Original Notice.

     Preproposal statement of inquiry was filed as WSR 12-01-096.

     Title of Rule and Other Identifying Information: WAC 458-20-10202 (Rule 10202) Brief adjudicative proceedings for matters related to reseller permits.

     Hearing Location(s): Capital Plaza Building, 4th Floor Conference Room Large (L&P), 1025 Union Avenue S.E., Olympia, WA 98504, on April 12, 2012, at 10:00 a.m.

     Date of Intended Adoption: April 18, 2012.

     Submit Written Comments to: Gayle Carlson, e-mail GayleC@dor.wa.gov, P.O. Box 47453, Olympia, WA 98504-7453, by April 12, 2012.

     Assistance for Persons with Disabilities: Contact Mary Carol LaPalm, (360) 725-7499, or Renee Cosare, (360) 725-7514, no later than ten days before the hearing date. For hearing impaired please contact us via the Washington relay operator at (800) 833-6384.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department of revenue (department) proposes to revise Rule 10202 to adopt the brief adjudicative proceedings for the following:

•	A determination of whether a reseller permit should be revoked using the criteria per RCW 82.32.780 and WAC 458-20-102 (Rule 102) Reseller permits; and
•	On the administrative appeal of an initial order revoking a taxpayer's reseller permit, a determination as to whether the department's order revoking the permit was correctly based on the criteria as set forth in RCW 82.32.780 and Rule 102.

     Copies of draft rules are available for viewing and printing on our web site at Rules Agenda.

     Reasons Supporting Proposal: To explain the process by which a taxpayer may appeal a department action to revoke a reseller permit.

     Statutory Authority for Adoption: RCW 82.32.300 and 82.01.060(2).

     Statute Being Implemented: RCW 82.32.780 and 82.32.783.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of revenue, governmental.

     Name of Agency Personnel Responsible for Drafting: Gayle Carlson, 1025 Union Avenue S.E., Suite #544, Olympia, WA, (360) 534-1576; Implementation: Alan R. Lynn, 1025 Union Avenue S.E., Suite #544, Olympia, WA, (360) 534-1599; and Enforcement: Russ Brubaker, 1025 Union Avenue S.E., Suite #544, Olympia, WA, (360) 534-1505.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not impose any new performance requirement or administrative burden on any small business not already required by statute.

     A cost-benefit analysis is not required under RCW 34.05.328. This is not a significant legislative rule as defined in RCW 34.05.328.

March 6, 2012

Alan R. Lynn

Rules Coordinator

OTS-4442.2

AMENDATORY SECTION(Amending WSR 10-14-080, filed 7/1/10, effective 8/1/10)

WAC 458-20-10202   Brief adjudicative proceedings for matters related to reseller permits.   (1) Introduction. The department of revenue (department) conducts adjudicative proceedings pursuant to chapter 34.05 RCW, the Administrative Procedure Act (APA). The department adopts in this section the brief adjudicative procedures as provided in RCW 34.05.482 through 34.05.494 for the administration of brief adjudicative proceedings for the following matters related to reseller permits:

     (a) A determination of whether an applicant for a reseller permit meets the criteria for a reseller permit per WAC 458-20-10201; ((and))

     (b) On the administrative appeal of an initial order denying the taxpayer's application for a reseller permit, a determination as to whether the department's order denying the application was correctly based on the criteria for approving reseller permits as set forth in WAC 458-20-10201;

     (c) A determination of whether a reseller permit should be revoked using the criteria per RCW 82.32.780 and WAC 458-20-102; and

     (d) On the administrative appeal of an initial order revoking the taxpayer's reseller permit, a determination as to whether the department's order revoking the permit was correctly based on the criteria as set forth in RCW 82.32.780 and WAC 458-20-102.

     This section explains the procedure and process pertaining to the adopted brief adjudicative proceedings.

     (2) Record in brief adjudicative proceedings.

