Section 200.101  Scope and Construction

 

a)         Scope.  This Part governs the practice and procedure in all contested cases in the Office of Administrative Hearings of the Illinois Department of Revenue (Department), including but not limited to statutory references cited in the authority note.

 

b)         General.  In the course of administering and enforcing the provisions of the Illinois Tax Laws, the Director of Revenue on behalf of the Department, or any other Department officer or employee authorized and designated in writing by the Director to act in his stead, may conduct investigations and hold hearings on matters covered by such laws and, in connection therewith, may examine books, papers, records or memoranda, may require the attendance of any person or of any officer or employee of such person, may take testimony and require the furnishing of evidence and information.  A designated Administrative Law Judge shall preside over the hearing (including any rehearings).

 

(Source:  Amended at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.105  Definitions

 

The following meanings are to be given the terms used in this Part:

 

            Administrative Law Judge.  An attorney admitted to practice law by, and in good standing before the Illinois Supreme Court who is duly authorized and designated in writing by the Director of the Illinois Department of Revenue to convene and conduct hearings on matters under the jurisdiction of the Department.  An Administrative Law Judge is specifically empowered to administer oaths and affirmations; rule on matters of proof and evidence; regulate the schedule and course of the hearing and pre-hearing process; hear and dispose of procedural and other similar matters; sign and issue orders and subpoenas; and exercise any other powers relating to the proceeding which are legally proper and reasonably necessary to carry out the responsibilities of his or her appointment. The term "Administrative Law Judge" includes the term "Hearing Officer" in all instances in which that term appears in regulations promulgated by the Department of Revenue.  The authority of any person to act as an Administrative Law Judge shall not be a matter of proof in any hearing before the Department unless an appropriate motion is made pursuant to Section 200.210 of this Part.

 

            Litigator.  A Special Assistant Attorney General, employed in the Department's Office of Legal Services, admitted to practice law by and in good standing before the Illinois Supreme Court, who is duly authorized and designated in writing by the Director of the Illinois Department of Revenue to present the Department's case and otherwise represent the Department's interest in hearing, status and pre-trial conferences on all matters covered by the relevant tax Act.

 

(Source:  Amended at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.107  Hearing Offices

 

Hearing offices for the Department are located at 555 W. Monroe St., Suite 1100, Chicago, Illinois, and the Willard Ice Building, 101 West Jefferson Street, Level 5SW, Springfield, Illinois. Office hours, including that of the Administrative Clerk, are from 8:30 a.m. through 4:30 p.m., Monday through Friday, excluding official State holidays, which are listed at https://cms.illinois.gov/personnel/employeeresources/stateholidays.html.

 

(Source:  Amended at 48 Ill. Reg. 13834, effective August 27, 2024)

 

Section 200.110  Appearances

 

a)         At hearings or pre-trial matters before the Department, a party to the proceeding may represent himself or he may be represented by any person who is admitted to practice as an attorney at law by, and is in good standing before, the Supreme Court of Illinois, or who is permitted by a circuit court granting leave to appear pro hac vice to practice law in a case before the Department.  A corporation may be represented by an officer, or other authorized employee, in any matter wherein the contested tax liability or claim does not exceed $2,500.00, exclusive of penalties and interest.

 

b)         Accountants and others not qualified to practice law in this State may not appear at hearings or pre-trial proceedings in a representative capacity, but such persons may testify at hearings before the Department, and may assist counsel in the preparation of cases for presentation to the Administrative Law Judge at hearings.  "Pre-trial proceedings", as used in this Part, do not include status calls or conferences held as part of the informal review process as set forth in Section 200.135 of this Part.

 

c)         No person shall be allowed to act in a representative capacity in any matter before the Department, nor shall they be entitled to notice of or other information regarding any action or proceeding before the Department, nor to file any papers, documents, pleadings or motions without first filing with the Office of Administrative Hearings, a Power of Attorney on a form provided by the Department.  Such Power of Attorney as may be filed, shall be effective only for the particular matters having been protested, unless otherwise consolidated with other proceedings by order of the assigned Administrative Law Judge.

 

(Source:  Amended at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.115  Notice

 

a)         In the absence of an agreement by the parties as to a time and place for an evidentiary hearing, pre-trial or status conference, notice of the time and place fixed for any such hearing, pre-trial or status conference shall be given to the person or persons concerned, or their legal counsel, if appropriate authorization is on file, not less than 14 days prior to the day fixed for the proceeding. Notice or orders shall be provided by personal service; U.S. Mail, addressed to the person concerned at his or her last known address, or to his or her authorized representative; or email as provided in this Section. Proof of service shall be established in accordance with Subsection (b) of Illinois Supreme Court Rule 12.

 

b)         For all motions in accordance with Section 200.185, whether for continuance or otherwise, notice of the time and place set for hearing on the motion shall be not less than 2 calendar days, if personally served or by email, or less than 5 calendar days, if by regular U.S. Mail, prior to the time set to be heard on that motion.

 

c)         No person or persons, other than the aggrieved party for whom a protest has been filed, shall be entitled to notice of any proceeding before the Department nor of any action in relation thereto, without first having filed a requisite Power of Attorney with the Office of Administrative Hearings. Persons who have filed the Power of Attorney, as well as the protesting party, shall keep the Office of Administrative Hearings apprised of any change in their address that may subsequently occur.

 

d)         In the absence of an agreement by the parties to accept service by email, the Department may require an attorney representing a party to provide an email address at which the attorney will receive notices or orders under this Section and Section 200.162 on behalf of that party.  Any acknowledgement of receipt or response to any email sent to that party will be considered sufficient to confirm that any subsequent notice or order sent to that email address has been delivered unless the sender receives a notice that the email delivery has failed or is otherwise undeliverable.  If the sender becomes aware that the email delivery has failed or is otherwise undeliverable, the sender shall send that notice or order by U.S. Mail or any of the other methods set forth in Subsection (c) of Illinois Supreme Court Rule 11.

