Neb. Admin. Code § 316-33-002 — Claims for Refund

002.01 These rules shall be followed when filing a claim for refund. 002.01A Content. The following information shall be supplied by a claimant filing a claim with the Tax Commissioner. The claim shall: 002.01A(1) Identify the claimant; 002.01A(2) State all material factual allegations; 002.01A(3) Demand the amount of tax or fee requested by the claimant; 002.01A(4) Be in writing and signed by or on behalf of the claimant; 002.01A(5) Include a request for hearing if one is desired; and 002.01A(6) In the case of a claim for a refund of Nebraska sales and consumer’s use taxes paid for a pollution control facility under the Air and Water Pollution Control Tax Refund Act, the claim must be accompanied by the items outlined in Reg 1-084. 002.01A(7) All claims shall be made on white, letter sized (8½ x 11) paper and shall be legibly typewritten, photostatically reproduced, printed or handwritten. If handwritten, a claim must be written in ink. 002.01A(8) All claims shall be filed with the Department at its office. Filing may be accomplished by personal delivery or mail and will be received during regular office hours of the Department. 002.01B Filing date. A claim is considered filed with the Tax Commissioner on the date that it is received by the Tax Commissioner, or if delivered by United States mail, the claim is considered filed with the Tax Commissioner on the date of the postmark of the United States post office stamped on the envelope. Postmarks made by other than the United States post office will not be accepted as evidence of the filing date of any claim received after the due date. When the last day for filing falls on Saturday, Sunday, or an approved holiday, the claim will be considered timely if received or postmarked on the next succeeding day which is not a Saturday, Sunday, or an approved holiday. The period fixed by statute within which to file a claim cannot be extended. 002.01B(1) Sales and use tax, lodging tax, and litter fee. A claim for refund of sales and use tax, lodging tax, or litter fee must be filed with the Tax Commissioner by the person who made the overpayment or his or her attorney, executor, or administrator within three years from the last day of the month following the close of the period for which the overpayment was made, within six months after any determination became final under the provisions of the Nebraska Revenue Act of 1967, or within six months from the date of overpayment with respect to such determinations, whichever of these three periods expires latest unless the claim relates to a period for which a waiver has been given. 002.01B(2) Sales or use tax under the Air and Water Pollution Control Tax Refund Act. A claim for refund of sales or use tax under the Air and Water Pollution Control Tax Refund Act must be filed with the Tax Commissioner within three years from the date of payment of the applicable sales or use tax. See Reg 1-084. 002.01B(3) Income tax. 002.01B(3)(a) A claim for refund of income tax must be submitted on the appropriate original or amended income tax return for the taxable year(s) involved and shall be filed with the Tax Commissioner within three years from the time the original return was filed, or within two years from the date of payment of the tax, whichever is later, unless one of the following applies. 002.01B(3)(a)(i) If the amount of the claimant’s federal adjusted gross income, taxable income or tax liability reported on his or her federal income return, for any taxable year was changed or corrected by the Internal Revenue Service, or if the claimant was required to report a change or correction which is treated as if it were an overpayment for federal income tax purposes, or if the claimant was required to file an amended return with the Tax Commissioner, a claim for any overpayment of tax resulting from such change shall be filed within two years from the time the notice of such change or correction or such amended return was required to be filed with the Tax Commissioner. See Reg 22-015.07, Reg 23-010.05 and Reg 24-046.06; or 002.01B(3)(a)(ii) If the claimant was required to report a change or correction in the amount of income taxable or tax credit allowable in one or more states and such changes or corrections result in an overpayment of tax when reflected in the return filed under the Nebraska Revenue Act of 1967, a claim resulting from such change shall be filed by the claimant within two years from the time the notice of such change or correction or such amended return was required to be filed with the Tax Commissioner or ten years from the due date of the return, whichever is earliest. See Reg 22-018.07, Reg 23-014.07 and Reg 24-063.06. 