Neb. Admin. Code § 316-33-011 — Prehearing Procedures

011.01 Prehearing conferences and orders. A hearing officer designated to conduct a hearing may determine, subject to the Department’s regulations, whether a prehearing conference will be conducted. If a prehearing conference is not held, the Hearing Officer may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings. 011.01A If a prehearing conference is conducted, 011.01A(1) The Hearing Officer shall promptly notify the Department and the petitioner or claimant of the determination that a prehearing conference will be conducted. The Department may assign another Hearing Officer for the prehearing conference. 011.01A(2) The Hearing Officer for the prehearing conference shall set the time and place of the prehearing conference and give reasonable written notice to all parties and to all persons who have filed written petitions to intervene in the matter. The notice shall include the following: 011.01A(2)(a) The names and mailing addresses of all parties and other persons to whom notice is being given by the Hearing Officer; 011.01A(2)(b) The name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the Department; 011.01A(2)(c) The official docket or other reference number, the name of the proceeding, and a general description of the subject matter; 011.01A(2)(d) A statement of the time, place, and nature of the prehearing conference; 011.01A(2)(e) A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held; 011.01A(2)(f) The name, official title, and telephone number of the Hearing Officer for the prehearing conference; 011.01A(2)(g) A statement that a party who fails to attend or participate in a prehearing conference, hearing, or other stage of a contested case or who fails to make a good faith effort to comply with a prehearing order may be held in default under the Administrative Procedure Act; and 011.01A(2)(h) Any other matters that the Hearing Officer considers desirable to expedite the proceedings. 011.01A(3) The Department shall give notice to other persons entitled to notice. 011.01B The Hearing Officer may conduct a prehearing conference, as may be appropriate, to deal with such matter as: 011.01B(1) Exploring settlement possibilities; 011.01B(2) Preparing stipulations; 011.01B(3) Establishing a method and address for service of motions and pleadings for all parties, including, but not limited to electronic mail or facsimile; 011.01B(4) Clarifying issues; 011.01B(5) Rulings on identity and limiting the number of witnesses; 011.01B(6) Objections to proffers of evidence, determination of the extent to which direct evidence, rebuttal evidence, or cross-examination will be presented in written form and the extent to which telephone, television, or other electronic means will be used as a substitute for proceedings in person; 011.01B(7) Order of presentation of evidence and cross-examination; 011.01B(8) Rulings regarding issuance of subpoenas, discovery orders, and protective orders; 011.01B(9) Rulings regarding whether or not a nonlawyer may represent the petitioner under section 008.04 of these regulations; 011.01B(10) Rulings regarding whether or not the hearing will be transcribed; and 011.01B(11) Any other issues that will promote the orderly and prompt conduct of the hearing. 011.01C The Hearing Officer shall issue a prehearing order incorporating the issues determined at the prehearing conference. 011.01D The Hearing Officer may conduct all or part of the prehearing conference by telephone, television, or other electronic means if each person in the conference has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place. 011.02 Discovery in contested cases. The Nebraska Supreme Court’s rules of procedure for discovery in civil cases shall apply in contested cases before the Department. 011.02A The Hearing Officer, at the request of any party or upon the Hearing Officer’s own motion, may issue subpoenas, discovery orders, and protective orders in accordance with the rules of civil procedure except as may be otherwise prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court. 011.02B Any prehearing motion to compel discovery, motion to quash, motion for protective order, or other discovery-related motion shall: 011.02B(1) Quote the interrogatory, request, question, or subpoena at issue, or be accompanied by a copy of the interrogatory, request, subpoena or excerpt of a deposition; 011.02B(2) State the reasons supporting the motion; 011.02B(3) Be accompanied by a statement setting forth the steps or efforts made by the moving party or his or her counsel to resolve by agreement the issues raised and that agreement has not been achieved; and 011.02B(4) Be filed with the Department. The moving party must serve copies of all such motions to all parties to the contested case. 011.02C Other than as provided in subsection 011.02B(4) above, discovery materials need not be filed with the Department. 