 

(Source:  Amended at 43 Ill. Reg. 14689, effective January 1, 2020)

 

Section 200.120  Request For and Setting Hearings; Sufficient Protest

 

a)         No hearing, except as may be provided in Section 200.175(a), or as otherwise granted by the Department, may be initiated without the filing of a timely protest requesting such hearing, by an aggrieved person following the issuance by the Department of a Notice of Deficiency, Tax Liability, Penalty Liability, Tentative or actual Denial of Claim, an adverse ruling relating to tax exemption status, licensure, or any other contested matter under the jurisdiction of the Department.  For all non-income tax matters, no communication with the Department shall be considered a valid protest unless, at the very least, it is timely, in writing, clearly identifies the particular action (assessment, deficiency, denial of claim, etc.) of the Department that is being protested and specifically requests a hearing thereon.

 

b)         In matters relating to income taxes, protests, in order to be deemed sufficient as a matter of law, must include the following at a minimum:

 

1)         Taxpayer's identification, i.e. FEIN, Social Security or IBT number;

 

2)         The date of issuance of the Notice of Deficiency or the Notice of Claim Denial which is being contested;

 

3)         The taxable year(s) involved;

 

4)         To the extent possible, the factual and/or legal grounds upon which the objections to the Notice of Deficiency and/or Notice of Claim Denial are based;

 

5)         A certification that the facts stated are true, correct and complete to the best of the affiant's knowledge and belief.

 

c)         Protests, upon notice to the Department's representative and by leave of the presiding Administrative Law Judge, may be amended to include additional grounds not previously cited at any time prior to the entry of a final pre-trial order which designates the issues to be considered at hearing.

 

d)         In the event that the Department considers any protest relating to income tax to be insufficient as a basis for hearing (or rehearing), it may file a motion in relation thereto seeking to strike or dismiss the protest or any portion thereof.  Likewise, any motion to amend a protest may be opposed by appropriate objection(s) filed as a matter of record and brought before the assigned Administrative Law Judge for consideration.

 

(Source:  Amended at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.125  Discovery

 

Discovery in matters pending before the Office of Administrative Hearings of the Illinois Department of Revenue shall be limited to the following, unless otherwise provided by law:

 

a)         No discovery may be initiated by any party until such time as the case upon which the protest is based has been docketed by the Office of Administrative Hearings, given an identifying docket number and a notice of automatic status conference issued.  Each different type of discovery sought shall be by a separate document, labeled accordingly.  All discovery requests shall be served exclusively upon the litigator assigned to the case.  Copies of discovery requests or demands shall not be communicated to the presiding Administrative Law Judge except in instances where he or she may be acting in the absence of an assigned litigator or where compliance with discovery is being sought under appropriate motion.

 

b)         Hearings shall not be delayed to permit discovery unless due diligence is shown by the party seeking the discovery.

 

c)         Production of Documents.  Any party may, by written request, direct any other party to produce for inspection, copying, reproduction or photographing any specified documents, or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents is relevant to the subject matter and is not privileged.  The request shall specify a reasonable time, which shall not be less than 28 days, within which the related actions are to be performed and the place and manner of making the inspection and performing the related acts.  The production, inspection, copying or photographing of any departmental records shall be limited to that done on Department premises, unless other arrangements can be made with the consent of both parties.   A person served with a written request for production of documents shall:

 

1)         Comply with the request within the time specified, or

 

2)         Serve upon the person so requesting, written objections on the grounds that the request is improper in whole or in part and state the reasons therefor.  Any objection to the request or refusal to respond shall be heard by the Administrative Law Judge upon prompt notice and motion of the party submitting the request in accordance with Section 10-40 of the Illinois Administrative Procedure Act [5 ILCS 100/10-40].

 

3)         Upon request, furnish an affidavit stating whether the production is complete in accordance with the request.

 

d)         Request for Admissions.

 

1)         A party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request, and/or for the admission of the genuineness of any relevant documents described in the request.  Copies of the documents shall be served with the request unless copies have already been furnished.   Each of the matters concerning admission of fact, or the genuineness of each document for which admission of fact is requested, shall be admitted, unless, within 28 days after service of the request or such additional time as may be granted by the Administrative Law Judge, the person to whom the request is directed serves upon the requesting party either:

 

A)        A sworn statement denying specifically the matter on which admission of fact is requested, or setting forth, in detail, the reason why he cannot truthfully admit or deny those matters.  A denial shall fairly meet the substance of the requested admission.  If good faith requires that a party qualify his answer or deny only a part of an admission of fact, he shall specify so much of it as is true and deny or qualify the remainder.  An answering person may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiries and that the information known or regularly obtainable by him is insufficient to enable him to admit or deny said fact; or

 

B)        A written objection on the grounds that some or all of the requested admissions of fact are privileged or irrelevant.  An objection on the grounds of relevance may be noted by any party but it is not to be regarded as just cause for refusal to admit or deny.  If written objections to a request are made, the remainder of the request shall be answered within the period designated in the request.  A requesting party, upon receipt of any objection, may have such objection(s) heard and determined by the Administrative Law Judge upon prompt notice and motion directed thereto.

 

2)         Any admission made by a party to a request under this rule is for the purpose of the pending action only.  It does not constitute an admission by him for any other civil proceeding and may not be used against him in any other proceeding.

 

e)         Interrogatories.  Any party may serve interrogatories in the same manner and with the same limitations as imposed by Supreme Court Rule. The number of written interrogatories served shall not exceed 40, inclusive of all subsections, except by leave of the presiding Administrative Law Judge upon motion therefor made.  Supplemental interrogatories are permissible.

 

f)         Depositions.  Any party may serve notice and take the deposition(s) of another person as may be permitted by Supreme Court Rule.

 

g)         Expert or Opinion Witnesses.  When requested by interrogatories served, all parties are under a duty to disclose the identity of "opinion" witnesses as that term may be defined by Supreme Court Rule, and to further disclose the subject matter of any intended testimony of such witness.

