Neb. Admin. Code § 316-33-004 — Proceedings Initiated by the Nebraska Department of Revenue

004.01 The Department may initiate a proceeding against a person who has failed to comply with the tax laws that are administered by the Department. 004.02 Revocation of a Sales and Use Tax Permit, Lodging Tax Permit, Litter Fee License, or Mechanical Amusement Device License. Whenever the holder of a sales and use tax permit, lodging tax permit, litter fee license, or mechanical amusement device license fails to comply with any provision of the sales and use tax portion of the Revenue Act, the Nebraska Visitor's Development Act, the Nebraska Litter Reduction and Recycling Act, or the Mechanical Amusement Device Tax Act, or with any rule or regulation of the Department with regard to these acts, the Department may initiate a hearing to require the permitholder or licensee to show cause why his or her permit or license should not be revoked. 004.02A The Department must give the permitholder or licensee at least 20 days' notice prior to the show cause hearing. The notice shall be in writing, specifying the time and place of the hearing, and shall be sent by mail. 004.02B The Tax Commissioner or any Hearing Officer designated by the Tax Commissioner, may examine any books, papers, or memoranda bearing upon the matter at issue and require the attendance of any permitholder, licensee, or employee of the permitholder or licensee having knowledge pertinent to the issue. 004.02C The Tax Commissioner shall make a final decision or determination within a reasonable time after the hearing and notify the permitholder or licensee of the decision or determination by mail. 004.03 Suspension or Revocation of a License to Transport Unstamped Cigarettes, License to Sell Tobacco, Tobacco Products Tax Act License, Wholesale Cigarette Dealer's Permit or Discount Privileges. The Tax Commissioner may revoke or suspend the license, permit or discount privileges granted under Neb. Rev. Stat. §§ 28-1420 to 28-1429, or Neb. Rev. Stat. §§ 77-2601 to 77-2622, of any person who violates any of the provisions of Neb. Rev. Stat. §§ 77-2601 through 77-2622, any stamping agent who violates any provisions of Neb. Rev. Stat. § 69-2706(3), or any rules and regulations adopted by the Department, including failure to timely file the required reports by giving notice by mail, to the licensee. The Tax Commissioner may revoke, cancel, or suspend any license for a violation of the Tobacco Products Tax Act or any rule or regulation adopted and promulgated by the Tax Commissioner in administering the act by giving notice by mail, to the licensee. 004.04 Notice of Proposed Deficiency of Tobacco Products Tax. If, after examination of any tobacco products tax return, the Tax Commissioner finds that the return is incorrect, and any amount of tax due from the tobacco products tax licensee is unpaid, the Tax Commissioner shall notify the licensee, by mail, of the proposed deficiency. 004.05 Procedures. The following procedures apply to suspension or revocation of any of the licenses mentioned in Reg 004.03 or a notice of proposed deficiency of tobacco products tax as mentioned in Reg 004.04. 004.05A The permitholder or licensee may file a written petition with the Department within 20 days after receipt of the notice of intent to cancel, revoke or suspend or within 20 days after the receipt of the notice of proposed deficiency requesting an oral hearing. The form, content, and service of the petition shall be similar to that found in subsection 33-003.01A and 33-003.01B of these regulations. 004.05B At the hearing, the Tax Commissioner, or any Hearing Officer designated by the Tax Commissioner, may examine any books, papers, or memoranda bearing upon the matter at issue and require the attendance of any permitholder or licensee or any officer or employee of the permitholder or licensee having knowledge pertinent to the issue. 004.05C During the hearing, the Tax Commissioner or his or her designee, shall not be bound by the rules of evidence, and no informality in any proceeding or in the manner of taking testimony shall invalidate any order or decision made or approved by the Tax Commissioner. 004.05D The Tax Commissioner shall make a final decision or final determination within a reasonable time after the hearing and notify the permitholder or licensee by mail of the decision or determination. 