BEFORE THE DEPARTMENT OF REVENUE
OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On April 5, 2016, at 10:30 a.m., the Department of Revenue will hold a public hearing in the Third Floor Reception Area Conference Room of the Sam W. Mitchell Building, located at 125 North Roberts, Helena, Montana, to consider the proposed amendment of the above-stated rules. The room is most readily accessed by entering through the east doors of the building facing Sanders Street.
2. The Department of Revenue will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, advise the department of the nature of the accommodation needed no later than 5 p.m. on March 25, 2016. Contact Laurie Logan, Department of Revenue, Director's Office, P.O. Box 7701, Helena, Montana 59604-7701; telephone (406) 444-7905; fax (406) 444-3696; or e-mail firstname.lastname@example.org.
3. The rules proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
42.2.613 DEFINITIONS The following definitions apply to rules found in this subchapter.
(1) "Alternative dispute resolution (ADR)" means the option of a voluntary, confidential, and cooperative means of resolving disputes. One objective is to reduce costs and risks inherent in adjudication or litigation for either the person or other entity and the department. Alternative dispute resolution can include mediation.
(2) "Centrally assessed appraisal report" means the report that notifies the customer of their market value for their centrally assessed property each year.
(3) "Centrally assessed assessment notice" means the final report sent to the customer and local department field office notifying them of the customer's market and taxable value by jurisdiction.
(4) "Customer" means any person or other entity subject, but not limited to a tax, license fee, royalty, or permit imposed by the state of Montana or a liability for payment of a debt collected by the department.
(1) "Bad debt matters" means disputes arising from a debt owed to an agency, other than the Department of Public Health and Human Services, that have been transferred to the department for collections pursuant to 17-4-104, MCA.
(2) "Collection matters" means disputes arising from the department's collection of outstanding state taxes and any associated penalties and interest.
(5)(3) "Evidence" means documents or testimony offered during the mediation process or at a hearing. Such evidence includes but is not limited to direct or circumstantial, oral or written testimony, or real or demonstrative exhibits has the meaning given in 26-1-101, MCA.
(4) "Form APLS102F" is a document titled Notice of Referral to the Office of Dispute Resolution that is available at revenue.mt.gov for use by a person or other entity to appeal an informal review determination to the ODR.
(5) "Form CAB-8" is a document titled Request for Informal Review for Centrally Assessed Companies that is available at revenue.mt.gov for use by a centrally assessed company to appeal a first notice of tax assessment or classification.
(6) "Hearing" means a recorded, contested proceeding
with specified issues of fact or law to be heard before a hearing examiner, acting as a finder of fact, from which a decision is rendered during which the parties may offer testimony under oath with an opportunity to question the witnesses, offer exhibits, make arguments, and provide evidence.
(7) "Hearing examiner" means, within the context of the department's
Office of Dispute Resolution, either a finder of fact or mediator. When serving as a finder of fact, the "hearing examiner" performs an adjudicatory function. A hearing presided over by the finder of fact involves a proceeding addressing specific issues of fact or of law to be tried. The respective parties have the right to offer testimony and evidence, from which the finder of fact renders a decision subject to appeal. When the Office of Dispute Resolution's "hearing examiner" functions as a mediator, the mediator shall interpose between the parties with the objective of assisting them to reconcile, adjust, or settle their dispute ODR, the individual who:
(a) adjudicates or mediates a dispute between a person or other entity and the department after the dispute has proceeded beyond informal review; and
(b) has general authority to regulate the course of appeals.
(8) "Initial conference" means a conference conducted by the
Office of Dispute Resolution to review all matters pertaining to a dispute, including which course may best address a situation deemed appropriate by the parties ODR to consider the issues raised by the parties and determine whether the proceedings will be informal or formal, the necessity of discovery, and a schedule that addresses the context and needs of the particular dispute.
licensing matters" means disputes involving alcoholic beverages licenses administered by the department under authority arising from the department's administration of the Montana Alcoholic Beverage Code , (Title 16, chapters 1 through 4, and 6, MCA). Such disputes may include, but are not limited to, contested violations, denial of applications, revocations, lapses, and protests to license applications. It is understood that the Montana Administrative Procedure Act is considered controlling as to such liquor licensing matters. In addition, it is noted that some disputes with regard to such licenses do not involve the department as a party, such as protest hearings between protestors and license applicants.
