CHAPTER 2
RULES OF PRACTICE AND PROCEDURE
FOR CASES BEFORE THE WYOMING
STATE BOARD OF EQUALIZATION
Section 1. Authority.
These rules of practice and procedure are promulgated by
authority of W.S. 16-3-102 and W.S. 39-11-102.1.
Section 2. Purpose of Rules.
These rules are intended to provide a uniform and
understandable process for contested cases affording de novo
review of administrative decisions of the Department and of a
county assessor(for certified cases).
Section 3. Application of Rules.
These rules shall apply to contested cases authorized in
Titles 31 and 39 of the Wyoming Statutes and brought before
the Board from any final administrative decision of the
Department or a county assessor (for certified cases).
Section 4. Definitions. For the purposes of contested
cases brought before the Board under these rules, the
following definitions shall apply:
(a) "Board" - the Wyoming State Board of Equalization as set forth in W.S. 39-11-102.1.
(b) "Case" - a proceeding before the Board in which the legal rights, duties or privileges of a party are to be determined by the Board after an opportunity for hearing as defined in W.S. 16-3-107.
(c) "Certified Case" - a case proceeding before the
Board pursuant to Section 35 of this Chapter.
(d) "Department" - the Wyoming Department of Revenue as
created by W.S. 39-11-102.
(e) "Party" - the Petitioner who is seeking relief
before the Board, each person or agency named or admitted as
a party or properly seeking and entitled as of right to be
admitted as a party, and the Department.
(f) "Petitioner" - Any person, firm, corporation,
partnership, association, OR board of county commissioners who
files a case notice.
Section 5. Commencement of Case.
(a) Cases may be instituted by any Petitioner who files
a case notice for review of any final administrative decision
of the Department with the Board c/o executive secretary at
P.O. Box 448, Cheyenne, Wyoming 82003-0448. The case notice
shall be served on the Department of Revenue and other parties
consistent with Section 7 of this Chapter. The case notice
shall include a copy of the decision at issue, state in
ordinary and concise language the facts and issues upon which
the case is based, the contention of the Petitioner, and shall
state the relief desired. The case notice shall also contain
the phone number, fax number, if available, and mailing
address of the Petitioner and his representative or attorney.
Unless otherwise required by law, the case notice shall be
filed with the Board within thirty (30) days of the date of
the final administrative decision at issue or upon the date of
mailing of the final administrative decision as evidenced by
a postmark, whichever is later.
(b) "Computation of Time" - In computing the time period
for filing a case notice, the period shall begin on the day
after the date of the final administrative decision or upon
the date of mailing of the final administrative decision as
evidenced by a postmark, whichever is later and shall conclude
on the last day of such computed period, unless such day is a
Saturday, Sunday or legal holiday, in which event the period
runs until the end of the next day which is neither a
Saturday, Sunday nor a legal holiday.
(c) "Filed with the Board" - The case shall be
considered filed with the Board upon mailing of the case
notice as evidenced by a postmark, or upon receipt by fax or
upon hand delivery as evidenced by the Board's file stamp.
Any case notice not timely filed shall be dismissed.
Section 6. Processing of case
(a) The Executive Secretary shall examine the case
notice, dismiss if untimely, notify the Petitioner of any
apparent errors or omissions, and request any additional
information the Board wishes to obtain and is permitted by law
to require, including whether the Petitioner wishes the matter
to be considered as an expedited case. If the notice is timely
filed the executive secretary shall either:
(i) Docket for commencement of formal
contested case procedures in accordance with W.S. 16-3-107 et
seq. and these rules; or
(ii) Docket as an expedited case for
consideration pursuant to Section 14 of this chapter.
(b) The Board shall establish a separate file for each
such docketed case in which shall be placed all papers,
pleadings, documents, transcripts, evidence and exhibits
pertaining thereto, and all items shall have noted thereon the
docket number assigned.
Section 6A. Record
Within 60 days after a case notice is filed, the
Department shall transmit to the State Board a certified copy
of the entire record of the final administrative decision from
which the appeal is taken, including a general index
identifying the documents and instruments in the record with
reasonable definiteness. Contemporaneous with filing the
record, the Department shall serve a copy of the general index
on all parties to the appeal.
