Tax Audit Protest and Appeal — Nebraska

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Tax Audit Protest and Appeal (NEBRASKA)

Quick-Reference Summary

Part A — Informal Conference Request Letter (Pre-Petition)

[TAXPAYER / FIRM NAME]
[________________________________]
[Street Address]
[________________________________]
[City], Nebraska [ZIP]
Telephone: [________________________________]
Email: [________________________________]
NE Sales Tax / Income Tax ID No.: [____________]
NE Bar No.: [____________] (if attorney)

Date: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED

TO:
[Auditor Name and Title]
Nebraska Department of Revenue
[Audit Division Address]
[________________________________]

RE: Request for Audit Closing/Informal Conference — Pre-Petition
Taxpayer: [TAXPAYER LEGAL NAME]
State ID No.: [____________]
Federal EIN/SSN: [____________]
Audit/Case No.: [____________]
Tax Type: ☐ Income Tax (Individual) ☐ Income Tax (Corporate) ☐ Sales & Use Tax ☐ Withholding ☐ Tobacco/Other Excise ☐ Other: [____________]
Period(s) under Audit: [__/__/____] – [__/__/____]
Proposed Tax / Penalty / Interest: Tax $[__________] / Penalty $[__________] / Interest $[__________] / Total $[__________]

Dear [Auditor Name]:

Pursuant to DOR practice and the taxpayer's right to discuss audit findings prior to issuance of a Notice of Deficiency Determination, Taxpayer respectfully requests an audit closing conference to address the proposed adjustments set out in the [Audit Workpapers / Notice of Proposed Adjustment / Preliminary Audit Report] dated [__/__/____].

1. Items in Dispute.

2. Taxpayer's Position Summary.
[________________________________________________________________________
________________________________________________________________________
________________________________________________________________________]

3. Documentation Offered. ☐ Resale/Exempt-sale certificates (Form 13); ☐ apportionment workpapers (Form 1120N-Sch I); ☐ manufacturing-machinery exemption documentation (Rev. Rul. 1-08-6 framework); ☐ software/SaaS analysis under Rev. Rul. 1-02-1; ☐ federal Forms [____]; ☐ bank statements; ☐ invoices; ☐ other: [____________].

4. Preservation of Rights. This request does not waive or extend the 60-day petition deadline under Neb. Rev. Stat. §§ 77-2778 / 77-2709 once an NDD issues. Taxpayer reserves all rights to file a timely Petition for Redetermination.

5. Availability. Counsel and the responsible officer are available [__________________________________].

Respectfully,

[________________________________]
[Name, Title]

cc: DOR Hearing Officer (informational copy)

Part B — Formal Protest / Petition for Redetermination

BEFORE THE TAX COMMISSIONER
STATE OF NEBRASKA
DEPARTMENT OF REVENUE

DOR Case No. [TO BE ASSIGNED]

PETITION FOR REDETERMINATION (PROTEST)
Filed Pursuant to Neb. Rev. Stat. §§ 77-2778 and/or 77-2709 and 316 Neb. Admin. Code Ch. 33

TO:
Nebraska Department of Revenue
Attn: Hearing Officer / Legal Section
P.O. Box 94818
Lincoln, NE 68509-4818

Date Filed (postmark date controls): [__/__/____]

I. Petitioner

1. Name: [TAXPAYER LEGAL NAME]
2. Entity Type: [Individual / Sole Proprietor / Partnership / LLC / S corp / C corp / Trust]
3. State ID No.: [____________] FEIN/SSN: [____________]
4. Mailing Address: [____________________________]
5. Telephone / Email: [____________] / [____________]
6. Authorized Representative (with attached Power of Attorney, Form 33): [Name, NE Bar No., Firm, Address, Phone, Email]

II. Notice of Deficiency Determination Being Protested

7. NDD Issuing Division: ☐ Audit ☐ Compliance ☐ Sales/Use ☐ Income ☐ Withholding ☐ Other: [____________]
8. NDD No. / Letter ID: [____________]
9. NDD Mailing Date (postmark): [__/__/____]
10. Tax Type: [Individual Income / Corporate Income / Sales & Use / Withholding / Excise]
11. Period(s): [__/__/____] – [__/__/____]
12. Amounts Asserted: Tax $[__________] / Penalty $[__________] / Interest $[__________] / Total $[__________]
13. Timeliness: This Petition is filed within 60 days of the mailing date of the NDD and is timely under Neb. Rev. Stat. § 77-2778 (income) / § 77-2709 (sales-use). [☐ Petitioner is outside the United States; 150-day deadline under § 77-2778 applies.]