(10) "Mediation" means a process by which a mediator assists opposing parties in
arriving attempting to arrive at a mutually acceptable settlement resolution of a dispute. In mediation, the mediator does not have authority to enter any decision on the merits of the issues in dispute or to impose, in any way, a settlement upon the parties. The parties control the identification of issues submitted and the type of resolution to be agreed upon. The mediator may conduct joint or separate meetings with the parties. Matters raised in mediation are privileged, private, and confidential. Mediation is voluntary. No person, other entity, or the department is required to participate in any given case except by voluntary agreement. The mediation process is informal. No record is made.
(a) The following items include matters that cannot be disclosed by either party with respect to settlement:
(i) views expressed or suggested by a party with respect to a possible settlement;
(ii) admissions made by any party;
(iii) statements made or views expressed by any party, witness, the mediator, or any other person privy to the process; or
(iv) the fact that another party did or did not indicate a willingness to accept a proposal for settlement.
(11) "Mutually agree to extend" means extending a deadline based upon mutual agreement of the parties.
(12)(11) "Notice of Referral referral to the ODR" Office of Dispute Resolution Form APLS102F" is a form used by the department and customer to refer a disputed matter to the Office of Dispute Resolution. This form is available on the department's internet homepage as stated in (1) means to file an appeal from an informal review determination with the ODR, by submitting:
(a) a completed Form APLS102F; or
(b) any other written objection.
(13)(12) "ODR" means the department's Office of Dispute Resolution (ODR)" means the department's dispute resolution office. This office handles disputes that cannot be resolved at a lower level within the department as established by 15-1-211, MCA.
(14) "Other entity" means all businesses, corporations, or similar enterprises.
(15)(13) "Party" means either the customer a person or other entity or the department.
(16)(14) "Request for Informal Review Form APLS102F informal review" is a form used by the department and the customer to record changes, appeals and issues pertaining to a particular customer. This form is available on the department's internet homepage, http://www.mt.gov/revenue. It may be used by the customer to notify the department of a dispute concerning an amount shown on a property assessment Notice or Statement of Account (SOA) for those items described in (18) means a request by a person or other entity for review of a tax assessment, adjustment, or other department determination, by submitting:
(a) a completed Form APLS101F;
(b) a completed Form CAB-8; or
(c) any other written request for review.
(17)(15) "Settlement" means a mutually agreed upon resolution of the disputed issues.
(16) "Tax matters" means disputes arising from the department's administration of state taxes.
(18) "Statement of Account (SOA)" means the first notice provided to the customer of an amount owed to the department or of a violation. It may include, but is not limited to, notice of refund reduction, tax debt, fine, or notice of a violation of the laws administered by the department. It does not include notices pertaining to inheritance taxes, estate taxes, or liquor licensing matters.
(19) "Written objections" include objections submitted through electronic media or delivered by the U.S. Postal Service, or any other generally accepted delivery service. For matters before ODR, electronic media filings must be supplemented with a hard copy document.
AUTH: 15-1-201, 15-1-211, MCA
IMP: 15-1-211, 15-1-406, 15-23-102, 15-23-107,
REASON: The department proposes amending ARM 42.2.613 to eliminate unnecessary language and be more concise. The department proposes striking terms sufficiently defined elsewhere in statute or rules and striking terms that are no longer found in the context of ARM Title 42, chapter 2, subchapter 6.
The department also proposes updating the remaining definitions for better clarity and proposes defining additional terms used in the subchapter including "bad debt matters," "collection matters," and "tax matters." The department further proposes defining three forms commonly used in the dispute resolution process and striking a repealed implementing statute.
42.2.614 PURPOSE (1) Section 15-1-211, MCA,
provides for the creation of an Office of Dispute Resolution (ODR) requires a uniform dispute review procedure and the establishment of a dispute resolution office within the department and requires a uniform dispute review process.