Section 7. Service of Notice of Case and Other Pleadings.
A case notice and any other pleadings filed on behalf of
Petitioner or any other party shall be sent by mail or
personally delivered to the Director of the Department. Any
pleadings filed by the Department shall be served on
Petitioner by mail at Petitioner's last known address, and on
any other party at the address indicated on his pleadings. If
Petitioner or any other party are represented by counsel or
other designated person, any pleadings by the Department shall
be served by mail on counsel or representative at their
indicated address.
Section 8. Designation of Presiding Officers.
The Board may designate a presiding officer by assigning
an appeal to one (1) or more member(s) of the Board, the
Executive Secretary of the Board, or a licensed attorney
employed by or on contract with the State of Wyoming who is
knowledgeable of and qualified in the particular areas of
taxation which are the subject of the appeal. The functions
of the presiding officer shall be conducted in an impartial
manner. Presiding officers shall have the full authority
provided by W. S. 16-3-112(b).
Section 9. Prehearing Conference. The Board or the
presiding officer may order a prehearing conference. If so
ordered, each party may be required to file a prehearing
statement no later than five (5) days before the conference.
The statement shall contain such items, information, and
directions as deemed necessary to conduct a useful conference.
The prehearing conference shall be an informal proceeding
conducted expeditiously by the presiding officer, executive
secretary to the Board, or the Chairman, and may be held by
telephone conference call. The results of the conference may
be made the subject of an order which shall be provided to all
parties to the appeal. At or following the conference, the
case may be designated an expedited case for proceedings under
section 14 of this chapter.
Section 10. Preliminary Statement. Each party may be
ordered to file with the Board and serve upon the other
parties a preliminary statement. The parties shall be afforded
at least thirty (30) days for the preparation and filing of
any statement. Following receipt of the preliminary statement,
the proceeding may be converted to an expedited case under
Section 14 of this chapter. Unless otherwise ordered, the
statement shall set forth:
(a) A brief summary of the contentions of the party.
(b) Significant uncontroverted facts about which there
is no genuine issue (these may be established by admissions or
by stipulation).
(c) Contested issues of fact remaining for decision.
(d) Contested issues of law to be determined at the
hearing. The parties may include memorandums of law on
significant legal issues the parties wish to call to the
attention of the Board.
(e) The names, addresses, and a brief description of the
testimony of each witness the party intends to present at the
hearing.
(f) Copies of all exhibits to be introduced (this does
not foreclose the introduction of other exhibits which become
available or are discovered later).
(g) Any request to convert the case to an expedited case
under Section 14 of this chapter.
(h) Estimated time required for the hearing.
Section 11. Motions.
(a) An application to the Board for an order shall be by
motion which, unless made during the conduct of a hearing,
shall be in writing and shall state with particularity the
grounds and the relief or order sought. Written motions shall
be served on all parties and the Board shall advise the
parties that should they wish to contest the motion they must
file a written response serving copies on the Board and all
parties within fifteen (15) days of service of the motion.
The response shall set forth the party's objections to the
motion. No motions shall be filed within twenty (20) days of
a hearing unless otherwise allowed by these rules.
(b) For good cause, the Board may take action on its own
motion by providing notice of its intent to take the action
and the reasons therefore to all parties. The notice of
intent shall advise the parties they may file written
objections within fifteen (15) days of service of the notice.
Section 12. Joinder of Persons.
(a) Any party may move for the joinder of persons to a
case when necessary to accord complete relief to persons
already parties. A motion for joinder shall be filed with the
Board within the time limits of these rules, and served by
certified mail on the proposed parties. The motion shall set
forth the names and addresses of the persons to be made
parties, state why said persons are necessary for just
adjudication, and notify the proposed party as well as all
other parties that a response to the motion must be filed with
the Board within fifteen (15) days of service of the motion.
(b) Upon motion, the Board may order joinder if complete
relief to those persons already parties cannot otherwise be
accorded. The order shall be served by certified mail on the
joined party. The Board in its discretion may proceed with a
hearing without requiring joinder if its jurisdiction over the
proposed parties can be acquired only by their consent or
voluntary appearance; however, any order rendered therein does
not affect the rights or liabilities of absent persons.