 

(Source:  Amended at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.130  Remedies/Compliance With Discovery

 

a)         Any party or its counsel, upon failure of the opposing party to answer or appropriately respond to any discovery request, may seek by way of motion addressed to the Administrative Law Judge assigned to the case or another appointed in his/her stead, to compel a response or appropriate answer be given to the request(s) made.  In seeking a remedy under this Section, it shall not be required that the provisions of Section 201(k) of the Supreme Court Rules be followed, but only that a reasonable attempt to achieve compliance with the discovery request was made prior to seeking the assistance of the Administrative Law Judge.

 

b)         If a party, officer, director or managing agent of a party fails to comply with a reasonable discovery request after being ordered to do so by the Administrative Law Judge, said presiding officer may make such further orders as to the failure as are just, including, but not limited to:

 

1)         An order that the matters regarding which the order of compliance was made or any other designated facts shall be taken as true and established for the purpose of the case in accordance with the claim of the party obtaining the order;

 

2)         An order refusing to allow the disobedient party to support or oppose designated defenses, or prohibiting him from introducing designated matters or documents in evidence;

 

3)         An order staying further proceedings until the order is obeyed or rendering a judgment by default against the disobedient party.

 

c)         In ordering sanctions, the Administrative Law Judge shall consider the following factors, including, but not limited to:

 

1)         The diligence of the person making the request;

 

2)         The burden of compliance on the party subject to the request;

 

3)         The reasonableness of the failure to comply;

 

4)         Circumstances which may prevent compliance.

 

(Source:  Amended at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.135  Informal Review

 

a)         The Department may designate an impartial employee, in accordance with the provisions of Section 39b20.1 of the Civil Administrative Code [20 ILCS 2505/39b20.1], who has authority and knowledge to recommend an appropriate conclusion of the matter involving an assessment or proposed liability prior to hearing, and to review adjustments recommended by examiners and auditors. The informal review process affords non-attorneys, such as certified public accountants and corporate officers, an opportunity to resolve disagreements with the Department after a liability has been proposed or assessed but before commencement of the formal administrative hearing process in which the taxpayer is required to be represented by a licensed attorney or to proceed pro se. The Department shall conduct such a review process only if requested by a taxpayer or his representative within 30 days after the filing of a timely and sufficient protest.  A request for informal review shall include a list of all supportive documentation to be presented at the review conference.

 

b)         A taxpayer may be represented by any person of his choice during the informal review process.  The taxpayer's chosen representative at this point need not be an attorney.  Any Power of Attorney filed by a non-attorney shall be sufficient for participation in the informal review provided by this Section and for no other proceeding or part of a proceeding during any phase in the administrative hearing process.

 

c)         The Department shall designate an employee, other than the litigator authorized to represent the Department at the hearing, to conduct the informal review.  Administrative Law Judges, regardless of whether they are assigned to a particular case, shall in no instance be designated as an informal reviewer under this Section.

 

d)         The employee designated to conduct the informal review conference shall review the adjustments recommended by the examiner or auditor to determine whether adequate grounds for the assessment of the liability exist given the factual information provided by the taxpayer prior to, and at the time of, the conference, and the applicable statutory and regulatory law for the period of the assessment.  As a result of the information provided at such conference, the person designated to conduct the informal review and the taxpayer may mutually agree to refer the case to the Audit Bureau for reaudit to resolve factual issues.  At the conclusion of the conference and/or reaudit, the employee may recommend, with regard to all or some of the issues:

 

1)         That the issues be resolved in favor of the taxpayer, if it is determined that the law does not adequately support the assessed or proposed liability;

 

2)         That the issues be fully resolved by administrative hearing, if it is determined that there are insufficient facts to conclusively determine that the taxpayer has overcome the premises upon which the proposed or assessed liability is based; or

 

3)         That the issues be resolved in favor of the taxpayer, having ascertained that the facts presented conclusively overcome the factual premise upon which the liability is based.

 

e)         A recommendation that the issues be resolved by administrative hearing is not a final decision of the Department within the meaning of Section 10-50 of the Illinois Administrative Procedure Act [5 ILCS 100/10-50] and, therefore, may not be appealed.

 

f)         Documents provided to the employee designated to conduct the informal review process may be made part of the administrative hearing record in the same manner as other items proffered by either party as evidence to be introduced into the record.

 

g)         Offers of settlement must be tendered in accordance with Section 200.137 of this Part, and such offers will not be considered by the employee designated to conduct the informal review conference.  Tender of an offer of settlement to the informal reviewer will result in the case being referred to the assigned litigator or to the litigation supervisor for appropriate evaluation and disposition of the offer.  Nothing contained herein shall be construed to preclude the taxpayer or his/her representative from directly discussing the offer of settlement with the assigned litigator or litigation supervisor during the Informal Review period. In any instance where an offer of settlement is made during the informal review process, the case shall remain in that status, regardless of the person evaluating the offer, until such time as the Department accepts or rejects the terms of settlement being proposed.  However, the time limitations for consideration of any offer within this term shall be the same as those set forth in Section 200.137(f) of this Part.

 

h)         In all cases where a timely request for informal review has been made, the initial automatic status conference which is set under the provisions of Section 200.140 of this Part shall instead serve as the date for the commencement of the informal review conference.  The reviewer (or litigator in situations in which a settlement offer has been made) for any particular case, within 90 days after the commencement of the informal review process, shall make a written recommendation to the Director, or his designee, that the matter be returned to the hearing calendar, settled or otherwise disposed of according to the provisions of this Part.  The time limitation herein set forth shall be extended an additional 90 days upon application by any party, to the presiding Administrative Law Judge, that such additional time is necessary to make an informed decision.  Thereafter, extensions of the informal review period shall be made only upon application to the presiding Administrative Law Judge and a showing that the Department has failed to fulfill its responsibilities to make a decision in response to a taxpayer's application for informal review.

 

(Source:  Amended at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.137  Settlements

 

a)         Once a protest and request for hearing has been filed, all offers made by taxpayers or their duly authorized representatives for the purpose of settling either all or some part of an outstanding dispute regarding any assessed liability, proposed deficiency or claim for credit or refund must be made in the manner and with the information indicated in subsection (e), below. Additional information may be tendered to the extent it may assist the Department in evaluating the proposal.