(2) A primary objective of the dispute resolution procedure is to make resolving a dispute
resolution as unintimidating and inexpensive with the department as accessible as possible to parties appearing before the department.
(3) The department's dispute review procedure applies to all matters administered by the department except those exempted by 15-1-211, MCA, or other applicable law
exempts noncentrally assessed property, inheritance, estate taxes, liquor licensing, and the issue of whether an employer-employee relationship existed between the person or other entity subject to the requirements of Title 15, chapter 30, part 2, MCA, or whether the employment relationship was that of an independent contractor, from the dispute resolution process. Liquor matters are handled pursuant to the Montana Administrative Procedure Act and are not subject to the department's dispute review procedure.
(2) As shown in the flow chart in (3), a
(4) The dispute resolution flowchart in (6) provides the dispute resolution procedure. A final agency decision must be issued within 180 days from the date the
APLS102F Form notice of referral to the ODR is received by the Office of Dispute Resolution as provided for in 15-1-211, MCA, unless extended by mutual consent of the parties.
(5) Section 69-8-414, MCA,
specifically requires the department to issue a final agency decision for uniform systems benefits (USB) matters within 60 days from the date the matter is submitted to ODR, rather than the 180 days provided for in 15-1-211, MCA.
(3)(6) The following flow chart flowchart shows how the process dispute resolution procedure will flow beginning with from the initial notice provided to the customer to the final agency decision:
This flowchart is being stricken:
This flowchart is being added:
AUTH: 15-1-201, 15-1-211, MCA
IMP: 15-1-211, 69-8-414, MCA
REASON: The department proposes amending ARM 42.2.614 to eliminate unnecessary language to be more concise, and to restructure the rule for better clarity. The department also proposes adding language in newly numbered (3) to clarify that liquor matters are handled pursuant to the Montana Administrative Procedure Act and are not subject to the department's dispute review procedure.
The department further proposes updating the dispute resolution flowchart in newly numbered (6) for conformity with current department practices and to make the flowchart easier to follow.
42.2.615 REFERRAL REQUIREMENTS
(1) The notification requirement of a referral to the Office of Dispute Resolution by the department is covered in 15-1-211, MCA.
(2) Referrals by the customer to the Office of Dispute Resolution
(1) Notice of referral to the ODR shall be submitted in writing and shall indicate the issues in dispute.
(3)(2) The Office of Dispute Resolution ODR shall notify the appropriate division within the department that a referral has been received.
AUTH: 15-1-201, 15-1-211, MCA
IMP: 15-1-211, MCA
REASON: The department proposes amending ARM 42.2.615 to eliminate unnecessary language and be more concise. The language proposed to be stricken from (1) provides little more than a reference to 15-1-211, MCA, which is already referenced in the implementing section of the rule.
The department further proposes incorporating the defined acronym ODR into the rule language for consistency with the other rules in ARM Title 42, chapter 2.
DISCRETION AS TO FORMALITY OF PROCEDURES (1) The department recognizes that a wide array of parties appears appear before the agency in connection department with disputes to resolve. They These disputes range from large corporations employing professional tax counsel to individuals appearing on their own behalf contesting comparatively minimal amounts of tax, violation penalties, etc. It is the intent of the agency department to accommodate all such disputes to the greatest extent possible in a manner that is deemed most appropriate for each situation. In particular, the agency seeks to conduct proceedings that are as unintimidating as possible. Persons who are not represented in disputes before the department should not feel apprehensive or dissuaded by procedural complexities, legalistic terms, or bewildering formalities.
(2) The hearing examiner, in consultation with the parties, will evaluate the circumstances and complexity of each dispute being presented and determine the most appropriate level of formality and
procedures appropriate for each dispute procedure to follow.
(2) In disputes where persons or other entities are not represented and are disputing smaller amounts of potential liability, it is understood that far less formal procedures may be used.
(3) In disputes where both parties are represented by counsel, applying rules of evidence and civil procedure as described or referred to in this chapter to provide structure to the process may be entirely warranted.
