77-5016 Hearing or proceeding; commission; powers and duties; false statement; penalty; costs.
77-5016. Hearing or proceeding;commission; powers and duties; false statement; penalty; costs.Any hearing or proceeding of the commission shall be conductedas an informal hearing unless a formal hearing is granted as determined bythe commission according to its rules and regulations. In any hearing or proceedingheard by the commission or a panel of commissioners:(1) The commission may admit and give probative effect toevidence which possesses probative value commonly accepted by reasonably prudentpersons in the conduct of their affairs excluding incompetent, irrelevant,immaterial, and unduly repetitious evidence and shall give effect to the privilegerules of evidence in sections 27-501 to 27-513 but shall not otherwise bebound by the usual common-law or statutory rules of evidence except duringa formal hearing. Any party to an appeal filed under section 77-5007 may requesta formal hearing by delivering a written request to the commission not morethan thirty days after the appeal is filed. The requesting party shall beliable for the payment of fees and costs of a court reporter pending a finaldecision. The commission shall be bound by the rules of evidence applicablein district court in any formal hearing held by the commission. Fees and costsof a court reporter shall be paid by the party or parties against whom a finaldecision is rendered, and all other costs shall be allocated as the commissionmay determine;(2) The commission may administer oaths, issue subpoenas,and compel the attendance of witnesses and the production of any papers, books,accounts, documents, statistical analysis, and testimony. The commission mayadopt and promulgate necessary rules for discovery which are consistent withthe rules adopted by the Supreme Court pursuant to section 25-1273.01;(3) The commission may consider and utilize the provisionsof the Constitution of the United States, the Constitution of Nebraska, thelaws of the United States, the laws of Nebraska, the Code of Federal Regulations,the Nebraska Administrative Code, any decision of the several courts of theUnited States or the State of Nebraska, and the legislative history of anylaw, rule, or regulation, without making the document a part of the record.The commission may without inclusion in the record consider and utilize publishedtreatises, periodicals, and reference works pertaining to the valuation orassessment of real or personal property or the meaning of words and phrasesif the document is identified in the commission's rules and regulations. Allother evidence, including records and documents in the possession of the commissionof which it desires to avail itself, shall be offered and made a part of therecord in the case. No other factual information or evidence other than thatset forth in this section shall be considered in the determination of thecase. Documentary evidence may be received in the form of copies or excerptsor by incorporation by reference;(4) Every party shall have the right of cross-examinationof witnesses who testify and shall have the right to submit rebuttal evidence;(5) The commission may take notice of judicially cognizablefacts and in addition may take notice of general, technical, or scientificfacts within its specialized knowledge or statistical information regardinggeneral levels of assessment within a county or a class or subclass of realproperty within a county and measures of central tendency within such countyor classes or subclasses within such county which have been made known tothe commission. Parties shall be notified either before or during the hearingor by reference in preliminary reports or otherwise of the material so noticed.They shall be afforded an opportunity to contest the facts so noticed. Thecommission may utilize its experience, technical competence, and specializedknowledge in the evaluation of the evidence presented to it;(6) Any person testifying under oath at a hearing who knowinglyand intentionally makes a false statement to the commission or its designeeis guilty of perjury. For the purpose of this section, perjury is a ClassI misdemeanor;(7) The commission may determine any question raised in theproceeding upon which an order, decision, determination, or action appealedfrom is based. The commission may consider all questions necessary to determinetaxable value of property as it hears an appeal or cross appeal;(8) In all appeals, excepting those arising under section 77-1606, if the appellant presents no evidence to show that the order, decision,determination, or action appealed from is incorrect, the commission shalldeny the appeal. If the appellant presents any evidence to show that the order,decision, determination, or action appealed from is incorrect, such order,decision, determination, or action shall be affirmed unless evidence is adducedestablishing that the order, decision, determination, or action was unreasonableor arbitrary;(9) If the appeal concerns a decision by the county boardof equalization that property is, in whole or in part, exempt from taxation,the decision to be rendered by the commission shall only determine the exemptionstatus of the property. The decision shall not determine the taxable valueof the property unless stipulated by the parties according to subsection (2)of section 77-5017;(10) If the appeal concerns a decision by the county boardof equalization that property owned by the state or a political subdivisionis or is not exempt and there has been no final determination of the valueof the property, the decision to be rendered by the commission shall onlydetermine the exemption status of the property. The decision shall not determinethe taxable value of the property unless stipulated by the parties accordingto subsection (2) of section 77-5017;(11) The costs of any appeal, including the costs of witnesses,may be taxed by the commission as it deems just, except costs payable by theappellant pursuant to section 77-1510.01, unless (a) the appellant is the county assessor orcounty clerk in which case the costs shall be paid by the county or (b) the appellant is the Tax Commissioneror Property Tax Administrator in which case the costs shall be paid by thestate; and(12) The commission shall deny relief to the appellant orpetitioner in any hearing or proceeding unless a majority of the commissionerspresent determine that the relief should be granted. SourceLaws 1995, LB 490, § 16; Laws 1997, LB 397, § 38; Laws 1999, LB 140, § 4; Laws 2000, LB 968, § 75; Laws 2001, LB 170, § 22; Laws 2001, LB 419, § 1; Laws 2001, LB 465, § 7; Laws 2002, LB 994, § 29; Laws 2003, LB 291, § 9; Laws 2004, LB 973, § 51; Laws 2005, LB 15, § 9; Laws 2007, LB167, § 6; Laws 2010, LB877, § 9.Effective Date: April 14, 2010AnnotationsThe Tax Equalization and Review Commission determines de novo all questions raised in proceedings before it. Brenner v. Banner Cty. Bd. of Equal., 276 Neb. 275, 753 N.W.2d 802 (2008).The Tax Equalization and Review Commission is not required to accept any and all evidence offered during an informal hearing; it has some discretion in determining the probative value of proffered evidence and may exclude that which it determines to be incompetent, irrelevant, immaterial, and unduly repetitious. Brenner v. Banner Cty. Bd. of Equal., 276 Neb. 275, 753 N.W.2d 802 (2008).The Tax Equalization and Review Commission is not required to make specific findings with respect to arguments or issues which it does not deem significant or necessary to its determination. Brenner v. Banner Cty. Bd. of Equal., 276 Neb. 275, 753 N.W.2d 802 (2008).The taxpayer's burden is to present clear and convincing evidence to rebut the presumption that the Board of Equalization faithfully performed its valuation duties. Brenner v. Banner Cty. Bd. of Equal., 276 Neb. 275, 753 N.W.2d 802 (2008).A presumption exists that a board of equalization has faithfully performed its official duties and has acted upon sufficient competent evidence to justify its actions. This presumption remains until there is competent evidence to the contrary presented. Once the presumption has been rebutted, the burden shifts to the party requesting the exemption to prove its entitlement thereto. City of York v. York Cty. Bd. of Equal., 266 Neb. 297, 664 N.W.2d 445 (2003).The only material difference between an appeal from a board of equalization before the passage of LB 490 and after is that subsection (5) of this section allows the Tax Equalization and Review Commission to take judicial notice of general, technical, or scientific facts within its specialized knowledge or statistical information regarding general levels of assessment. J.C. Penney Co., Inc. v. Lancaster Cty. Bd. of Equal., 6 Neb. App. 838, 578 N.W.2d 465 (1998).