 

b)         Offers shall be made only to the litigator representing the Department on a specific case.  If no litigator is assigned, an offer should be made either to the litigation supervisor of the particular tax section or, if unavailable, to the Chief of Tax Litigation.  Settlement proposals made by purported representatives without requisite authority on file (i.e., Power of Attorney and/or Appearance) will be rejected summarily.  Offers may be made by non-attorney representatives, provided they conform to the provisions of this subsection (b) and subsections (e)(1) through (e)(7) below.

 

c)         The sole purpose of the format is to allow the Department to analyze the settlement offer and respond to it.  Therefore, any statements made by a taxpayer on the settlement form will be considered to be made in the course of good faith negotiations and will not be admissible against the taxpayer in any proceeding.

 

d)         Any offer once received may be accepted, rejected or countered by the Department and the taxpayer or its representative shall be notified of such in writing.

 

e)         The minimum information to be supplied upon a settlement offer shall consist of the following:

 

1)         The name, address and telephone number of the person submitting the offer;

 

2)         The complete name, address and identification number (i.e., IBT, FEIN or SS) of the taxpayer(s) for whom the offer is being made;

 

3)         The docket number of the case or cases in the Office of Administrative Hearings to which the offer will pertain;

 

4)         The original amount of the liability/claim and penalty (the latter designated by type) and period involved for each taxpayer within a docketed case;

 

5)         The issue or issues involved and whether they are non-recurring;

 

6)         A statement of whether the taxpayer is currently being audited and, if a corporation, whether its parent or subsidiaries are being audited.  If such audit is taking place, the name of the related taxpayer and the status of the audit shall be disclosed;

 

7)         The terms of the settlement offer, including specific proposed net dollar amounts, identification of issues to be conceded by either party and the supporting rationale for acceptance of the settlement.

 

f)         Settlements offered subsequent to the issuance of a notice or order setting a case for hearing shall not be cause to delay the hearing unless, in the discretion of the Administrative Law Judge and on representation of the parties, the offer is likely to finally resolve the controversy at issue.  In all other cases, settlement offers which have not been responded to or otherwise resolved within 90 days after being tendered, or within such final extension of time as may thereafter be granted by the presiding Administrative Law Judge, shall cause the case to be restored to the regular hearing calendar.

 

(Source:  Added at 19 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.140   Status and Pre-trial Conferences

 

a)         As soon as any protested case is docketed with the Office of Administrative Hearings, the Department shall cause a notice to be issued to the taxpayer, or authorized representative, setting the matter for an initial status conference to be held within 45 days thereof before the presiding Administrative Law Judge.  The purpose of the automatic status conference shall be, inter alia, to initially determine the respective positions of the parties in reference to the controversy; ascertain the need and scope of discovery, if any; set a tentative discovery cut-off date; and explore the possibility of settlement. There shall be no continuance of an initial status conference.  If a conflict in scheduling arises, the parties may arrange to meet with the assigned Administrative Law Judge earlier than the set date or to otherwise confer by teleconference with the participation of the Administrative Law Judge.  This Section shall not apply when a case is set for hearing, including notice thereof, to be held within 60 days after being docketed by the Office of Administrative Hearings.

 

b)         In all cases pending before the Office of Administrative Hearings of the Department, the Administrative Law Judge may hold a pre-trial conference. The object of the pre-trial conference, as distinguished from other stages in the hearing process, is to clarify, isolate and dispose of problems concerning testimony and evidence to be presented at the hearing itself. At the conference, counsel familiar with the case and authorized to act shall appear to consider matters including, but not limited to:

 

1)         simplification of the issues and organizing the hearing;

 

2)         the possibility of obtaining stipulations and admissions of fact and of documents which will avoid unnecessary proof;

 

3)         ascertaining and/or limiting the number of witnesses;

 

4)         any other matters which may aid in the disposition and/or facilitation of the case; and

 

5)         setting a hearing date.

 

c)         A pre-trial conference shall be conducted expeditiously by the Administrative Law Judge.  Agreements or determinations on the simplification of issues, uncontested facts, admissibility of evidence or other matters pertaining to the conduct and scope of the hearing shall be entered on the record by a written order of the Administrative Law Judge.

 

d)         When setting matters for hearing, the respective parties shall, to the extent possible, estimate the length of time necessary for the presentation of testimony and submission of evidence as the case may require.  Upon such estimate, the Administrative Law Judge shall schedule a hearing of the matter to take place on consecutive working days and proceed in like manner until the hearing is concluded.  If, at the expiration of the allotted schedule, further proceedings are still deemed necessary for the purpose of completing the examination of witnesses, and no time is available on an immediately succeeding day, the case shall be set over to and reconvened on the earliest available day(s) for conclusion.

 

e)         Failure to appear.  Status and pre-trial conferences are deemed to be a necessary and integral part of the overall hearing process and as important as the hearing itself.  The failure to appear at or participate in a status or pre-trial conference for which due notice has been given shall be considered a waiver of any protest filed and shall be cause for termination of the proceedings and immediate disposition of the matter against such party.  Any person so affected may seek to vacate the waiver and reopen the proceeding by the filing of a motion, within 30 days after the entry of an order of default, showing good cause why they failed to appear or participate.  If no such motion is filed within the time allowed, the disposition of the case shall be considered final.

 

(Source:  Amended at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.145  Attendance of Witnesses

 

a)         An Administrative Law Judge, at his/her own instance, or on the timely written request of a taxpayer who is a party to the proceedings, or the litigator may issue subpoenas requiring the attendance of witnesses and the giving of testimony and may issue subpoenas duces tecum requiring the production of books, papers, records or memoranda.  Such subpoena shall be issued and enforced in accordance with the applicable provisions of the Act under which the hearing is authorized. However, no subpoena as may be issued pursuant to this rule shall be valid or enforceable without the signature of the presiding Administrative Law Judge and the affixation of the Department's seal.