(3) To the extent the department's rules do not provide for or specify procedures, or where necessary to supplement the rules, the Montana Administrative Procedure Act, Montana Rules of Civil Procedure, Montana Uniform District Court Rules, and Montana Rules of Evidence may be utilized to the extent that they clarify fair procedures, expedite determinations, and assist in the adjudication of rights, duties, or privileges of parties.
(4) Liquor matters are handled pursuant to the Montana Administrative Procedure Act and are not subject to this rule.
AUTH: 15-1-201, 15-1-211, MCA
IMP: 15-1-211, MCA
REASON: The department proposes amending ARM 42.2.616 to eliminate unnecessary language and be more concise. The department also proposes adding language in newly numbered (2) to address an issue that has historically caused some concern regarding scheduling and case delays. For example, in complex tax matters, additional procedural requirements often become necessary.
The proposed amendments and addition of the proposed language in new (3) is intended to provide a reference to the additional processes or procedures that may need to be used to best serve all parties involved when working to resolve a disputed matter.
The department also proposes adding new (4) to make it clear that liquor matters are handled pursuant to the Montana Administrative Procedure Act and are not subject to the provisions of this rule.
The department further proposes striking unnecessary words from the rule title.
42.2.617 INITIAL CONFERENCES (1) Following the
Office of Dispute Resolution's ODR's receipt of a person's or other entity's request for appeal in any dispute, a hearing examiner assigned to the case shall schedule notice of referral to the ODR, an initial conference . The conference shall will be scheduled as soon as practicable possible.
(2) Parties may participate at the initial conference either
in person on their own behalf or through representatives, employees, or agents , as long as a requisite notice of appearance has been filed from entered by an attorney or a written authorization to represent a party power of attorney form designating representation has been submitted from any other representative by the party of record.
(2)(3) Written notice of the initial conference shall be given at least 10 days prior to the date of the initial conference unless the parties waive notice. The initial conference may be conducted by telephone, in person, or by other means agreeable to the parties with the taxpayer and/or their representative.
(3) Any issue may be settled at the initial conference, including referring the dispute to mediation if both parties agree. In the course of the conference, the hearing examiner may take any appropriate action to settle, compromise, or reduce a deficiency subject to approval by the director or the director's designee. If the dispute cannot be settled at the conference, the hearing examiner shall set a time and date for subsequent mediation or a hearing which is as mutually satisfactory as possible to all concerned.
Any discovery for the hearing may be discussed and the terms agreed upon at the initial conference At the initial conference, the hearing examiner will discuss the options for proceeding with an appeal before the ODR. The options generally entail proceeding to a decision based on a hearing, proceeding to a decision based on the record, and/or participating in mediation. The hearing examiner shall set a time and date for the mediation or hearing that is as mutually satisfactory as possible to all concerned.
(5) Once a hearing or mediation has been scheduled, the hearing examiner will coordinate with the parties to schedule other deadlines as needed, such as:
(a) discovery and exhibit exchanges;
(b) motion deadlines; and
(c) other documentation or briefing submission deadlines.
(6) If the parties and the hearing examiner agree, mediation may occur during the initial conference as set forth in ARM 42.2.618.
(7) A party may request a continuance of a scheduled matter. The party seeking the continuance shall indicate whether the request is opposed. If the request for continuance is contested, the requesting party shall provide the basis for the request.
(5)(8) A Except for centrally assessed property and industrial property, a party must exhaust their available administrative remedies , whether by mediation or a hearing decision, prior to further appealing a matter from the ODR to the next level. The parties may jointly stipulate to waiving a hearing waive a written determination by the ODR.
(6)(9) A record may not be kept of the initial conference. All such conference proceedings Specific facts and substantive matters discussed during the initial conference are considered confidential and privileged. Procedural matters discussed are not considered confidential. Any matters raised do not constitute admissions against interest of any party participating in the conference.
(7)(10) The hearing examiner conducting the initial conference shall not be the one presiding over the formal hearing if mediation occurs assigned to the matter shall preside over any hearing and issue the written determination adjudicating the matter.
