802 KAR 1:010. Hearing procedures.

 

      RELATES TO: KRS Chapter 13B, 131.340,

131.355, 131.365, 131.370, 133.130(10)

      STATUTORY AUTHORITY: KRS 13B.170, 131.

340(1)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS

13B.170 authorizes the Kentucky Board of Tax Appeals to promulgate administrative

regulations that are necessary to carry out the provisions of KRS Chapter 13B

to establish procedures for appeals to the Kentucky Board of Tax Appeals. This

administrative regulation supplements the provisions of KRS 131.310 through

131.370, 133.120(10) and Chapter 13B.

 

      Section 1. Definition. "Board"

means Kentucky Board of Tax Appeals.

 

      Section 2. Formal Administrative

Hearings. In accordance with KRS 131.340 and Chapter 13B, an aggrieved party may

petition the board for a formal hearing in accordance with KRS Chapter 13B.

      (1) A petition shall:

      (a) Be in writing;

      (b) Be signed by the petitioner;

      (c) Be styled "Petition of Appeal";

      (d) Be filed in person or mailed by

certified mail, return receipt requested, to the Kentucky Board of Tax Appeals

and received by the board within thirty (30) days of the date of issuance of

the final ruling, order, or determination of the agency of state or county

government that is the subject of the appeal; and

      (e) Contain a statement of all relevant

issues of fact and law.

      (2) Filing by facsimile or other

electronic means shall not be accepted.

      (3) The appealing party shall file:

      (a) An original and four (4) copies of

the Petition of Appeal; and

      (b) Five (5) copies of the county board of

assessment’s final ruling, order, or determination.

      (3) If a party who appeals fails to

comply with any part of subsections (1), (2), (3), or (4) of this section, the

board or the hearing officer may:

      (a) Dismiss the appeal for failure to

comply; or

      (b) If the appeal is timely filed, notify

the appealing party of deficiencies and allow the appealing party fifteen (15)

days to amend the petition.

      (5) Upon receiving a Petition of Appeal,

the Kentucky Board of Tax Appeals shall provide notice to the appellee that a

Petition of Appeal has been filed. The appellee or his attorney shall file an

entry of appearance within thirty (30) days of the date of the notice.

 

      Section 3. Representation in Proceedings

Before the Board. (1) If the appeal is by an individual, the individual whose

tax liability is at issue shall appear and represent himself of herself or

engage legal counsel to provide representation.

      (2) An individual who is not an attorney

shall not be permitted to represent any other individual or legal entity who is

a party to an appeal.

      (3) In accordance with Supreme Court Rule

3.020, if the appealing party is a corporation, joint venture, partnership,

LLC, estate, or any entity other than an individual as identified in Section

3(1) of this administrative regulation, the entity shall be represented by an

attorney on all matters before the board, including the filing of the Petition

of Appeal.

      (4) An attorney admitted to practice in

another state, but not in the Commonwealth of Kentucky, shall be permitted to

represent a party before the board if the attorney complies with Supreme Court

Rule 3.030(2).

 

      Section 4. Discovery. (1) Discovery may

be obtained without prior order of the board or hearing officer pursuant to

Kentucky Rules of Civil Procedure 30, 31, 33, 34, and 36, as amended.

      (2) The board or hearing officer may

deny, limit, or require discovery.

      (3) Sanctions. If a party fails to obey

an order regarding discovery, the board or hearing officer may order that the:

      (a) Matters that the requesting party was

seeking to establish through discovery shall be taken as having been

established for the purposes of the hearing;

      (b) Noncomplying party shall be

prohibited from introducing related documents or testimony at the hearing; or

      (c) Appeal be dismissed or relief be

granted as requested by the opposing party.

      (4) A response to discovery under

subsection (1) of this section shall not be filed with the board unless

required by an order of the board or hearing officer.

 

      Section 5. Subpoenas. Upon good cause

shown, the board or hearing officer shall issue a subpoena to any party upon

request, provided that the request for subpoena shall be received by the board

or hearing officer at least sixty (60) days prior to the hearing.

 

      Section 6. Prehearing Filings. At least

thirty (30) days prior to the hearing, a party shall file with the board or

hearing officer the following:

      (1) An original and four (4) copies of a

prehearing summary that contains the following:

      (a) A summary of the party’s position on

any issue of fact in dispute;

      (b) A summary of the party’s position on

any issue of law raised by the appeal;

      (c) A written statement of facts to which

the party agrees and any facts which a party does not dispute;

      (d) A list of the names, addresses, and

phone numbers (if known) of all witnesses which the party expects to call to

testify as a witness at the hearing; and

      (e) A copy of all exhibits which the

party intends to introduce at the hearing;

      (2) Proposed findings of fact and

conclusions of law; and

      (3) A proposed final order if the appeal

is heard by the board, or a proposed recommended order if the appeal is heard

by a hearing officer.

