§ 77-5019 — Appeals; judicial review; procedure

Nebraska § 77-5019

• Jurisdiction: Nebraska
• Ch. 77: Revenue and Taxation

Text

(1) Any party aggrieved by
a final decision in a case appealed to the commission, any party aggrieved
by a final decision of the commission on a petition, any party aggrieved by
an order of the commission issued pursuant to section 77-5020 or sections 77-5023 to 77-5028 , or any party aggrieved by a final decision of the commission
appealed by the Tax Commissioner or the Property Tax Administrator pursuant
to section 77-701 shall be entitled to judicial review in the Court of Appeals.
Upon request of the county, the Attorney General may appear and represent
the county or political subdivision in cases in which the commission is not
a party. Nothing in this section shall be deemed to prevent resort to other
means of review, redress, or relief provided by law.
(2)(a) Proceedings for review shall be instituted by filing
a petition and the appropriate docket fees in the Court of Appeals:
(i) Within thirty days after
the date on which a final appealable order is entered by the commission; or
(ii) For orders
issued pursuant to section 77-5028 , within thirty days after May 15 or thirty
days after the date ordered pursuant to section 77-1514 , whichever is later.
(b) All parties of record
shall be made parties to the proceedings for review. The commission shall
only be made a party of record if the action complained of is an order issued
by the commission pursuant to section 77-1504.01 or 77-5020 or sections 77-5023
to 77-5028 . Summons shall be served on all parties within thirty days after
the filing of the petition in the manner provided for service of a summons
in a civil action. The court,
in its discretion, may permit other interested persons to intervene. No bond
or undertaking is required for an appeal to the Court of Appeals.
(c) A petition for review
shall set forth: (i) The name and mailing address of the petitioner; (ii)
the name and mailing address of the county whose action is at issue or the
commission; (iii) identification of the final decision at issue together with
a duplicate copy of the final decision; (iv) the identification of the parties
in the case that led to the final decision; (v) the facts to demonstrate proper
venue; (vi) the petitioner's reasons for believing that relief should be granted;
and (vii) a request for relief, specifying the type and extent of the relief
requested.
(3) The filing of the petition or the service of summons
upon the commission shall not stay enforcement of a decision. The commission
may order a stay. The court may order a stay after notice of the application
for the stay to the commission and to all parties of record. The court may
require the party requesting the stay to give bond in such amount and conditioned
as the court directs.
(4) Upon receipt of a petition the date for submission of
the official record shall be determined by the court. The commission shall
prepare a certified copy of the official record of the proceedings had before
the commission in the case. The official record shall include: (a) Notice
of all proceedings; (b) any pleadings, motions, requests, preliminary or intermediate
rulings and orders, and similar correspondence to or from the commission pertaining
to the case; (c) the transcribed record of the hearing before the commission,
including all exhibits and evidence introduced during the hearing, a statement
of matters officially noticed by the commission during the proceeding, and
all proffers of proof and objections and rulings thereon; and (d) the final
order appealed from. The official record in an appeal of a commission decision
issued pursuant to sections 77-5023 to 77-5028 may be limited by the request
of a petitioner to those parts of the record pertaining to a specific county.
The commission shall charge the petitioner with the reasonable direct cost
or require the petitioner to pay the cost for preparing the official record
for transmittal to the court in all cases except when the petitioner is not
required to pay a filing fee. If payment is required, payment of the cost,
as estimated by the commission, for preparation of the official record shall
be paid to the commission prior to preparation of the official record and
the commission shall not transmit the official record to the court until payment
of the actual costs of its preparation is received.
(5) The review shall be conducted by the court for error
on the record of the commission. If the court determines that the interest
of justice would be served by the resolution of any other issue not raised
before the commission, the court may remand the case to the commission for
further proceedings. The court may affirm, reverse, or modify the decision
of the commission or remand the case for further proceedings.
(6) Appeals under this section shall be given precedence
over all civil cases.