Section 13. Intervention
(a) Upon timely motion, any person may be permitted to
intervene in a case: (1) when a statute confers an
unconditional right to intervene; or (2) when the movant
claims an interest relating to the matter or transaction which
is the subject of the case and he is so situated that the
disposition of the case may as a practical matter impair or
impede his ability to protect that interest.
(b) A person desiring to intervene shall serve a motion
to intervene upon the Board and all parties in the case. The
motion shall state the grounds therefore, shall set forth the
position for which intervention is sought, and shall advise
the parties that should they wish to contest the motion they
must file with the Board and serve on all parties a written
response within fifteen (15) days of service of the motion. No
motion to intervene shall be filed within twenty (20) days of
a hearing unless otherwise allowed by these rules.
Section 14. Expedited Contested Case.
(a) A contested case may be expedited if the case is:
(i) A matter in which there are no disputed
issues of material fact; or
(ii) A matter in which the parties agree to an
expedited proceeding, provided the Board retains the authority
to convert at any time the proceeding to a regular contested
case when it appears essential facts must be determined in
order to permit adequate presentation and disposition of the
case.
(b) Any party shall have fifteen (15) days from the date
of the Board order scheduling a matter as an expedited case to
request reconsideration.
(c) An expedited contested case shall consist of review
of any written argument and evidence. Limited oral argument
to the Board after submission of all written material shall be
permitted upon written request of a party.
Section 15. Notice of Hearing.
After the period for the response of the Department has
passed, the Board shall by notice set a time and place for the
hearing of the case. Such notice shall set forth the date,
time, place and nature of the hearing. The notice shall be
delivered by mail or personally to the Petitioner and all
parties at least thirty (30) days before the date set for
hearing. If the Board finds an emergency exists or it is
necessary and proper such matter be heard sooner, the Board
may set such matter for hearing before the thirty (30) day
period set forth above.
Section 16. Hearing and Representation.
(a) At the date, time and place of the hearing, the
Board or presiding officer shall hear all matters presented.
For expedited cases, the hearing shall be limited to oral
argument. The Board or presiding officer has full authority
to limit time for the conduct of a hearing.
(b) Any party may represent himself at such a hearing,
or may be represented by a person designated by the party.
The Department may be represented by any of its employees or
by its attorney.
(c) The hearing is open to attendance by the public,
except for such portions closed by the Board pursuant to any
statute expressly authorizing closure. To the extent a
hearing is conducted by telephone and not closed, the
availability of public attendance is satisfied by allowing
members of the public an opportunity, at reasonable times, to
hear or inspect the Board record.
Section 17. Order of Procedure at Hearing.
(a) For purposes of this section, the functions of the
Chairman of the Board and the Board may be exercised by a
presiding officer appointed by the Chairman. Where oral
arguments are ordered, the presiding officer may limit time
for the presentation of the oral arguments. As nearly as
possible, where evidence is presented, hearings shall be
conducted in accordance with the following order of procedure:
(i) The Chairman of the Board shall conduct
the hearing, shall announce that the hearing is convened and
shall indicate the docket number and title of the appeal to be
heard. The Chairman shall then read the case notice into the
record and shall note for the record all subpoenas issued and
all appearances of record;
(ii) The Chairman shall then take up any
motions or preliminary matters to be heard;
(iii) Opening statements will be heard at the
discretion of the Board;
(iv) The Petitioner, or his designated agent,
or his attorney then presents his evidence after which the
Director of the Department or his designee shall present his
evidence. Evidentiary issues shall be governed by W.S.
16-3-108. All testimony shall be under oath or affirmation.
Any part of the evidence may be received in written form if
doing so will facilitate the hearing without substantial
prejudice to the interests of any party. Parties shall make
every effort to disclose to the opposing party within a
reasonable time before the hearing, any intention to introduce
and rely upon written evidence. Documentary evidence may be
received in the form of a copy or excerpt. Upon request,
parties shall be given an opportunity to compare the copy with
the original if available. The members of the Board may ask
questions of any party or any witness for the purpose of
clarifying their understanding of the case;
(v) Closing statements may be made at the
conclusion of the presentation of evidence by both parties.
