed value, or special value, value of all real property as submitted by the county assessors on the abstracts of assessments and equalize the values of real property which is valued by the state. Neb. Rev. Stat. §77-5022
001.03 The Commission has the power to adjourn from time to time until the equalization process is complete. Neb. Rev. Stat. §77-5022
001.04 The Commission has the power to increase or decrease the value of a class or subclass of real property in any county or taxing authority or of real property valued by the state so that all classes or subclasses of real property in all counties fall within an acceptable range. Neb. Rev. Stat. §77-5023
001.05 Any increase or decrease shall cause the level of value determined by the Commission to be at the midpoint of the applicable acceptable range. Any decrease or increase to a subclass of property shall also cause the level of value determined by the Commission for the class from which the subclass is drawn to be within the applicable acceptable range. Neb. Rev. Stat. 77-5023
001.05A Whether or not the level of value determined by the Commission falls within an applicable acceptable range may be determined to a reasonable degree of certainty relying upon generally accepted mass appraisal techniques.
002 Definitions . The following definitions apply whenever the defined term is used in this chapter or the Commission’s orders unless the context of a term’s use requires use of a different definition.
002.01 Applicable Time Frame. An applicable time frame is the period from which sales may be drawn for statistical studies.
002.02 Assessment/Sales Ratio. An assessment/sales ratio is a tool used under professionally accepted mass appraisal methods to measure and evaluate the level and uniformity of assessed values. The ratio is determined by dividing the assessed value of a parcel of real property by the sales price of that parcel. The phrase may also refer to the total assessed value of all real property parcels of a particular class or subclass of real property sold during a particular time frame divided by the total sales price of all real property parcels of that class or subclass sold during that same time frame. The assessment/sales ratio is expressed in terms of a percentage.
002.03 Class or Subclass of Real Property. A group of properties that share one or more characteristics typically common to all properties in the class or subclass, but are not typically found in the properties outside the class or subclass. Class or subclass includes, but is not limited to classifications of agricultural land and horticultural land in section 77-1363 (irrigated cropland, dryland cropland, grassland, wasteland, nurseries, feedlots and orchards), parcel use, parcel type, location, geographic characteristics, zoning, city size, and market characteristics for all classifications of land so that the categories reflect uses appropriate for the valuation of such land, a class or subclass based on market characteristics shall be based on characteristics that affect the actual value in a different manner than it affects the actual value of properties not within the market characteristic class or subclass. Neb. Rev. Stat. 77-103.01
002.04 Coefficient of Dispersion. The Coefficient of Dispersion (“COD”) is a tool used under professionally accepted mass appraisal methods to measure the uniformity of assessments. The COD is the average absolute deviation from the median stated as a percentage. The COD is calculated by dividing the average absolute deviation by the median assessment/sales price ratio and multiplying by 100 to convert the ratio to a percentage.
002.05 Coefficient of Variation (COV). A standard statistical measure of the relative dispersion of the sample data about the mean of the data; the standard deviation expressed as a percentage of the mean.
002.06 Confidence Interval. A range of values, calculated from the sample observations that are believed, with a probability, to contain the true population parameter (mean, median, COD). The confidence interval is not a measure of precision of the sample statistic or point estimate, but a measure of the precision of the sampling process (See Reliability).
002.07 Confidence level. The degree of probability associated with a statistical test or confidence interval. For example, a 95 percent confidence interval implies that were the estimation process repeated again and again, then 95 percent of the calculated intervals would be expected to contain the true measure of a parameter(such as the median, mean, or COD). A stated probability level refers to the properties of the interval and not to the parameter itself.
002.08 Established Indicator of Central Tendency. An indicator of central tendency utilized in generally accepted professional mass appraisal techniques
002.09 Generally Accepted Mass Appraisal Techniques. Those techniques and methods described as professionally accepted mass appraisal techniques and methods. See Chapter 2, §001.46 45 of these rules.
002.10 Indicator of Central Tendency. The result of measuring the tendency of most kinds of data to cluster around some typical or central value. Indicators of central tendency include the mean, median, and mode.
002.11 Level of Assessment. The common or overall ratio of assessed values to market values.
002.12 Mean. The mean is a measure of central tendency. The mean is the result of adding all of the values of an array and dividing by the number of values.
002.13 Median. The median is a measure of central tendency. The median is the value of the middle item in an uneven number of items arranged or arrayed according to size; the arithmetic average of the two central items in an even number of items similarly arranged; a positional average that is not affected by the size of extreme values.
002.14 Mode. The mode is a measure of central tendency. In an array of values the mode is the most frequently occurring value.
002.15 Price Related Differential. The Price Related Differential (“PRD”) is a tool used under professionally accepted mass appraisal methods to determine whether properties of differing values are treated uniformly. The Price Related Differential may indicate assessment bias and inequity between lower valued properties and higher valued properties. A PRD that is under 1.00 indicates higher valued properties are valued at a higher assessment level than lower valued properties. When the PRD is over 1.00 it indicates lower valued properties are valued at a higher level than higher valued properties.
002.16 Property Valued By the State. Property whose taxable value is determined by the Property Tax Administrator and/or the Tax Commissioner.
002.17 Reliability. In a sampling process, the extent to which the process yields consistent population estimates. Ratio studies are typically based on samples. Statistics derived from these samples may be more or less likely to reflect the true condition in the population depending on the precision or reliability of the sample. Representativeness, sample size, and sample uniformity all contribute to reliability. Formally reliability is measure by sampling error or the width of the confidence interval at a specific confidence level relative to the central tendency.
002.18 Representative sample. A sample of observations from a larger population of observations, such that statistics calculated from the sample can be expected to represent the characteristics of the population being studied.
002.19 Sales ratio study. A ratio study that uses sales prices as proxies for market values.
002.20 Sample. A set of observations selected from a population. If the sample was randomly selected, basic concepts of probability may be applied.
