Appeal from the Tax Equalization and Review Commission.
James G. Powers, Patrick D. Pepper, and Nicholas K. Niemann, of McGrath, North, Mullin & Kratz, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and L. Jay Bartel for appellees.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, and CASSEL, JJ.
[290 Neb. 781] Miller-Lerman, J.
NATURE OF CASE
After the Department of Revenue (the Department) rejected the claim of Archer Daniels Midland (ADM), the Nebraska Tax Commissioner denied ADM's protest seeking a personal property tax exemption under the Nebraska Advantage Act, Neb. Rev. Stat. § 77-5701 et seq. (Reissue 2009) (the Act) for the year 2010 because the claim was not timely filed. ADM appealed to the Tax Equalization Review Commission (TERC). TERC affirmed. ADM now appeals to this court, assigning
that TERC erred when it concluded that it did not have authority to apply the doctrine of " substantial [290 Neb. 782] compliance" to ADM's untimely filings and when it concluded that it did not have equitable authority to enter orders of remand or mandamus to the Tax Commissioner for further consideration of issues relating to the hearing officer. We agree with TERC that there is no basis or authority to apply the doctrine of substantial compliance to vary the terms of the mandatory statutory deadlines and that ADM's untimely claim was properly denied. We further determine that by stipulation, ADM waived the issue relating to the hearing officer, and that TERC did not err when it afforded no relief. Accordingly, we affirm.
STATEMENT OF FACTS
The parties stipulated to the controlling facts in this case. ADM is a corporation that at all times relevant to these proceedings has been engaged in business in the State of Nebraska and is a taxpayer under Neb. Rev. Stat. § 77-2753 (Reissue 2009). Pursuant to the Act, ADM applied for and entered into an agreement (the Agreement) with the Tax Commissioner with the aim of using incentives set forth in the Act for a project in Platte County, Nebraska. The personal property for which ADM seeks exemption from ad valorem taxes is generally described as involving agricultural processing equipment.
The Agreement provided, inter alia, that ADM would be eligible for exemption from personal property tax if it met " minimum levels of employment and investment" before December 31, 2009. The Agreement further provided:
(c) To receive the property tax exemptions, the taxpayer shall annually file a claim for exemption with the . . . Tax [Commissioner] and with the county assessor in each county in which the taxpayer is requesting exemption on or before May 1.
. . . .
(ii) The form and supporting schedules [to claim the exemption] shall be prescribed by the . . . Tax [Commissioner] and shall list all property for which exemption is being sought.
[290 Neb. 783] The Tax Commissioner prescribed " Form 5725X" as the form for claiming exemption from personal property taxes. See, § 77-5725(8)(c); 350 Neb. Admin. Code, ch. 43, § 003.01A (2009). Because May 1, 2010, fell on a Saturday, the deadline for ADM to file Form 5725X was May 3. See 350 Neb. Admin. Code, ch. 43, § 003.01C (2009).
ADM accomplished the necessary hiring and investing prior to December 31, 2009. ADM built three facilities in Platte County: a dry-mill ethanol plant, a wet-mill ethanol plant, and a cogeneration electrical production plant. The taxable values of these properties totaled $431,236,152.
ADM reported its compliance with the Agreement to the offices of the Tax Commissioner and the Platte County assessor (the Assessor), and those agencies took measures to review ADM's compliance. The Department conducted an audit of ADM, and the Assessor's office had multiple conversations with ADM's property tax manager concerning the potential exemptions.
Prior to May 3, 2010, ADM filed a series of Nebraska personal property tax returns with the Assessor and notified the Assessor that the filings related to ADM's property exemption under the Act.
On May 7, 2010, ADM filed three Forms 5725X with both the Department's property assessment division and the ...