Lyman-Richey Corp. v. Nebraska Dept. of Rev. ( 2014 )

Decisions of the Nebraska Court of Appeals
412 22 NEBRASKA APPELLATE REPORTS
Lyman-Richey Corporation, appellant, v.
Nebraska Department of R evenue
et al., appellees.
___ N.W.2d ___
Filed October 7, 2014. No. A-13-269.
1. Statutes: Appeal and Error. Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.
2. Taxation: Notice: Time. Pursuant to the plain language of Neb. Rev. Stat.
§ 77-2709(7) (Cum. Supp. 2012), a person must file a petition for redetermi-
nation within 60 days after service of the notice, which service is complete at
the time of mailing of the notice by the Nebraska Department of Revenue to
the taxpayer.
3. Pleadings. Pleadings are the written statements by the parties of the facts consti-
tuting their respective claims and defenses.
4. Ordinances: Presumptions: Proof. In considering the validity of regulations,
courts generally presume that legislative or rulemaking bodies, in enacting ordi-
nances or rules, acted within their authority, and the burden rests on those who
challenge their validity.
5. Administrative Law. Agency regulations that are properly adopted and filed
with the Secretary of State of Nebraska have the effect of statutory law.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Nicholas K. Niemann and Matthew R. Ottemann, of
McGrath, North, Mullin & Kratz, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and L. Jay Bartel for
appellees.
Inbody, Chief Judge, and Irwin and Bishop, Judges.
Inbody, Chief Judge.
INTRODUCTION
The question presented in this appeal is the legal issue of
whether the 3-day mailing rule set forth in Neb. Ct. R. Pldg.
§ 6-1106(e) applies to extend the 60-day period for a tax-
payer to file a petition for redetermination with the Nebraska
Department of Revenue (the Department) pursuant to Neb.
Rev. Stat. § 77-2709(7) (Cum. Supp. 2012). We conclude that
it does not.
Decisionsof the Nebraska Court of Appeals
LYMAN-RICHEY CORP. v. NEBRASKA DEPT. OF REV. 413
Cite as 22 Neb. Ct. App. 412
STATEMENT OF FACTS
On April 16, 2012, the Department issued a “Notice of
Deficiency Determination” claiming Nebraska sales and use
taxes and waste reduction and recycling fees were owed by
Lyman-Richey Corporation (Lyman-Richey) over a 3-year
period and seeking $247,545.94 in taxes, interest, and penal-
ties. This deficiency notice was sent to Lyman-Richey by
certified mail on April 16 and was received by Lyman-Richey
on April 17. Lyman-Richey mailed its petition for redetermi-
nation to the Department on Monday, June 18. The petition
was received by the Department on June 19. On July 2, the
Department issued its final determination denying Lyman-
Richey’s appeal on the sole ground that Lyman-Richey had
failed to file its appeal within 60 days of the April 16 service of
the deficiency notice as required by § 77-2709. Lyman-Richey
filed a petition for review with the Lancaster County District
Court, which affirmed the decision of the Department that
Lyman-Richey’s petition for redetermination was not timely
filed with the Department. Lyman-Richey has timely appealed
to this court.
ASSIGNMENT OF ERROR
Lyman-Richey’s assignments of error on appeal can be con-
solidated into the following issue: The district court erred in
failing to add the 3-day filing extension of § 6-1106(e) to the
time it had to file its petition for redetermination and thereby
concluding that its petition for redetermination was not timely
filed under § 77-2709(7).
STANDARD OF REVIEW
[1] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.
Strasburg v. Union Pacific RR. Co., 286 Neb. 743, 839
N.W.2d 273 (2013).
ANALYSIS
As we previously stated, at issue in this appeal is whether
the 3-day mailing rule set forth in § 6-1106(e) applies to
a petition for redetermination filed by a taxpayer with the
Department pursuant to § 77-2709(7). Lyman-Richey contends
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that § 6-1106(e) extended the date for it to file its petition for
redetermination by 3 days, i.e., until June 18, 2012. Lyman-
Richey further argues that the decision in Roubal v. State, 14
Neb. Ct. App. 554, 710 N.W.2d 359 (2006), requires application
of the 3-day mailing rule to this case. Thus, Lyman-Richey
argues that its petition for redetermination was timely filed on
June 18. In contrast, the Department contends that § 6-1106(e)
does not apply to deficiency notices mailed by the Department
pursuant to § 77-2709(5) and that Lyman-Richey’s petition for
redetermination was not timely filed.
Relevant Statutes—Nebraska
Revenue Act of 1967.
The Department’s mailing of the deficiency notice was per-
formed pursuant to § 77-2709 of the Nebraska Revenue Act of
1967, which provides, in pertinent part:
(5)(a) Promptly after making his or her determination,
the Tax Commissioner shall give to the person written
notice of his or her determination.
(b) The notice may be served personally or by mail,
and if by mail the notice shall be addressed to the per-
son at his or her address as it appears in the records of
the Tax Commissioner. In case of service by mail of any
notice required by the Nebraska Revenue Act of 1967, the
service is complete at the time of deposit in the United
States post office.