     (a) The record with respect to a taxpayer's appeal per RCW 34.05.482 through 34.05.485 of the department's denial of an application for a reseller permit will consist of:

     (((a))) (i) The taxpayer's application for the reseller permit, the taxpayer's notice of appeal, the taxpayer's written response, if any, to the reasons set forth in the department's notice of denial of a reseller permit, ((and)) all records relied upon by the department or submitted by the taxpayer; and

     (((b))) (ii) All correspondence between the taxpayer requesting the reseller permit and the department regarding the application for the reseller permit.

     (b) The record with respect to a taxpayer's appeal per RCW 34.05.482 through 34.05.485 of the department's initial order revoking a reseller permit will consist of the department's notice of intent to revoke the reseller permit, the taxpayer's written response to the department's notice of intent to revoke, the taxpayer's notice of appeal, and all records relied upon by the department, or submitted by the taxpayer.

     (3) Conduct of brief adjudicative proceedings.

     (a) If the department denies an application for a reseller permit, it will notify the taxpayer of the denial in writing, stating the reasons for the denial. To initiate an appeal of the denial of the reseller permit application, the taxpayer must file a written appeal no later than twenty-one days after service of the department's written notice that the taxpayer's application has been denied.

     (((a))) (b) If the department proposes to revoke a reseller permit, it will notify the taxpayer of the proposed revocation in writing, stating the reasons for the proposed revocation. To contest the proposed revocation of the reseller permit, the taxpayer must file a written response no later than twenty-one days after service of the department's written notice of the proposed revocation of the reseller permit.

     (c) A Reseller Permit Appeal Petition form ((notice of appeal of the denial of a reseller permit application (Reseller Permit Appeal Petition))), or form for a response to the proposed revocation of a reseller permit is available at http://dor.wa.gov or by calling 1-800-647-7706. The completed form should be mailed or faxed to the department at:

     Department of Revenue

     Taxpayer Account Administration

     P.O. Box 47476

     Olympia, WA 98504-7476

     Fax: 360-705-6733

     (((b))) (d) A presiding officer, who will be either the assistant director of the taxpayer account administration division or such other person as designated by the director of the department (director), will conduct brief adjudicative proceedings. The presiding officer for brief adjudicative proceedings will have agency expertise in the subject matter but will not otherwise have participated in responding to the taxpayer's application for a reseller permit or in the decision to propose revocation of the taxpayer's reseller permit.

     (((c))) (e) As part of the appeal, the taxpayer or the taxpayer's representative may present written documentation and explain the taxpayer's view of the matter. The presiding officer may request additional documentation from the taxpayer or the department and will designate the date by which the documents must be submitted.

     (((d))) (f) No witnesses may appear to testify.

     (((e))) (g) In addition to the record, the presiding officer for brief adjudicative proceedings may employ agency expertise as a basis for decision.

     (((f))) (h) Within twenty-one days of receipt of the taxpayer's appeal of the denial of a reseller permit or proposed revocation of the reseller permit, the presiding officer will enter an initial order, including a brief explanation of the decision per RCW 34.05.485. All orders in these brief adjudicative proceedings will be in writing. The initial order will become the department's final order unless an appeal is filed with the department's appeals division in subsection (4) of this section.

     (4) Review of initial orders from brief adjudicative proceeding. A taxpayer ((that had its application for a reseller permit denied in an initial order issued per subsection (3) of this section)) may request a review by the department of an initial order issued per subsection (3) of this section by filing a petition for review or by making an oral request for review with the department's appeals division within twenty-one days after the service of the initial order on the taxpayer. A form for an appeal of an initial order per subsection (3) of this section ((denying the taxpayer's application for a reseller permit)) is available at http://dor.wa.gov. A request for review should state the reasons the review is sought. A taxpayer making an oral request for review may at the same time mail a written statement to the address below stating the reasons for the appeal and its view of the matter. The address, telephone number, and fax number of the appeals division are:

     Appeals Division, Reseller Permit Appeals

     Department of Revenue

     P.O. Box 47476

     Olympia, WA 98504-7476

     Telephone Number: 1-800-647-7706

     Fax: 360-705-6733

     (a) A reviewing officer, who will be either the assistant director of the appeals division or such other person as designated by the director, will conduct brief adjudicative proceedings and determine whether the department's ((denial of the taxpayer's application)) initial order issued per subsection (3) of this section was correctly based on the criteria ((for approving reseller permits as)) set forth in ((WAC)) RCW 82.32.780, WAC 458-20-102, and 458-20-10201. The reviewing officer will review the record and, if needed, convert the proceeding to a formal adjudicative proceeding.