(8)(11) Nothing in this rule may be construed as limiting a party's right to a hearing.
AUTH: 15-1-201, 15-1-211, MCA
IMP: 15-1-211, MCA
REASON: The department proposes amending ARM 42.2.617 to be more concise and to provide a better explanation of what takes place during the initial conference with the ODR.
The proposed amendments will add the distinction that while the procedural portion of an initial conference is not confidential, in some instances substantive subject matter may be raised during the initial conference and that portion of the conference would be considered confidential.
42.2.618 MEDIATION PROCEDURES (1) The resolution of any matter in connection with a dispute may be pursued through mediation with the agreement of all parties.
(2) Mediation may be requested and scheduled at the initial conference or at any time during the proceeding at the agreement of both parties.
If both Alternatively, if the parties and the hearing examiner agree, mediation may also occur during the initial conference with the understanding that if a resolution is not reached, the case shall be reassigned to a different hearing examiner.
(a)(3) The mediator may either be a hearing examiner from the Office of Dispute Resolution, ODR or a mediator from outside the department . The mediator and shall be chosen selected with the consent of both parties.
(b)(4) If an outside mediator is selected, the cost of the mediator shall be paid for by the "person" or "other entity" as defined in ARM 42.2.613 party requesting the outside mediator, unless the parties have agreed to some other cost-sharing provision.
(5) The mediator does not have authority to enter any decision on the merits of the issues in dispute or to impose a settlement upon the parties. The parties control the identification of the issues submitted and the type of resolution to be agreed upon.
(3)(6) It will be understood that any person appearing on behalf of a At the mediation, each party shall have the appropriate representative or access to the appropriate representative who has full settlement authority for the party they are representing.
(7) Mediation sessions are confidential settlement negotiations. All written and oral communications, negotiations, and statements made in the course of the mediation are made without compromising any party's legal position, are not discoverable, and shall be inadmissible for any purpose at any legal proceeding.
(4)(8) If mediation produces a settlement agreement the resolves the dispute, a written agreement documenting the resolution shall be prepared by the parties and if necessary, with the assistance of the mediator, if necessary. The settlement shall be signed by the parties and the mediator and it shall be filed with the director or director's designee for approval. A written agreement signed by all parties to the agreement is not confidential and may be admissible as evidence, as set forth in 26-1-813, MCA.
(5)(9) If mediation does not resolve all issues in a dispute, the parties shall prepare a stipulation that identifies the issues resolved and those that still remain in dispute. For the issues remaining unresolved, a hearing shall be scheduled the matter may proceed before a different hearing examiner unless the parties have agreed to move the remaining issues to the next level of appeal.
AUTH: 15-1-201, 15-1-211, MCA
IMP: 15-1-211, MCA
REASON: The department proposes amending ARM 42.2.618 to improve the current language in the rule and to include more detail regarding the mediation process. The language proposed in new (5) explains that the mediator does not have decision-making or settlement authority, and the proposed language in new (7) covers the confidential aspect of mediation sessions.
42.2.619 HEARING PROCEDURES (1) Except as provided
herein in this rule, hearings shall be conducted in Helena, Montana. Upon a showing of compelling circumstances by either party, the hearing examiner may order a hearing to be conducted at a location elsewhere in Montana.
(2) The location for hearings pertaining to liquor
licensing matters are governed by ARM is determined according to ARM 42.11.305 and 42.12.108, and is not subject to (1).
request by either party agreement of the parties, hearings may be telephonic conducted by telephone or video conference. Such requests will be granted unless If the hearing examiner determines that telephonic or video conference participation may unfairly prejudice the rights of any party, the hearing will be conducted in person. If, however, telephonic or video conference participation is requested approved, the hearing examiner will place the call at the designated time to whatever telephone number is the numbers provided by the person or other entity parties.
(4) Upon a showing of compelling circumstances by either party, the hearings officer may order a hearing to be conducted at a location other than Helena, Montana.