[2] The procedure for challenging a notice of deficiency
determination is set forth in § 77-2709(7), which provides:
Any person against whom a determination is made under
subsections (1) and (2) of this section or any person
directly interested may petition for a redetermination
within sixty days after service upon the person of notice
thereof. For the purposes of this subsection, a person is
directly interested in a deficiency determination when
such deficiency could be collected from such person. If a
petition for redetermination is not filed within the sixty-
day period, the determination becomes final at the expira-
tion of the period.
Decisions of the Nebraska Court of Appeals
LYMAN-RICHEY CORP. v. NEBRASKA DEPT. OF REV. 415
Cite as 22 Neb. Ct. App. 412
Thus, pursuant to the plain language of § 77-2709(7), a person
must file a petition for redetermination within 60 days after
service of the notice, which service is complete at the time of
mailing of the notice by the Department to the taxpayer.
In the instant case, it is undisputed that the Department
mailed the notice to Lyman-Richey on April 16, 2012, and
that the April 16 date of mailing is also the date of service.
The parties agree that 60 days after service on April 16 was
June 15. Since Lyman-Richey’s petition for redetermination
was not filed until June 18, the petition for redetermination
was not timely filed unless some other rule extended the time
of filing.
Nebraska Rules—Applicability
of § 6-1106(e).
The rule which Lyman-Richey seeks to apply to extend the
60-day time period for filing its petition for redetermination is
§ 6-1106(e), which provides:
Additional Time After Service by Mail, Electronic, or
Certain Other Methods. Whenever a party has the right
or is required to do some act or take some proceedings
within a prescribed period after the service of a notice
or other paper upon the party and the notice or paper is
served under § 6-1105(b)(2)(B), (D), (E), or (F), three
days shall be added to the prescribed period.
Neb. Ct. R. Pldg. § 6-1105(b)(2)(B) (rev. 2011) provides
for service by first-class mail, which was the method that
Lyman-Richey served the petition for redetermination upon the
Department.
Although the parties do not cite to any Nebraska cases
applying § 6-1106(e), and our independent research has like-
wise failed to uncover any Nebraska cases applying this rule,
we find guidance from case law interpreting the 3-day rule
when it was previously codified at Neb. Rev. Stat. § 25-534
(Reissue 1995), prior to being transferred to the Nebraska
Supreme Court Rules. Three cases interpreting § 25-534 are
especially helpful in providing guidance as to when the 3-day
rule is to be applied: Two cases determined that the 3-day rule
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was applicable, Schwarz v. Platte Valley Exterminating, 258
Neb. 841, 606 N.W.2d 85 (2000), and Roubal v. State, 14 Neb.
App. 554, 710 N.W.2d 359 (2006); and one case held that the
3-day rule was not applicable, In re Estate of Lienemann, 277
Neb. 286, 761 N.W.2d 560 (2009).
In Schwarz v. Platte Valley Exterminating, the Nebraska
Supreme Court allowed 3 days to be added to the time to
respond to interrogatories which had been served by mail
where “rule 36” provided that “‘[t]he matter is admitted unless,
within thirty days after service of the request . . . the party to
whom the request is directed serves upon the party requesting
the admission a written answer or objection addressed to the
matter . . . .’” 258 Neb. at 847-48, 606 N.W.2d at 90 (empha-
sis supplied). Likewise, in Roubal v. State, in a discussion of
the timeliness of a petition for review of the denial of cer-
tain medical benefits by the Nebraska Department of Health
and Human Services filed pursuant to the Administrative
Procedure Act, this court approved of the addition of 3 days
due to service by mail based on statutory language providing
for filing a petition “within 30 days after service of the final
decision.” 14 Neb. Ct. App. at 556, 710 N.W.2d at 361 (emphasis
supplied). See Neb. Rev. Stat. § 84-917(2)(a) (Reissue 1999),
(Cum. Supp. 2006), (Reissue 2008), and (Cum. Supp. 2012)
(subsequent amendments to statute have not changed pertinent
statutory language providing that proceedings for review must
be instituted by filing petition in district court of county where
action is taken within 30 days after service of final decision
by agency).