These statements may include summaries of the evidence and
legal arguments. Upon request, the Petitioner may make his
closing statement last.
(b) The Board may ask for proposed findings of fact and
conclusions of law from both parties. The Board shall set a
time for filing proposed findings, if requested.
(c) After all proceedings have been concluded, the Board
shall dismiss and excuse all parties and declare the hearing
closed. The Board may announce a tentative decision prior to
taking the case under advisement. The Board shall advise the
parties that the final decision of the Board shall be
announced within due and proper time following consideration
of all matters presented at the hearing. The Board may
request parties to submit supplemental briefs after the
hearing is closed and during consideration of the case.
Section 18. Briefs.
Any party who desires to tender a written brief to the
Board may do so, at his option, before or during the hearing.
If the party desires to submit a brief after the hearing, a
request shall be made of the Board. If approved, the Board
shall set a date by which such brief is due. The briefs may
set forth the factual and legal position of the party
submitting it. An original and four copies of any brief and
proposed findings, et al., shall be filed with the Board and
a copy thereof served on every other party to the case.
Section 19. Burden of Going Forward; Burden of
Persuasion.
Except as specifically provided by law or in this
section, the Petitioner shall have the burden of going forward
and the ultimate burden of persuasion, which burden shall be
met by a preponderance of the evidence. If Petitioner
provides sufficient evidence to suggest the Department
determination is incorrect, the burden shifts to the
Department to defend its action. For all cases involving a
claim for exemption, the Petitioner shall clearly establish
the facts supporting an exemption. In proceedings involving
the question of whether or not there is a taxable event under
Wyoming law, the Petitioner shall have the burden of going
forward and the Department shall have the ultimate burden of
persuasion.
Section 20. Default Order.
(a) If a party fails to attend or participate in a
prehearing conference, hearing, or other stage of a contested
case proceeding, the Board may serve upon all parties written
notice of a proposed default order, including a statement of
the grounds.
(b) Within ten (10) days after service of a proposed
default order, the party against whom it was issued may file
a written motion requesting the proposed order be vacated and
stating the grounds therefore. During the time within which
a party may file a written motion under this subsection, the
Board may adjourn the proceedings or conduct them without the
participation of the party against whom a proposed default
order has been issued, having due regard for the interests of
justice and the orderly and prompt conduct of the proceedings.
(c) The Board shall issue or vacate the default order
promptly after expiration of the time within which the party
may file a written motion under subsection (b) of this
section.
(d) Upon issuance of a default order, the Board shall
conduct, without the participation of the party in default,
any further proceedings necessary to complete the contested
case and determine all issues in the proceeding, including
those affecting the defaulted party.
Section 21. Record of Proceedings.
The hearing proceedings including all testimony shall be
reported verbatim stenographically or by any other appropriate
means determined by the Board. A copy of such proceedings
will be furnished to any party upon written request to the
Board and the payment of a reasonable fee. If one or more
parties desire the hearing transcribed by a certified court
reporter, they must make the necessary arrangements and bear
the cost thereof.
Section 22. Filing of Documents.
All documents submitted in a contested case shall be
filed with the Board at 122 West 25th Street, Cheyenne,
Wyoming 82002-0110, or mailed to the Executive Secretary, P.
O. Box 448, Cheyenne, Wyoming 82003-0448.
Section 23. Inspection of File.
Each party, or his authorized representative, shall be
permitted to inspect and copy, at their own expense at the
offices of the Board, all documents regarding the case
contained in the Board files permitted by law to be inspected
and copied.
Section 24. Routine Discovery Exchange.
(a) It is the policy of the Board discovery shall be
open, full and as complete as possible. As ordered by the
Board, all parties are required to submit to opposing parties
"routine" discovery as follows:
(i) Petitioner shall submit routine discovery to
opposing parties no later than 90 days after entry of an order
by the Board, or no later than 20 days after a party is
joined;
(ii) The Department shall submit routine discovery to Petitioner within 90 days after entry of an order by the Board;
(iii) Any party joined shall submit routine
discovery to Petitioner and the Department within 60 days
after service of the order of joinder;
(iv) The obligation to exchange "routine" discovery
is continuing, and all parties shall immediately submit
routine discovery to the opposing party when obtained.
