Nebraska Sales and Use Tax Protest — Petition for Redetermination and Refund Claim

WRITTEN PROTEST AND PETITION FOR REDETERMINATION — NEBRASKA SALES AND USE TAX

TABLE OF CONTENTS

1. Filing Cover Page
2. Identification of Taxpayer
3. Identification of Determination Being Protested
4. Statement of Jurisdiction and Timeliness
5. Statement of Facts
6. Legal Bases for Redetermination
7. Refund Claim Section (alternative pathway)
8. Requested Relief
9. Request for Oral Hearing
10. Reservation of Rights
11. Verification and Signature
12. Power of Attorney / Authorized Representative
13. Certificate of Service
14. Nebraska Practice Notes
15. Sources and References

1. FILING COVER PAGE

TO: Nebraska Department of Revenue
Legal Section / Protest Unit
PO Box 94818
Lincoln, NE 68509-4818
Email: [as designated on the Notice of Deficiency Determination]

FROM: [TAXPAYER / RETAILER / REMOTE SELLER]

RE: Written Protest and Petition for Redetermination — Nebraska Sales and Use Tax

2. IDENTIFICATION OF TAXPAYER

2.1. Taxpayer: [LEGAL NAME] ("Taxpayer").

2.2. Address: [STREET ADDRESS, CITY, STATE ZIP].

2.3. Form of organization: ☐ Sole proprietor ☐ LLC ☐ Corporation ☐ Partnership ☐ Other: [____].

2.4. Business activity / NAICS: [DESCRIPTION / NAICS].

2.5. Nexus posture:

• ☐ Physical presence in Nebraska (location, employees, inventory, agents).
• ☐ Remote seller — economic nexus under Neb. Rev. Stat. § 77-2701.13 (>$100,000 retail sales OR ≥200 separate transactions delivered into Nebraska).
• ☐ Marketplace facilitator under Neb. Rev. Stat. § 77-2701.51.
• ☐ Disputed — Taxpayer contests nexus (see Section 6).

2.6. Sales tax permit number: [PERMIT #].

2.7. Contact for this matter:

3. IDENTIFICATION OF DETERMINATION BEING PROTESTED

3.1. Taxpayer protests in full the Notice of Deficiency Determination dated [__/__/____] and mailed by the Nebraska Department of Revenue (the "Notice"), notice number [NOTICE NUMBER], for the period(s) [PERIOD(S)] (the "Tax Period").

3.2. The Notice asserts:

3.3. The principal adjustments asserted in the Notice are:

3.4. Taxpayer protests each adjustment listed above and any related penalty and interest.

4. STATEMENT OF JURISDICTION AND TIMELINESS

4.1. This Petition is filed pursuant to Neb. Rev. Stat. § 77-2709, which provides that a person against whom a sales or use tax deficiency determination is made may petition for redetermination within sixty (60) days after service upon the person of notice thereof. Service is complete upon mailing.

4.2. The Notice was mailed on [__/__/____]. The 60-day protest period expires on [__/__/____]. This Petition is timely filed on [__/__/____], within that period.

4.3. Taxpayer reserves the right to seek judicial review of any adverse final order in district court within 30 days of service of the Tax Commissioner's final order, pursuant to the Nebraska Administrative Procedure Act (Neb. Rev. Stat. § 84-917) and § 77-2798.

5. STATEMENT OF FACTS

5.1. Business operations. Taxpayer is a [DESCRIBE — e.g., online retailer of consumer electronics; SaaS provider; brick-and-mortar retailer; manufacturer] organized under the laws of [STATE], with principal place of business at [ADDRESS].

5.2. Nebraska activity. During the Tax Period, Taxpayer's contacts with Nebraska consisted of: [DESCRIBE — e.g., $X of retail sales delivered into Nebraska; Y separate transactions; Z employees / inventory; W trade shows; etc.].

5.3. Audit history. The examination was conducted by [AUDITOR], Nebraska DOR, between [__/__/____] and [__/__/____]. Taxpayer responded to [#] IDRs and produced [DESCRIBE — e.g., sales-by-state reports, exemption certificates, marketplace facilitator agreements, resale certificates].

5.4. Specific factual disputes:

5.4.1. [FINDING 1 / CHARACTERIZATION 1] — Taxpayer's position: [POSITION].