 

b)         A taxpayer or his legal representative may require the attendance at hearing of a relevant and necessary witness who is a departmental employee by the timely issuance of a notice to appear in the same manner as provided by Supreme Court Rule 237.  The Department may also use such notice to require the attendance of a taxpayer or any employee, officer, director or partner thereof.

 

(Source:  Amended at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.150  Stipulations

 

a)         The parties may stipulate to the extent complete or qualified agreement can be reached on all matters not privileged which are relevant to the pending case, whether such matters involve fact or opinion or the application of law or fact.  Included in matters which may be stipulated to are facts, documents, public records and papers or contents or aspects thereof, and evidence which is not in dispute.  Where the truth or authenticity of facts, records or evidence claimed to be relevant by one party is not disputed, it is not necessary for the parties to stipulate to the materiality or relevance of that evidence, nor to attach those documents or evidence as part of the record.  Documents or papers or other exhibits annexed to or filed with the stipulation will be considered part of the stipulation.

 

b)         An executed stipulation prepared pursuant to this rule, and any related exhibits, shall be filed by the parties at the time directed by the Administrative Law Judge, prior to or at the commencement of the hearing. The stipulation shall be in writing and be clear and concise.  Separate items shall be stated in separate paragraphs and shall be appropriately numbered.  A stipulation shall be treated, to the extent of its terms, as a conclusive admission by the parties to the facts stipulated.

 

(Source:  Amended at 19 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.155  Evidence and Conduct of Hearings

 

a)         The procedure at hearings shall be similar to that in court proceedings.  The order in which evidence is to be presented shall be determined by the party which, at a given point, must sustain the burden of proof.  In accordance with Section 10-40 of the Illinois Administrative Procedure Act, the rules of evidence as used in the civil courts of this State shall govern the conduct of any matter at hearing.  However, neither the Department or any officer or employee thereof nor the taxpayer who is a party to the hearing shall be bound by the technical rules of evidence in the taking or admission of proofs.  Hearsay is not a technical rule of evidence and may not be admitted, except to the extent that it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.

 

b)         Only evidential and related matters having or possibly having a bearing on the adjustments or issues involved in the case shall be heard and considered.  Thus, any presentation or attempted presentation of matters not germane to the adjustments or issues of the case shall be heard only to a limited extent sufficient to enable Departmental or court review of the correctness of its exclusion, due to being ruled inadmissible, from the hearing record.

 

c)         Exhibits which are to be introduced in evidence at a hearing shall be marked for identification in advance of the hearing and before being formally offered in evidence.  All exhibits shall be marked using a numerical sequence only.  Use of alphabetic or alphanumeric identification is not favored.  Group exhibits shall disclose the number of pages within the group.

 

d)         Records of or kept by the Department of Revenue may be proved in any hearing by a reproduced copy of such record under the Certificate of the Director.

 

e)         The Administrative Law Judge shall rule on objections as to the admissibility of evidence and on other matters raised for determination at the time they are presented and shall not be deferred to be ruled upon by written recommendation. Evidence excluded by rulings of the Administrative Law Judge shall, nevertheless, be placed in the record so that the question of its admissibility may be passed upon by a reviewing court, provided an offer of proof has been made.  In this connection, however, an Administrative Law Judge may require that excluded testimony or other evidence be presented in a condensed form so as to avoid needless repetition and undue length of the hearing record.

 

f)         With the exception of Section 200.135(f) of this Part, all evidence in support of any issue, whether in the nature of testimony, documents, or other physical matter, shall be taken in the course of and on the date(s) set for hearing.  An Administrative Law Judge shall not accept or consider evidence of any form or nature which is received or submitted outside of or subsequent to the hearing itself, nor permit same under any circumstances, without the express written and recorded agreement of the parties.

 

g)         Briefs and Briefing Schedules.  Except upon approval of the presiding Administrative Law Judge, no brief or memorandum submitted in support of or in opposition to any issue, either before, during or after hearing, shall exceed 50 pages in length, double spaced type.  No briefing schedule shall extend more than a maximum of 75 days beyond the last day of the hearing.  No party shall have the right to file any brief, memorandum, supplementary argument or other matter beyond the date it is due as set by order without first giving notice and obtaining leave of the presiding Administrative Law Judge to do so instanter.  No party shall have the right to file any supporting argument not contemplated by order without obtaining leave in the same fashion.

 

h)         Except for the expansion of page limitations, Administrative Law Judges acting in the absence of any assigned Department litigator may not consent to abrogate the requirements of subsections (f) and (g) of this Section.

 

(Source:  Amended at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.160  Continuances

 

a)         There shall be no continuances of any initial status conference as provided by Section 200.140.  However, see Section 200.140(a) for available alternatives.

 

b)         No continuance of a scheduled hearing, status or pre-trial conference date shall be granted by the Administrative Law Judge except for good cause shown.  No second or subsequent continuance of any hearing, status or pre-trial conference shall be granted except upon authorization of one of the following:

 

1)         the Chief Administrative Law Judge; or

 

2)         designated Supervisory Administrative Law Judges.

 

c)         In determining whether there is good cause shown for a continuance, the Administrative Law Judge shall consider such factors as:  the volume of cases pending; the nature and complexity of legal issues raised; the diligence of the party making the request; the availability of a party's legal representative or witnesses; and the number of previous requests for continuance.  In addition, the Administrative Law Judge may consider the actions or omissions of the taxpayer and/or the taxpayer's representative(s) or of the Department and/or the Department's representative, whether during the audit or during the administrative hearing process, which caused or contributed to unreasonable delay.  In no event shall an Administrative Law Judge grant a general continuance.  Every continuance shall be to a date and time certain.

 

d)         In a proceeding relating to the revocation or refusal to issue a certificate of registration, permit or license, no continuance at all shall be granted except by one of the Department employees included in the enumeration contained in subsection (b) above.