002.21 Sampling error. The error reflected in ratio study statistics that results solely from the fact that a sample population is used rather than a census of the population.
002.22 Standard deviation. The statistic calculated from a set of numbers by subtracting the mean from each value and squaring the remainders, adding together all of the squares, dividing by the size of the sample less one, and taking the square root of the result. When the data are normally distributed, one can calculate the percentage of observations within any number of standard deviations of the mean from normal probability tables. When the data are not normally distributed, the standard deviation is less meaningful.
002.23 Standard error. A measure of the precision of a measure of central tendency; the smaller the standard error, the more reliable the measure of central tendency. Standard errors are used in calculation of a confidence interval about the arithmetic mean and the weighted mean.
002.24 Statistics. Numerical descriptive data calculated from a sample, for example, the median, mean, or coefficient of dispersion. Statistics are used to estimate corresponding measures termed parameters, for the population.
002.25 Taxing Authority. Counties, townships, cities, villages, school districts, and all other subdivisions of the state and all governmental agencies having the power to levy or to provide for the levy of general or special taxes.
002.26 Time Adjustments. Changes made to the sales price of real property sold during a particular time frame in order to account for general changes in market value.
003 Applicable time frames
003.01 Residential. The applicable time frame from which sales may be drawn to develop statistical studies concerning the level of assessment and quality of assessments is the two year period ending June 30 prior to January 1 of the assessment year being reviewed.
003.02 Commercial, Agricultural land and Horticultural land and Other Real Property. The applicable time frame from which sales may be drawn to develop statistical studies concerning the level of assessment and quality of assessments is the three year period ending June 30 prior to January 1 of the assessment year being reviewed.
004 Preferred established indicator of central tendency . The Commission’s preferred “established indicator of central tendency” is the median.
005 Acceptable Ranges .
005.01 Median. The acceptable ranges for the median are:
005.01A For agricultural and horticultural land as defined in Neb. Rev. Stat. §77-1359, sixty-nine (69) to seventy-five (75) percent of actual value;
005.01B For lands defined in Neb. Rev. Stat. §77-1344 receiving special valuation sixty-nine (69) to seventy-five (75) percent of special valuation as defined in Neb. Rev. Stat. §77-1343, and
005.01C For all other real property, ninety-two (92) to one hundred (100) percent of actual value. (See, Neb. Rev. Stat. §77-5023(2)).
005.02 Coefficient of Dispersion. The acceptable range for the COD is for residential real property 15.0% or less, for agricultural land 20.0% or less, for commercial property 20.0% or less, and for vacant land and other property classes 20.0% or less.
005.03 Price Related Differential. The acceptable range for the Price Related Differential is .98 to 1.03.
006 Rounding .
006.01 Application. Rounding will be used to determine whether or not an indicator of central tendency is within or at the midpoint of a prescribed range or a measure of the quality of assessment is within the prescribed range. Rounding will not be used to determine the base for an adjustment proposed or ordered by the Commission.
006.02 Rounding Method. Any number (X) greater or lessor than X.50 will be rounded to the nearest whole number and X.50 will be rounded to the nearest even whole number. Neb. Rev. Stat. §77-5023 (1)
007 Reports and Opinions of the Property Tax Administrator
007.01 On or before nineteen days following the final filing due date for the abstract of assessment for real property pursuant to Neb Rev. Stat. §77-1514 the Property Tax Administrator shall prepare statistical and narrative reports informing the Commission of the level of value and the quality of assessment of the classes and subclasses of real property in each county and a certification of his or her opinion regarding the level of value and quality of assessment in each county. Neb. Rev. Stat. §77-5027.
007.01A The Property Tax Administrator shall employ the methods specified in Neb. Rev. Stat.§77-112, the comprehensive assessment ratio study specified in Neb. Rev. Stat. § 77-1327, an assessment/sales ratio study, other statistical studies, and studies of the assessment practices of a county. The Property Tax Administrator may employ sales of comparable real property in market areas similar to the county or area in question or from another county as indicators of the level of value and the quality of assessment in a county. The Property Tax Administrator may use any other relevant matter in providing information to the Commission.
007.02 The Property Tax Administrator may make nonbinding recommendations for consideration by the Commission.
008 Statistical Measures . The Commission, in accordance with professionally accepted mass appraisal methods, may use various statistical measures, studies, practices and definitions in the evaluation of the level and quality of assessments in a county or taxing authority.
009 Commission Annual Equalization Review .
009.01 The Commission shall meet annually for the purpose of reviewing and equalizing assessments of property for taxation within the state.
009.02 Action by Motion. The Commission may take action on any question upon motion by any Commissioner, second and roll call vote.
009.03 Counties Not Deemed Overvalued or Undervalued. The Commission may adopt a motion to issue Findings and Orders to take no action for any county.
009.04 Orders to Show Cause and Notice of Hearing.
009.04A Order to Show Cause If the Commission determines that the level of assessment of a class or subclass of real property within a county may not satisfy the requirements of law, the Commission shall issue an Order to Show Cause and Notice of Hearing to the County and shall set a date for hearing at least five (5) days following the mailing of the Order to Show Cause and Notice of Hearing.
009.04B Notice of Hearing on Order to Show Cause. The Order to Show Cause and Notice of Hearing shall be sent by certified mail, postage prepaid (a return receipt may also be requested) to the county clerk, county assessor, chairperson of the county board, and the county attorney. The Order to Show Cause and Notice of Hearing shall also be provided to the Property Tax Administrator by delivery of a copy of the Order to the offices of the Property Tax Administrator or through the United States Postal Service by certified mail, a return receipt may be requested.
009.05 Consent. A legal representative of a County may consent to entry of the proposed order. Neb. Rev. Stat. §77-5026.
009.06 Order for Adjustment after Show Cause Hearing.
009.06A Content of Order. The order shall specify the percentage increase or decrease and the class or subclass of real property affected or the corrections or adjustments to be made to the class or subclass of property affected.