5.4.2. [FINDING 2] — Taxpayer's position: [POSITION].

5.4.3. [FINDING 3] — Taxpayer's position: [POSITION].

5.5. Records. Taxpayer has retained books and records as required by Neb. Rev. Stat. § 77-2711 and Title 316 NAC Reg-1-008, and stands ready to produce additional documentation as requested.

6. LEGAL BASES FOR REDETERMINATION

6.1. Ground One — No Substantial Nexus (Constitutional and Statutory)

6.1.1. Imposition of Nebraska sales or use tax on Taxpayer requires substantial nexus under the Commerce Clause as articulated in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), and refined in South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018).

6.1.2. Neb. Rev. Stat. § 77-2701.13 codifies the post-Wayfair economic-nexus thresholds: a remote seller is "engaged in business in this state" only if, in the current or prior calendar year, it has either (a) more than $100,000 in retail sales for delivery into Nebraska or (b) 200 or more separate transactions for delivery into Nebraska.

6.1.3. During the Tax Period, Taxpayer had [$AMOUNT] in Nebraska sales and [NUMBER] transactions, [which fell below / above] the statutory thresholds. Accordingly, Taxpayer [lacked / had] nexus during the relevant period.

6.2. Ground Two — Transactions Are Exempt or Excluded

6.2.1. The transactions assessed are exempt or otherwise excluded from sales/use tax under one or more of:

• Sale for resale (Neb. Rev. Stat. § 77-2704.10) supported by valid resale certificates (Reg-1-013);
• Manufacturing machinery and equipment exemption (§ 77-2704.22);
• Agricultural machinery and equipment (§ 77-2704.36);
• Common or contract carrier (§ 77-2704.27);
• Occasional sales (§ 77-2704.49);
• Services not enumerated in § 77-2701.16(2) (services are taxable only if specifically enumerated);
• True-object test (where mixed transactions involve nontaxable services);
• Other: [CITE].

6.3. Ground Three — Improper Use of Estimates / Sampling

6.3.1. The Notice extrapolates a deficiency from a sample. Taxpayer challenges the sampling methodology as unrepresentative and contrary to Title 316 NAC Chapter 33 standards. [Specify defects — e.g., sample size too small, period not representative, bias toward taxable items, failure to follow agreed sample plan.]

6.4. Ground Four — Statute of Limitations

6.4.1. To the extent the Notice asserts adjustments for periods more than three years before the date of the Notice, those adjustments are time-barred under Neb. Rev. Stat. § 77-2709, absent fraud, willful evasion, or non-filing.

6.5. Ground Five — Penalties Should Be Abated

6.5.1. Penalties are not warranted because Taxpayer (a) acted in good faith with reasonable cause; (b) relied on [DOR ADVICE / PUBLISHED GUIDANCE / PROFESSIONAL ADVICE]; (c) has a clean compliance history; and (d) the position taken was supported by substantial authority. Reliance on written DOR advice is recognized under Right VI of the Nebraska Taxpayer Bill of Rights.

6.6. Ground Six — Marketplace Facilitator Collection (where applicable)

6.6.1. Under Neb. Rev. Stat. § 77-2701.51, the marketplace facilitator (not Taxpayer as marketplace seller) is the retailer required to collect and remit Nebraska sales tax on facilitated sales. Taxpayer is not liable for sales for which the marketplace facilitator collected, or was statutorily required to collect, the tax.

6.7. Ground Seven — Improper Tax Base (Bundling, Discounts, Returns)

6.7.1. The proposed tax base improperly includes [BUNDLED SERVICES / SHIPPING / CASH DISCOUNTS / PRICE ADJUSTMENTS / RETURNS] which are excluded from gross receipts under Title 316 NAC Reg-1-007 (Gross Receipts) and related authorities.

7. REFUND CLAIM SECTION (alternative pathway)

7.1. In the alternative, Taxpayer claims a refund of $[AMOUNT] in Nebraska sales/use tax overpaid for the Tax Period, plus statutory interest under Neb. Rev. Stat. § 77-2708.

7.2. Timeliness of refund claim. Under § 77-2708, this refund claim is filed within the latest of:

• ☐ Three years from the required filing date for the period of overpayment (return due [__/__/____]; three-year window expires [__/__/____]); or
• ☐ Six months after the determination became final under § 77-2709 (final on [__/__/____]); or
• ☐ Six months from the date of overpayment with respect to such determination (overpayment [__/__/____]).

