2011 Maine Revised Statutes
TITLE 36: TAXATION
Chapter 7: UNIFORM ADMINISTRATIVE PROVISIONS
36 §151-B. Independent Appeals Office (WHOLE SECTION TEXT EFFECTIVE 7/1/12)

Part 1: GENERAL PROVISIONS

§151-B. Independent Appeals Office

(CONTAINS TEXT WITH VARYING EFFECTIVE DATES)

(WHOLE SECTION TEXT EFFECTIVE 7/1/12)

1. Office established. There is established within the bureau the Independent Appeals Office, referred to in this chapter as "the appeals office."

[ 2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW) .]

2. Composition of appeals office; Chief Appeals Officer. The appeals office consists of the Chief Appeals Officer hired by the Commissioner of Administrative and Financial Services and other appeals officers and at least one administrative staff person hired by the commissioner or the Chief Appeals Officer. The commissioner shall designate the Chief Appeals Officer, who shall manage the work of the appeals officers, including the designation of an appeals officer to preside over each appeal forwarded to the appeals office under section 151, subsection 2, paragraph C. The Chief Appeals Officer, other appeals officers and staff of the appeals office are employees of the bureau. Each appeals officer must be a citizen of the United States and have substantial knowledge of tax law. The position of Chief Appeals Officer may not exceed the salary range of the former Director of the Appellate Division, unless the commissioner adjusts the other positions within the appeals office so that the total personal services cost of the appeals office does not exceed the total personal services cost of the former Appellate Division.

[ 2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW) .]

3. Appeals. An appeal of a decision arising from a petition for reconsideration filed pursuant to section 151, subsection 1 must be conducted pursuant to this subsection.

A. If requested by the petitioner in the petition for reconsideration, the appeals office shall hold an appeals conference to receive additional information and to hear arguments regarding the protested assessment or determination. The petitioner shall pay a processing fee of $100 for each petition that proceeds to an appeals conference, except that this fee is waived if the total amount in controversy is less than $5,000 or when good cause, as determined by the Chief Appeals Officer, for waiver is shown.

The appeals office shall provide the petitioner with at least 10 working days' notice of the date, time and place of the appeals conference. The appeals conference may be held with fewer than 10 working days' notice if a mutually convenient time and place can be arranged. [2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW).]

B. An appeals officer shall preside over the appeals conference. The appeals officer has all the authority of the assessor with respect to the conduct of proceedings of the appeals conference, including, but not limited to, the power to question any person who testifies and to direct the course of the appeal. [2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW).]

C. If the petitioner does not include a request for an appeals conference in the petition, the appeals officer shall determine the matter based on written submissions by the petitioner and the division within the bureau making the original determination. [2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW).]

D. Both the petitioner and the responding division may submit the following to the appeals officer whether or not an appeals conference has been requested: written testimony in the form of an affidavit; documentary evidence; and written legal argument or written factual argument, or both. In addition, if an appeals conference is held, both the petitioner and the responding division may present oral testimony or oral legal argument, or both. The appeals officer need not observe the rules of evidence observed by courts, but shall observe the rules of privilege recognized by law. If the appeals officer considers it appropriate, the appeals officer may encourage the petitioner and the responding division to resolve disputed issues through settlement or stipulation. The appeals officer may limit the issues to be heard or vary any procedure adopted for the conduct of the appeals conference if the parties agree to that limitation. [2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW).]

E. Except when otherwise provided by law, the petitioner has the burden of proving, by a preponderance of the evidence, that the assessor has erred in applying or interpreting the relevant law. [2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW).]

F. The appeals officer shall exercise independent judgment. The appeals officer may not have any ex parte communications with any person, including the petitioner, the responding division, the assessor or any other employee of the bureau except those employees in the appeals office; however, the appeals officer may have ex parte communication limited to questions that involve ministerial or administrative matters that do not address the substance of the issues or position taken by the petitioner or the responding division. [2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW).]

G. The appeals officer shall render a decision based upon the evidence and argument presented to the appeals officer by parties to the proceeding. The decision must be in written form and must state findings of fact and conclusions of law. The decision of the appeals officer is deemed the assessor's determination on reconsideration and is not subject to review or revision by the assessor or any employee of the bureau outside of the appeals office. Notice of the final decision or order to the petitioner must be made in accordance with section 111, subsection 2. Notice of the final decision or order must be made to the responding division via the state interoffice mail system. [2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW).]

H. The appeal proceeding, with or without the appeals conference, is not an adjudicatory proceeding within the meaning of that term in the Maine Administrative Procedure Act. [2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW).]

[ 2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW) .]

4. Denial of appeal. If the requested appeal involves a denial or deemed denial of a refund claim, a refund claim with respect to which a conference has been requested under section 5280 or an assessment that is paid in full or part and the appeals office fails to mail to the petitioner a decision on the appeal within 9 months after the petition for reconsideration was filed, the petitioner may elect but is not obligated to deem the appeal denied. The petitioner elects to deem the appeal denied by filing in Superior Court a petition for review of the deemed denial. The deemed denial constitutes final agency action and is subject to court review as provided in subsection 6. The petitioner may not make the deemed denial election after either the appeals officer's decision has been received by the petitioner or the expiration of 9 years following the filing of the reconsideration petition, whichever occurs first. Notwithstanding any other provision of law, a claim for credit or refund of any tax imposed under this Title is deemed denied 10 years after it was filed if the claim has not previously been allowed or denied as final agency action. A deemed denial constitutes final agency action.

[ 2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW) .]

5. Review by court. The decision of the appeals officer on the petition for appeal constitutes the assessor's final determination and final agency action, which is subject to review by the Superior Court in accordance with the Maine Administrative Procedure Act, except that Title 5, sections 11006 and 11007 do not apply. Upon petition filed by the taxpayer, the Superior Court shall conduct a de novo hearing and make a de novo determination of the merits of the case. The taxpayer may raise on appeal in Superior Court any facts, arguments or issues that relate to the assessor's decision on the petition for reconsideration, regardless of whether the facts, arguments or issues were raised during the reconsideration proceeding being appealed, as long as the facts, arguments or issues are not barred by any other provision of law. The Superior Court shall make its own determination as to all questions of fact or law, regardless of whether the questions of fact or law were raised during the petition for reconsideration proceeding. The Superior Court shall enter such orders and decrees as the case may require. The burden of proof is on the taxpayer, except as otherwise provided by law.

[ 2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW) .]

6. Report. Beginning in 2013 and annually thereafter, the Chief Appeals Officer shall prepare and submit a report by January 1st on the activities of the Independent Appeals Office to the Governor, the assessor and the joint standing committee of the Legislature having jurisdiction over taxation matters.

[ 2011, c. 439, §12 (AFF); 2011, c. 439, §3 (NEW) .]

SECTION HISTORY

2011, c. 439, §12 (AFF). 2011, c. 439, §3 (NEW).