 

e)         All requests for continuance shall be in writing and, when made by attorneys, shall be in the form of a motion, stating the exact reasons therefor, and shall be submitted to the Administrative Law Judge and the representative of the non-moving party, if any, for a hearing on the motion not later than 48-hours prior to the scheduled hearing or status or pre-trial conference. Any request for continuance made within the 48 hour period or otherwise not comporting with this Part shall not be considered unless of an emergency nature.  The Administrative Law Judge is empowered to require written verification of such emergency as soon thereafter as is practical.

 

f)         No request for continuance may be granted, nor is any grant valid, without notice to all parties and an opportunity to object placed on record at a hearing on the motion.  No party shall assume the granting of a continuance for any matter upon submission of the request alone.  The disposition of all motions for continuance, whether granted or denied, shall be by written order. Litigators for the Department are not empowered to grant any continuance of nor cancel a set status or pre-trial conference or hearing without approval by written order of the presiding Administrative Law Judge.

 

g)         Motions for continuance received by the Department from a person or persons purporting to represent the protesting party shall not be calendared nor considered unless a valid Power of Attorney pertaining to the proceeding at issue is on file with the Office of Administrative Hearings or otherwise accompanies the motion.

 

h)         The rescheduling of a case for a further hearing after an actual hearing or partial hearing has been held is regarded as a continuance unless reconvened on the next succeeding business day.

 

(Source:  Amended at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.162  Office Dispositions

 

In circumstances in which the hearing process is terminated prior to the convening of a formal hearing due to the voluntary or involuntary resolution of the controversy, the Department may conclude the case by way of office disposition.  All office dispositions shall be entered by order of the presiding Administrative Law Judge assigned to the case and shall not be subject to publication that may otherwise be required of hearing recommendations. Service of notices and orders concluding such cases shall be made by personal service, U.S. Mail, or email as provided in Section 200.115(d). The following represent, without limitation, fact situations that may warrant the office disposition of a case:

 

a)         The taxpayer voluntarily, and in writing, withdraws the protest or otherwise consents to a Notice of Tax Liability, Notice of Deficiency, Denial of Claim or other Departmental action;

 

b)         An informal review has been conducted pursuant to Section 200.135 in which the employee designated to conduct the review has recommended a full and complete resolution of contested issues;

 

c)         The litigator has examined all facts and circumstances associated with a particular case and it is the litigator's opinion that the law and/or regulations do not support the action taken or decision made by the Department;

 

d)         As the result of a reaudit, the taxpayer and the Department reach an agreement as to the appropriate application of the law to the facts.

 

(Source:  Amended at 43 Ill. Reg. 14689, effective January 1, 2020)

 

Section 200.165  Recommendation of the Administrative Law Judge

 

Upon conclusion of the hearing, and the taking of evidence, the Administrative Law Judge shall submit a recommendation for disposition of the pending dispute to the Director, in accordance with the provisions of Sections 10-50 to 10-70 of the Illinois Administrative Procedure Act [5 ILCS 100/10-50 to 10-70]. The Director, or his designee, upon receipt of the recommendation submitted, may accept or reject such recommendation, in whole or part, or remand the matter for additional proceedings.  Any final administrative decision issued by the Director, or his designee, shall be made upon the facts of record and all conclusions which may be reasonably derived from those facts.  All final administrative decisions which result from hearing recommendations shall be made available for publication as may be provided by law.  In all other matters, whether by agreement, withdrawal, cancellation or otherwise, the case shall be closed by order of the Administrative Law Judge terminating the proceedings.

 

(Source:  Amended at 19 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.170  Notice of Final Decision

 

The Department's final administrative decision shall be served upon the persons affected, or their legal counsel if appropriate authorization is on file.  If the final administrative decision is adverse in whole or in part to a party other than the Department, service on persons affected or their legal counsel shall be made, either personally or by registered or certified U.S. Mail, addressed to the person concerned at his or her last known address.  If the final administrative decision is not adverse in whole or in part to a party other than the Department, service shall be made by personal service or by U.S. Mail, addressed to the person concerned at his or her last known address.  The Department may provide a copy by email of its final administrative decision to persons concerned or their legal counsel.  For a copy of a final administrative decision that is provided by email, the time for administrative review under Section 3-103 of the Administrative Review Law [735 ILCS 5/Art. III] shall be determined from the date of service of that final administrative decision by personal service or by registered or certified U.S. Mail and not by the date of transmission of the email.

 

(Source:  Amended at 43 Ill. Reg. 14689, effective January 1, 2020)

 

Section 200.175  Rehearings

 

a)         After the issuance of a final assessment or a Notice of Tax Liability that has become final pursuant to Section 4 or 5 of the Retailers' Occupation Tax Act [35 ILCS 120] or another Act in which Section 4 or 5 is incorporated by reference or  after the issuance of a final assessment or a Notice of Deficiency that has become final pursuant to Section 904 of the Illinois Income Tax Act [35 ILCS 5], the Department, at any time before the assessment is reduced to judgment, may grant a rehearing or grant review and hold an original hearing (in cases of failure to timely protest) upon the application of the person aggrieved.  If the Department agrees to grant a late discretionary hearing under this Section and the amount in controversy exceeds the jurisdictional amount provided in Section 1-45 of the Illinois Independent Tax Tribunal Act of 2012 [35 ILCS 1010], the Department's Chief Administrative Law Judge will issue a letter granting the late discretionary hearing and informing the recipient that the amount in controversy exceeds the amount for which the Department has jurisdiction.  The Chief Administrative Law Judge's letter will direct the recipient to file a petition with the Independent Tax Tribunal within 60 days after the date of that letter, as provided in the Independent Tax Tribunal's rules.  (See 86 Ill. Adm. Code 5000.310(a)(5).)  This provision shall not apply in any situation in which an assessment that has become final and unappealable has been paid by or on behalf of the taxpayer in liquidation of that assessment.

