Section 350-90-008 - CONDUCTING A CONTESTED CASE HEARING008.01 Order At the discretion of the Tax Commissioner or hearing officer, the hearing may be conducted in the following order:
008.01A The hearing is called to order by the Tax Commissioner or hearing officer. Any preliminary motions, stipulations or agreed orders will be heard.008.01B Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.008.01C Presentation of evidence.008.01C(1) Evidence will be received in the following order: 008.01C(1)(a) Evidence is presented by the petitioner;008.01C(1)(b) Evidence is presented by the respondent;008.01C(1)(c) Rebuttal evidence is presented by the petitioner; and008.01C(1)(d) Surrebuttal evidence is presented by the respondent.008.01C(2) With regard to each witness who testifies, the following examination may be conducted: 008.01C(2)(a) Direct examination conducted by the party who calls the witness;008.01C(2)(b) Cross-examination by the opposing party;008.01C(2)(c) Redirect examination by the party who called the witness;008.01C(2)(d) Recross-examination by the opposing party.008.01D After the evidence is presented, each party may have opportunity to make a closing argument. Closing arguments shall be made in the same order as the presentation of evidence. Tax Commissioner or hearing officer may request that the parties submit briefs in lieu of closing arguments.008.02 Evidence 008.02A In contested cases the Tax Commissioner or 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.008.02B Any party to a hearing before the Tax Commissioner or hearing officer, from which a decision may be appealed to the Tax Equalization and Review Commission, may request that the hearing be governed by the rules of evidence applicable in the district courts of this state by delivering to the Tax Commissioner at least three days prior to the holding of the hearing a written request therefore and shall be served upon all parties to the contested case. Such request shall include the requesting party's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof, including the cost of court reporting services which the requesting party shall procure for the hearing.008.02C Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.008.02D All evidence including records and documents in the possession of the Department of Revenue of which it desires to avail itself shall be 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.008.02E The Tax Commissioner or hearing officer may administer oaths and issue subpoenas pursuant to 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.008.02F The Tax Commissioner or hearing officer shall give effect to the rules of privilege recognized by law.008.02G The Tax Commissioner or 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 Tax Commissioner and the rules and regulations adopted and promulgated by the Department of Revenue. 008.02G(1) Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.008.02G(2) Parties will be afforded an opportunity to contest facts so noticed.008.02G(3) The record shall contain a written record of everything officially noticed. 008.02H The Tax Commissioner may utilize his or her experience, technical competence and specialized knowledge in the evaluation of the evidence presented and made part of the record at hearing.008.03 Conducting the hearing by electronic means Tax Commissioner or hearing officer may conduct all or 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.
008.04 Official record 008.04A The Department of Revenue shall prepare an official record, which shall include testimony and exhibits, in each contested case, but 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 Department of Revenue upon request and tender the cost of preparation.008.04B The Department of Revenue shall maintain an official record of each contested case under the Administrative Procedures Act for at least four years following the date of the final order.008.04C The Department of Revenue record shall consist only of the following: 008.04C(1) Notices of all proceedings;008.04C(2) Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from the Department of Revenue pertaining to the contested case;008.04C(3) The record of the hearing before the Tax Commissioner or his or her designee, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the Tax Commissioner or his or her designee during the proceedings, and all proffers of proof and objections and rulings thereon; and008.04C(4) The final order. 008.04D As provided in 53 NAC 4, Section 002.03, the Tax Commissioner, hearing officer, or employee of the Department of Revenue 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.008.04E Except to the extent that the Administrative Procedure Act or another statute provides otherwise, the record of the Department of Revenue shall constitute the exclusive basis for any order issued by the Tax Commissioner in contested cases under the act and for judicial review thereof.008.05 Costs All costs of a formal hearing shall be paid by the party or parties against whom a final decision is rendered.
350 Neb. Admin. Code, ch. 90, § 008