316 NAC 33-007. HEARING OFFICER

REG-33-007 HEARING OFFICER 007.01 The Tax Commissioner has the authority to delegate to a Hearing Officer or hearing officers the functions of conducting a prehearing conference and/or a hearing and submitting a recommended decision to the Tax Commissioner. 007.02 A person who has served as an investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as a Hearing Officer or assist or advise a Hearing Officer in the same proceeding except as provided in subsection 007.04. 007.03 A person who is subject to the authority, direction, or discretion of one who has served as an investigator, prosecutor, or advocate in a contested case or in its prehearing stage may not serve as a Hearing Officer or advise a Hearing Officer in the same proceeding except as provided in subsection 007.04. 007.04 If all parties consent, a person who has served as, or who is subject to the authority, direction, or discretion of one who has served as investigator, prosecutor, or advocate in a contested case or in its prehearing stage may assist a Hearing Officer in the preparation of orders. 007.05 A person who has participated in a determination of probable cause or other equivalent preliminary determination in a contested case may serve as a Hearing Officer or assist or advise a Hearing Officer in the same proceeding. 007.06 A person may continue to serve as a Hearing Officer at successive stages of the same contested case. 007.07 Powers and duties. The Hearing Officer has the duty to conduct full, fair and impartial hearings, to take appropriate action to avoid unnecessary delay in the disposition of the proceeding, and to maintain order. He or she shall have the following powers: 007.07A To administer oaths and affirmations; 007.07B To issue subpoenas as authorized; 007.07C To compel discovery and to impose appropriate sanctions for failure to make discovery; 007.07D To rule upon offers of proof and receive relevant, competent, and probative evidence; 007.07E To regulate the course of the proceedings in the conduct of the parties and their representatives; 007.07F To hold prehearing conferences for simplification of the issues, order of hearing, settlement of the contested case, or any other proper purposes; 007.07G To consider and rule orally or in writing, upon all procedural and other motions appropriate in adjudicative proceedings; 007.07H To fix the time for holding the record open for additional evidence or for submission of briefs; 007.07I To exclude people from the hearing; 007.07J To issue recommended decisions, rulings, and orders, as appropriate; and 007.07K To order any other action consistent with the purpose of the law. 007.08 If the parties agree and the circumstances of the case permit it, the Hearing Officer may order that the hearing be recorded electronically and without a transcriber. (Sections 77-366 and 77-375, R.R.S. 2009, and sections 84-909, 84-909.01, and 84-913 through 84-913.04, R.R.S. 2008. January 30, 2010) REG 33-008 REPRESENTATION 008.01 In general. Representation before the Tax Commissioner is governed by the applicable statutes and the decisions of the Nebraska Supreme Court. 008.02 Power of attorney. Any person appearing on behalf of a taxpayer as his or her duly authorized representative with regard to any of the laws or programs administered, enforced, or supervised by the Department or the Tax Commissioner must have on file with the Department a Power of Attorney, Form 33, or its legal equivalent. Once a Power of Attorney, Form 33, or its legal equivalent, has been filed with the Department, the Tax Commissioner will presume that it is valid until written notice of its revocation is served. 008.03 Appearances. When the practice of law arises in the resolution of a contested case, only the following individuals shall be allowed to appear on behalf of the petitioner. 008.03A A petitioner, claimant, or respondent who is an individual may appear on his or her own behalf. 008.03B An individual may appear on behalf of the petitioner, claimant, or respondent if the individual is admitted to practice law before the Nebraska Supreme Court. 008.03C An individual admitted to practice law in another United States jurisdiction may appear on behalf of the petitioner, claimant, or respondent provided the individual: 008.03C(1) Has not been disbarred or suspended from practice in any jurisdiction; 008.03C(2) Has undertaken an association with an attorney who is admitted to practice law before the Nebraska Supreme Court, who actively participates in the contested case, and who shares responsibility for the representation of the petitioner; and 008.03C(3) Files a motion with the Hearing Officer requesting he or she be allowed to appear on behalf of the petitioner Pro hac vice. 008.04 Nonlawyers. A nonlawyer may be allowed to appear in a limited representative capacity subject to the following. 008.04A A nonlawyer who is an officer of the party or an employee, provided a Power of Attorney, Form 33, or its legal equivalent is on file for the employee, may represent the party, if all of the following conditions are met. 008.04A(1) The nonlawyer officer or employee is specifically authorized by the party to appear before the Department on its behalf; 008.04A(2) This representation is not the nonlawyer officer’s or employee’s primary duty to the employer, but is secondary to other duties relating to the management or operation of the petitioner, claimant, or respondent; 008.04A(3) The nonlawyer officer or employee does not receive separate or additional compensation (other than reimbursement for costs) for this representation; 008.04A(4) The representation does not involve a claim that the Department’s action is illegal as a matter of law or unconstitutional; 008.04A(5) The representation does not require the knowledge, judgment, or skill of a lawyer, or the preparation of legal briefs, or does not require the practice of law; and 008.04A(6) The Nebraska Evidence Rules applicable in the district courts do not apply to the contested case. 008.04B A certified public accountant who is not an employee or officer of the petitioner, claimant, or respondent may represent the petitioner if all of the following conditions are met. 008.04B(1) The representation does not involve a claim that the Department’s action is illegal as a matter of law or unconstitutional; 008.04B(2) The representation does not require the knowledge, judgment, or skill of a lawyer, or the preparation of legal briefs, or does not require the practice of law; and 008.04B(3) The Nebraska Evidence Rules as applicable in the district courts do not apply to the contested case. (Sections 77-369, 77-2711, and 77-27,119, R.R.S. 2009, and sections 84-909 and 84-909.01, R.R.S. 2008. January 30, 2010)