009.06B Delivery of the Order. The order of the Commission shall be sent by certified mail (a return receipt may be requested) to the county assessor and by regular mail to the county clerk and chairperson of the county board on or before May 15 of each year.
009.06C Compliance with the Order. The specified changes shall be made by the county assessor to each parcel or part of a parcel of real property in the county so affected. Neb. Rev. Stat. §77-5028.
009.06C1 On or before June 5 of each year, the county assessor of any county adjusted by an order of the commission shall recertify the county abstract of assessment to the Property Tax Administrator. On or before August 1 of each year, the Property Tax Administrator shall certify to the Commission that any order issued pursuant to Neb. Rev. Stat. §77-5028 was implemented by the county assessor. The Property Tax Administrator shall audit the records of the county assessor to determine whether the orders were implemented.
009.06C2 On or before August 10 of each year, the Property Tax Administrator shall certify the distributed taxable value of the property valued by the state (centrally assessed property), as equalized by the Commission to each county assessor.
009.07 Reconsideration of Order. The Commission may reconsider any Order issued by the Commission during the statewide equalization proceedings so long as five (5) calendar days notice is provided to the county clerk, county assessor, and chairperson of the county board. Any Order issued after reconsidering the original order must be issued before the date for completion of equalization of the same year as the original order.
010 County Board of Equalization Petition for Adjustment of the Level of Value for a Class or Subclass .
010.01 County Board Petition. After completion of its actions and based upon the hearings conducted pursuant to Neb. Rev. Stat. §§77-1502 and 77-1504, a county board of equalization may petition the Tax Equalization and Review Commission to consider an adjustment to a class or subclass of real property within the county unless a county has adopted a resolution to extend the deadline for hearing protests under Neb. Rev. Stat. §77-1502. Neb. Rev. Stat. §77-1504.01 (1).
010.02 Filing Deadline for Petitions. Petitions by a county board of equalization for the adjustment of the level of value for a class or subclass must be filed with the Commission on or before July 26. Neb. Rev. Stat. §77-1504.01 (1).
010.03 Deadline for Hearing. The Commission shall hear and take action on a petition filed by a county board of equalization on or before August 10. Neb. Rev. Stat. §77-1504.01 (2).
010.04 Burden of Proof. The burden of proof is on the petitioning county to demonstrate that failure to make an adjustment would result in values that are not equitable and in accordance with the law. The County must adduce evidence of the consequences of the requested adjustment in the form of ratio studies which demonstrate that the requested adjustment will, in fact, improve the level, the uniformity and the proportionality of assessments within the County. Neb. Rev. Stat. §77-1504.01 (2).
010.05 Evidence for Order. After a hearing the Commission shall, within the powers granted in Neb. Rev. Stat. §77-5023, enter its order based on evidence presented to it at such hearing and the hearings held pursuant to Neb. Rev. Stat. § 77-5022 for that year.
010.06 Order on Petition for Adjustment. The order shall specify the percentage increase or decrease and the class or subclass of real property affected or any corrections or adjustments to be made to the class or subclass of real property to be affected. When issuing an order to adjust a class or subclass of real property, the Commission may exclude individual properties from that order or limit the adjustment for those individual properties whose value has already been adjusted by a county board of equalization. Neb. Rev. Stat. 77- 1504.01 (3).
010.07 Delivery of Order. On or before August 10 of each year, the Commission shall send its order on the petition by certified mail to the county assessor and by regular mail to the county clerk and chairperson of the county board. Neb. Rev. Stat. §77-1504.01 (3).
010.08 Compliance with the Order. The county assessor of the county adjusted by an order of the Commission shall make the specified changes to each parcel or part of a parcel of property in the county as directed by the order of the Commission. In implementing such order, the county assessor shall only adjust the values of the class or subclass that is the subject of the order. For properties that have already received an adjustment from the county board of equalization, no additional adjustment shall be made applying the Commission’s order, but such an exclusion from the Commission’s order shall not preclude adjustments to those properties for corrections or omissions. Neb. Rev. Stat. §77-1504.01 (4)
010.08 Recertification of Abstract. The county assessor of the county adjusted by an order of the Commission shall recertify the abstract of assessment to the Property Tax Administrator on or before August 20. Neb. Rev. Stat. §77-1504.01 (4)
011 Notice of Annual Equalization Meeting and Agenda and Waiver of Notice . The Commission, when conducting hearings or proceedings pursuant to Neb. Rev. Stat. §§77-1504.01, 77-5024.01, and 77-5026, shall issue notice of hearings or proceedings as follows:
011.01 Notice The Commission shall give notice of the time and place of the first meeting held pursuant to sections77-1504.01, and 77-5026 of Nebraska Statutes by publication in a newspaper of general circulation in the State of Nebraska. Such notice shall contain a statement that the agenda shall be readily available for public inspection at the principal office of the Commission during normal business hours. The agenda shall be continually revised to remain current. The Commission may thereafter modify the agenda and need only provide notice of the meeting to the affected counties in the manner provided for in sections 77-1504.01, or 77-5026 of Nebraska Statutes. The Commission shall publish in its notice a list of those counties certified under Neb. Rev. Stat. §77-5027 as having assessments which may fail to satisfy the requirements of law. The legal notice shall be issued in such a manner which assures publication at least three (3) calendar days prior to the first meeting of the Commission.
011.03 Agenda The Commission shall, not less than three (3) business days prior to the first hearing or proceedings pursuant to Neb. Rev. Stat. §§77-1504.01, or 77-5026, cause a copy of the notice and an unofficial agenda to be placed on the Commission’s website (www.terc.ne.gov). The agenda posted on the Commission’s web site is not the official agenda of the Commission. The official agenda of the Commission is kept at its principal office and is available during normal business hours.
011.04 Waiver of Notice. A legal representative of a County may waive notice of hearing on any proposed order. Neb. Rev. Stat. §77-5026.