 

b)         To be considered for initial review or rehearing, a taxpayer must submit a written application therefor to the Chief Administrative Law Judge, offering specific and detailed rationale for each basis used to support the request.  When a rehearing is sought following issuance of a final Departmental decision, all errors of fact or law viewed as affecting the validity of that decision must be set forth.  If new evidence not previously available, that the taxpayer was not required to maintain or keep as part of its own records, is sought to be admitted, explanation of the nature of that evidence and how it affects the decision shall also be included. In any instance in which the request for rehearing follows a finding of default, the reasons for failure to appear shall be given, accompanied by an affidavit or other required documents verifying the statements offered.  In determining whether to permit an initial review or rehearing, the Department shall consider such factors as:  the offer of proof with respect to matters in controversy; new evidence and the nature and complexity of legal issues raised; the diligence of the person seeking the rehearing; the passage of time between the finalization of the assessment and the request for review. No second or subsequent application for review or rehearing relating to the same operative set of facts shall be considered by the Department.

 

c)         Following Department evaluation of an application for review or rehearing:

 

1)         The applicant shall be advised in writing of the decision to either grant or deny the request.

 

2)         In each instance in which an application for review or rehearing is denied, the Department, in its notice, shall set forth the explanation of the denial.

 

d)         In any case in which the issue to be heard involves one or more assessed liabilities, approval of any application for review or rehearing may be conditioned upon the taxpayer's remittance to the Department, within 30 days after issuance of the notice, of a deposit of not more than 25% of the total liability incurred.

 

e)         In any case in which an application for rehearing follows a finding of default in the original proceeding, approval of that application shall be further conditioned upon reimbursement to the Department, within the same 30-day period, of outstanding charges for court reporting services having been incurred for that default.

 

f)         If a rehearing (or an original hearing, in the case of failure to timely protest) is held, the recommendation of the Administrative Law Judge and a notice of final decision shall be made as provided in Sections 200.165 and 200.170.

 

g)         In the event of the filing of a timely protest and granting of a rehearing pursuant to Section 908(c) or Section 910(c) of the Illinois Income Tax Act [35 ILCS 5], the case and the hearing record shall be reopened and resumed to include the rehearing proceedings.  Thereafter, as soon as practicable, the Department shall issue a notice of final decision, in accordance with Section 10-50 of the Illinois Administrative Procedure Act [5 ILCS 100], which, in the Department's discretion, shall be supported for purposes of the record by a statement in the nature of an opinion summarizing the facts from the record together with applicable law and rationale.

 

h)         In any circumstance in which a rehearing may be granted after the original has taken place, no new or additional discovery may be initiated by any party to the proceeding.

 

(Source:  Amended at 45 Ill. Reg. 14488, effective November 4, 2021)

 

Section 200.185  Motion Practice

 

a)         Any party to a proceeding pending before the Office of Administrative Hearings of the Department may raise an issue or seek to dispose of all or part of the proceeding by way of a timely motion.  Any motion which is authorized under the Code of Civil Procedure [735 ILCS 5] that may be utilized in normal civil practice and is not otherwise inconsistent with administrative practice and procedure, contrary to the tax laws, or outside the scope of an Administrative Law Judge's authority may be employed.  Such motions may include but are not limited to: summary judgement; dismissal; consolidation; motions in limine; etc.

 

b)         It shall be the duty and responsibility of the person submitting the motion to bring it before the presiding officer of the case to which it pertains, after proper notice has been served, for hearing and disposition. Any motion filed in any matter before the Department which is not caused to be heard on its merits (unless otherwise extended by written order) within 10 days after service of the motion or notice thereof shall be deemed to have been waived and thereby stricken from the record.

 

c)         Any motion filed shall be clearly designated as such and shall contain in its caption the name of the case, docket number and type of motion brought. Motions shall bear evidence of a certification of service and notice to the appropriate parties.

 

d)         The Department is empowered to designate a specific day or days during the work week in which to hear motions that have been filed.  The Department may also designate a person or persons to hear and dispose of such motions even though they may not be the Administrative Law Judge(s) before whom a particular case may be pending.

 

e)         Any party wishing to have a motion heard shall contact the Office of the Administrative Clerk (see Section 200.200) either in person or by telephone to determine available dates and times and have the matter placed upon the regular motion call.

 

(Source:  Added at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.190  Withdrawal of Representation

 

a)         No representative party, once having filed a Power of Attorney in any matter before the Office of Administrative Hearings of the Department of Revenue, shall be allowed to withdraw from that representation without first having served notice of intent upon all parties to the cause, making the reasons for such withdrawal known of record and securing leave of the presiding officer on the case to so withdraw.

 

b)         No representative party who is intending to substitute for or replace another representative party who has already filed a Power of Attorney shall have the right to do so unless the provisions of subsection (a), above, have been fulfilled, and any such filing in violation of this Section shall be deemed a nullity.

 

c)         Once a matter has been set or otherwise noticed for hearing, leave to withdraw or substitute as counsel for a taxpayer may be denied by the presiding Administrative Law Judge if granting such request would act to delay the hearing.

 

(Source:  Added at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.195  The Administrative Record

 

a)         Upon the filing of a complaint in the Circuit Court of any county in this State for the judicial review of a final administrative decision of the Department, the record of administrative proceedings before the Department on that decision shall constitute the Department's Answer.  In accordance with Section 10-35 of the Administrative Procedure Act [5 ILCS 100/10-35], the record in each case, unless otherwise agreed upon by the parties, shall consist of the following matters:

 

1)         All pleadings (including all notices and responses thereto), motions, and rulings;

 

2)         All evidence received;

 

3)         A statement of matters officially noticed;

 

4)         Any offers of proof, objections and rulings thereon;

 

5)         Any proposed findings and exceptions;

 

6)         Any decision, opinion, or report by the Administrative Law Judge;

 

7)         All staff memoranda or data submitted to the Administrative Law Judge;

 

8)         Any communication prohibited by Section 10-60 of the Illinois Administrative Procedure Act.

 

b)         No document of any nature shall be considered to be part of the administrative record unless it has been marked and offered or received in evidence during the course of a hearing or has otherwise been filed with the Administrative Clerk and bears an appropriate stamp as a certification of such filing.  Any document not comporting with this requirement shall not be considered nor have any legal effect before this agency.