004.06 Collection of Delinquent Taxes from a Responsible Corporate Officer or Employee, or any Member, Manager, or Employee of a Limited Liability Company. Any corporate officer or employee, or any member, manager, or employee of a limited liability company, with the duty to collect, account for, or pay over any taxes imposed upon a corporation or limited liability company or with the authority to decide whether the corporation or limited liability company will pay taxes imposed upon a corporation or limited liability company, shall be personally liable for the payment of taxes in the event of willful failure on his or her part to have a corporation or limited liability company perform this act. 004.06A Before collection from a responsible corporate officer or employee or a member, manager, or employee of a limited liability company, a written notice and demand for payment must be mailed to the responsible corporate officer or employee, or the member, manager, or employee of the limited liability company by mail. 004.06B Any corporate officer or employee, or a member, manager or employee may challenge the Tax Commissioner's determination by filing a petition for the redetermination of the corporate officer's or employees, or a member's, manager's, or employee's personal liability, the amount of the corporation's or limited liability company's unpaid taxes or both within 60 days following the date the notice and demand for payment was mailed. If a petition for redetermination is not filed within the 60-day period, the determination becomes final. 004.06C If the Department determines that further delay in collection of the delinquent taxes from the corporate officer or employee, or the member, manager, or employee of a limited liability company will jeopardize collection proceedings, nothing in this regulation will prevent the immediate collection of the taxes. 004.07 The Department may initiate a proceeding against a person who has failed to comply with the provisions of the Charitable Gaming Law or any regulations adopted pursuant to these acts. 004.07A Whenever the holder of a license or permit under the Charitable Gaming Law fails to comply with any provision of the Charitable Gaming Law or any regulation adopted pursuant to these acts, the Department may suspend, cancel, or revoke for cause all rights and privileges granted to a licensee or permitholder. 004.07B Order of Suspension. 004.07B(1) The Tax Commissioner may enter an order of suspension to a permitholder or licensee if the Department determines that the permitholder or licensee is in noncompliance with the provisions of the Charitable Gaming Law, or regulations adopted pursuant to these acts. 004.07B(2) Before any license or permit is suspended prior to a hearing, notice of an order to suspend a license or permit must be mailed to or personally served upon the permitholder or licensee at least 15 days before the order of suspension takes effect. The order of suspension must be in writing and be personally served or sent by mail. 004.07B(3) No suspension shall be issued prior to a hearing to any nonprofit organization or any volunteer fire company or volunteer first-aid, rescue, ambulance, or emergency squad licensed to conduct a lottery by sale of pickle cards pursuant to Neb. Rev. Stat § 9-326 of the Nebraska Pickle Card Lottery Act or any person licensed pursuant to the Nebraska County and City Lottery Act. 004.07B(4) An order of suspension pursuant to subdivisions 004.07B (1) and (2) may be issued when an action for suspension, cancellation, or revocation is pending. 004.07B(5) The permitholder or licensee may file a written petition with the Department within 15 days after the date the order of suspension was mailed, requesting reconsideration of the suspension. 004.07B(6) The form, content, and service of the petition shall be similar to that found in subsection 33-003.01A and 33-001B of these regulations, except that the petitioner may request that the hearing for suspension be held after 20 days from when the suspension takes effect. 004.07B(7) A hearing for suspension shall be held within 20 days of the date the suspension takes effect whether or not a permitholder or licensee files a petition for reconsideration of the suspension except that a request by the licensee or permitholder to hold the hearing after the end of the 20-day period shall extend the suspension up to the time of hearing. Any request must be contained in the petition. 004.07B(8) The Department shall serve notice upon the permitholder or licensee by mail, of the time, date, and place of a hearing at least ten days before the hearing is to be held. 004.07B(9) At the redetermination hearing, the permitholder or licensee may present evidence that the violations for which the suspension has been imposed have been corrected and that the licensee is currently in compliance with the law. Upon this showing, the Tax Commissioner may lift the suspension. 004.07B(10) The decision of the Department shall be made within 20 days after the conclusion of the hearing. The suspension shall continue in effect until the decision is issued. If the decision is that an order of suspension, revocation, or cancellation is not appropriate, the suspension shall terminate immediately by order of the Tax Commissioner. If the decision is an order for the suspension, revocation, or cancellation of the license or permit, the suspension shall continue pending an appeal of the decision of the Department. 004.07C Suspension, Cancellation, or Revocation of a License or Permit. 