7.3. Basis for refund. Same legal bases as set forth in Section 6 above.

7.4. Form 7 / 7AG attached with supporting schedules, invoices, and exemption certificates.

8. REQUESTED RELIEF

WHEREFORE, Taxpayer respectfully requests that the Tax Commissioner:

• A. Withdraw the Notice of Deficiency Determination dated [__/__/____] in its entirety;
• B. In the alternative, redetermine the deficiency by eliminating the adjustments described in Sections 3.3 and 6 above and recalculating tax, penalty, and interest accordingly;
• C. Abate all penalties asserted;
• D. Limit any final assessment to the period(s) for which the statute of limitations under § 77-2709 remains open;
• E. To the extent Taxpayer has paid amounts later determined not owing, refund the same with statutory interest under § 77-2708;
• F. Issue a written final order with findings of fact and conclusions of law as required by Title 316 NAC Chapter 33; and
• G. Grant such further relief as is just and equitable.

9. REQUEST FOR ORAL HEARING

9.1. Taxpayer expressly requests an oral hearing before a hearing officer designated by the Tax Commissioner pursuant to Title 316 NAC Chapter 33 and Neb. Rev. Stat. § 77-2709.

9.2. ☐ In-person in Lincoln, Nebraska.
☐ Telephonic / video.
☐ Available dates: [DATES].

9.3. Estimated hearing length: [____] hours. Anticipated witnesses: [NUMBER].

10. RESERVATION OF RIGHTS

10.1. Taxpayer reserves the right to:

• Supplement and amend this Protest;
• Submit additional documentary evidence and legal authority;
• Raise additional grounds disclosed by further DOR action or document discovery;
• Engage in pre-hearing conferences and informal resolution under the Nebraska Taxpayer Bill of Rights;
• Seek judicial review of any adverse final order within 30 days of service;
• Pursue all federal constitutional defenses (Commerce Clause, Due Process, Equal Protection, Internet Tax Freedom Act preemption);
• Assert any privilege, including attorney-client privilege, work-product doctrine, and federally authorized tax-practitioner privilege under IRC § 7525.

11. VERIFICATION AND SIGNATURE

I, [NAME], [TITLE] of Taxpayer, having read the foregoing Protest and Petition for Redetermination, declare under penalty of perjury under the laws of the State of Nebraska that the factual statements contained herein are true and correct to the best of my knowledge, information, and belief, and that this Protest is filed in good faith and not for purposes of delay.

Date: [__/__/____]

Signature: [________________________________]

Printed Name: [NAME]

Title: [TITLE]

12. POWER OF ATTORNEY / AUTHORIZED REPRESENTATIVE

☐ A current Nebraska DOR Form 33 (Power of Attorney) is on file.
☐ A Form 33 is enclosed with this filing.

Representative's Signature: [________________________________]

Date: [__/__/____]

13. CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true and correct copy of this Written Protest and Petition for Redetermination, together with all attachments, was filed with the Nebraska Department of Revenue by:

☐ Electronic filing through revenue.nebraska.gov
☐ U.S. Mail, certified, return receipt requested, to:

Nebraska Department of Revenue
Legal Section / Protest Unit
PO Box 94818
Lincoln, NE 68509-4818

☐ Email to [DOR EMAIL ON NOTICE] (with confirmation requested).

[________________________________]

[FILER NAME]