 

c)         The parties shall be under a duty to keep the record to a reasonable minimum wherever possible.  In all cases, the record shall be limited to issues which are legitimately in dispute.  Documents or other items which pertain to factual matters which are not being contested nor challenged, or which may be redundant or repetitive, should be excluded from the record.  Copies of tax returns, unless they are necessary for proving a contested factual issue, should also be excluded.

 

(Source:  Added at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.200  Filing Procedures

 

a)         The Office of the Administrative Clerk is hereby established for the purpose of receiving, registering and maintaining all documents which are or may become part of the administrative record of proceedings before the Department.  Pleadings, papers, memoranda, motions and other matters not otherwise received into evidence during a hearing shall be filed with the Clerk and be stamped as having been duly registered.  No document not otherwise having been admitted into evidence during a hearing shall become part of the administrative record without the stamp of the Clerk affixed thereto as proof of filing.

 

b)         With the exception of the initial protest, requests for rehearing and matters admitted into evidence during a hearing or pre-trial proceeding, all papers, pleadings, motions and other documents filed with the Department by a party in reference to any pending action shall bear the name of the proceeding as designated by the Department and the docket number assigned.  Unless obvious on their face, such documents shall further be titled within the caption to disclose the nature of what is being filed  (e.g., Motion to Dismiss; Proposed Findings of Fact and Conclusions of Law; Notice of Deposition; Post-Trial Supporting Memorandum; etc.).  Documents which are not titled in the manner required shall not be accepted by the Clerk and shall not be part of the administrative record.

 

c)         All documents filed with the Administrative Clerk must be done in person, by process of United States mail, or other private courier service. Filings by facsimile transmission will not be accepted.  The filing date of any document delivered by United States Mail or courier service shall be as of the postmark or transmittal date appearing on the envelope or delivery packet. Taxpayers and/or their representatives who wish to be furnished with registered copies of any documents submitted to the Clerk through the mail or courier service must include a stamped, self-addressed envelope with the filing.

 

(Source:  Added at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.210  Disqualification of an Administrative Law Judge

 

a)         Any party to a hearing proceeding may, following notice and an opportunity to object, move to disqualify the assigned Administrative Law Judge on the basis of bias or conflict of interest.  An adverse ruling or rulings rendered against the party or its representative in any previous matter(s) shall not, in and of themselves, constitute sufficient grounds for disqualification under this Section.  On satisfactory proof submitted by the moving party in support of the allegations made, the designated Administrative Law Judge shall immediately recuse him/herself from the proceeding and submit the case for reassignment.

 

b)         No motion for disqualification shall be permitted after any substantive ruling has been made on the case by the Administrative Law Judge, unless it pertains to a conflict of interest not previously disclosed.

 

(Source:  Added at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.215  Ex Parte Communications

 

a)         Except in the disposition of matters that agencies are authorized by law to entertain or dispose of on an ex parte basis, the Director or Assistant Director of Revenue, agency employees and Administrative Law Judges shall not, with respect to any contested matter pending, communicate directly or indirectly, in connection with any issue of fact, with any person or party, or in connection with any other issue with any party or the representative of any party, except upon notice and an opportunity for all parties to participate.

 

b)         An employee of the Department may communicate with other employees, and an employee or Administrative Law Judge may have the aid and advice of one or more personal assistants.  However, with the exception of conversations related to scheduling and/or the signing of agreed orders, Administrative Law Judges shall not discuss the aspects of any contested case pending before the Office of Administrative Hearings with a party or representative outside the presence or without the consent of the opposing party.

 

c)         An ex parte communication received by the Director, Assistant Director or Administrative Law Judge shall be made part of the record of the pending matter, including all written communications, all written responses to the communications, and a memorandum stating the substance of all oral communications and all responses made and the identity of each person from whom the ex parte communication was received.

 

d)         Communications regarding matters of procedure and practice, such as the format of pleadings, number of copies required, manner of service, and status of proceedings, are not considered ex parte communications under this Section.

 

(Source:  Added at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.220  Equal Application of Regulations

 

It is the intent of this Part to be applied equally to all parties to hearings before the Department.  With the exception of requirements for the filing of Powers of Attorney, all rights, restrictions, prohibitions, duties and responsibilities imposed by this Part shall have equal import upon the Department and its legal representatives as they do upon taxpayers or their representatives.  Any Section herein which may be fairly read to state otherwise shall be construed consistent with this declaration unless otherwise provided by law.

 

(Source:  Added at 20 Ill. Reg. 888, effective January 1, 1996)

 

Section 200.225  Inspection and Publication of Hearing Decisions

 

a)         Within 180 days after its issuance, the Department shall make available for public inspection, at its principal offices, any hearing decision issued by the Department on or after January 1, 1995.  Decisions made available for inspection, other than property tax exemption decisions for hearings that are open to the public under 86 Ill. Adm. Code 110.145, shall be edited by the Department so that the name, address and identification number of the taxpayer, any related entities and/or employees are not disclosed.  Hearing decisions of the Illinois Independent Tax Tribunal may be viewed on the Tribunal's website.  A link to the Tribunal's website is provided on the Department's website at www.tax.Illinois.gov.

 

b)         Within 30 days following the issuance of any hearing decision, the taxpayer affected by the decision may also request that the Department omit specifically identified trade secrets or other such confidential information from decisions made available for public inspection.  The Department, upon such request, shall consider whether the suggested deletions are reasonable and whether disclosure of the information would potentially cause economic or other injury to the taxpayer.

 

c)         To the same extent and with the same limitations as provided in subsections (a) and (b), the Department shall publish its hearing decisions and make them available to the public.  The Department will maintain an electronic copy of all hearing decisions issued on or after January 1, 1995 on the Department's website at www.tax.Illinois.gov.  A printed hard copy of any hearing decision on 8½ x 11 inch paper can be obtained at a cost of $1.00 per page of copy.

 

(Source:  Amended at 43 Ill. Reg. 14689, effective January 1, 2020)