002.01B(3)(b) Any return filed before the last day prescribed by statute for filing the return determined without regard to any extension, shall be considered as filed on such last day. 002.01B(3)(c) If an agreement for an extension of an assessment period was signed by the parties within the time otherwise allowed for claims, the written claims must be filed within six months after the expiration of the agreement or within the time otherwise provided above, whichever is later. An agreement between the taxpayer and the Internal Revenue Service providing for the extension of the period for the mailing of a notice of deficiency of federal income taxes shall constitute an agreement with the Tax Commissioner to extend the period for filing claims through six months after the ending date shown on the federal agreement. A copy of all such agreements and extensions shall be filed with the Tax Commissioner within 30 days after their execution. 002.01B(4) Financial institution franchise tax. A claim for refund of the franchise tax on financial institutions must be filed within 90 days after the date on which: 002.01B(4)(a) The tax was due or was paid, whichever is later; or 002.01B(4)(b) A change was made to the amount of deposits or the net financial income of the financial institution by a state or federal regulatory agency. 002.01B(5) Petroleum release remedial action fee. A claim for credit or refund of the petroleum release remedial action fee must be filed with the Tax Commissioner within three years after the date of payment of the fee. See Reg 73-008. 002.01B(6) Aircraft fuels tax. A claim for refund of aircraft fuels tax where the aircraft fuels were purchased and consumed in connection with flying instruction conducted by an air school approved by the Federal Aviation Administration (FAA) must be filed with the Tax Commissioner within seven months after the date of purchase or invoice. See Reg 73-008. 002.01B(7) Estate and generation-skipping transfer tax. A claim for refund of estate or generation-skipping transfer tax must be filed with the Tax Commissioner within four years after the date of such overpayment or within one year of a change in the amount of federal tax due, whichever is later. 002.01B(8) Motor fuels tax. A claim for credit or refund of motor fuels tax must be filed with the Tax Commissioner within three years after the date of payment of the tax. See Reg 73-008. 002.01B(9) Documentary stamp tax and other taxes where Nebraska statutes do not provide for claims. A claim for credit or refund of documentary stamp tax or any other tax where Nebraska statutes do not provide for a claim must be filed with the Tax Commissioner within two years after the date of payment of the tax. 002.01B(10) Bingo tax, lottery by the sale of pickle cards tax, lottery/raffle tax, and county/city lottery tax. A claim for refund of bingo tax, lottery by the sale of pickle cards tax, lottery/raffle tax, or county/city lottery tax must be filed with the Tax Commissioner by the person who made the overpayment or his or her attorney, executor, or administrator within three years after the last day of the month following the close of the period for which the overpayment was made, within six months after any determination of tax became final under the provisions of the Nebraska Revenue Act of 1967, or within six months after the date of overpayment with respect to such determinations, whichever of these three periods expires latest unless the credit relates to a period for which a waiver has been given. 002.02 Limitation. The Department will not accept a claim for refund of a taxpayer’s overpayment of tax under any program administered by the Department when the amount is less than $2.00. 002.03 Request for hearing. A claim shall not be presumed to be a request for a hearing. Unless the claim is approved in full by the Tax Commissioner, the Tax Commissioner shall grant a petitioner an opportunity for a hearing if requested in writing by the claimant. 002.03A Income tax. In the case of a claim for refund of income tax, the request for hearing must be made when the claim is filed. 002.03B For all other claims, the request for a hearing must be made when the claim is filed or prior to the Department taking any action on the claim. 002.03C Sales and use tax, lodging tax, and litter fee. After the claim is filed, the Tax Commissioner shall allow or disallow a claim within 180 days. A written request for a hearing shall be deemed a waiver of the 180 day period. The claimant and the Tax Commissioner may also agree to extend the 180 day period. 002.04 Commencement of a contested case. Unless the claim is approved in full by the Tax Commissioner, a claim becomes a contested case if the taxpayer makes a request in writing for a hearing. 002.05 The payment of a claim for refund, the allowance of a credit, or the application of a refund to an existing balance, in whole or in part, shall be considered a final decision of the Tax Commissioner for purposes of the Administrative Procedure Act. 002.06 The denial of a claim, in whole or in part, shall be considered a final action of the Tax Commissioner and may be appealed in accordance with the Administrative Procedure Act for all tax programs except for the estate and generation-skipping transfer tax. (Sections 3-151, 9-239, 9-240, 9-344, 9-429, and 9-648, R.R.S. 2007, sections 66-498, 77-369, 76-908, 77-1777, 77-1778, 77-1779, 77-1780, 77-2106.01, 77-2610, 77-2708(2), 77-2711(1)(a), 77-2775, 77-2793, 77-2794, 77-2795, 77-27,119, 77-27,150, 77-27,154, and 77-3806, R.R.S. 2009, and sections 81-1260, 81-1559, 84-909(1), and 84-909.01, R.R.S. 2008. January 30, 2010)