14. NEBRASKA PRACTICE NOTES

• Sixty-day deadline is jurisdictional. Under Neb. Rev. Stat. § 77-2709, the petition for redetermination must be filed within 60 days of the mailing of the Notice; otherwise the determination becomes final by operation of law. Calendar conservatively from the mailing date stated on the face of the Notice. Drug tax and jeopardy determinations carry only a 10-day deadline.
• Sales/use vs. income tax deadlines differ. Sales/use: 60 days (§ 77-2709). Income: 90 days (§ 77-2778, § 77-27,127). Do not transpose.
• TERC has no jurisdiction over sales or use tax. TERC (Neb. Rev. Stat. §§ 77-5005 to 77-5013) hears appeals from county boards of equalization on property-tax matters. Sales and use tax appeals proceed administratively at DOR and then to district court.
• Wayfair / economic nexus. Under § 77-2701.13 (effective April 1, 2019), a remote seller is "engaged in business" in Nebraska only if (current or prior calendar year) it has more than $100,000 in retail sales for delivery into Nebraska OR 200 or more separate transactions for delivery into Nebraska. Thresholds are disjunctive. Marketplace-facilitated sales may be excluded from a marketplace seller's threshold computation; consult DOR guidance.
• Marketplace facilitator collection. Under § 77-2701.51, the marketplace facilitator is the retailer of facilitated sales for tax-collection purposes. A marketplace seller should not be liable for sales on which the facilitator collected (or was required to collect) tax. Document the facilitator's reporting and any allocation agreements.
• Refund claim limitations (§ 77-2708). Claims must be filed within the LATEST of: (a) three years from the required filing date for the period; (b) six months after a § 77-2709 determination becomes final; or (c) six months from the date of overpayment with respect to such determination. Use Form 7 (general) or Form 7AG (agriculture). Denial of a refund claim is appealable on the same procedural track as a deficiency.
• Records retention. Sellers, retailers, and consumers must retain records for not less than three years under § 77-2711 and Reg-1-008. Longer retention is strongly recommended for incentive-program participants and for litigation hold purposes.
• Pay-and-protest is not required. Nebraska does not require prepayment of contested deficiencies to pursue an administrative protest. Interest continues to accrue, however; partial payment can limit interest exposure without waiving substantive defenses.
• Judicial review. After the Tax Commissioner issues a final order, the taxpayer has 30 days to file a petition for judicial review under the Administrative Procedure Act (§ 84-917). Venue is generally Lancaster County District Court, with alternative venue under § 77-2798 in some circumstances. Review is on the agency record; develop the hearing record fully.
• Nebraska Taxpayer Bill of Rights. Right V (due process), Right VI (reliance on written DOR advice — supports penalty abatement), and Right IX (professional, courteous treatment) apply throughout. Consider citing them in penalty-abatement and procedural arguments.
• § 77-2799 caveat. No section numbered 77-2799 exists in Nebraska Chapter 77; the operative records authority is § 77-2711, with limitations under § 77-2709 and § 77-2708. If a referral cites "§ 77-2799," verify the intended citation before relying on it.

15. SOURCES AND REFERENCES

• Nebraska Legislature — Chapter 77: https://nebraskalegislature.gov/laws/browse-chapters.php?chapter=77
• Neb. Rev. Stat. § 77-2701.13 (economic nexus): https://nebraskalegislature.gov/laws/statutes.php?statute=77-2701.13
• Neb. Rev. Stat. § 77-2708 (refund claims): https://nebraskalegislature.gov/laws/statutes.php?statute=77-2708
• Neb. Rev. Stat. § 77-2709 (deficiency / petition for redetermination): https://nebraskalegislature.gov/laws/statutes.php?statute=77-2709
• Neb. Rev. Stat. § 77-2711 (records retention; enforcement): https://nebraskalegislature.gov/laws/statutes.php?statute=77-2711
• Title 316 NAC Reg-1-008 (Records): https://revenue.nebraska.gov/sites/default/files/doc/legal/regs/1-008.pdf
• Title 316 NAC Chapter 33 (Practice and Procedure): https://revenue.nebraska.gov/about/legal-information/regulations/chapter-33-practice-and-procedure
• DOR — Wayfair / Remote Seller FAQs: https://revenue.nebraska.gov/about/frequently-asked-questions/south-dakota-v-wayfair-inc-collection-sales-tax-remote-sellers-faqs
• DOR — Form 7 (Sales and Use Tax Refund Claim): https://revenue.nebraska.gov/sites/default/files/doc/tax-forms/f_7.pdf
• DOR — Form 7AG (Sales/Use Tax Refund Claim — Agricultural): https://revenue.nebraska.gov/sites/default/files/doc/tax-forms/f_7ag.pdf
• DOR — Electronically File Your Protest: https://revenue.nebraska.gov/businesses/electronically-file-your-protest
• Nebraska Taxpayer Bill of Rights: https://revenue.nebraska.gov/about/nebraska-taxpayer-bill-rights
• South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018)
• Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in Nebraska must review and customize this document before filing. Statutory citations, nexus thresholds, and deadlines change frequently; verify all authorities before use.