Section 316-33-012 - CONDUCTING A CONTESTED CASE HEARING012.01 Scheduling of hearings The time and place of any hearing shall be set by the Hearing Officer after proceedings have commenced. The hearing shall be scheduled as soon as practicable. Written notice of the time and place of any hearing shall be given at least ten days prior to the date of hearing unless notice is waived by the parties.
012.02 Conduct of hearing hearing shall be conducted by a Hearing Officer who, among other things, will open the proceedings, take appearances, administer oaths, subpoena witnesses, hear the evidence, rule on the motions and objections, question witnesses, and close the proceedings. If the petitioner or claimant is not represented by anyone qualified to make an appearance on his or her behalf, the Hearing Officer shall explain to the petitioner or claimant the Rules of Practice and Procedure and generally conduct the hearing in a less formal manner than that used when a petitioner or claimant has a representative qualified to appear on his or her behalf.
012.02A In any hearing, every party has the right to present evidence and testimony of witnesses and to cross-examine any witness who testifies on behalf of an adverse party. Every party shall have an opportunity to present evidence and testimony as rebuttal to evidence presented by another party, except that repetitious evidence shall be excluded. The parties should be prepared to make oral argument as to the law at the conclusion of a hearing. A written memorandum of law may be filed at the time of the hearing at the discretion of any party or at a subsequent time if the Hearing Officer orders.012.02B At the discretion of the Hearing Officer the hearing may be conducted in the following order. 012.02B(1) The hearing is called to order by the Hearing Officer. Any preliminary motions, stipulations or agreed orders are entertained.012.02B(2) Each party may make an opening statement. Opening statements take place in the same order as the presentation of evidence.012.02B(3) Presentation of Evidence.012.02B(3)(a) Evidence will be received in the following order: 012.02B(3)(a)(i) Evidence is presented by the petitioner;012.02B(3)(a)(ii) Evidence is presented by the respondent;012.02B(3)(a)(iii) Rebuttal evidence is presented by the petitioner; and012.02B(3)(a)(iv) Surrebuttal evidence is presented by the respondent.012.02B(3)(b) With regard to each witness who testifies, the following examination may be conducted: 012.02B(3)(b)(i) Direct examination conducted by the party who calls the witness;012.02B(3)(b)(ii) Cross-examination by the opposing party;012.02B(3)(b)(iii) Redirect examination by the party who called the witness; and012.02B(3)(b)(iv) Recross-examination by the opposing party.012.02B(3)(c) After evidence is presented, each party may have the opportunity to make a closing argument. Closing arguments shall be made in the same order as the presentation of evidence. The Hearing Officer may order that parties submit briefs in lieu of closing arguments.012.02C Hearings will usually be recorded electronically and not transcribed at the time of the hearing. A court reporter will be retained for the hearing if: 012.02C(1) The Hearing Officer determines that the complexity of the facts and issues require a court reporter to be present to make a verbatim transcript of the proceedings, or012.02C(2) Any party requests that a court reporter be present to make a verbatim transcript of the proceedings and agrees to make the arrangements for the court reporter and pay the initial cost.012.02C(3) The cost of the court reporter shall be part of the costs to be assessed under subsection 012.09 of this regulation.012.03 Production of evidence and testimony The Hearing Officer may administer oaths and issue subpoenas, in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court.