(b) "Routine" discovery is defined as:
(i) The name and, if known, the address and
telephone number of each individual likely to have
discoverable information relating to facts alleged to be in
dispute, identification of the subjects of the information,
together with a summary of their expected testimony;
(ii) A copy of all documents, data compilations and
tangible items in possession, custody or control of the party
which are relevant to or likely to bear significantly upon
disputed facts. In cases where it is impractical due to the
volume or nature of the documentation to produce such copies,
parties shall provide a complete description by category and
location in lieu thereof.
(c) A party shall make initial disclosures based on the
information then reasonably available to it, and is not
excused from making its disclosures because it has not fully
completed its investigation of the case, or because it
challenges the sufficiency of another party's disclosures, or
because another party has not made its disclosures.
Section 24A. Depositions and Discovery; Limitations.
(a) In all cases coming before the Board, the taking of
depositions and discovery shall be available to the parties in
accordance with the provisions of W.S. 16-3-107(g). The Board
may issue discovery and protective orders in accordance with
the Wyoming rules of civil procedure. Time limits for the
completion of all discovery may be established as a part of
any prehearing order. Unless otherwise ordered or stipulated,
no party may serve on any other party more than thirty (30)
interrogatories in the aggregate. Each subpart shall be
counted as a separate interrogatory. Interrogatories shall be
arranged so that after each question there shall be left a
blank space reasonably calculated to allow the answering party
to answer. For consolidated cases involving multiple parties
the Board may impose further limits on the number of allowed
interrogatories. Unless otherwise ordered, discovery documents
shall not be filed with the Board except in support of a
motion to compel or as evidence.
(b) Board orders may be enforced pursuant to W.S.
16-3-107(c).
Section 25. Subpoenas.
(a) Subpoenas for appearance and to produce books,
papers, documents or exhibits may be issued by the Board, upon
written request of any party, or on the Board's own motion,
pursuant to W.S. 16-3-107(c).
(b) Subpoenas may be enforced pursuant to W.S.
16-3-107(c).
Section 26. Documentary Evidence.
Documentary evidence or exhibits shall be marked for
identification at the direction of the Board.
Section 27. Continuances.
A party desiring continuance of a case set for hearing
shall file with the Board at least twenty(20) days before the
hearing date a motion for continuance. The motion must show
that good cause exists for the continuance. Motions for
continuance filed less than twenty (20) days before the
hearing will be granted only in case of an emergency, which
the Board will determine.
Section 28. Extension of Time.
Unless otherwise provided by statute, the time for doing
any act prescribed or allowed by these rules may be extended
by order of the Board upon written motion filed prior to the
expiration of the applicable time period. The motion must
show good cause for such extension and that the need therefor
is not caused by the party's neglect or lack of diligence.
Section 29. Dismissal with Prejudice Due to Settlement.
Resolution of any pending case may be made by agreed
settlement. Upon filing of a stipulated motion to dismiss with
prejudice signed by all parties to the case, the Board shall
dismiss the case with prejudice.
Section 30. Telephone Conferences.
At the discretion of the presiding officer, telephone
conference calls may be used to conduct any proceeding.
Section 31. Post-hearing Supplementation.
After a hearing and before a Board decision has been
issued any party may file a motion for post-hearing
supplementation of the record to submit additional, newly
discovered evidence on material issues. If such motion is
approved, all other parties are entitled to at least one
response to the new evidence as may be ordered by the Board,
with the record to be closed on a date set by the Board order
supplementing the record. All evidence submitted contrary to
Board order shall be returned.
Section 32. Decision of the Board
(a) The Board shall make and enter a written decision
and order containing findings of fact and conclusions of law.
The findings of fact shall be derived from the evidence of
record in a proceeding, matters officially noticed in that
proceeding, and matters within the Board's knowledge as
acquired through performing its functions and duties. Such
findings shall be based on the kind of evidence which
reasonably prudent persons are accustomed to rely in the
conduct of their serious affairs, even if such evidence would
be inadmissible in a civil trial. The Board's experience,
technical competence, and specialized knowledge may be
utilized in evaluating the evidence. The written decision
shall be filed with the Board and will, without further
action, become the decision and order as a result of the
hearing. Upon filing, the Board shall send a copy to the
Petitioner and all other parties.
