W. Va. Code R. § 121-1-51

Current through Register Vol. XLI, No. 40, October 4, 2024

Section 121-1-51 - Small claim cases

51.1. General. -- The office of tax appeals may handle certain cases as small claim cases as provided in W. Va. Code § 11-10A-11. Small claim cases are handled more informally than other cases. The administrative law judge's decision in a small claim case is not subject to further administrative or judicial review.

51.2. Eligible cases. -- Generally, the following cases are eligible for handling as small claim cases and shall be handled as small claim cases upon the written request of the petitioner provided the office of tax appeals concurs in the election:

51.2.1. With the exception of Property Tax Appeals, those cases in which the amount in controversy does not exceed ten thousand dollars ($10,000) for any one taxable year. For this purpose, the "amount in controversy" means the total amount of tax and any additions or penalties, but excluding interest, for any one taxable year that is in controversy.

51.3. Commencement of small claim process. -- A small claim proceeding before the office of tax appeals contesting a notice of assessment or denial, in whole or in part, of a claim for refund or credit of any tax collected by the tax commissioner under the West Virginia tax procedure and administration act, W. Va. Code § 11-10-1 et seq., or any appeasable order issued by the tax commissioner, shall be initiated by timely filing a written small claim petition that succinctly states:

51.3.1. The nature of the case;

51.3.2. The facts on which the appeal is based; and

51.3.3. Each question presented for review by the office of tax appeals.

51.4. Answer. -- Within five (5) days of receipt of a timely filed petition pursuant to subsection 51.3 of this section, the executive director of the office of tax appeals shall provide the tax commissioner with a copy of the small claim petition. The tax commissioner shall file a written answer to the petition within forty (40) days of his or her receipt of the petition. The answer shall succinctly state:

51.4.1. The nature of the case;

51.4.2. The facts relied upon by the commissioner; and

51.4.3. An answer to each question presented for review.

51.5. The tax commissioner shall serve the petitioner or the petitioner's representative, if a representative is identified in the petition with a copy of the answer. A certificate of service or other proof of service shall be attached to the answer filed with the clerk of the office of tax appeals.

51.6. Appearance and representation.

51.6.1. Petitioner. -- The provisions of West Virginia Code Section 11-10A-15 shall govern appearances in small claims cases. Specifically, the petitioner may appear before the office of tax appeals in his or her own behalf, or may be represented by an attorney or by any other person as he or she may choose. However, in no circumstances shall any person be permitted to conduct the unauthorized practice of law.

51.6.2. Tax commissioner. -- In a small claim case, the state tax department will ordinarily not be represented by legal counsel. The state tax department may be represented in a small claim case by an employee of the department who is not a lawyer but who is familiar with the facts of the case.

51.7. Disposition of small claim cases. A small claim case will generally be decided based upon the content of the small claim petition and any other relevant documentary evidence submitted by the parties in accordance with time restrictions fixed by an administrative law judge.

51.8. Scheduling of hearing. -- The office of tax appeals will not schedule a hearing in a small claim case, until the petitioner or the state tax department advises the administrative law judge that the issues in controversy cannot be resolved without a hearing.

51.9. Notice of small claim hearing. -- If a small claim petition is set for hearing, the chief administrative law judge shall provide written notice of the date, time and place of the hearing to the petitioner, to the petitioner's representative of record, if any, and to the relevant part of the state tax department, at least twenty (20) days in advance of the small claim hearing, which must be heard within ninety (90) days after the small claim petition is filed, unless set later than that ninety (90)-day period for good cause.

51.10. Discovery not available. -- Prehearing discovery and other prehearing processes available in other cases are not available in small claim cases. The parties are strongly encouraged to contact each other after the petition is filed and to diligently work to resolve the matters in controversy without a small claim hearing.

51.11. Continuances. -- The office of tax appeals ordinarily will not grant a continuance (postponement) of a small claim hearing, and will grant no more than one continuance for good cause shown in writing at least seven (7) calendar days prior to the scheduled small claim hearing.

51.12. Small claim hearing. -- The administrative law judge shall conduct any small claim hearing as informally as possible, consistent with orderly procedure.

51.12.1. The petitioner has the burden of proof, and must bring to a small claim hearing two (2) copies of any and all relevant documents that the petitioner wants considered.

51.12.2. Any non-lawyer representative of the State Tax Department attending a small claim hearing must also bring two (2) copies of any and all relevant documents that he or she wants considered.

51.12.3. A small claim hearing will not be recorded.

51.12.4. All testimony at a small claim hearing will be under oath or by affirmation.

51.12.5. The administrative law judge and any non-lawyer representative of the state tax department attending the small claim hearing may ask questions of the petitioner or of his or her representative or witness(es), and the petitioner or his or her representative may ask relevant questions of the state tax department's non-lawyer representative.

51.12.6. After a small claim hearing the parties will not be required to submit proposed findings of fact and conclusions of law, except to the extent the administrative law judge, in his or her discretion, otherwise orders.

51.13. Written decision. -- In a small claim case, the administrative law judge shall issue and serve upon the parties a brief written decision, explaining succinctly the basis for the determination.

51.14. Time for issuance of decision. -- The administrative law judge shall issue the small claim decision within ninety (90) days after the case was fully submitted for decision, that is, within ninety (90) days after the case was fully submitted on documents only, or within ninety (90) days after any small claim hearing was held and any and all post hearing evidentiary submissions (and any post hearing submissions of written argument) were received by the office of tax appeals.

51.15. Decision not appealable. -- A decision in a small claim case is final and conclusive upon issuance, and is not subject to any further administrative or judicial review.

51.15.1. The amount, if any, found to be owed by the petitioner to the state tax department shall be paid within thirty (30) days after notice of the small claim decision is received by petitioner or the petitioners representative, if any.

51.15.2. The amount, if any, of overpayment by the petitioner determined by a small claim decision shall be promptly refunded or credited to the petitioner.

51.16. No precedential value. -- A decision in a small claim case is not precedent for any other contested matter.

51.17. Decision not published. -- A decision in a small claim case will not be filed in the State Register or published elsewhere.

W. Va. Code R. § 121-1-51