012 Conduct of Hearings .
012.01 Evidence At a hearing, the Commission may receive testimony under oath from any interested person.
012.02 Video conference. Hearings held pursuant to Neb. Rev. Stat. §77-5022 may be held by means of video conference. A person shall be present at each video conference site to take custody of any exhibits which were not provided to the Commission at the hearing site of the presiding hearing officer, keep a record of persons who appear at the hearing, and otherwise assist the presiding hearing officer with conduct of the hearing.
012.02 Exclusion from Hearing. The presiding hearing officer may exclude any person from the hearing room when that person is disrupting the hearing.
012.03 Representation. The following representation requirements apply in a hearing or portion of a hearing held as a part of the Commission’s annual equalization proceedings
012.03A County. In a hearing before the Commission the interest of the County may be represented by:
012.03A1 A member of the county board of equalization; or
012.03A2 The county clerk who serves as secretary to the county board of equalization (pursuant to Neb. Rev. Stat. §77-1501) or his or her deputy; or,
012.03A3 The county assessor, or his or her deputy; or,
012.03A4 The county attorney, or his or her deputy, (pursuant to Neb. Rev. Stat. §23-1201(2)); or,
012.03A5 Legal counsel for the county board of equalization or any other party.
013 Appeals . Any party aggrieved by a final decision of the Commission is entitled to judicial review in the Court of Appeals in accordance with Neb. Rev. Stat. §77-5019.
History
- Effective 2011-06-06
Chapter 10 Invalidation or Suspension of Assessors Certificate
Neb. Admin. Code tit. 442, ch. 10 Invalidation or Suspension of Assessors Certificate {#sec-442-nac-10 omnilex-key=us-ne-regs-official--title-442--442 NAC 10}
001 Authority . The Commission has the power to invalidate or suspend the certificate issued pursuant to section 77-422 of any county assessor or deputy assessor who willfully fails or refuses to comply with any order of the Commission. Neb. Rev. Stat. §77-5020.
002 Definitions . The following definitions apply whenever the defined term is used in this chapter unless the context of a term’s use requires use of a different definition.
002.01 Assessor. Assessor includes an elected or appointed county assessor or a county clerk who is an ex officio county assessor. In counties in which the state has assumed the assessment function the Property Tax Administrator or his or her designee performs the duties of the county assessor. Neb. Rev. Stat. §77-115.
002.02 Commission. The Nebraska Tax Equalization and Review Commission.
002.03 Comply. To complete, accomplish, perform what is due, or to obey. Webster's Third New International Dictionary, Merriam-Webster, Inc., (2002).
002.04 Fail. “To 'fail' means to leave unperformed; to omit; to neglect, Bouv. Law Dict.; Widemann Co. v. Digges, 21 Cal. App. 342, 131 P. 882. To fail in the performance of some duty, which failure shall impose a penalty or liability, necessarily implies a prior act or condition by which the one failing shall have become aware of the duty.” Buffalo County v. Phelps County, 129 Neb 268, 261 N.W. 360 (1935).
002.07 Order. A command, direction, or instruction. Black's Law Dictionary, Sixth Edition, West Publishing, (1990).
002.11 Refuse. "To show or express a positive unwillingness to do or comply with (as something asked, demanded, expected)--used with a following infinitive (refused to answer the question)." Webster's Third New International Dictionary, Unabridged 1910 (1981). "To refuse," by definition, requires that a person understand what is being asked of him and then in some way manifest nonacceptance, nonconsent, or unwillingness.” State v. Medina, 227 Neb 736, 419 N.W.2d 864 (1988).
002.13 Willfully. Intentionally, with knowledge that the act was a violation of the Commission’s order. Douglas Cty v. Kowal 270 Neb. 982, 708 N.W.2d 668, (2006).
003 Notice of Action .
003.01 When the Commission determines that the certificate of an assessor might be invalidated, or suspended pursuant to Neb. Rev. Stat. §77-5020, the Commission shall file an action to determine whether it should invalidate or suspend the certificate and notify the assessor in writing of the pending action. Notice of filing the action shall be sent by certified mail, postage prepaid, a return receipt may be requested. The notice shall advise the assessor that his or her certificate may be invalidated or suspended; and shall advise the assessor of the action or failure to act which forms the basis for the possible invalidation or suspension of a certificate.
003.02 The assessor shall be given ten (10) days from the date of the letter to provide the Commission with a written response. If the Commission determines that the written response demonstrates by a preponderance of the evidence that the assessor did not willfully fail or refuse to comply with an order of the Commission, then the Commission shall notify the assessor of that decision, and dismiss the action.
003.03 If the Commission determines that the written response fails to demonstrate by a preponderance of the evidence that the assessor did not willfully fail or refuse to comply with an order of the Commission, then the Commission shall issue an Order for Hearing and a Notice of Hearing. The Order for Hearing and the Notice of Hearing shall be served upon the assessor by certified mail, postage prepaid, a return receipt may be requested. The hearing on the matter shall be held in the City of Lincoln, Lancaster County, Nebraska. The hearing shall be held not less than thirty (30) days from the date of the Notice of Hearing.
004 Disposition . If the Commission finds by a preponderance of evidence that the assessor has willfully failed or refused to comply with any order of the Commission, the Commission may revoke, suspend, and/or invalidate the certificate of the assessor.
005 Appeals . Any appeal of the decision of the Commission shall be in accordance with Neb. Rev. Stat. §77-5019.
History
- Effective 2007-10-10
Chapter 12 Discovery Rules
Neb. Admin. Code tit. 442, ch. 12 Discovery Rules {#sec-442-nac-12 omnilex-key=us-ne-regs-official--title-442--442 NAC 12}
EXPLANATORY STATEMENT
The discovery rules which follow are based on the Discovery Rules for All Civil Cases promulgated by the Nebraska Supreme Court. Following the title of each section below the number of the Nebraska Supreme Court Discovery Rules for All Civil Cases is listed in parentheses for ease of comparison with the Supreme Court Rules. Discovery may be had in any proceeding before the Commission as follows:
001 General Provisions Governing Discovery (Rule 26)
001.01 Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; and requests for admission. Unless the Commission orders otherwise under subdivision 001.03 of this rule, the frequency of use of these methods is not limited.