III. Grounds for Protest (separately stated; with summary of evidence)

14. Ground 1 — [e.g., Sales Were Exempt Resales Under Neb. Rev. Stat. § 77-2701.04; Valid Form 13 Held]:
    Statement: [____________________________________________________________]
    Evidence summary: [_______________________________________________________]

15. Ground 2 — [e.g., Manufacturing Machinery Exemption Under § 77-2704.22]:
    Statement: [____________________________________________________________]
    Evidence summary: [_______________________________________________________]

16. Ground 3 — [e.g., Apportionment Improper / § 77-2734.05 Special Apportionment]:
    Statement: [____________________________________________________________]
    Evidence summary: [_______________________________________________________]

17. Ground 4 — [e.g., Reasonable Cause for Penalty Abatement Under § 77-2790]:
    Statement: [____________________________________________________________]
    Evidence summary: [_______________________________________________________]

18. Ground 5 — [e.g., Statute of Limitations Bars Assessment Under § 77-2786]:
    Statement: [____________________________________________________________]
    Evidence summary: [_______________________________________________________]

IV. Hearing Request

19. Petitioner requests an oral hearing before a DOR hearing officer pursuant to Neb. Rev. Stat. § 77-2778. ☐ In Lincoln. ☐ By videoconference if available.
20. Estimated hearing time: [____] hours. Anticipated witnesses: [____________].

V. Relief Requested

21. WHEREFORE Petitioner respectfully prays:

A. That the NDD be cancelled in full, or in the alternative reduced by $[__________];
B. That all penalties be abated for reasonable cause under § 77-2790;
C. That interest be adjusted accordingly;
D. That refund of $[__________] be ordered if appropriate;
E. That Petitioner be granted an informal pre-hearing conference with DOR's assigned attorney;
F. Such other relief as is just and proper.

Dated: [__/__/____]

[________________________________]
[Name], [Title]
[Firm Name] (if represented)
NE Bar No. [____________]
[Address] · [Phone] · [Email]

VERIFICATION

I, [Name], being duly sworn, depose and state under penalty of perjury under the laws of Nebraska that the factual statements in this Petition are true and correct to the best of my knowledge.

Signature: [________________________________] Date: [__/__/____]

ATTACHMENTS

• Exhibit A — Copy of Notice of Deficiency Determination dated [__/__/____]
• Exhibit B — Form 33 Power of Attorney
• Exhibit C — Resale/exempt-use certificates (Forms 13) and supporting invoices
• Exhibit D — Audit workpapers and reconciliation

Part C — Appeal Cover Letter to Tax Tribunal / Court

C-1. Notice of Hearing Request to DOR Hearing Officer (After Petition Filed; Settlement Failed)

[FIRM LETTERHEAD]

Date: [__/__/____]

VIA CERTIFIED MAIL, RRR

Nebraska Department of Revenue
Attn: Hearing Officer / Legal Section
P.O. Box 94818
Lincoln, NE 68509-4818

RE: Request to Set Formal Hearing — [Taxpayer], DOR Case No. [____________]

Dear Hearing Officer:

Petitioner [NAME] filed a Petition for Redetermination on [__/__/____] regarding NDD No. [____________] (Tax Type: [______]; Period: [______]). After good-faith settlement discussions with the assigned DOR attorney that have not resolved the dispute, Petitioner requests that this matter be set for formal hearing before a duly appointed hearing officer pursuant to Neb. Rev. Stat. §§ 77-2779 / 77-2796 and 316 NAC Ch. 33.

Estimated hearing time: [____] hours. Anticipated witnesses: [____________]. Anticipated documentary exhibits: [____________].

Counsel is authorized by Form 33 Power of Attorney on file.

Respectfully,

[________________________________]
[Counsel Name], NE Bar No. [____________]

C-2. Petition for Review in Lancaster County District Court (Post-Final Order)

IN THE DISTRICT COURT OF LANCASTER COUNTY, NEBRASKA

Case No. [TO BE ASSIGNED]

PETITION FOR REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT
(Neb. Rev. Stat. § 77-27,127 and §§ 84-917 to 84-920)

COMES NOW Petitioner [NAME] and, pursuant to Neb. Rev. Stat. § 77-27,127 and the Administrative Procedure Act (§§ 84-917 et seq.), petitions this Court for judicial review of the final order of the Nebraska Tax Commissioner entered [__/__/____] in DOR Case No. [____________], and states:

1. Parties. Petitioner is [a Nebraska resident / a [state]-organized [entity type] doing business in Nebraska]. Respondent Nebraska Department of Revenue is the state agency that issued the order under review. Respondent [Tax Commissioner Name] is sued in his/her official capacity.

2. Jurisdiction and Venue. This Court has jurisdiction under Neb. Rev. Stat. § 77-27,127 and § 84-917. Venue is proper in Lancaster County under § 77-27,127 and § 84-917(2).

3. Timeliness. The Tax Commissioner's final order was served on Petitioner on [__/__/____]. This Petition is filed within 30 days of service and is timely under § 84-917(2)(a)(i). A summons is served concurrently as required by § 84-917(2)(a)(ii).

4. Administrative History. [Briefly describe NDD, Petition for Redetermination, hearing, and final order.]

5. Issues for Review. Petitioner challenges the final order on the following grounds (§ 84-917(6)):

a. The order is in violation of constitutional provisions [____________];
b. The order is in excess of the statutory authority of the agency;
c. The order is made upon unlawful procedure;
d. The order is affected by other error of law;
e. The order is unsupported by competent, material, and substantial evidence in view of the entire record; and/or
f. The order is arbitrary or capricious.

