§ 77-4312 — Jeopardy determination; petition for redetermination; procedure; deficiency; interest; seized property; sale; when; procedure; return of property; conditions; injunction; Tax Commissioner; powers

(1) Any person who receives a notice of
jeopardy determination of the tax imposed by section 77-4303 may petition
the Tax Commissioner for a redetermination of the amount of the assessed deficiency.
(2) The petition for redetermination shall be filed within
ten days of the receipt of the notice of jeopardy determination whenever service
is in person or within ten days of the mailing of such notice to the last-known
address of the person.
(3) The petition for redetermination shall be in writing
and shall state the specific grounds upon which the claim is founded.
(4) The petition for redetermination shall be accompanied
by the payment of the tax or suitable security for the payment of the tax.
(5) The consideration of the petition for redetermination
shall be made pursuant to the Administrative Procedure Act to the extent the
act is not in conflict with sections 77-4301 to 77-4316 .
(6) The determination of the amount of the deficiency shall
become final and the amount shall be deemed to be assessed on the date provided
in subsection (2) of this section if the person fails to file the petition
for the redetermination and the appropriate security within the ten-day time
period.
(7) When a petition for redetermination and the appropriate
security is filed within the ten-day period, the amount of the deficiency
shall be deemed to be assessed upon the date the determination of the Tax
Commissioner becomes final.
(8) If the amount of the deficiency determined under such
sections is not paid upon the receipt of the notice, the deficiency shall
accrue interest at the rate specified in section 45-104.02 , as such rate may
from time to time be adjusted, for the period from the date the tax was due
until the date such deficiency is paid.
(9)(a) When a jeopardy determination or any other final determination
has been made by the Tax Commissioner, the property seized for collection
of the taxes and any penalty shall not be sold until the time has expired
for filing an appeal. If an appeal has been filed, no sale shall be made unless
the taxes and any penalty remain unpaid for a period of more than thirty days
after final determination of the appeal by the district court.
(b) Notwithstanding subdivision (a) of this subsection, seized
property may be sold if the taxpayer consents in writing to the sale or the
Tax Commissioner determines that the property is perishable or may become
greatly reduced in price or value by keeping or that such property cannot
be kept without great expense.
(c) The property seized shall be returned by the Tax Commissioner
if the owner gives a surety bond equal to the appraised value of the owner's
interest in the property, as determined by the Tax Commissioner, or deposits
with the Tax Commissioner security in such form and amount as the Tax Commissioner
deems necessary to insure payment of the liability but not more than twice
the liability.
(d) Notwithstanding any other provision to the contrary,
if a levy or sale pursuant to this section would irreparably injure rights
in property which the court determines to be superior to rights of the state
in such property, the district court may grant an injunction to prohibit the
enforcement of such levy or to prohibit such sale.
(e) Any action taken by the Tax Commissioner pursuant to
this section shall not constitute an election by the state to pursue a remedy
to the exclusion of any other remedy.
(f) After the Tax Commissioner has seized the property of
any person, that person may, upon giving forty-eight hours notice to the Tax
Commissioner and to the court, bring a claim for equitable relief before the
district court for the release of the property to the taxpayer upon such terms
and conditions as the court deems equitable.
(10) If the taxpayer ignores all demands for payment, the
Tax Commissioner may employ the services of any qualified collection agency
or attorney and pay fees for such services out of any money recovered.

Legislative History

Source: Laws 1990, LB 260, § 12; Laws 1991, LB 773, § 34; Laws 1992, Fourth Spec. Sess., LB 1, § 40; Laws 1993, LB 161, § 5; Laws 2012, LB727, § 52. Cross References: Administrative Procedure Act, see section 84-920. Annotations: Because subsection (4) of this section requires the payment of the assessed drug tax or posting of a suitable security for the tax as a jurisdictional prerequisite for a redetermination hearing without furnishing other means for indigents to obtain a hearing, subsection (4) as applied to indigent individuals is unconstitutional. Further, subsection (4) is an unconstitutional and invalid delegation of legislative authority and power to an executive or administrative officer of the state. Boll v. Department of Revenue, 247 Neb. 473, 528 N.W.2d 300 (1995).