Midwest Renewable Energy v. Lincoln Cty. Bd. of Eq.

34 	284 NEBRASKA REPORTS
M idwest R enewable eneRgy, llC, appellant, v.
linColn C ounty boaRd of equalization, appellee.
815 N.W.2d 922
Filed July 13, 2012. 	No. S-10-1106.
1. Taxation: Appeal and Error. The Tax Equalization and Review Commission
may determine any question raised in a proceeding upon which an order, deci-
sion, determination, or action of a county board appealed from is based. The
order, decision, determination, or action shall be affirmed unless evidence is
adduced establishing that the order, decision, determination, or action was unrea-
sonable or arbitrary.
2. Taxation: Judgments: Appeal and Error. Appellate courts review decisions
rendered by the Tax Equalization and Review Commission for errors appearing
on the record.
Petition for further review from the Court of Appeals, iRwin,
MooRe, and Cassel, Judges, on appeal thereto from the Tax
Equalization and Review Commission. Judgment of Court of
Appeals reversed, and cause remanded with directions.
Jerrold L. Strasheim for appellant.
Rebecca Harling, Lincoln County Attorney, and Joe W.
Wright for appellee.
H eaviCan, C.J., wRigHt, C onnolly, stepHan, MCC oRMaCk,
and M illeR-leRMan, JJ.
stepHan, J.
The Lincoln County Board of Equalization (Board) deter-
mined that Midwest Renewable Energy, LLC (Midwest), failed
to timely file its 2009 personal property tax return and was
therefore subject to a penalty. Midwest appealed this determina-
tion to the Tax Equalization and Review Commission (TERC),
which affirmed. Midwest then appealed to the Nebraska Court
of Appeals, which also affirmed. We conclude that TERC erred
in affirming the assessment of the penalty. On further review,
we reverse the judgment of the Court of Appeals and remand
the cause with directions.
BACKGROUND
Nebraska requires taxpayers to file personal property tax
returns by May 1 of each year and imposes penalties for late
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

MIDWEST RENEWABLE ENERGY v. LINCOLN CTY. BD. OF EQ. 	35
Cite as 284 Neb. 34
filing.1 On August 27, 2009, the Lincoln County assessor noti-
fied Midwest that it had not filed its 2009 personal property tax
return and that as a result, a penalty of 25 percent of the tax
due had been assessed. Contending its return was timely filed,
Midwest appealed the assessor’s imposition of the penalty
to the Board, which has authority to correct a penalty that is
wrongly imposed.2
The Board conducted an evidentiary hearing. The assessor
produced documentary evidence showing that no return was
received from Midwest prior to May 1, 2009. Midwest sub-
mitted affidavits to the Board. Its controller, Penny Thelen,
averred in her affidavit that she prepared Midwest’s personal
property tax return on April 21 and mailed it “by first class
mail with sufficient postage” to the assessor’s address on April
23. Thelen averred that Midwest’s return address was on the
envelope and that the envelope was not returned. She further
averred that when mailing the return she “followed the same
practice as she had done . . . in filing hundreds of personal
property tax returns.” According to Thelen, none of the per-
sonal property tax returns she had mailed in the same man-
ner had ever failed to be timely received. James G. Jandrain,
a certified public accountant who had been the chairman of
Midwest’s board of managers since January 2008, also averred
in his affidavit that he had reviewed Midwest’s office records
and that those records confirmed the return was mailed on
April 23, 2009.
Pursuant to its policy, the Board did not require witnesses
appearing at the hearing to give sworn testimony. Thelen
informed the Board that on the evening of April 22, 2009,
she put the return in an envelope, “ran it through the postage
meter and threw it in the mailbox.” The assessor informed the
Board that she did not receive a return from Midwest prior to
May 1, but, rather, first received a return from Midwest on
September 4.
In response to questions from the Board, the county attor-
ney opined that the legal question was whether the return was
1 See Neb. Rev. Stat. §§ 77-1229 and 77-1233.04 (Reissue 2009).
2 Neb. Rev. Stat. § 77-1233.06 (Reissue 2009).