(5)(4) Notice of the time and place for a hearing shall be given to the parties concerned, or their representatives if legal authorization is on file, not less than 14 days prior to the day fixed for such proceedings.
(5) A party may request a continuance of a scheduled matter. The party seeking the continuance shall indicate whether the request is opposed. If the request for continuance is contested, the requesting party shall provide the basis for the request.
(6) A party may be represented by legal counsel at the hearing
, and/or at every at any stage of adjudication. Legal counsel must enter a notice of appearance with the department to represent a person or other entity before the hearing examiner. However, failure
(7) Failure to obtain legal representation
cannot may not be cited as grounds for complaint at a later stage in the adjudicative process or for relief on appeal from an adverse decision.
(a) Legal counsel must enter a notice of appearance.
(b) Any representative other than legal counsel must submit a written, signed statement authorizing the representative to act on the party's behalf.
(8) If a person or other entity chooses to be represented by someone other than legal counsel at the hearing or adjudication stage, the person or other entity must first submit a signed power of attorney form to the department authorizing the representative to act on the party's behalf.
(c)(9) All If a party is represented by legal counsel or another representative, all documents and information pertaining to the dispute will be directed to the party's representative. They The information may be transmitted by facsimile number fax, e-mail address, or other electronic means, if provided such transmission does not breach meets the department's confidentiality requirements. Otherwise, documents will be mailed to or served upon the representative's address as shown in the original filing.
(7)(10) Hearing proceedings shall be conducted , at all times , with due regard for the confidentiality requirements imposed by 15-30-303, 15-31-511, MCA, and any other confidentiality requirements currently set forth in Title 15, MCA, or at any future time law.
(8)(11) Testimony at hearings shall be given under oath.
AUTH: 15-1-201, 15-1-211, MCA
IMP: 15-1-211, 15-30-2618, 15-31-511, MCA
REASON: The department proposes amending ARM 42.2.619 to restructure the rule and include language providing more detail regarding the hearing process.
The proposed language in new (5) addresses continuance requests for scheduled matters, and new (8) explains the process for a person or other entity to be represented by someone other than legal counsel.
The department further proposes amending newly numbered (10) to strike the statute references regarding confidentiality and adding a reference to these statutes to the implementing section of the rule instead. One statute being stricken from this section, 15-30-303, MCA, was recodified as 15-30-2618, MCA, in 2009. Section 15-30-2618, MCA, is proposed to be added as an implementing citation to reflect this change.
42.2.620 INFORMATION OFFERED IN HEARINGS (1) The hearing examiner shall have the discretion to
impose adopt and apply rules of civil procedure and/or rules of evidence as deemed necessary. Imposition of any rules governing hearings shall be done by written order.
(2) Every party at a hearing shall have the right to introduce evidence. The evidence may be oral or written, real or demonstrative, direct or circumstantial.
(3) At the discretion of the hearing examiner, or upon stipulation of the parties, the parties may be required to reduce their testimony to writing and to
pre-file prefile the testimony.
(a)(4) Pre-filed Prefiled testimony may be placed in the record without being read into the record at a hearing if the opposing parties have had reasonable access to the testimony before it is presented.
(b)(5) If a party intends to question a witness on pre-filed prefiled testimony, that party must file a notice of intent to do so within a time frame agreed upon by the parties with consideration for affording the opposing party an opportunity to cross-examine.
(4)(6) The hearing examiner shall rule and sign orders on matters concerning the evidentiary and procedural conduct of the hearing.
(5)(7) Any party appearing at a hearing may submit a written statement addressing factual or legal issues, including cites citations of legal authority, if deemed necessary by the hearing examiner for a full and informed consideration of all matters.
(8) Liquor matters are conducted pursuant to the Montana Administrative Procedure Act and are not subject to this rule.
AUTH: 15-1-201, 15-1-211, MCA
IMP: 15-1-211, MCA
REASON: The department proposes amending ARM 42.2.620 to remove obsolete language, make grammatical corrections, and to restructure the rule for better clarity.
The department also proposes adding language in newly numbered (5) to make it clear that an opposing party is to be given consideration and the opportunity to cross-examine a witness presented by prefiled testimony.