001.02 Scope of Discovery. Unless otherwise limited by order of the Commission in accordance with these rules, the scope of discovery is as follows:
001.02A In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in an appeal or petition, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
001.02B Hearing Preparation: Materials. Subject to the provisions of subdivision 001.02C of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision 001.02A of this rule and prepared in anticipation of a petition or appeal or for hearing by or for another party or by or for that other party's representative (including his or her legal counsel, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation for a hearing and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the Commission shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of legal counsel or other representative of a party concerning the petition or appeal.
A party may obtain without the required showing a statement concerning a petition or appeal or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the petition or appeal or its subject matter previously made by that person. If the request is refused, the person may move for a Commission order. The provisions of subsection 011.01C apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
001.02C Hearing Preparation: Experts. Discovery of facts known and opinions held by experts otherwise discoverable under the provisions of subdivision 001.02A of this rule and acquired or developed in anticipation of an appeal or petition or for hearing may be obtained only as follows:
001.02C1a A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at hearing, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
001.02C1b Upon motion, the Commission may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision 001.02C3 of this rule, concerning fees and expenses as the Commission may deem appropriate.
001.02C2 A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of an appeal or petition or preparation for hearing and who is not expected to be called as a witness at hearing, only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
001.02C3 Unless manifest injustice would result,
001.02C3a the Commission shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subsections 001.02C1a and 001.02C2 of this rule; and
001.02C3b with respect to discovery obtained under subdivision 001.02C1a of this rule the Commission may require, and with respect to discovery obtained under subdivision 001.02C2 of this rule the Commission shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
001.03 Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the Commission may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
001.03A that the discovery not be had;
001.03B that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
001.03C that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
001.03D that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
001.03E that discovery be conducted with no one present except persons designated by the Commission;
001.03F that a deposition after being sealed be opened only by order of the Commission;
001.03G that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
001.03H that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Commission.
If the motion for a protective order is denied in whole or in part, the Commission may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of 011.01C apply to the award of expenses incurred in relation to the motion.
001.04 Sequence and Timing of Discovery. Unless the Commission upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.
001.05 Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the party’s response to include information thereafter acquired, except as follows:
001.05A A party is under a duty seasonably to supplement his or her response with respect to any question directly addressed to
001.05A1 the identity and location of persons having knowledge of discoverable matters, and
001.05A2 the identity of each person expected to be called as an expert witness at hearing, the subject matter on which he or she is expected to testify, and the substance of his or her testimony.
001.05B A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which
001.05B1 the party knows that the response was incorrect when made, or
001.05B2 the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
001.05B3 A duty to supplement responses may be imposed by order of the Commission or by agreement of the parties.
001.06 Service of Discovery Papers. Except as otherwise ordered by the Commission, every discovery paper and every motion relating to discovery and response thereto required to be served upon a party shall be served upon each of the parties not in default for failure to appear.
001.07 Filing of Discovery Materials. Discovery materials that do not require action by the Commission shall not be filed with the Commission. All such materials, including notices of deposition, depositions, certificates of filing a deposition, interrogatories, answers and objections to interrogatories, requests for documents or to permit entry upon land and responses or objections to such requests, requests for admissions and responses or objections to such requests, subpoenas for depositions or other discovery and returns of service of subpoenas, and related notices shall be maintained by the parties.
Discovery materials shall be filed with the Commission only when ordered by the Commission or when required by law. If the original of a deposition is not in the possession of a party who intends to offer it in evidence at a hearing, that party may give notice to the party in possession of it that the deposition will be needed at the hearing. Upon receiving such notice the party in possession of the deposition shall either make it available to the party who intends to offer it or produce it at the hearing.
002 Persons Before Whom Depositions May Be Taken (Rule 28)
002.01 Within This State. Within this State depositions may be taken before a notary public, or any person appointed by the Commission. A person so appointed has power to administer oaths and take testimony.
002.02 Elsewhere Within the United States. Within other states of the United States or within a territory or insular possession subject to the jurisdiction of the United States depositions may be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the Commission. A person so appointed has power to administer oaths and take testimony.
002.03 In Foreign Countries. In a foreign country, depositions may be taken
002.03A on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or
002.03B before a person commissioned by the Commission, and a person so commissioned shall have the power by virtue of his or her commission to administer any necessary oath and take testimony, or
002.03C pursuant to a letter rogatory.
002.03C1 A commission or a letter rogatory shall be issued on application and notice on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in [here name the country]". Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules.
002.04 Disqualification for Interest. The officer before whom the deposition is taken and the person recording the testimony shall not be a relative, employee, or legal counsel for any of the parties, nor a relative or employee of such legal counsel, nor financially interested in the action.
003 Stipulations Regarding Discovery Procedure (Rule 29) . Unless the Commission orders otherwise, the parties may by written or otherwise recorded stipulation:
003.01 Provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and
003.02 Modify the procedures provided by these rules for other methods of discovery.
004 Depositions Upon Oral Examination (Rule 30)
004.01 When Depositions May Be Taken. After filing a petition or appeal, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of the Commission, granted with or without notice, must be obtained only if the petitioner or appellant seeks to take a deposition prior to the expiration of thirty days after service of notice in lieu of summons, except that leave is not required:
004.01A If a defendant or appellee has served a notice of taking a deposition or otherwise sought discovery, or
004.01B If special notice is given as provided in subdivision 004.02B of this rule. The attendance of witnesses may be compelled by subpoena.
004.02 Notice of Examination: General Requirements; Special Notice; Nonstenographic Recording; Production of Documents and Things; Deposition of Organization.
004.02A A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the petition or appeal. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or her or the particular class or group to which he or she belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.