6. Relief Requested. Petitioner prays that this Court:

A. Reverse the Tax Commissioner's final order;
B. Remand for further proceedings as appropriate;
C. Award Petitioner its costs;
D. Grant such other and further relief as is just and equitable.

7. Bond / Stay. [☐ Petitioner does not seek stay. ☐ Petitioner requests stay of collection pending review under § 84-917(7).]

Dated: [__/__/____]

[________________________________]
[Counsel Name], NE Bar No. [____________]
[Firm], [Address], [Phone], [Email]

Certificate of Service: A copy of this Petition and summons has been served on the Nebraska Attorney General and on the Department of Revenue at P.O. Box 94818, Lincoln, NE 68509-4818, by [method] on [__/__/____].

Part D — Pre-Filing Checklist

Critical Deadlines

☐ 60-day petition deadline for income or sales-use NDD (Neb. Rev. Stat. §§ 77-2778, 77-2709). 150 days if outside U.S.
☐ 30-day APA petition-for-review deadline for Tax Commissioner final order (§ 77-27,127; § 84-917).
☐ 3-year SOL for assessments (general); 6-year for 25%+ omission; unlimited for fraud or no return (§ 77-2786).
☐ Refund-claim window: 3 years from due date / 1 year from payment (§§ 77-2793, 77-2708).
☐ Property-tax appeals: separate TERC track — calendar Board of Equalization and TERC deadlines (§§ 77-5005 et seq.) — not covered by this template's DOR track.

Petition Content

☐ Petitioner identification (name, ID nos., address, contact).
☐ NDD identifying info (number, mailing date, tax type, periods).
☐ Each ground separately stated with summary of supporting evidence.
☐ Relief specifically requested.
☐ Verification under oath / penalty of perjury.
☐ Form 33 Power of Attorney signed and attached for any representative.
☐ Indexed exhibits (Forms 13, invoices, federal returns, workpapers).
☐ Hearing requested in writing if desired (§ 77-2778).

Filing and Service

☐ Send to DOR, Attn: Hearing Officer, P.O. Box 94818, Lincoln, NE 68509-4818 via Certified Mail, Return Receipt Requested.
☐ Retain postmark and Form 3811 — postmark controls.
☐ Calendar 60-day from NDD mailing date; do not rely on receipt date.

Settlement / Hearing Stage

☐ Engage assigned DOR attorney for informal settlement discussions.
☐ Address all common-law doctrines DOR may invoke: substance over form, step transaction, economic substance, sham, business purpose.
☐ Lock in burden-of-proof allocation; build documentary record (testimony alone is rarely sufficient).
☐ Confirm corporate/LLC/partnership is represented by a licensed attorney in formal hearings (Sup. Ct. Rule 3-1003).
☐ Pre-mark and prefile exhibits; serve witness list.

Appeal (Post-Final Order)

☐ Compute 30-day APA review deadline from service of final order.
☐ File Petition for Review in Lancaster County District Court with summons (§ 84-917).
☐ Serve Attorney General and DOR.
☐ Designate administrative record; order transcript.
☐ Consider stay of collection (§ 84-917(7)) or bond / installment under § 77-2786.
☐ Preserve all constitutional and statutory issues raised below — district court review is on the record.
☐ Calendar further appeal to Court of Appeals/Supreme Court under Neb. Rev. Stat. § 25-1912 (generally 30 days from district court judgment).

Sources and References

• Neb. Rev. Stat. § 77-2778 (Income tax deficiency protest — 60 days) — https://codes.findlaw.com/ne/chapter-77-revenue-and-taxation/ne-rev-st-sect-77-2778/
• Neb. Rev. Stat. § 77-27,127 (Tax Commissioner final action; appeal under APA) — https://nebraskalegislature.gov/laws/statutes.php?statute=77-27,127
• 316 Neb. Admin. Code Ch. 33 (DOR Practice and Procedure) — https://revenue.nebraska.gov/about/legal-information/regulations/chapter-33-practice-and-procedure
• DOR Revenue Ruling 99-09-1 (60-day petition guidance) — https://revenue.nebraska.gov/sites/default/files/doc/legal/rulings/rr990901.pdf
• Nebraska Administrative Procedure Act (§§ 84-901 to 84-920) — https://nebraskalegislature.gov/laws/browse-chapters.php?chapter=84
• TERC (Tax Equalization and Review Commission — property tax track) — https://terc.nebraska.gov/
• DOR Forms (Form 33 Power of Attorney; Form 13 Resale/Exempt Sale Certificate) — https://revenue.nebraska.gov/about/forms
• McGrath North overview, "Your Client Has Received a Nebraska Notice of Deficiency" — https://nebraska-cpa.thenewslinkgroup.org/your-client-has-received-a-nebraska-notice-of-deficiency-now-what/
• McGrath North, "You Have 60 Days to Respond" — https://www.mcgrathnorth.com/publications/you-have-60-days-to-respond-handling-appeals-and-tax-questions-with-the-nebraska-department-of-revenue
• Sack v. State, 259 Neb. 463, 610 N.W.2d 385 (2000) (NDD protest is exclusive remedy) — https://nebraskalegislature.gov/laws/statutes.php?statute=77-27,127