Section 316-24-381 - SPECIAL APPORTIONMENT381.01 If the apportionment provisions contained in Reg-24-301 through 24-380 do not fairly represent the taxable income that is reasonably attributable to Nebraska, the taxpayer may petition the Tax Commissioner for a special apportionment formula. 381.01A The petition must be filed before filing any returns that propose to use the special apportionment formula.381.01B Content. The petition must: 381.01B(1) Identify the taxpayer;381.01B(2) State the pertinent facts;381.01B(3) Show that the standard apportionment formula does not fairly represent the taxable income attributable to Nebraska;381.01B(4) State the reasons why a special apportionment formula does fairly represent the taxable income attributable to Nebraska;381.01B(5) Describe clearly the proposed special apportionment formula;381.01B(6) Include a request for hearing, if one is desired; and381.01B(7) Include any other information that the taxpayer believes supports the petition.381.01C A special apportionment formula may be: 381.01C(1) The inclusion of one or more additional factors which will fairly represent the taxpayer's taxable income in this state;381.01C(2) The exclusion of any one or more factors;381.01C(3) Separate accounting; or381.01C(4) The employment of any other method to effectuate an equitable apportionment of the taxpayer's income.381.01D The Tax Commissioner may approve the petition if he or she finds that the taxpayer's factual situation is unique and nonrecurring, and the apportionment formula in Reg-24-301 through Reg-24-380 otherwise produces incongruous results.381.01E The Tax Commissioner may place conditions on approving a petition for a special apportionment formula, including, but not limited to: 381.01E(1) A change in the proposed special apportionment formula;381.01E(2) A delay or retroactive application of the special apportionment formula; or381.01E(3) An expiration of the special apportionment formula. 381.01F The Tax Commissioner must mail notice of the decision to the taxpayer by first class mail. If the Tax Commissioner does not mail the notice of final action on the petition within 30 days of filing the petition, the taxpayer may consider the petition denied.381.02 The Tax Commissioner may determine that a taxpayer's factual situation is unique and nonrecurring, and the apportionment formula in Reg-24-301 through Reg-24-380 otherwise produces incongruous results. 381.02A If the Tax Commissioner makes this determination, he or she may require a taxpayer to use a special apportionment formula as described in Reg-24-381.01C, for any tax year.381.02B The Tax Commissioner must mail notice of this determination and requirement to the taxpayer by first class mail.381.03 If a business entity is engaged in a multi state business and the income derived from within Nebraska is separate and distinct from the income derived in other states, the taxpayer may petition the Tax Commissioner for permission to separately account taxable income to Nebraska rather than apportioning the taxable income to Nebraska. The petition must meet the requirements of Reg-24-381.01B. 381.03A Books and records must be kept by recognized accounting standards to accurately reflect the amount of income of the multi state business which was derived in Nebraska during the tax period.381.03B Business operations must be separate and distinct and there cannot be interstate, intercompany, or interdivisional purchases, sales, or transfers during the period.381.03C The Tax Commissioner must mail notice of the decision on the petition to the taxpayer by first class mail. If the Tax Commissioner does not mail the notice of final action on the petition within 30 days of filing the petition, the taxpayer may consider the petition denied.381.04 Request for Hearing A petition for special apportionment or a request for separate accounting is not presumed to be a request for a hearing. The Tax Commissioner will grant a request for a hearing on the issue if requested in writing prior to the Tax Commissioner taking action on the petition or request.
381.05 The denial of a petition for special apportionment or a request for separate accounting and a determination by the Tax Commissioner to require a special apportionment formula are considered final actions of the Tax Commissioner and may be appealed to the Lancaster County District Court as provided in the Administrative Procedure Act. Petitions for review must be filed within 30 days after the notice of determination is mailed by the Tax Commissioner.316 Neb. Admin. Code, ch. 24, § 381
Neb. Rev. Stat. §§ 77-2734.15, 77-27,127, and 84-919. _____ .