004.02B Leave of the Commission is not required for the taking of a deposition by a petitioner or appellant if the notice:
004.02B1 States that the person to be examined is about to go out of the State of Nebraska and will be unavailable for examination in the State of Nebraska unless his or her deposition is taken before expiration of the thirty-day period, and
004.02B2 Sets forth facts to support the statement.
Legal counsel for petitioner or appellant shall sign the notice, and his or her signature constitutes a certification by him or her that to the best of his or her knowledge, information, and belief the statement and supporting facts are true.
If a party shows that when the party was served with notice under subdivision 004.02B the party was unable through the exercise of diligence to obtain legal counsel to represent the party at the taking of the deposition the deposition may not be used against the party.
004.02C The Commission may for cause shown enlarge or shorten the time for taking the deposition.
004.02D The notice required by subdivision 004.02A shall state the manner in which the testimony will be recorded and preserved. The Commission may make any order necessary to assure that the record of the testimony will be accurate and trustworthy.
004.02E The notice to a party may be accompanied by a request made in compliance with subsection 008 for the production of documents and tangible things at the taking of the deposition. The procedure of subsection 008 shall apply to the request.
004.02F A party may in the party’s notice and in a subpoena name as the witness a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he or she will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision 004.02F does not preclude taking a deposition by any other procedure authorized in these rules.
004.02G The parties may stipulate in writing or the Commission may upon motion order that a deposition be taken by telephone.
004.02H1 A party taking a deposition may have the testimony recorded by videotape. The notice of deposition shall specify that a videotape deposition is to be taken.
004.02H2 Upon the request of any of the parties, the officer before whom a videotape deposition is taken shall provide, at the cost of the party making the request, a copy of the deposition in the form of a videotape, an audio recording, or a written transcript.
004.02H3 When the videotape deposition has been taken, the videotape shall be shown immediately to the witness for examination, unless such showing and examination are waived by the witness and the parties. Any changes in form or substance which the witness desires to make shall be recorded on the videotape with a statement by the witness on such tape of the reasons given by him or her for making such changes.
004.02H4 The officer before whom the videotape deposition is taken shall cause to be attached to the original videotape recording a certificate that the witness was duly sworn or affirmed by him or her and that the videotape recording is a true record of the testimony given by the witness. If the witness has not waived the right to a showing and examination of the videotape deposition, the witness shall also sign the certification.
004.03 Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the hearing under the provisions of Neb. Rev. Stat. §77-5016. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his or her direction and in his or her presence, record the testimony of the witness. The testimony shall be recorded in accordance with subdivision 004.02D of this rule. If requested by one of the parties, the testimony shall be transcribed. All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
004.04 Motion to Terminate or Limit Examination. At any time during the taking of the deposition on motion of a party or of the witness and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the witness or party, the Commission may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in subsection 001.03. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the Commission. Upon demand of the objecting party or witness the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of subsection 011.01C apply to the award of expenses incurred in relation to the motion.
004.05 When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him or her, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress under Rule 006.03D the Commission holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
004.06 Certification; Delivery; Storage.
004.06A The officer shall certify on the deposition that the witness was truly sworn by him or her and that the deposition is a true record of the testimony of the witness. Unless otherwise ordered by the Commission, he or she shall then deliver the deposition to the party taking the deposition, who must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.
Documents and things produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to the deposition and may be inspected and copied by any party, except that if the person producing the materials desires to retain them he or she may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if he or she affords to all parties fair opportunity to verify the copies by comparison with the originals, or (B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the originals be annexed to the deposition, pending final disposition of the case.
004.06B Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the witness.
004.06C The party taking the deposition shall give prompt notice to all other parties that it has been delivered by the officer before whom taken.
004.07 Failure to Attend or to Serve Subpoena; Expenses.
004.07A If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or through legal counsel pursuant to the notice the Commission may order the party giving the notice to pay to such other party the reasonable expenses incurred by the party and his or her legal counsel in attending.
004.07B If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or through legal counsel because the party expects the deposition of that witness to be taken, the Commission may order the party giving the notice to pay to such other party the reasonable expenses incurred by the party and his or her legal counsel in attending.
005 Depositions Upon Written Questions (Rule 31)
005.01 Serving Questions; Notice. After filing of a petition or appeal, any party may take the testimony of any person including a party by deposition upon written questions. The attendance of witnesses may be compelled by subpoena.
A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating:
005.01A The name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or her or the particular class or group to which he or she belongs, and
005.01B The name or descriptive title and address of the officer before whom the deposition is to be taken.
A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 004.02F.
Within thirty days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within ten days after being served with cross questions, a party may serve redirect questions upon all other parties. Within ten days after being served with redirect questions, a party may serve recross questions upon all other parties. The Commission may for cause shown enlarge or shorten the time.
005.02 Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by subsection 004.03, 004.05, and 004.06, to take the testimony of the witness in response to the questions and to prepare, certify, and deliver the deposition, attaching thereto the copy of the notice and the questions received by him or her.
005.03 The party taking the deposition shall give prompt notice to all other parties that it has been delivered by the officer before whom taken.
006 Use of Depositions in Hearings (Rule 32)
006.01 Use of Depositions. Any part or all of a deposition, so far as admissible under Neb. Rev. Stat. § 77-5016 applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions.
006.01A Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness or for any purpose permitted by Neb. Rev. Stat. § 77-5016.
006.01B The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under subsection 004.02F or 005.01, to testify on behalf of a public or private corporation, partnership or association, or governmental agency which is a party may be used by an adverse party for any purpose.
006.01C The deposition of a witness, whether or not a party, may be used by any party for any purpose if the Commission finds:
006.01C1 That the witness is dead; or
006.01C2 That the witness is at a greater distance than one hundred miles from the place of hearing, or out of the state, or beyond the subpoena power of the Commission, unless it appears that the absence of the witness was procured by the party offering the deposition; or
006.01C3 That the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or
006.01C4 That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
006.01C5 That such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally before the Commission, to allow the deposition to be used; or
006.01C6 Upon application and notice prior to the taking of the deposition, that circumstances exist such as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally before the Commission, to allow the deposition to be used.
