W. Va. Code R. § 121-1-37

Current through Register Vol. XLI, No. 40, October 4, 2024

Section 121-1-37 - Conduct of hearing

37.1. The hearing shall be conducted by an administrative law judge employed by the office of tax appeals.

37.2. Recording of evidence at hearing.

37.2.1. The evidence at a hearing, except small claim hearings to which the provisions of section 58 of this rule apply, will be recorded by an audio recording device suitable for use in court proceedings in this state or will be stenographically reported and transcribed by a qualified court reporter selected by the office of tax appeals.

37.2.2. If the presiding administrative law judge deems it necessary, a transcript of the evidentiary hearing shall be prepared and the parties shall share the cost of preparation of the transcript.

37.2.3. Due primarily to physical space limitations, but also in the interest of preventing distractions at the hearing, the office of tax appeals ordinarily will not permit the parties to videotape the evidentiary hearing. Any request for such permission must be by a detailed written motion addressed to the chief administrative law judge and must be received by him or her no later than seven (7) days prior to the scheduled hearing. The chief administrative law judge shall rule promptly on this motion, either orally or in writing or both.

37.3. Hearing procedures. -- With the exception of property tax appeals, hearings before the office of tax appeals are conducted, generally, following the contested case procedures set forth in W. Va. Code § 29A-5-1 et seq., to the extent those procedures are not inconsistent with the provisions of article 10A of chapter 11 of the West Virginia Code, the article creating the office of tax appeals.

37.4. Hearings not open to public. -- Hearings before the office of tax appeals are not open to the public and are not subject to the open governmental proceedings act, W. Va. Code § 6-9A-1 et seq., unless a statute explicitly states to the contrary.

37.5. Petitioner goes first. -- At the hearing, the burden of proof is on the taxpayer or other petitioner, unless an applicable statute provides otherwise. Accordingly, the taxpayer or other petitioner usually will present evidence first.

37.6. At the hearing, the parties may:

37.6.1. Call and examine witnesses, who must testify under oath or by affirmation;

37.6.2. Introduce exhibits;

37.6.3. Cross-examine opposing witnesses on any matter relevant to the issues even though the matter was not covered in direct examination;

37.6.4. Impeach any witness regardless of which party first called the witness to testify; and

37.6.5. Rebut any evidence against them.

37.7. In presenting its case in response, the tax commissioner's legal representative shall introduce a copy of all relevant documents not previously part of the record or not introduced by the taxpayer or other petitioner, including any audit findings and supporting schedules, and related federal tax documents.

37.8. In the discretion of the administrative law judge, affidavits as to relevant facts may be received, for whatever value they may have, in lieu of the oral testimony of the persons making such affidavits.

37.9. Objections to evidence. -- Objections to evidentiary offers may be made, and they and the rulings thereon shall be noted in the record.

37.10. Inquiry by ALJ. -- The administrative law judge may ask questions of the parties or of witnesses for the purpose of clarifying the record.

37.11. Substitution of copies for originals. -- When books, records, papers, or other documents have been received in evidence, the substitution of a copy thereof may be permitted.

37.12. Return of original exhibits. -- When original exhibits have been received in evidence, the party who offered such exhibits may be permitted to withdraw them after the determination of the administrative law judge becomes final.

37.13. Stipulations. -- Any time prior to the evidentiary hearing the parties are able, if they so desire, to provide this Tribunal with stipulated facts.

37.13.1 The presiding administrative law judge may, in the interest of justice, allow the parties to make post hearing evidentiary submissions within time restrictions fixed by the administrative law judge.

37.14. Argument. -- After all of the parties have completed the submission of the evidence, they may orally argue the applicability of the law to the facts.

37.15. Legal briefs, or proposed findings of fact and conclusions of law.

37.15.1. The administrative law judge may order the parties to file legal briefs, or proposed findings of fact and conclusions of law within the time permitted by the administrative law judge.

37.15.2. A party filing a legal brief, or proposed findings shall serve a copy on the other party at the time the brief or findings are submitted to the administrative law judge and proof of service on the other party shall be attached.

W. Va. Code R. § 121-1-37