36 	284 NEBRASKA REPORTS
timely received and advised the Board that to avoid imposi-
tion of the penalty, Midwest had to show that the assessor had
received the return prior to May 1, 2009. After hearing this,
one member of the Board stated, “I don’t think it’s a matter of
me doubting whether [Midwest] filled it out, whether they —
it got mailed. I’m not questioning that for a second.” Another
member of the Board stated, “I’m not doubting the honesty,
integrity of [Midwest] one — one second either, not for a sec-
ond. I just have a question mark as to why it wasn’t — if it was
received or wasn’t received, why not?”
Ultimately, the Board voted to affirm the imposition of the
penalty due to a lack of evidence that the return had been
received by the assessor prior to May 1, 2009. After announc-
ing its decision on the record, a Board member stated to
Midwest, “I hope . . . there’s a way you can appeal this to
[TERC] and for your sake I hope they overturn us.” A second
board member echoed, “So do I. So do I.”
Midwest appealed to TERC. Pursuant to a joint motion of
the parties, the case was submitted without a hearing.3 The
joint motion asserted that the case was to be decided based on
the record made before the Board and a stipulation of facts.4
The stipulation included additional affidavits from Thelen
and the assessor, and a copy of Neb. Rev. Stat. § 49-1201
(Reissue 2010).
In her affidavit to TERC, the assessor averred, consistent
with the evidence she presented to the Board, that she did not
receive a personal property tax return from Midwest prior to
May 1, 2009. And in her affidavit to TERC, Thelen averred,
consistent with her evidence before the Board, that on April
22, she placed the personal property tax return for Midwest
in an envelope addressed to the assessor and attached a return
address label and sufficient first-class postage. Thelen added
in this affidavit that she then placed the envelope in Midwest’s
“outgoing mail box.” She described this box as a “sturdy
box located behind the secretary’s workspace, inaccessible
3 See, Neb. Rev. Stat. § 77-5021 (Reissue 2009); 442 Neb. Admin. Code,
ch. 5, § 015 (2009).
4 See 442 Neb. Admin. Code, supra note 3, § 015.02.

MIDWEST RENEWABLE ENERGY v. LINCOLN CTY. BD. OF EQ. 	37
Cite as 284 Neb. 34
to anyone other than the secretary and accountants in our
office, and . . . designated solely for pickup of mail by a
US Postperson.” Thelen averred that every Monday through
Saturday, a “US Postperson” came and picked up outgoing
mail from this box. She recalled only one stormy day in the
last 16 years when a “US Postperson” failed to pick up the
outgoing mail.
TERC framed the issue as “whether the . . . Board’s
determination that a penalty was properly imposed is arbi-
trary or unreasonable.” It noted that because the statements
made before the Board were unsworn, it was giving greater
weight to the affidavits than to the unsworn statements. TERC
also determined that § 49-1201 was applicable. That stat-
ute provides:
Any . . . tax return . . . required or authorized to be
filed or made to the State of Nebraska, or to any political
subdivision thereof, which is: (1) Transmitted through the
United States mail [or] (2) mailed but not received by the
state or political subdivision . . . shall be deemed filed or
made and received on the date it was mailed if the sender
establishes by competent evidence that the . . . tax return
. . . was deposited in the United States mail on or before
the date for filing or paying.
But TERC did not acknowledge that the Board had failed
to recognize the applicability of § 49-1201 and had actu-
ally decided the appeal based upon its understanding that the
return could not be considered filed until it was received.
Instead, TERC undertook its own analysis of whether Midwest
had established the elements of § 49-1201 and, specifically,
whether Midwest had proved the return was deposited in
the U.S. mail. In its analysis, TERC noted that the evidence
presented to it was identical to the evidence presented to the
Board. This was erroneous, because the affidavits submitted
to TERC contained additional information that was not before
the Board.
Ultimately, three members of the TERC panel concluded
that although different conclusions as to whether the require-
ments of § 49-1201 were met might be drawn from the factual
evidence, because one interpretation of the facts supported the