Legislative History

Source: Laws 1995, LB 490, § 19; Laws 1997, LB 165, § 4; Laws 1999, LB 140, § 5; Laws 2000, LB 968, § 76; Laws 2001, LB 465, § 9; Laws 2005, LB 15, § 11; Laws 2006, LB 808, § 42; Laws 2008, LB965, § 21; Laws 2010, LB877, § 11; Laws 2011, LB384, § 32. Annotations: 1. Standard of Review 2. Jurisdiction 3. Miscellaneous 1. Standard of Review Questions of law arising during appellate review of Tax Equalization and Review Commission decisions are reviewed de novo. Cain v. Custer Cty. Bd. of Equal., 298 Neb. 834, 906 N.W.2d 285 (2018). On appeal, an order that subsection (5) of this section defines as a "final decision" is reviewed for error on the record. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. County of Webster v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 751, 896 N.W.2d 887 (2017). When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. An agency decision is supported by competent evidence, sufficient evidence, or substantial evidence if the agency could reasonably have found the facts as it did on the basis of the testimony and exhibits contained in the record before it. Agency action is arbitrary, capricious, and unreasonable if it is taken in disregard of the facts or circumstances of the case, without some basis which would lead a reasonable and honest person to the same conclusion. Agency action taken in disregard of the agency's own substantive rules is also arbitrary and capricious. County of Douglas v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 501, 894 N.W.2d 308 (2017). Pursuant to subsection (1) of this section, because the Tax Equalization and Review Commission performs essentially the same functions that were performed by the State Board of Equalization and Assessment, the appellate court considers appeals from the commission's decisions under the same standards and principles that were applied to appeals from equalization proceedings before the board. Pursuant to subsection (5) of this section, appellate review of a Tax Equalization Review Commission decision shall be conducted for error on the record of the commission. County of Douglas v. Nebraska Tax Equal. & Rev. Comm., 262 Neb. 578, 635 N.W.2d 413 (2001). Appellate review of the decisions of the Nebraska Tax Equalization and Review Commission is limited to error on the record. Lyman-Richey Corp. v. Cass Cty. Bd. of Equal., 258 Neb. 1003, 607 N.W.2d 806 (2000); Ash Grove Cement Co. v. Cass Cty. Bd. of Equal., 258 Neb. 990, 607 N.W.2d 810 (2000); Kawasaki Motors Corp. v. Lancaster Cty. Bd. of Equal., 7 Neb. App. 655, 584 N.W.2d 63 (1998). Decisions of the Tax Equalization and Review Commission are reviewed for error appearing on the record. Washington Cty. Bd. of Equal. v. Rushmore Borglum, 11 Neb. App. 377, 650 N.W.2d 504 (2002). Pursuant to subsection (5) of this section, when reviewing a judgment of the Tax Equalization and Review Commission for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Dodge County Bd. v. Nebraska Tax Equal. & Rev. Comm., 10 Neb. App. 927, 639 N.W.2d 683 (2002). Pursuant to subsection (5) of this section, appellate review of a Tax Equalization and Review Commission decision shall be conducted for error on the record; the appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Krusemark v. Thurston Cty. Bd. of Equal., 10 Neb. App. 35, 624 N.W.2d 328 (2001). 2. Jurisdiction A voluntary appearance does not strictly comply with the statutory requirement that summons shall be served "in the manner provided for service of summons in a civil action." Perkins Cty. Bd. of Equal. v. Mid America Agri Prods., 317 Neb. 1, 8 N.W.3d 716 (2024). A service of summons within 30 days of the filing of the petition for review of the Tax Equalization and Review Commission's decision is necessary to confer subject matter jurisdiction upon the Nebraska Court of Appeals. Hilt v. Douglas Cty. Bd. of Equal., 30 Neb. App. 425, 970 N.W.2d 113 (2021); McLaughlin v. Jefferson Cty. Bd. Of Equal., 5 Neb. App. 781, 567 N.W.2d 794 (1997). Where the Tax Equalization and Review Commission lacked jurisdiction over a tax valuation appeal because of the appellant's failure to pay a filing fee, the Nebraska Court of Appeals also lacked jurisdiction over the appellant's further appeal filed pursuant to this section. Widtfeldt v. Tax Equal. & Rev. Comm., 15 Neb. App. 410, 728 N.W.2d 295 (2007). Pursuant to subsection (2) of this section, failure to accomplish service of process upon the county board of equalization within 30 days after filing the petition for judicial review is necessary to confer subject matter jurisdiction upon the reviewing court. Widtfeldt v. Holt Cty. Bd. of Equal., 12 Neb. App. 499, 677 N.W.2d 521 (2004). The Nebraska Court of Appeals did not have jurisdiction under subsection (1) of this section to hear county's appeal of claim brought pursuant to section 77-1504.01 because the claim was not a decision appealed to the Nebraska Tax Equalization and Review Commission and was not brought pursuant to section 77-5028. Boone Cty. Bd. of Equal. v. Nebraska Tax Equal. and Rev. Comm., 9 Neb. App. 298, 611 N.W.2d 119 (2000). 3. Miscellaneous Subsection (2)(a) of this section provides for service of only the state or a political subdivision. Cargill Meat Solutions v. Colfax Cty. Bd. of Equal., 281 Neb. 93, 798 N.W.2d 823 (2011). The plain language in subsection (2)(a) of this section referring to "the action complained of" refers to the particular Tax Equalization and Review Commission order being appealed and does not refer to a previous order of the commission which might be relevant to issues in the current appeal. Marshall v. Dawes Cty. Bd. of Equal., 265 Neb. 33, 654 N.W.2d 184 (2002). Pursuant to subsection (2) of this section, except for orders issued by the Nebraska Tax Equalization and Review Commission pursuant to section 77-1504.01 or section 77-5023, the commission is not a proper party to a proceeding for judicial review of an order of the commission. Widtfeldt v. Holt Cty. Bd. of Equal., 12 Neb. App. 499, 677 N.W.2d 521 (2004). Pursuant to subsection (2) of this section, the county board of equalization is a necessary party to a proceeding for judicial review of an order of the Nebraska Tax Equalization and Review Commission. Widtfeldt v. Holt Cty. Bd. of Equal., 12 Neb. App. 499, 677 N.W.2d 521 (2004).