012.03A If a subpoena is desired, the requesting party shall indicate to the Hearing Officer the name of the case and names and last known addresses of the witnesses to be subpoenaed. If evidence other than oral testimony is required, each item to be produced must be adequately described. When properly prepared, the subpoena will be returned to the requesting party for service. Service may be made either by mailing a copy by certified mail, return receipt requested, not less than six days before the hearing date of the cause which the witness is required to attend or, personally, by any person not interested in the action. No costs for serving a subpoena will be allowed.012.03B All testimony presented before the Hearing Officer shall be given under oath.012.04 The Hearing Officer may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs, and may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. 012.04A Any party may request that the proceeding be bound by the Nebraska Evidence Rules as applicable in the district courts. The party shall file with the Hearing Officer, at least three days prior to the date of the scheduled hearing, a written request that the hearing be so conducted. The request for the application of the Nebraska Evidence Rules as applicable in the district courts shall be in writing and shall include the requesting party's agreement to be liable for the payment of costs incurred upon any appeal or review, including the cost of court reporting services, which the requesting party shall procure for the hearing.012.04B Documentary evidence may be received in the form of copies or excerpts or incorporated by reference. A copy of any book, record, paper, or document may be offered directly in evidence in lieu of the original, where the original is unavailable or where there is no objection, and where the original is admitted in evidence, a copy may be substituted later for the original or any part that may be material or relevant upon leave granted in the discretion of the Hearing Officer.012.04C All evidence, including records and documents in the possession of the Department which the Department desires to use, shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case.012.04D Evidence of a federal tax determination including, but not limited to, a Treasury Department determination letter, a federal court decision, or an Internal Revenue Service assessment relating to issues raised in the proceeding, shall be presumed to be accurate unless rebutted.012.04E The Hearing Officer shall give effect to the rules of privilege recognized by law.012.04F The Hearing Officer may take official notice of cognizable facts, and in addition, may take official notice of general, technical, or scientific facts within the specialized knowledge of the Department and the rules and regulations adopted and promulgated by the Department, if: 012.04F(1) The parties are notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed;012.04F(2) The parties are afforded an opportunity to contest facts so noticed; and012.04F(3) The record contains a written record of each item officially noticed.012.05 Conducting the hearing by electronic means The Hearing Officer may, at his or her discretion, conduct all or a part of the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and if technically feasible, to see the entire proceeding while it is taking place.
012.06 Exhibits 012.06A Identification of exhibits. Exhibits attached to a stipulation or entered in evidence shall be numbered serially, i.e., 1, 2, 3, etc.012.06B Disposition of exhibits. Any party desiring the return of any exhibit, at his or her own expense, shall apply in writing to the Hearing Officer within 30 days after an order of the Tax Commissioner has become final, suggesting a practical manner of delivery. In all other cases, exhibits may be disposed of as the Hearing Officer deems advisable.012.07 Evidence outside the record Except as provided by these regulations, the Hearing Officer will not consider factual information or evidence in the determination of any proceeding unless it has been offered and made a part of the record in the proceeding.
012.08 Official record The Department shall prepare an official record, which shall include testimony and exhibits, in each contested case.
012.08A The Department shall maintain an official record of each contested case under the Administrative Procedure Act for at least four years following the date of the final order.012.08B The Department's official record shall consist only of the following: 012.08B(1) Notices of all proceedings;012.08B(2) Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Department relating to the contested case;012.08B(3) The record of the hearing, including all exhibits and evidence introduced during the hearing, a statement of matters officially noticed by the Hearing Officer during the proceeding, and all proffers of proof and objections and rulings thereon; and012.08B(4) The final order. 012.08C It shall not be necessary to transcribe the record of the proceedings unless requested for purpose of rehearing or appeal, in which event the transcript and record shall be furnished by the agency upon request and payment of the cost of preparation.012.08D As provided in subsection 009.04 of these regulations, the Hearing Officer, Tax Commissioner, or employee who is or may reasonably be expected to be involved in the decision making process of the contested case, who receives or who makes or knowingly causes to be made an ex parte communication as set forth in that subsection, shall make the appropriate filings which shall be included in the official record of the contested case.012.08E Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the Department's official record shall constitute the exclusive basis for Department action in contested cases under the act and for judicial review.012.08F Any party to the case may request and obtain a certified copy of the Department's official record of the hearing. Charges for preparing the certified copy of the record shall be paid by the party requesting it.012.09 Costs All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered.
316 Neb. Admin. Code, ch. 33, § 012
Sections 77-369, 77-375, 77-376, 77-2709, 77-2711, 77-2792, and 77-27,119, R.R.S. 2009, and sections 84-909, 84-909.01, 84-913, 84-914, 84-915, 84-915.01 and 84-916, R.R.S. 2008. January 30, 2010.