§ 38-05 — Conciliation Conference and Review of Request

§ 38-05 Conciliation Conference and Review of Request.

(a) Acknowledgement of receipt of request and review of documents. The conciliation bureau shall acknowledge the receipt of a request and seek any additional information necessary to process the request. The request and other documents concerning the controversy shall then be reviewed to ascertain that the request is timely filed and is complete. Where the review indicates that the request is not timely filed, the director of the conciliation bureau shall dismiss the request. Such dismissal shall not constitute a conciliation decision giving the requestor 90 days to file a petition. (b) Notice of conciliation conference; location; attendance requirements. (1) A conciliation conference will be scheduled at the office of the conciliation bureau. Written notice of the time and place of the opening of the first conciliation conference shall be mailed to all parties at least 30 days prior to the date of such conference. Written notice of the time and place of any adjourned or continued conciliation shall be mailed at least ten days prior to the date of such adjourned or continued conference unless all parties agree to reconvene within a shorter period of time. (2) The conciliator may grant an adjournment where good cause is shown upon receipt of a written request for adjournment at least five days in advance of the scheduled conciliation conference date. In the event of an emergency, an adjournment may be granted on less notice. (3) Where a requestor fails to appear and where an adjournment has not been granted, the director of the conciliation bureau may issue a conciliation decision discontinuing conciliation. If within 30 calendar days after service on the requestor of a conciliation decision discontinuing conciliation for failure to appear, the requestor files a written application with the conciliation bureau showing a reasonable excuse for the failure to appear and requesting that the conciliation conference be reopened, then such decision may be withdrawn and a conciliation conference rescheduled at the discretion of the conciliator. Unless such decision is withdrawn, the 90 day period to file a petition commences from the service of the conciliation decision and is not extended by the request to reopen. (c) Conciliation scope and procedure. (1) Conciliation is intended to provide the parties with an opportunity to resolve disagreements. With the cooperation of the parties, the conciliator will endeavor to develop those facts and issues on which there is no disagreement and those facts and issues that are in dispute. The goal of conciliation is, in whole or in part, to resolve the controversy between the parties within the framework of the Code, thereby narrowing the scope of, or eliminating the need for, a hearing at the tribunal. The conciliator shall conduct the conciliation conference in an informal manner and shall hear or receive statements and documentation deemed necessary or desirable for a just and equitable result. To accomplish the expeditious resolution of controversies, the conciliator may waive or modify penalties and additions to tax in accordance with the commissioner's authority to waive or modify penalties and additions to tax under the Code. At the request of the conciliator or the operating division, a representative of the operating division may appear and participate in the conciliation proceeding. (2) (i) After reviewing the statements, documentation and comments, the conciliator will serve on the requestor a proposed resolution, incorporating a consent and waiver. In developing the proposed resolution, the conciliator may contact any party to clarify any issues or facts in dispute. Notice of any such contact, including the nature of any matter discussed and an opportunity to comment, shall be provided to all parties. The proposed resolution may provide for the full or partial resolution of the case including, but not limited to, revising the amounts of deficiencies or refunds specified in the statutory notice, or withdrawing or adhering to the statutory notice. (ii) The requestor shall have 15 days following service of the proposed resolution to execute and return the consent and waiver agreeing in all respects to the terms of the proposed resolution and waiving the right to a hearing on any issue resolved by the proposed resolution. Such consent and waiver executed by a requestor shall be a determination of the commissioner as to those issues resolved by a proposed resolution fixing the amount of tax due or the amount of any refund owed. In the absence of a showing of fraud, malfeasance or misrepresentation of a material fact, the executed consent and waiver shall be binding on all parties with regard to all issues that it resolves. Upon receipt of an executed consent and waiver that is a partial resolution of a case at conciliation, the director of the conciliation bureau shall issue a conciliation decision discontinuing conciliation for those issues not resolved. (iii) Where the requestor fails to execute and return the consent and waiver as in subparagraph (ii) of this paragraph within 15 days, the proposed resolution may be deemed withdrawn and the director of the conciliation bureau will issue a conciliation decision discontinuing conciliation. (3) Conciliation decisions and proposed resolutions shall not be published. Such decisions and resolutions shall not be considered precedent, nor shall they be given any force or effect in any subsequent proceeding with respect to the requestor or any other person. (4) If the executed consent and waiver provides for a refund, the case will be forwarded to the Miscellaneous Refunds Unit to process and issue the refund.