006.01D If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts relevant to the issues.
Substitution of parties does not affect the right to use depositions previously taken.
006.02 Objections to Admissibility. Subject to the provisions of subdivision 006.03C of this rule objection may be made at a hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying; or if the Commission directs, such objections may be heard and determined prior to hearing.
006.03 Effect of Errors and Irregularities in Deposition.
006.03A As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.
006.03B As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
006.03C As to Taking of Deposition.
006.03C1 Objections to the competency of a witness or to the competency or relevancy of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time. In a deposition recorded and preserved by nonstenographic means such objections shall be made to the Commission before the hearing, or such objections will be waived, unless otherwise ordered by the Commission.
006.03C2 Errors and irregularities occurring at the oral examination in the manner of taking the deposition in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.
006.03C3 Objections to the form of written questions submitted under Section 005 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within ten days after service of the last questions authorized.
006.03D As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or recorded, or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under sections 004 and 005 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.
007 Interrogatories to Parties (Rule 33)
007.01 Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of the Commission, be served upon the petitioner or appellant after filing of a petition or appeal and upon any other party after service of the notice in lieu of summons upon that party. Unless otherwise permitted by the Commission for good cause shown no party shall serve upon any other party more than fifty interrogatories. Each question, subquestion, or subpart shall count as one interrogatory.
Each interrogatory shall be repeated and answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the legal counsel or party making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within thirty days after the service of the interrogatories, except that a defendant or appellee may serve answers or objections within forty-five days after service of the notice in lieu of summons upon that defendant or appellee. The Commission may allow a shorter or longer time. The party submitting the interrogatories may move for an order under subsection 011.01 with respect to any objection to or other failure to answer an interrogatory.
007.02 Scope; Use at Hearing. Interrogatories may relate to any matters which can be inquired into under subsection 001.02, and the answers may be used to the extent permitted by Neb. Rev. Stat. § 77-5016.
An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the Commission may order that such an interrogatory need not be answered until after designated discovery has been completed or until a prehearing conference or other later time.
007.03 Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit, or inspection of such business records, including a compilation, abstract, or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations, abstracts, or summaries. A specification shall be in sufficient detail as to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
008 Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes (Rule 34)
008.01 Scope. Any party may serve on any other party a request:
008.01A To produce and permit the party making the request, or someone acting on the party’s behalf, to inspect, and copy, test, or sample any designated documents or electronically stored information (including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, translated, if necessary, by the respondent into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of subsection 001.02 and which are in the possession, custody, or control of the party upon whom the request is served; or
008.01B To permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of subsection 001.02.
008.02 Procedure. The request may, without leave of the Commission, be served upon the petitioner or appellant after filing of the petition or appeal and upon any other party after service of the notice in lieu of summons upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced.
The party upon whom the request is served shall serve a written response within thirty days after the service of the request, except that a defendant or appellee may serve a response within forty-five days after service of the notice in lieu of summons upon that defendant or appellee. The Commission may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. If objection is made to the requested form or forms for producing electronically stored information, or if no form was specified in the request, the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under subsection 011.01 with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.
Unless the parties otherwise agree, or the Commission otherwise orders:
(1) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.;
(2) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and
(3) a party need not produce the same electronically stored information in more than one form.
008.03 Persons Not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.
009 Discovery From a Nonparty Without a Deposition (Rule34A)
009.01 Procedure.
009.01A Scope. Any party may, by subpoena without a deposition:
009.01A1 require the production for inspection, and copying, testing or sampling of designated books, papers, documents, or tangible things, or electronically stored information (including writings, drawings, graphs, charts, photographs, sound recordings, and other data compilations from which information can be obtained) translated if necessary by the owner or custodian into reasonably usable form) that are in the possession, custody, or control of a person who is not a party and within the scope of subsection 001.02; or
009.01A2 obtain entry upon designated land or other property within the scope of subsection 001.02 that is in the possession or control of a person who is not a party for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon.
009.01B Notice. A party intending to serve a subpoena pursuant to this rule shall give notice in writing to every other party to the petition or appeal at least 10 days before the subpoena will be issued. The notice shall state the name and address of the person who will be subpoenaed, the time and place for production or entry, and that the subpoena will be issued on or after a stated date. A designation of the materials sought to be produced shall be attached to or included in the notice. Such notice may be given by a party other than a petitioner or appellant at any time. Such notice may not be given by a petitioner or appellant until the time at which subsection 004.01 would permit a petitioner or appellant to take a deposition.
009.01C Issuance. A subpoena may be issued pursuant to this rule by a request to the chairperson of the Commission, at any time after all parties have been given the notice required by subsection 009.01B. The subpoena shall identify all parties who were given notice that it would be issued and the date upon which each of them was given notice. A subpoena pursuant to this rule shall include or be accompanied by a copy of this rule.
009.01D Time, manner, and return of service. A subpoena pursuant to this rule shall be served either personally by any person not interested in the petition or appeal or by registered or certified mail not less than 10 days before the time specified for compliance. The person making personal service shall make a return showing the manner of service to the party for whom the subpoena was issued.
009.02 Protection of Other Parties.
009.02A Objection Before Issued. Before the subpoena is requested or issued any party may serve a written objection on the party who gave notice that it would be issued. The objection shall specifically identify any intended production or entry that is protected by an applicable privilege, that is not within the scope of discovery, or that would be unreasonably intrusive or oppressive to the party. No subpoena shall demand production of any material or entry upon any premises identified in the objection. If the objection specifically objects that the person served with the subpoena should not have the option to deliver or mail copies of documents or things directly to a party, the subpoena shall not be issued unless all parties to the petition or appeal mutually agree on the method for delivery of the copies.