 

      Section 7. Briefs. (1) A party shall file

with the board or hearing officer any brief required by order of the board or

hearing officer. If the board or hearing officer has not issued an order pertaining

to briefs, then a party may file an original and four (4) copies of a brief.

      (2) The board or hearing officer may

require a party to file a post-hearing brief or to supplement at any time a

brief already filed, to assist in adjudicating the hearing

      (3) A brief shall be typewritten or hand

printed. A photocopy shall be accepted. A copy of a brief shall be clearly

legible and double spaced, except for quotations, on paper eight and one-half

(81/2) inches wide and eleven (11) inches long, with margins of not less than

one (1) inch and a font size of not less than twelve (12) point. A brief shall

include a copy of any legal authority relied upon in the brief, unless this

requirement is specifically waived by the board or hearing officer.

 

      Section 8. Motions, Responsive Pleadings,

and Time Computation. (1) A party shall file an original and four (4) copies of

all pleadings or motions with the board or hearing officer.

      (2) Any other party affected by a motion

or pleading may file an original and four (4) copies of a response to the

motion or pleading within fifteen (15) days from the date on which the motion

or pleading was originally served upon all parties to the appeal.

      (3) A moving party may file an original

and four (4) copies of a reply to another party’s response within fifteen (15) days

from the date the response was served. No other replies or responses shall be

filed, unless prior approval is granted by the board or hearing officer.

 

      Section 9. Notice of Motions and

Pleadings. Any party who files a motion or pleading shall serve all other

parties to the appeal a copy of the motion or pleading. A motion or pleading shall

be accompanied by a certification that a copy has been served on each

interested party.

 

      Section 10. Summary Disposition. At any

time after a proceeding has begun, a party may move for a summary disposition

of the whole or a part of the proceeding, in which event the following procedure

shall apply.

      (1) The moving party shall assert that

there are no disputed material facts as to one or more of the issues before the

board or hearing officer. The moving party shall include in its motion a

statement specifying which material facts are undisputed. A material undisputed

fact may be submitted to the board or hearing officer through affidavits or

responses made by another party to any discovery request, including answers to

interrogatories, admissions, and depositions. Facts stated in the original

petition or appeal, as well as any documents or exhibits attached to the petition,

may be relied upon as undisputed material facts by the appellee.

      (2) The moving party shall state that any

issue before the board or hearing officer for which summary disposition is

sought is a matter of legal, and not factual, interpretation. The moving party

shall submit a copy of any legal authority which supports the moving party’s

position on any legal issue before the board or hearing officer.

      (3) Within twenty (20) days after a party

moves for summary disposition and complies with the requirements set forth in

Section 9(1) and (2) of this administrative regulation, any other party may submit

to the board or hearing officer:

      (a) An acknowledgment that there are no

disputed material facts or any affidavit or response to discovery that shows

the material facts to be in dispute; and

      (b) All legal authorities which support

the opposing party’s position on any legal issue.

      (4) Failure of a nonmoving party to

respond within twenty (20) days to the motion for summary disposition or to

request additional time to respond to the motion, shall result in the board or

hearing officer assuming there are no factual issues before it to be considered

in deciding the legal issues. If the nonmoving party files a response to the

motion for summary disposition, the moving part shall have ten (10) days to

file a reply to the response.

      (5) The board or hearing officer may

grant a motion for summary disposition in whole or in part. If the board or

hearing officer grants a summary disposition as to one (1) or more issues, but

not all issues, then the remaining issues shall be heard by the board or

hearing officer in accordance with this administrative regulation and KRS Chapter

13B.

 

      Section 11. Time. KRS 446.030 shall apply

to computation of time under this administrative regulation. (KTA-1; 1 Ky.R. 47; eff. 10-2-74; Am. 3 Ky.R.

398; eff. 12-1-76; 4 Ky.R. 456; eff. 7-5-78; 12 Ky.R. 1760; eff. 6-10-86; 25

Ky.R. 434; 880; 26 Ky.R. 612; eff. 8-26-99; 2202; 3217; 4164; eff. 7-6-2007.)