(1)If the Tax Commissioner
is not satisfied with the return or returns of the tax or the amount of tax
required to be paid to the state by any person, he or she may compute and
determine the amount required to be paid upon the basis of the facts contained
in the return or returns or upon the basis of any information within his or
her possession or which may come into his or her possession. One or more deficiency
determinations of the amount due for one or more than one period may be made.
To the amount of the deficiency determination for each period shall be added
a penalty equal to ten percent thereof or twenty-five dollars, whichever is
greater. In making a determination, the Tax Commissioner may offset overpayments
for a period or periods, together with interest on the overpayments, ag
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(1) If the Tax Commissioner
is not satisfied with the return or returns of the tax or the amount of tax
required to be paid to the state by any person, he or she may compute and
determine the amount required to be paid upon the basis of the facts contained
in the return or returns or upon the basis of any information within his or
her possession or which may come into his or her possession. One or more deficiency
determinations of the amount due for one or more than one period may be made.
To the amount of the deficiency determination for each period shall be added
a penalty equal to ten percent thereof or twenty-five dollars, whichever is
greater. In making a determination, the Tax Commissioner may offset overpayments
for a period or periods, together with interest on the overpayments, against
underpayments for other period or periods, against penalties, and against
the interest on the underpayments.
The interest on underpayments and overpayments shall be computed
in the manner set forth hereinafter.
(2) If any person fails to make a return, the Tax Commissioner
shall make an estimate of the amount of the gross receipts of the person or,
as the case may be, of the amount of the total sales, rent, or lease price
of property sold, rented, or leased or purchased, by the person, the storage,
use, or consumption of which in this state is subject to the use tax. The
estimate shall be made for the period or periods in respect to which the person
failed to make a return and shall be based upon any information which is in
the Tax Commissioner's possession or may come into his or her possession.
Upon the basis of this estimate, the Tax Commissioner shall compute and determine
the amount required to be paid to the state, adding to the sum thus arrived
at a penalty equal to ten percent thereof or twenty-five dollars, whichever
is greater. One or more determinations may be made for one or more than one
period.
(3) The amount of the determination of any deficiency exclusive
of penalties shall bear interest at the rate specified in section 45-104.02 ,
as such rate may from time to time be adjusted, from the twentieth of the
month following the period for which the amount should have been returned
until the date of payment.
(4) If any part of a deficiency for which a deficiency determination
is made is the result of fraud or an intent to evade the Nebraska Revenue
Act of 1967 or authorized rules and regulations, a penalty of twenty-five
percent of the amount of the determination or fifty dollars, whichever is
greater, shall be added thereto.
(5)(a) Promptly after making his or her determination, the
Tax Commissioner shall give to the person written notice of his or her determination.
(b) The notice may be served personally or by mail, and if
by mail the notice shall be addressed to the person at his or her address
as it appears in the records of the Tax Commissioner. In case of service by
mail of any notice required by the Nebraska Revenue Act of 1967, the service
is complete at the time of deposit in the United States post office.
(c) Every notice of a deficiency determination shall be personally
served or mailed within three years after the last day of the calendar month
following the period for which the amount is proposed to be determined or
within three years after the return is filed, whichever period expires the
later. In the case of a person failing to make a
return, filing a false or fraudulent
return with the intent to evade the sales or use tax, or omitting from a return
an amount properly includable therein which is in excess of twenty-five percent
of the amount of tax stated in the return, every notice of determination
shall be mailed or personally served within six years after the last day
of the calendar month following the period for which the amount is proposed
to be determined.
(d) When, before the expiration of the time prescribed in
this section for the mailing of a notice of deficiency determination, both
the Tax Commissioner and the taxpayer have consented in writing to its mailing
after such time, the notice of the deficiency determination may be mailed
at any time prior to the expiration of the period agreed upon. The agreed-upon
period may be extended by subsequent agreement, in writing, made before the
expiration of the period previously agreed upon.
(6) When a business is discontinued, a determination may
be made at any time thereafter within the periods specified in this section
as to liability arising out of that business, irrespective of whether the
determination is issued prior to the due date of the liability as otherwise
specified in the Nebraska Revenue Act of 1967.
(7) Any person against whom a determination is made under
subsections (1) and (2) of this section or any person directly interested
may petition for a redetermination within sixty days after service upon the
person of notice thereof. For the purposes of this subsection, a person is
directly interested in a deficiency determination when such deficiency could
be collected from such person. If a petition for redetermination is not filed
within the sixty-day period, the determination becomes final at the expiration
of the period.
(8) If a petition for redetermination is filed within the
sixty-day period, the Tax Commissioner shall reconsider the determination
and, if the person has so requested in his or her petition, shall grant the
person an oral hearing and shall give him or her ten days' notice of the time
and place of the hearing. The Tax Commissioner may continue the hearing from
time to time as may be necessary.
(9) The Tax Commissioner may decrease or increase the amount
of the determination before it becomes final, but the amount may be increased
only if a claim for the increase is asserted by the Tax Commissioner at or
before the hearing, upon which assertion the petitioner shall be entitled
to a thirty-day continuance of the hearing to allow him or her to obtain and
produce further evidence applicable to the items upon which the increase is
based.
(10) The order or decision of the Tax Commissioner upon a
petition for redetermination shall become final thirty days after service
upon the petitioner of notice thereof.
(11) All determinations made by the Tax Commissioner under
the provisions of subsections (1) and (2) of this section are due and payable
at the time they become final. If they are not paid when due and payable,
a penalty of ten percent of the amount of the determination, exclusive of
interest and penalties, shall be added thereto.
(12) Any notice required by this section shall be served
personally or by mail in the manner prescribed in subsection (5) of this section.
Source: Laws 1967, c. 487, § 9, p. 1562; Laws 1969, c. 683, § 6, p. 2639; Laws 1976, LB 996, § 2; Laws 1981, LB 167, § 52; Laws 1985, LB 273, § 47; Laws 1992, Fourth Spec. Sess., LB 1, § 30; Laws 1993, LB 345, § 58; Laws 2008, LB914, § 7; Laws 2011, LB210, § 10; Laws 2014, LB851, § 12.
Annotations: The sales and use tax return contains instructions stating that the entries for each tax remain separate and that the failure to enter "a word, statement, number or figure... in the appropriate lines on the return" extends the statute of limitations to 5 years. Where no such entries were made, the department was not given adequate information from which to compute the consumer's use tax owed and the 5-year statute of limitations controls. McDonald's Exec. Off. v. Nebraska Dept. of Revenue, 243 Neb. 82, 497 N.W.2d 377 (1993). Pursuant to the plain language of subsection (7) of this section, a person must file a petition for redetermination within 60 days after service of the notice, which service is complete at the time of the mailing of the notice by the Nebraska Department of Revenue to the taxpayer. Lyman-Richey Corp. v. Nebraska Dept. of Rev., 22 Neb. App. 412, 855 N.W.2d 814 (2014). Since deficiency notices mailed by the Nebraska Department of Revenue pursuant to subsection (5) of this section are not pleadings, the Nebraska Court Rules of Pleading in Civil Cases, including Neb. Ct. R. Pldg. § 6-1106(e), do not apply to them, including the 3-day mailing rule. Lyman-Richey Corp. v. Nebraska Dept. of Rev., 22 Neb. App. 412, 855 N.W.2d 814 (2014).