011.03 Motions. Any party may file a motion with the Hearing Officer as soon as a party becomes aware of facts requiring the motion. The motion must state a request for relief and support for the relief requested. If the consent of all parties is not obtained, a hearing on the motion may be scheduled and the parties notified. The burden will be on the party filing the motion to show good cause why the motion should be granted. Notice will be given to all parties of the ruling of the Hearing Officer on the motion. 011.03A Types of motions. Types of motions which may be made include but are not limited to: 011.03A(1) Motion for continuance. The Hearing Officer may, in his or her discretion, grant extensions of time or continuances of hearings upon the Hearing Officer’s own motion or at the timely request of any party for good cause shown. A party seeking a continuance must file a written motion for continuance which states in detail the reasons why a continuance is necessary and serve a copy of the motion on all other parties. 011.03A(1)(a) Good Cause. Good cause for an extension of time or continuance includes, but is not limited to: 011.03A(1)(a)(i) Illness of the party, legal counsel or witness; 011.03A(1)(a)(ii) A change in legal representation; or 011.03A(1)(a)(iii) Settlement negotiations are underway. 011.03A(2) Motion for dismissal. The Hearing Officer may grant a motion for dismissal for, but not limited to, the following grounds: 011.03A(2)(a) Lack of jurisdiction, including but not limited to whether the petitioner is the proper party in the proceeding, whether there was a notice of proposed deficiency determination, or whether the protest petition was filed within the statutory time limit; or 011.03A(2)(b) Upon a party being held in default under the Administrative Procedure Act for failure to attend or participate in a prehearing conference, hearing, or other stage of a contested case, or who fails to make a good faith effort to comply with a prehearing order. 011.03A(3) Motion for consolidation. Motions for consolidation may be granted in the following instances. 011.03A(3)(a) The same taxpayer has received separate notices of proposed deficiency determination relating to different taxable years or companies and has filed a separate petition for each notice. 011.03A(3)(b) Different taxpayers have received notices of deficiency determination based on the same general issues. Some examples are: 011.03A(3)(b)(i) Stockholders, as to basis of stock sold or exchanged, gain or loss on reorganization, status of dividends received; 011.03A(3)(b)(ii) Partners; 011.03A(3)(b)(iii) Affiliated corporations; 011.03A(3)(b)(iv) A husband and wife who received separate notices of proposed deficiency determination; 011.03A(3)(b)(v) Transferees; 011.03A(3)(b)(vi) A lessor and lessee; 011.03A(3)(b)(vii) Corporations involved in reorganizations; 011.03A(3)(b)(viii) Beneficiaries of estates or trusts; 011.03A(3)(b)(ix) Trusts created by the same grantor; 011.03A(3)(b)(x) Officers of a corporation as to status of salaries disallowed to the corporation as a deduction; 011.03A(3)(b)(xi) A corporation and its stockholder(s). 011.03A(3)(c) The same taxpayer has received separate notices of proposed deficiency determination regarding his or her own tax and regarding his or her liability as transferee, or has received separate proposed deficiency notices regarding his or her liability as transferee of two or more different transfers. 011.03A (3)(d) Different corporations, which have the same stockholders. 011.04 Amendments. 011.04A A petition or claim may be amended at any time before notice of the hearing is issued. In all other cases, a petitioner or claimant must request permission to amend from the Hearing Officer. 011.04B The Hearing Officer may also allow, in his or her discretion, the filing of supplemental pleadings alleging facts material to the case occurring after the original pleadings were filed. The Hearing Officer may also permit amendment of pleadings where a mistake appears or where amendment does not materially change a claim or defense. 011.05 Informal Disposition. Unless otherwise precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, dismissal, or default. (Sections 77-369, and 77-375, R.R.S. 2008, and sections 84-909, 84-909.01 and 84-913.01 to 84-913.03, R.R.S. 2008. January 30, 2010)