In determining that the 3-day period was not applicable in
In re Estate of Lienemann, supra, the Nebraska Supreme Court
distinguished Schwarz v. Platte Valley Exterminating, supra,
and Roubal v. State, supra. In In re Estate of Lienemann,
supra, the Nebraska Supreme Court affirmed the dismissal
of a petition for allowance of a probate claim that was filed
outside of the 60-day period specified in the Nebraska Probate
Code, specifically Neb. Rev. Stat. § 30-2488(a) (Reissue
2008), regarding the allowance of claims. In doing so, the
court rejected an argument that an additional 3-day period for
Decisions of the Nebraska Court of Appeals
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Cite as 22 Neb. Ct. App. 412
mailing should be allowed pursuant to the 3-day rule as set
forth in § 25-534. The court noted that the language regarding
the allowance of claims contained in § 30-2488(a) provided
that “a disallowed claim is ‘barred’ unless a petition for allow-
ance is filed or a proceeding commenced ‘not later than’ 60
days after the mailing of notice of disallowance.” In re Estate
of Lienemann, 277 Neb. at 289, 761 N.W.2d at 563. Thus, the
court found that the claimant must act within 60 days after
mailing of the notice, that the plain language of the statute
provided for finality 60 days after the mailing of a notice of
disallowance after which the claim was barred, and that it was
unwarranted and not sensible to add 3 days due to mailing to
§ 30-2488, which explicitly states an action is barred “sixty
days after the mailing.”
[3] Thus, in both Schwarz v. Platte Valley Exterminating,
258 Neb. 841, 606 N.W.2d 85 (2000), and Roubal v. State, 14
Neb. Ct. App. 554, 710 N.W.2d 359 (2006), 3 days was added to
the performance of the act in question because the statutory
period for acting was after service, whereas in In re Estate
of Lienemann, 277 Neb. 286, 761 N.W.2d 560 (2009), where
the 3-day period was determined not to be applicable, the
statutory period for acting was after mailing. In the instant
case, as in Schwarz and Roubal, the language contained in
§ 77-2709(7) provides that a petition for a redetermination
of a tax deficiency determination must be made “within sixty
days after service.” Thus, it appears that if we are to apply
the dictates of Schwarz and Roubal, the 3-day mailing rule set
forth in § 6-1106(e) would apply to the petition for redeter-
mination filed by Lyman-Richey. However, there is an impor-
tant common element present in the analysis of the applica-
tion of the 3-day rule in each of these cases that is missing in
the instant case: In each of the three aforementioned cases, In
re Estate of Lienemann, Schwarz, and Roubal, the pleadings
at issue were part of a civil action. Pleadings are the written
statements by the parties of the facts constituting their respec-
tive claims and defenses. See, Sydow v. City of Grand Island,
263 Neb. 389, 639 N.W.2d 913 (2002); Russell v. Clarke, 15
Neb. Ct. App. 221, 724 N.W.2d 840 (2006). The tax deficiency
Decisions of the Nebraska Court of Appeals
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notices mailed by the Department to a taxpayer pursuant to
§ 77-2709(5) contain the summary of tax assessments deter-
mined at the conclusion of an audit, but are not pleadings.
Since deficiency notices mailed by the Department pursuant
to § 77-2709(5) are not pleadings, the Nebraska Court Rules
of Pleading in Civil Cases, including § 6-1106(e), do not
apply to them, including the 3-day mailing rule.
Nebraska Administrative Code.
Further, even if the rules were applicable, Neb. Ct. R. Pldg.
§ 6-1101 also provides, in pertinent part: “These Rules govern
pleading in civil actions filed on or after January 1, 2003. They
apply to the extent not inconsistent with statutes governing
such matters. These Rules shall be construed and administered
to secure the just, speedy, and inexpensive determination of
every action.”
Although not a statute, a section of the Nebraska
Administrative Code provides language inconsistent with
application of the 3-day rule in the instant case. That section
provides, in part: “The period fixed by statute within which
to file a petition cannot be extended. If a petition is not filed
within the statutory period, it will not be considered by the Tax
Commissioner but will be returned to the petitioner by mail.”
See 316 Neb. Admin. Code, ch. 33, § 003.07 (2013).
[4,5] In considering the validity of regulations, courts
generally presume that legislative or rulemaking bodies, in
enacting ordinances or rules, acted within their authority,
and the burden rests on those who challenge their validity.
Smalley v. Nebraska Dept. of Health & Human Servs., 283
Neb. 544, 811 N.W.2d 246 (2012). There is no such chal-
lenge in this case. Agency regulations that are properly
adopted and filed with the Secretary of State of Nebraska
have the effect of statutory law. Smalley v. Nebraska Dept. of
Health & Human Servs., supra. Since agency regulations that
are properly adopted and filed with the Secretary of State of
Nebraska have the effect of statutory law, we conclude that
the plain language of the code is applicable in this case and
that Lyman-Richey’s time to file the petition for redetermina-
tion could not be extended.
Decisions of the Nebraska Court of Appeals
LYMAN-RICHEY CORP. v. NEBRASKA DEPT. OF REV. 419
Cite as 22 Neb. Ct. App. 412
CONCLUSION
Pursuant to the Department’s rules, the time to file a peti-
tion for redetermination cannot be extended. We find that
this rule is controlling and that as a result, the district court
properly affirmed the decision of the Department that Lyman-
Richey’s petition for redetermination was not timely filed
with the Department. An appellate court will affirm a lower
court’s ruling that reaches the correct result, although based
on different reasoning. Feloney v. Baye, 283 Neb. 972, 815
N.W.2d 160 (2012). Thus, the decision of the district court
is affirmed.
Affirmed.