20 CRR-NY 3000.13NY-CRR
20 CRR-NY 3000.13
20 CRR-NY 3000.13
3000.13 Small claims hearings.
(a) General.
A petitioner who wishes to have the proceedings in his or her case conducted in the small claims unit may so elect at the time of the filing of the petition, if the amount in controversy meets the criteria contained in subdivision (b) of this section. The small claims hearing will be an adversary proceeding conducted by an impartial presiding officer. The presiding officer will know nothing of the controversy prior to the hearing and shall conduct the hearing (see subdivision [f] of this section) in a fair manner so as to permit the parties to offer all relevant evidence to establish their positions. Where certain points or issues are unclear, the presiding officer may ask questions of the parties or of witnesses for the purpose of clarifying the record.
(b) Criteria for small claims.
Controversies which may be heard by the small claims unit are restricted in amount to $20,000 (not including penalty and interest) for any 12-month period in question. However, with respect to cases arising out of sales and compensating use taxes pursuant to articles 28 and 29 of the Tax Law, the amount in controversy may not exceed $40,000 (not including penalty and interest) for each 12-month period.
(c) Pleadings; applicable sections; notice.
(1) The only pleadings to be served by the parties are a petition by the petitioner (see section 3000.3 of this Part) and an answer by the office of counsel (see section 3000.4[b] of this Part).
(2) The parties may file briefs, additional documents or other material in support of their pleadings.
(3) The provisions of section 3000.4(d) of this Part, regarding amended pleadings, are applicable to this section. The provisions of sections 3000.5, 3000.6 and 3000.9 of this Part are not applicable to this section.
(4) After the petition and answer have been served, or the time for serving an answer has expired, the controversy shall be at issue and the small claims unit shall schedule the controversy for a small claims hearing. The parties shall be given at least 30 days' notice of the first hearing date, and at least 10 days' notice of any adjourned or continued hearing date. A request by any party for a preference in scheduling will be honored to the extent possible.
(d) Adjournment; default.
(1) At the written request of either party, made on notice to the other party and received 15 days in advance of the scheduled hearing date, an adjournment may be granted where good cause is shown. In the event of an emergency, an adjournment may be granted on less notice. Upon continued and unwarranted delay of the proceedings by either party, the presiding officer shall render a default determination against the dilatory party.
(2) In the event a party or the party's representative does not appear at a scheduled hearing and an adjournment has not been granted, the presiding officer shall, on his or her own motion or on the motion of the other party, render a default determination against the party failing to appear.
(3) Upon written application to the supervising administrative law judge, a default determination may be vacated where the party shows an excuse for the default and a meritorious case.
(e) Presiding officer.
The small claims hearing shall be conducted by a presiding officer with the same authorization provided an administrative law judge conducting a hearing by section 3000.15(c) of this Part.
(f) Conduct of hearing.
(1) The small claims hearing shall be conducted by a presiding officer in such a manner as to do substantial justice between the parties according to the rules of substantive and administrative law. The hearing shall be conducted as informally as possible, consistent with orderly procedure. Any evidence which the presiding officer considers necessary or desirable for a just and equitable determination will be received, except that effect shall be given to the rules of privilege recognized by law. The burden of proof shall be upon the petitioner, except as otherwise provided by law.
(2) The provisions contained in section 3000.15(d)(1)-(6) of this Part, regarding conduct of a hearing, are applicable to a small claims hearing; however, such applicability is not intended to alter the informal nature of the small claims hearing.
(3) The small claims hearing will be stenographically reported or otherwise recorded, but a transcript thereof need not be made unless the presiding officer otherwise directs. Where a transcript is made, it shall be available for examination at the offices of the Division of Tax Appeals in Albany, or may be purchased pursuant to section 3000.19 of this Part.
(g) Transfer to administrative law judge.
At any time before the conclusion of a small claims hearing, the petitioner may, by written notice to the secretary, discontinue such small claims proceeding and request that the hearing on the petition be transferred to and conducted by an administrative law judge. Such discontinuance will be without prejudice to any subsequent proceeding before an administrative law judge.
(h) Determination.
(1) Issuance of determination. After the small claims hearing, the presiding officer shall review the evidence and render a determination which will contain findings of fact and conclusions of law. The presiding officer will render a determination within three months after completion of the hearing or the submission of briefs, whichever is later. The Division of Tax Appeals will serve a copy of the determination on the petitioner, the petitioner's representative and the office of counsel.
(2) Effect of determination. The final determination of the presiding officer shall be conclusive upon all parties and shall not be subject to review by any other unit in the Division of Tax Appeals or by the tribunal. However, on the motion of either party, the tribunal may order a rehearing upon proof or allegation of misconduct by the presiding officer. Determinations of presiding officers are not considered precedent, nor are they given any force or effect in other proceedings in the Division of Tax Appeals.
(i) Assignment of another presiding officer.
Whenever a presiding officer is disqualified or it becomes impractical for him or her to continue the hearing, another presiding officer may be assigned to continue with the case, unless it is shown that substantial prejudice to a party will result therefrom.
20 CRR-NY 3000.13
Current through September 30, 2022
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