38 	284 NEBRASKA REPORTS
Board’s decision to uphold the penalty, that decision could not
be deemed arbitrary or unreasonable. TERC therefore affirmed
the Board’s decision imposing the penalty on Midwest. A
fourth member of the panel filed a dissenting opinion in which
he concluded that the evidence submitted to TERC created a
presumption that the return was mailed on April 23, 2009, and
that the presumption had not been rebutted.
Midwest timely appealed from TERC’s decision. The Court
of Appeals determined that the Board had applied the wrong
law in requiring Midwest to prove the return was received by
the assessor and that § 49-1201 was the applicable law.5 The
Court of Appeals did not, however, address TERC’s failure
to find that the Board had applied the wrong law. Neither
did the court address TERC’s erroneous conclusion that the
evidence before it was the same as the evidence before the
Board. Instead, the Court of Appeals found that in order to
come within § 49-1201, Midwest had to establish that the
return was “‘deposited in the United States mail.’”6 The
Court of Appeals then examined the evidence presented to
TERC, including the evidence TERC failed to recognize, and
found that Midwest had established that each Monday through
Saturday, a U.S. postal carrier came to the office to deliver
Midwest’s mail and retrieve outgoing mail from the box in
which the return was placed. But the Court of Appeals found
that because Midwest “did not establish that a U.S. postal
carrier picked up the mail on April 23, 2009, and placed it in
a regular U.S. mail depository,” Midwest’s evidence simply
created “an inference of regular transmission,” which was
“a question of fact for TERC’s resolution.”7 The Court of
Appeals concluded that TERC’s decision to affirm the pen-
alty (1) was not arbitrary, capricious, or unreasonable; (2)
conformed to the law; and (3) was supported by competent
evidence. Midwest filed a petition for further review, which
we granted.
5 See Midwest Renewable Energy v. Lincoln Cty. Bd. of Eq., 19 Neb. App.
441, 807 N.W.2d 558 (2011).
6 Id. at 449, 807 N.W.2d at 565.
7 Id. at 450, 807 N.W.2d at 566.

MIDWEST RENEWABLE ENERGY v. LINCOLN CTY. BD. OF EQ. 	39
Cite as 284 Neb. 34
ASSIGNMENT OF ERROR
Midwest assigns, restated and summarized, that the Court of
Appeals erred in affirming TERC’s affirmance of the Board’s
decision that the penalty was not wrongly imposed.
STANDARD OF REVIEW
[1] TERC may determine any question raised in a proceed-
ing upon which an order, decision, determination, or action of
the County Board appealed from is based.8 The order, decision,
determination, or action shall be affirmed unless evidence is
adduced establishing that the order, decision, determination, or
action was unreasonable or arbitrary.9
[2] Appellate courts review decisions rendered by TERC for
errors appearing on the record.10
ANALYSIS
It is clear from the record that the Board upheld the penalty
based on its mistaken belief that mailing the return could not,
under any circumstances, constitute filing. This was incorrect,
because if the requirements of § 49-1201 are met, mailing can
constitute filing.
TERC correctly found that the pertinent inquiry was whether
Midwest had met the requirements of § 49-1201. But TERC
erred in failing to recognize that the evidence presented to
it differed from that presented to the Board. The parties’
joint stipulation submitted to TERC included both a copy of
§ 49-1201 and additional facts relevant to whether the return
was mailed by depositing it in the U.S. mail. Further, in find-
ing that one interpretation of the facts supported the Board’s
decision, TERC improperly deferred to the Board because the
Board did not apply the facts to § 49-1201. For these reasons,
TERC committed error on the record.
TERC may determine any question raised in a proceeding
upon which an order, decision, determination, or action of a
8 See Neb. Rev. Stat. § 77-5016(8) (Supp. 2011).
9 See id.
10 Neb. Rev. Stat. § 77-5019 (Supp. 2011).

40 	284 NEBRASKA REPORTS
county board appealed from is based.11 Here, TERC should
have exercised its authority to make a determination pursu-
ant to § 49-1201 of whether the return was timely mailed
and therefore filed, based upon all of the evidence. We
reverse, and remand with directions to the Court of Appeals
to reverse the order of TERC and to remand the cause with
directions to review all the evidence in the record before it
and determine whether the return was filed in accordance
with § 49-1201.
CONCLUSION
The Board applied the wrong law when it decided Midwest’s
appeal. TERC erred on the record when it failed to analyze
the effects of this and when it failed to recognize that the
record before it contained evidence not presented to the Board.
Accordingly, we reverse the judgment of the Court of Appeals
and remand the cause with directions to reverse the order of
TERC and remand the cause with directions to TERC to deter-
mine whether the return was timely mailed and filed pursuant
to § 49-1201.
R eveRsed and ReManded witH diReCtions.
11 § 77-5016(8).
state of nebRaska, appellee, v.
fRanCis l. sebeRgeR, appellant.
815 N.W.2d 910
Filed July 13, 2012. 	No. S-10-1207.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
2. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court reviews factual findings of the
trial court for clear error.
3 	Records: Appeal and Error. It is incumbent upon an appellant to supply a
record which supports his or her appeal.
4. Postconviction: Appeal and Error. A motion for postconviction relief cannot be
used to secure review of issues that were known to the defendant and could have
been litigated on direct review.