| (a) A protest shall be dismissed if there is any jurisdictional
defect in submission of the petition. If a petition is filed and there
is a jurisdictional defect, the division may file a motion to dismiss
with the State Office of Administrative Hearings (SOAH) and a request
to docket. Following receipt of the request to docket, SOAH shall
assign the case a docket number and assign an Administrative Law Judge
(ALJ). On the same date as the date the division files the motion
to dismiss with SOAH, the division shall serve a copy of the motion
to dismiss with the petitioner via hand delivery, overnight delivery
service, facsimile, email or an electronic filing and service system
utilized by SOAH.
(b) The petitioner may file a response with SOAH no
later than seven calendar days from the date the motion to dismiss
is filed. On the same date the petitioner files a response to the
division's motion to dismiss, petitioner shall serve a copy of the
response to the division director and legal counsel for the division
via hand delivery, overnight delivery service, facsimile, email or
an electronic filing and service system utilized by SOAH.
(c) The division will have seven calendar days from
the date petitioner files a response to file a reply to the response
with SOAH. On the same date the division files its reply to petitioner's
response, the division shall serve a copy of the reply to the petitioner
via hand delivery, overnight delivery service, facsimile, email or
an electronic filing and service system utilized by SOAH.
(d) Arguments shall be limited to the jurisdictional
issues presented in the motion to dismiss filed with SOAH. Neither
the division nor the petitioner shall be permitted to submit any additional
information or evidence for consideration by the ALJ.
(1) No oral hearing will be held, except upon a ruling
by an ALJ pursuant to §9.4314(c) of this title (relating to Administrative
Law Judge's Powers).
(2) Motions for oral hearing shall be decided solely
upon the written motions for oral hearing and responses, if any, submitted
to the ALJ for ruling pursuant to §9.4314(c) of this title.
(e) After time for the division to file a reply has
expired, the assigned ALJ shall consider the motion, any timely filed
response, and any timely filed reply, and no later than 14 calendar
days after time for the division to file a reply has expired, issue
a proposal for decision to the deputy comptroller stating the ALJ's
recommendation for a final decision on the motion and the reasons
for the proposed decision.
(1) The ALJ's proposal for decision shall be issued
to the deputy comptroller by filing the proposal for decision with
the comptroller's Special Counsel for Tax Hearings via hand delivery,
overnight delivery service, facsimile, email or an electronic filing
and service system utilized by SOAH.
(2) On the same date the ALJ issues the proposal for
decision to the deputy comptroller, the ALJ shall serve a copy of
the proposal for decision on all other parties via hand delivery,
overnight delivery service, facsimile, email or an electronic filing
and service system utilized by SOAH
(f) A party to the protest may, within seven calendar
days after the date the proposed final decision is served, file with
the deputy comptroller exceptions to the proposal for decision.
(1) Exceptions to the proposal for decision, if any,
shall be filed with the deputy comptroller by filing the exceptions
with the comptroller's Special Counsel for Tax Hearings via hand delivery,
overnight delivery service, facsimile, or email.
(2) On the same date as the date exceptions to the
proposal for decision are filed, the excepting party shall serve a
copy of the exceptions on all other parties via hand delivery, overnight
delivery service, facsimile, or email.
(g) Within seven calendar days after the exceptions
are filed and served in accordance with subsection (f) of this section,
all parties not filing exceptions may file replies to the exceptions
with the deputy comptroller.
(1) Replies to the exceptions to the proposal for decision,
if any, shall be filed with the deputy comptroller by filing the replies
with the comptroller's Special Counsel for Tax Hearings via hand delivery,
overnight delivery service, facsimile, or email.
(2) On the same date the replies to exceptions to the
proposal for decision are filed with the deputy comptroller, the party
filing the replies shall serve a copy of the replies to all other
parties via hand delivery, overnight delivery service, facsimile,
or email.
(h) After considering all timely filed exceptions and
timely filed replies to exceptions, the deputy comptroller shall issue
a final order and, in doing so, may adopt, amend, or reject the ALJ's
proposal for decision. A decision is final on the date signed by the
deputy comptroller. The deputy comptroller shall deliver written notice
of the final decision to each party to the protest via hand delivery,
overnight delivery service, facsimile, or email.
(i) The petitioner bears the burden of proof on all
jurisdictional matters.
(j) If a motion to dismiss is denied, the petition
will be otherwise processed in accordance with this subchapter.
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