009.02B Order. The party who gave notice that a subpoena would be issued may apply to the Commission for an order with respect to any discovery for which another party has served a written objection. Upon hearing after notice to all parties the Commission may order that the subpoena be issued or not issued or that discovery proceed in a different manner, may enter any protective order authorized by subsection 001.03, and may award expenses as authorized by subsection 011.01C.
009.02C Protective Order. After a subpoena has been issued any party may move for a protective order under subsection 001.03.
009.03 Protection of the Person Served with a Subpoena.
009.03A Avoiding Burden and Expense. A party or legal counsel who obtains discovery pursuant to this rule shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The Commission shall enforce this duty and impose upon the party or legal counsel in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings of the person subject to the subpoena.
009.03B Responding to the Subpoena.
009.03B1 A person served with a subpoena pursuant to this rule shall permit inspection, copying, testing, or sampling either where the documents or tangible things are regularly kept or at some other reasonable place designated by that person. If the subpoena states that the person served has an option to deliver or mail legible copies of documents or things instead of inspection, that person may condition the preparation of the copies on the advance payment of the reasonable cost of copying.
009.03B2 A person served with a subpoena pursuant to this rule may, within 10 days after service of the subpoena, serve upon the party for whom the subpoena was issued a written objection to production of any or all of the designated materials or entry upon of the premises. If objection is made, the party for whom the subpoena was issued shall not be entitled to production of the materials or entry upon the premises except pursuant to an order of the Commission. If an objection has been made, the party for whom the subpoena was issued may, upon notice to all other parties and the person served with the subpoena, move the Commission for an order to compel compliance with the subpoena. Such an order to compel production or to permit entry shall protect any person who is not a party or an officer of a party from significant expense resulting from complying with the command.
010 Requests for Admission (Rule 36)
010.01 Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending petition or appeal only, of the truth of any matters within the scope of subsection 001.02 set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of the Commission, be served upon the petitioner or appellant after commencement of the petition or appeal and upon any other party with or after service of the notice in lieu of summons upon that party.
Each matter of which an admission is requested shall be separately set forth by the party making the request, and shall be repeated by the responding party in the answer or objection thereto. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the Commission may allow, the party to whom the request is directed, serves upon the party requesting the admission, a written answer or objection addressed to the matter, signed by the party or by the party’s legal counsel, but, unless the Commission shortens the time, a defendant or appellee shall not be required to serve answers or objections before the expiration of forty-five days after service of the notice in lieu of summons upon the defendant or appellee. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that reasonable inquiry has been made and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for hearing may not, on that ground alone, object to the request; the party may, subject to the provisions of subsection 011.03, deny the matter or set forth reasons why the party cannot admit or deny it.
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the Commission determines that an objection is justified, it shall order that an answer be served. If the Commission determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The Commission may, in lieu of these orders, determine that final disposition of the request be made at a pre-hearing conference or at a designated time prior to hearing. The provisions of subsection 011.01C apply to the award of expenses incurred in relation to the motion.
010.02 Effect of Admission. Any matter admitted under this rule is conclusively established unless the Commission on motion permits withdrawal or amendment of the admission. The Commission may permit withdrawal or amendment when the presentation of the merits of the petition or appeal will be subserved thereby and the party who obtained the admission fails to satisfy the Commission that withdrawal or amendment will prejudice the party in maintaining the party’s petition or appeal or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending petition or appeal only and is not an admission by that party for any other purpose.
011 Failure to Make Discovery: Sanctions (Rule 37)
011.01 Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
011.01A Motion. If a deponent fails to answer a question propounded or submitted under sections 004 or 005, or a corporation or other entity fails to make a designation under subsection 004.02F or 005.01, or a party fails to answer an interrogatory submitted under section 007, or if a party, in response to a request for inspection submitted under section 008, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before the proponent applies for an order.
If the Commission denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to subsection 001.03.
011.01B Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
011.01C Award of Expenses of Motion. If the motion is granted, the Commission may, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or legal counsel advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, unless the Commission finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the Commission may, after opportunity for hearing, require the moving party or the legal counsel advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, unless the Commission finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the Commission may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
011.02 Failure to Comply With Order.
011.02A Sanctions. If a party or an officer, director, or managing agent of a party or a person designated under subsection 004.02F or 005.01 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subsection 011.01 of this rule, the Commission may make such orders in regard to the failure as are just, and among others the following:
011.02A1 An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the petition or appeal in accordance with the claim of the party obtaining the order;
011.02A2 An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence;
011.02A3 An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the petition or appeal or any part thereof, or rendering a judgment by default against the disobedient party;
011.02A4 Where a party has failed to comply with an order as are listed in subsections 011.02A1, 011.02A2, and 011.02A3, unless the party failing to comply shows that the party is unable to produce such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the Commission may require the party failing to obey the order or the legal counsel advising the party, or both to pay the reasonable expenses caused by the failure, unless the Commission finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
011.03 Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under section 010, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, may, within 30 days of so proving, apply to the Commission for an order requiring the other party to pay the party’s reasonable expenses incurred in making that proof. The Commission may make the order unless it finds that:
011.03A The request was held objectionable pursuant to subsection 010.01, or
011.03B The admission sought was of no substantial importance, or
011.03C The party failing to admit had reasonable ground to believe that the party might prevail on the matter, or
011.03D There was other good reason for the failure to admit.
011.04 Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under subsection 004.02F or 005.01 to testify on behalf of a party fails
011.04A To appear before the officer who is to take his or her deposition, after being served with a proper notice, or
011.04B To serve answers or objections to interrogatories submitted under section 007, after proper service of the interrogatories, or
011.04C To serve a written response to a request for inspection submitted under section 008, after proper service of the request,
the Commission on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections 011.02A1, 011.02A2, and 011.02A3 of this rule.
In lieu of any order or in addition thereto, the Commission may require the party failing to act or the legal counsel advising the party, or both to pay the reasonable expenses, caused by the failure, unless the Commission finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by subsection 001.03.
History
- Effective 2001-06-06
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