The department further proposes adding new (8) to make it clear that liquor matters are conducted pursuant to the Montana Administrative Procedure Act and are not subject to this rule.
42.2.621 FINAL AGENCY DECISION AND APPEAL (1)
In accordance with the authority of the director as provided in 2-15-112, MCA, the director delegates the authority to issue Final Agency Decisions (FAD) to the Office of Dispute Resolution (ODR) for all matters except liquor license violations, revocations, and lapses The director retains the authority to issue a final agency decision (FAD) on all matters except those identified in (2).
(2) The director delegates to the ODR the authority to issue a FAD on liquor licensing protests, bad debt matters, tax matters, and collection matters. The delegation to issue a FAD applies only to matters referred to the ODR
and not excepted in (1).
liquor FAD issued by the director or the hearing examiner on liquor licensing protests, bad debt matters, tax matters, and collection matters may be appealed to the appropriate district court for the state of Montana as provided in 16-4-411, MCA by filing a petition for judicial review within 30 days after service of the FAD.
tax FAD issued by the hearing examiner shall on a tax matter or collection matter may be appealed to the State Tax Appeal Board (STAB) state tax appeal board as provided in 15-2-302, MCA, by filing an appeal within 30 days following receipt of the FAD.
(5) If a person or other entity receives an adverse agency decision in a tax dispute, they shall have 30 days to submit an appeal from such decision to the State Tax Appeal Board.
(6)(5) If no decision is rendered by the end of the 180-day period specified in 15-1-211, MCA, and ARM 42.2.616, the department shall issue a determination to the taxpayer. The determination shall inform them that the 180-day term has run without a decision and notify the parties that they are therefore entitled to carry their appeal forward by filing a complaint with the appropriate reviewing authority within 30 days after service of the notice. The person or other entity shall then have 30 days to file a complaint with the appropriate reviewing authority.
AUTH: 15-1-201, 15-1-211, 15-1-217, 16-1-303, MCA
IMP: 2-4-621, 2-4-623, 2-4-631, 2-15-112, 2-15-1302, 15-1-211, 15-2-302, 16-1-302, 16-4-411, MCA
REASON: The department proposes amending ARM 42.2.621 to strike unnecessary language, make grammatical corrections, and add more detail regarding the final agency decision (FAD) process. The department also proposes restructuring the rule for better clarity.
As newly arranged, the rule is proposed to begin by setting forth in (1) that the director has the authority to issue a FAD on all matters except where the director has delegated that authority to the ODR in (2). Sections (3) and (4) set forth the appeal options for different matters, and newly numbered (5) sets forth what shall occur if the department fails to render a decision on a matter within the number of days specified in statute.
4. Concerned persons may submit their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to: Laurie Logan, Department of Revenue, Director's Office, P.O. Box 7701, Helena, Montana 59604-7701; telephone (406) 444-7905; fax (406) 444-3696; or e-mail email@example.com and must be received no later than April 19, 2016.
5. Laurie Logan, Department of Revenue, Director's Office, has been designated to preside over and conduct this hearing.
6. The Department of Revenue maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name and e-mail or mailing address of the person to receive notices and specifies that the person wishes to receive notice regarding a particular subject matter or matters. Notices will be sent by e-mail unless a mailing preference is noted in the request. A written request may be mailed or delivered to the person in 4 above or faxed to the office at (406) 444-3696, or may be made by completing a request form at any rules hearing held by the Department of Revenue.
7. An electronic copy of this notice is available on the department's web site at revenue.mt.gov/rules. The department strives to make the electronic copy of this notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. While the department also strives to keep its web site accessible at all times, in some instances it may be temporarily unavailable due to system maintenance or technical problems.
8. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
9. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses. Documentation of this determination is available at revenue.mt.gov/rules or upon request from the person in 4.
/s/ Laurie Logan /s/ Mike Kadas
Laurie Logan Mike Kadas
Rule Reviewer Director of Revenue
Certified to the Secretary of State February 22, 2016