004.07C(1) Cause for suspension, cancellation, or revocation. Cause shall generally mean any noncompliance with the provisions of the Charitable Gaming Law, or any regulation adopted pursuant to these acts. 004.07C(2) Notice of suspension, cancellation, or revocation proceeding shall be served upon the licensee or permitholder by personal service or mail, at least ten days prior to the hearing. This notice shall inform the licensee of the time, date, and place of hearing. 004.07C(3) The procedures for suspension, cancellation, or revocation of a license or permit shall be considered separate from an order of suspension under subsection 004.07B. 004.08 Cease and Desist Orders . The Department may issue a cease and desist order to any person, permitholder or licensee under the Charitable Gaming Law if the Department determines that a practice engaged in by the person, permitholder or licensee is not in compliance with the acts or regulations adopted pursuant to these acts. This order shall take effect upon issuance by the Department. 004.08A Cease and desist orders shall contain: 004.08A(1) A statement of the violation of the Charitable Gaming Law constituting the reasons for the entry of an order; 004.08A(2) A statement of the practice or practices engaged in by the person, permitholder or licensee which are to be discontinued; and 004.08A(3) A statement of the rights of the person, permitholder or licensee to request a hearing for review of the cease and desist order entered by the Tax Commissioner. 004.08B The notice of order shall be in writing and personally served or mailed to the person, permitholder or licensee. If the notice of order is mailed, the date the notice was mailed is the date of service of notice to the person, permitholder, or licensee. 004.08C The person, permitholder, or licensee receiving a cease and desist order may file a petition requesting reconsideration of such order. 004.08D The form, content, and service of the petition shall be similar to that found in subsection 33-003.01A and 33-003.01B of these regulations. 004.08E A petition for reconsideration by the person, permitholder or licensee shall be made in writing and filed with the Department within 30 days after service of the cease and desist order. If the notice of order is mailed, the date the notice is mailed shall be deemed to be the date of service. If a request for hearing is not filed within the 30-day period, the cease and desist order becomes permanent at the expiration of this period. 004.08F If a hearing is requested, the hearing shall be held within 30 days after the request for hearing is received by the Department. 004.08G Within 20 days of the date of the hearing, the Tax Commissioner shall issue an order vacating the order or making it permanent as the facts require. 004.08H The person, permitholder, or licensee receiving a cease and desist order shall be deemed to be in default if he or she fails to appear at the hearing and the allegations contained in the order shall be deemed to be true. 004.08I A cease and desist order issued to a person, permitholder, or licensee shall not affect the validity of the license or permit held by the person, permitholder, or licensee and shall only affect the practice or practices alleged to be in violation of the Charitable Gaming Law. 004.09 Administrative Fines . The Department may institute a proceeding to levy an administrative fine against any person, permitholder, or licensee for violations of the Charitable Gaming Law and any regulations adopted pursuant to these acts. 004.09A The notice of a proceeding to levy an administrative fine shall be served upon the person, licensee, or permitholder, by personal service or mail, at least ten days prior to the proceeding. The notice shall inform the alleged violator of the time, date, and place of hearing. 004.09B For every violation of the Charitable Gaming Law or any regulation adopted pursuant to these acts, the Tax Commissioner may impose the maximum fine authorized by law. Each violation may be the subject of a fine. 004.09C Any administrative fines levied pursuant to the Charitable Gaming Law and regulations adopted pursuant to these acts shall be subject to all collection measures available to the Department on behalf of the State. 004.10 The administrative remedies provided in sections 004.07 through 004.09 of these regulations, are not exclusive and may be imposed in combination as the result of a single proceeding. For example, a cease and desist order may also be accompanied by a proceeding to levy an administrative fine. (Neb. Rev. Stat. §§ 9-226, 9-226.01, 9-226.02, 9-228, 9-229, 9-322, 9-322.01, 9-322.02, 9-418.01, 9-418.02, 9-419, 9-420, 9-421, 9-620, 9-621, 9-622, 9-623, 77-1783.01, 21-2612, 77-2615.01, 77-2622, 77-2705, 77-27,111, 77-27,118, 77-27,135, 77-3003, 77-4001 through 77-4025, 81-1560.01, and 81-3722, and Jones v. State , 248 Neb. 158, 532 N.W.2d 636 [1995] November 17, 2013.)