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Lyman-Richey Corp. v. Nebraska Department of Revenue

Court of Appeals of Nebraska

October 7, 2014

LYMAN-RICHEY CORPORATION, APPELLANT,
v.
NEBRASKA DEPARTMENT OF REVENUE ET AL., APPELLEES

Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge.

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.

OPINION

Page 815

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 taxpayer 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 tat it does not.

[22 Neb.App. 413] 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 penalties. 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 redetermination 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

Page 816

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 consolidated into the following issue: The district court erred in failing to add the 3-day filing extension of ยง 6-1106(e) to the time it had to file its petition for redetermination and thereby concluding that its ...


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