     (b) The agency record need not constitute the exclusive basis for the reviewing officer's decision. The reviewing officer will have the authority of a presiding officer.

     (c) The order of the reviewing officer will be in writing and include a brief statement of the reasons for the decision, and it must be entered within twenty days of the petition for review. The order will include a notice that judicial review may be available. The order of the reviewing officer represents the final decision of the department.

     (d) A request for administrative review is deemed denied if the department does not issue an order on review within twenty days after the petition for review is filed or orally requested.

     (5) Conversion of a brief adjudicative proceeding to a formal proceeding. The presiding officer or reviewing officer may convert the brief adjudicative proceeding to a formal proceeding at any time on motion of the taxpayer, the department, or the presiding/reviewing officer's own motion.

     (a) The presiding/reviewing officer will convert the proceeding when it is found that the use of the brief adjudicative proceeding violates any provision of law, when the protection of the public interest requires the agency to give notice to and an opportunity to participate to persons other than the parties, and when the issues and interests involved warrant the use of the procedures of RCW 34.05.413 through 34.05.479.

     (b) When a proceeding is converted from a brief adjudication to a formal proceeding, the director may become the presiding officer or may designate a replacement presiding officer to conduct the formal proceedings upon notice to the taxpayer and the department.

     (c) In the conduct of the formal proceedings, WAC 458-20-10002 will apply to the proceedings.

     (6) Court appeal. Court appeal from the final order of the department is available pursuant to Part V, chapter 34.05 RCW. However, court appeal may be available only if a review of the initial decision has been requested under subsection (4) of this section and all other administrative remedies have been exhausted. See RCW 34.05.534.

     (7) Computation of time. In computing any period of time prescribed by this section or by the presiding officer, the day of the act or event after which the designated period is to run is not to be included. The last day of the period is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the next day which is not a Saturday, Sunday or legal holiday. When the period of time prescribed is less than seven days, intermediate Saturdays, Sundays and holidays are excluded in the computation. Service as discussed in subsection (8) of this section is deemed complete upon mailing.

     (8) Service. All notices and other pleadings or papers filed with the presiding or reviewing officer must be served on the taxpayer, their representatives/agents of record, and the department.

     (a) Service is made by one of the following methods:

     (i) In person;

     (ii) By first-class, registered or certified mail;

     (iii) By fax and same-day mailing of copies;

     (iv) By commercial parcel delivery company; or

     (v) By electronic delivery pursuant to RCW 82.32.135.

     (b) Service by mail is regarded as completed upon deposit in the United States mail properly stamped and addressed.

     (c) Service by electronic fax is regarded as completed upon the production by the fax machine of confirmation of transmission.

     (d) Service by commercial parcel delivery is regarded as completed upon delivery to the parcel delivery company, properly addressed with charges prepaid.

     (e) Service by electronic delivery is regarded as completed on the date that the department electronically sends the information to the parties or electronically notifies the parties that the information is available to be accessed by them.

     (f) Service to a taxpayer, their representative/agent of record, the department, and presiding officer must be to the address shown on the notice described in subsection (3)(a) of this section.

     (g) Service to the reviewing officer must be to the appeals division at the address shown in subsection (4) of this section.

     (h) Where proof of service is required, the proofs of service must include:

     (i) An acknowledgment of service;

     (ii) A certificate, signed by the person who served the document(s), stating the date of service; that the person did serve the document(s) upon all or one or more of the parties of record in the proceeding by delivering a copy in person to (names); and that the service was accomplished by a method of service as provided in this subsection.

     (9) Continuance. The presiding officer or reviewing officer may grant a request for a continuance by motion of the taxpayer, the department, or on its own motion.

[Statutory Authority: RCW 82.32.300, 82.01.060(2), 82.32.780, and 82.32.783. 10-14-080, § 458-20-10202, filed 7/1/10, effective 8/1/10.]

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