DAR File No. 30278

Tax Commission, Administration

R861-1A-24

Formal Adjudicative Proceedings Pursuant to Utah Code Ann. Sections 59-1-502.5, 63-46b-8, and 63-46b-10

NOTICE OF PROPOSED RULE

DAR File No.: 30278
Filed: 07/31/2007, 04:28
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This section is updated to reflect commission practice.

Summary of the rule or change:

The amendments codify commission practice and make technical changes to the process of requesting commissioners to hear certain appeals.

State statutory or constitutional authorization for this rule:

Sections 59-1-502.5, 63-46b-8, and 63-46b-10

Anticipated cost or savings to:

the state budget:

None--Proposed amendments conform rule to commission practice.

local governments:

None--Proposed amendments conform rule to commission practice.

small businesses and persons other than businesses:

None--Proposed amendments conform rule to commission practice.

Compliance costs for affected persons:

None--Proposed amendments conform rule to commission practice.

Comments by the department head on the fiscal impact the rule may have on businesses:

There are no anticipated costs. D'Arcy Dixon, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Tax Commission
Administration
210 N 1950 W
SALT LAKE CITY UT 84134-0002

Direct questions regarding this rule to:

Cheryl Lee at the above address, by phone at 801-297-3900, by FAX at 801-297-3919, or by Internet E-mail at clee@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

09/14/2007

This rule may become effective on:

09/21/2007

Authorized by:

D'Arcy Dixon, Commissioner

R861. Tax Commission, Administration.

R861-1A. Administrative Procedures.

R861-1A-24. Formal Adjudicative Proceedings Pursuant to Utah Code Ann. Sections 59-1-502.5, 63-46b-8, and 63-46b-10.

[A.](1) At a formal proceeding, an administrative law judge appointed by the commission or a commissioner may preside.

[1.](a) Assignment of a presiding officer to a case will be made pursuant to agency procedures and not at the request of any party to the appeal.

[2. Once assigned, the presiding officer will preside at all steps of the formal proceeding except as otherwise indicated in these rules or as internal staffing requirements dictate.](b) A party may request that one or more commissioners sit in a proceeding for its appeal. However, the decision of whether the request is granted rests with the commission.

(c) If more than one commissioner or administrative law judge is present at any hearing, the hearing will be conducted by the presiding officer assigned to the appeal, unless otherwise determined by the commission.

[B.](2) [Unless waived by the petitioner, a]A formal proceeding includes an initial hearing pursuant to Section 59-1-502.5, unless it is waived upon agreement of all parties, and [may also involve ]a formal hearing on the record, if the initial hearing is waived or if a party appeals the initial hearing decision.

[1.](a) Initial Hearing.

[a)](i) An initial hearing pursuant to Section 59-1-502.5 shall be in the form of a conference.

(ii) In accordance with Section 59-1-502.5, the commission shall make no record of an initial hearing.

[b)](iii) Any issue may be settled in the initial hearing, but any party has a right to a formal hearing on matters that remain in dispute [at the conclusion of the initial hearing. As to those matters, a]after the initial hearing decision is issued.

(iv) Any party dissatisfied with the result of the initial hearing must pursue a formal hearing [and final agency action ]before pursuing judicial review of unsettled matters.

[2.](b) Formal Hearing[ on the Record]. The commission shall make a record of all formal hearings, which may include a written record or an audio recording of the proceeding.[

a) Formal hearings on the record shall be conducted by a presiding officer under 2.b) or by the commission sitting as panel under 2.c).

b) Except as provided in 2.c., all formal hearings will be heard by the presiding officer.

(1) Within the time period specified by statute, the presiding officer shall sign a decision and order in accordance with Section 63-46b-10 and forward the decision to the Commission for automatic agency review.

(2) A quorum of the commission shall review the decision. If a majority of the participating commissioners concur with the decision, a statement affirming the decision shall be affixed to the decision and signed by the concurring commissioners to indicate that the decision represents final agency action. The order is subject to petition for reconsideration or to judicial review.

(3) If, on agency review, a majority of the commissioners disagree with the decision, the case may be remanded to the presiding officer for further action, amended or reversed. If the presiding officer's decision is amended or reversed, the commission shall issue its decision and order, and that decision and order shall represent final agency action on the matter.

c) The commission, on its own motion, upon petition by a party to the appeal, or upon recommendation of the presiding officer, may sit as a panel at the formal hearing on the record if the case involves an important issue of first impression, complex testimony and evidence, or testimony requiring a prolonged hearing.

(1) A panel of the commission shall consist of two or more commissioners

(2) An order issued from a hearing before a panel of commissioners shall constitute final agency action, and it is subject to petition for reconsideration or to judicial review.]

 

KEY: developmentally disabled, grievance procedures, taxation, disclosure requirements

Date of Enactment or Last Substantive Amendment: [February 12], 2007

Notice of Continuation: March 20, 2007

Authorizing, and Implemented or Interpreted Law: 59-1-502.5; 63-46b-8; 63-46b-10