(b) Computation by parties for entry of order.
(i) Agreed computations. The State Board may, in
its discretion, render findings of fact and conclusions of
law, but withhold entry of an order to permit the parties to
submit, within a specified time, computations pursuant to the
Board findings and conclusions showing the correct numerical
calculations to be entered as part of the order. If the
parties agree upon the calculations, they shall jointly file
promptly with the Board an original and two copies of the
calculations with a statement there is no disagreement the
figures shown are in accordance with the findings and
conclusions of the Board. In the case of an overpayment, the
computation shall also include the amount and date of each
payment made by the Petitioner. The Board will then enter its
order.
(ii) Procedure in absence of agreement. If the
parties can not agree, within the specified time, as to the
calculations necessary to comply with the findings and
conclusions of the Board, then either of them may file with
the Board, and shall also include the amount and date of each
payment made by the Petitioner. If the opposite party fails to
file objection within fifteen days of the date of service of
the calculations, accompanied or preceded by an alternative
computation, the Board may enter an order in accordance with
the computation already submitted. If, in accordance with
this rule, computations are submitted by the parties which
differ as to the appropriate calculations, the parties may, at
the Board's discretion, be afforded an opportunity to be heard
in argument thereon. The Board will determine the correct
calculations, and enter its order accordingly.
(iii) Limit on argument. Any argument under
this rule shall be confined strictly to consideration of the
correct calculations resulting from the findings and
conclusions of the Board. No argument shall be heard upon or
consideration given to the issues or matters disposed of by
the Board findings and conclusions or to any new issues. This
rule is not to be regarded as affording an opportunity for
reconsideration.
(c) Any party may petition the Board, within ten days of
the date of a decision and order, for reconsideration of the
decision and order by filing a motion with the Board. The
Board shall issue a written order denying the motion, granting
the motion and dissolving or modifying the decision and order,
or granting the motion and setting the matter for further
proceedings. A motion for reconsideration does not affect the
finality of the decision and order and is not a prerequisite
for judicial review. A motion for reconsideration may be
granted by the Board on any of the following grounds:
(i) Irregularity in the proceedings;
(ii) Fraud, misrepresentation, or other
misconduct of an adverse party;
(iii) Error in the valuation, assessment or
other calculation within the order;
(iv) Newly discovered evidence, material as to
the party applying, which the party could not, with reasonable
diligence, have discovered and produced at the hearing; or
(v) An error of law contained within the
decision.
(d) Clerical mistakes in decisions and orders or other
parts of the record may be corrected by the Board at any time
of its own initiative, or on the motion of any party. During
the pendency of a judicial appeal, such mistakes may be
corrected with leave of the court.
Section 33. Appeals to District Court.
Any party aggrieved or adversely affected by a final
decision of the Board in a case is entitled to judicial review
in the appropriate district court pursuant to W.S. 16-3-114
and W.S. 39-11-109(b)(ii), 39-13-109(b)(iv), 39-14-109(b)(v),
39-14-209(b)(ii), 39-14-309(b)(v), 39-14-409(b)(v), 39-14-509(b)(v), 39-14-609(b)(v), 39-14-709(b)(v) and 39-19-109(b).
Section 34. Certification to the State Board of Case
Originally Brought Before A County Board of Equalization.
If a county board of equalization concludes a case before
it concerning locally-assessed property may be appropriate for
consideration by the State Board, it may request, in writing,
stating the reasons therefore, certification to the Board. The
State Board shall expeditiously decide whether certification
is appropriate. If approved, the case shall be docketed by
the Board and considered pursuant to this chapter. If
disapproved, the matter shall remain with the county board for
disposition.
Section 35. Recusal
Any member of the Board may, at any time while a case is pending and without stating a reason, recuse himself from consideration of the case by serving a notice of recusal with the executive secretary for service on all parties and filing in the case record. From and after the date of the notice of recusal, the member shall not participate in any Board decisions or orders with regard to the case.