Section 316-34-002 - PETITION FOR DECLARATORY ORDER002.01 Who May File Any person may petition the Department to issue a declaratory order as to the applicability to specified circumstances of a law or action which is within the primary jurisdiction of the Department.
002.02 When Declaratory Orders Are Appropriate A declaratory order may be requested on the applicability of a law or action enforced by the Department. A declaratory order may be requested only on the applicability of existing laws or actions. A declaratory order may be requested to obtain an analysis of proposed conduct, not to obtain an analysis of conduct that has already occurred.
002.03 When Declaratory Orders Are Inappropriate The Department shall not issue a declaratory order where:
002.03A The petition requests a declaratory order on a matter that is outside the scope of the authority of the Department;002.03B The petition requests review or appeal of a decision made by the Department in a contested case;002.03C The petition requests a declaratory order on the effect of past conduct;002.03D An investigation for purposes of a formal adjudication, a contested case, or a petition to issue, amend, or repeal regulations is pending before the Department involving the petitioner on substantially the same or similar facts or issues raised in the petition;002.03E The petition seeks a declaratory order that a statute, rule, regulation, or revenue ruling is unconstitutional or invalid;002.03F The issue raised in the petition has been settled by a change in circumstances or other means;002.03G A declaratory order would substantially prejudice the rights of a necessary party who does not consent in writing to a declaratory order proceeding;002.03H A declaratory order would not resolve the controversy or uncertainty; or002.03I The question posed or facts presented are insufficiently specific, overly broad, or are otherwise inappropriate.002.04 The Department may refuse to issue a declaratory order where: 002.04A Refusal is necessary to assure adequate Department resources are available for issuing rulings on petitions raising questions of greater urgency or significance;002.04B The question presented is so complex that the Department has not had sufficient opportunity or resources to develop an appropriate declaratory order; or002.04C The petitioner failed to submit any additional information requested by the Department or submitted such information after the date established by the Department.002.05 Form and Contents of Petition A petition for declaratory order shall be in writing and shall:
002.05A Contain a caption, which includes: 002.05A(1) The words: BEFORE THE DEPARTMENT OF REVENUE, STATE OF NEBRASKA;002.05A(2) A heading specifying the subject matter and the name of the petitioner; and002.05A(3) The words: PETITION FOR DECLARATORY ORDER. 002.05B Bear the signature of the petitioner, or an authorized representative of the petitioner;002.05C Contain the name and address of the petitioner, and when his or her authorized representative is an attorney, the name, address, telephone number, and bar number of the attorney;002.05D Include any documents that relate to the petition;002.05E Contain the name and address of all persons or entities, known to the petitioner, who may have a specific interest in the applicability of the law or action, or who may be affected by resolution of the issue sought to be resolved by the petitioner;002.05F Cite the law or action upon which the petitioner seeks a declaratory order;002.05G Contain a detailed statement of all of the material facts and specific circumstances which apply to petitioner's request for a declaratory order;002.05H State all legal or factual contentions asserted by the petitioner;002.05I State a demand for the relief sought by the petitioner;002.05J State the petitioner's position as to how the Department should rule and why the Department should rule in the manner requested;002.05K Include any documents pertinent to the petition that the petitioner wishes to be considered by the Department; and002.05L State a request for hearing if one is desired.002.06 The petitioner must also attach any written consents to the proceeding obtained from any necessary party that the petition may be determined by use of a declaratory order proceeding.002.07 The form of the petition 002.07A The petition must be legibly typewritten, photocopied, printed, or handwritten on only one side of each page on white, 8-1 /2 by 11 inch paper. If handwritten, the petition must be written in ink.002.07B Any documents attached to a petition must be securely fastened to the petition, meet the requirements of 002.07A and, if possible, be reproduced on 8-1 /2 by 11 inch paper or placed in an 8-1 /2 by 11 inch envelope and clearly marked as an attachment to the petition.002.07C When the Tax Commissioner approves and implements an electronic form or method for filing a petition, any petition for declaratory order may be filed electronically with the Department if it contains all the information required by this section. The petition may be filed using the Web site of the Department (www.revenue.ne.gov).002.08 The petition shall be filed with the Tax Commissioner by mail, in person, or electronically during the Department's normal business hours.002.09 The petition shall be deemed to be filed when it is actually received by the Department. The Department shall date stamp all petitions upon receipt.002.10 At the same time the petition is filed with the Department, the petitioner must also serve a copy of the petition, by certified mail, return receipt requested, on all necessary parties.002.11 The petition must be subscribed and verified by the petitioner. If the petitioner is a corporation, political subdivision, or other entity, the petition must be subscribed and verified by a duly authorized agent of the petitioning entity.002.12 The petitioner may use the sample form of a petition in section 002.13 of this regulation. The petitioner may also prepare a reasonable facsimile of the sample petition if the requirements of sections 002.07 through 002.11 of this regulation are satisfied.002.13 Sample Petition: BEFORE THE DEPARTMENT OF REVENUE STATE OF NEBRASKA
In the matter of :)
The application of [name]) PETITION FOR
) DECLARATORY ORDER
)
1. Petitioner's name and address;2. The name and address of all persons who or entities which may have a specific interest in the applicability of the statute, rule, regulation, or order, or who may be adversely affected by the issue sought to be resolved;3. All material facts and specific circumstances;4. All rules of law which apply;5. Petitioner's demand for relief; DATED on this day of, 2 .
VERIFICATION
STATE OF NEBRASKA)
) ss.
COUNTY OF_)
[name], being first duly sworn, states that he/she is the petitioner/petitioner's agent in the above entitled matter; that he/she has read the foregoing Petition For Declaratory Order; and that the allegations of fact therein are true.
__________________
[Petitioner's signature]
SUBSCRIBED and sworn to before me on this day of, 2 .
NOTARY SEAL _______
[Notary signature]
316 Neb. Admin. Code, ch. 34, § 002
Section 84-912.01, R.R.S. 2008. November 6, 2010.