PROPOSED RULEMAKING
DEPARTMENT
OF REVENUE
[ 61 PA. CODE CHS. 7 AND 901 ]
Board of Appeals; Small Games of Chance
[42 Pa.B. 1222]
[Saturday, March 10, 2012]The Department of Revenue (Department), under the authority in section 6 of The Fiscal Code (72 P. S. § 6) and the Local Option Small Games of Chance Act (10 P. S. §§ 311—327), proposes to amend Chapters 7 and 901 (relating to Board of Appeals; and local option small games of chance) to read as set forth in Annex A.
Purpose of Proposed Rulemaking
This proposed rulemaking consolidates the administrative appeals under the jurisdiction of the Department's Board of Appeals (Board). Additionally, the proposed rulemaking will streamline the administrative appeals process by creating a uniform set of procedures for administrative appeals within the Department. The proposed rulemaking preserves the Board's jurisdiction over tax appeals.
Explanation of Regulatory Requirements
Section 7.1—7.7 are proposed to be rescinded.
Proposed § 7.11 (relating to definitions) contains the definition for ''Board'' currently in § 7.1 (relating to definitions) and definitions of ''administrative proceeding'' and ''appeal.''
Proposed § 7.12 (relating to jurisdiction) explains that the Board's jurisdiction includes appeals and administrative proceedings as defined in § 7.11.
Proposed § 7.13 (relating to manner of proceeding before the Board) explains that proceedings before the Board are initiated by the filing of a petition.
Proposed § 7.14 (relating to petitions) contains the text in current § 7.3 (relating to petitions) with some minor modifications explained as follows:
Subsection (a) contains language in § 7.3(a) stating that petitions should be filed with the Board.
Subsection (b) is an expansion of language in § 7.3(a) regarding the time limits for filing a petition.
Subsection (c) is an expansion of language in § 7.3(a) regarding receipt of a petition.
Subsection (d) is language that is in § 7.3(b) expanded to include electronically filed petitions.
Subsection (e) is language in § 7.3(b)(1). This subsection explains the general requirements and contents of a petition and also the additional requirements for an appeal petition.
Subsection (f) is language in § 7.3(c) that has been revised to explain the process of docketing petitions.
Subsection (g) is language in § 7.3(b)(1)(ix) regarding additional information.
Subsection (h) is new language added to include electronic signatures.
Proposed § 7.15 (relating to Board practice and procedure) contains the text in current § 7.5 (relating to Board practice and procedure) with minor modifications explained as follows.
Subsection (a)(1), which explains the burden of proof before the Board, is identical to § 7.5(c)(2).
Subsection (a)(2) is nearly identical to § 7.5(b) with minor rewording and describes the petitioner's right to have representation.
Subsection (a)(3) explains the Board's discretion to consolidate or sever multiple proceedings.
Subsection (a)(4) is made up primarily of the language in § 7.5.(c) and (d) regarding the conduct and procedures of hearings.
Subsection (a)(5) contains the identical language in § 7.5.(e) regarding evidence.
Subsection (a)(6) is language from § 7.5.(f) regarding subpoenas with minor rewording.
Subsection (a)(7) is language from § 7.5(h) regarding additional hearings and evidence.
Subsection (a)(8) contains language from § 7.6 (relating to decision and order) regarding the Board's decision and order.
Subsection (a)(9) is generally the language from § 7.7 (relating to reconsideration) modified to clarify the Board's ability to issue corrected orders for clerical and computational errors.
Subsection (b) contains language from §§ 7.5(c)(5) and (7), 7.6(c) and 7.3(b)(2)(ii).
Subsection (c) explains additional practices and procedures for administrative proceedings before the Board.
Proposed § 7.16 (relating to security upon petition for review) outlines the requirements and procedures for tax- payers to file appropriate security with their petition for review filed in Commonwealth Court.
Section 901.1 (relating to definitions) is proposed to be amended to change the definition of ''Board'' to mean the Board of Appeals rather than the Small Games of Chance Board.
The last sentence of § 901.161 (relating to jurisdiction and purpose), regarding the Board's recommendation to the Secretary, is proposed to be deleted to maintain consistency with other amendments in this proposed rulemaking.
Sections 901.162 and 901.163 (relating to composition; and powers and duties) are proposed to be rescinded.
Section 901.164(b)—(e) (relating to petitions) is proposed to be deleted.
Section 901.165 (relating to Board practice and procedure) is amended by deleting the existing language and adding new language that states what sections in the regulations govern the practice and procedures before the Board.
Sections 901.166 and 901.167 (relating to Board recommendation; and decision and order) are proposed to be deleted.
Section 901.168(a) and (b) (relating to stay of appeal) is proposed to be amended by updating language to be consistent with other amendments in this proposed rulemaking.
Affected Parties
Pennsylvania taxpayers and tax practitioners may be affected by the proposed rulemaking.
Fiscal Impact
The Department has determined that the proposed rulemaking will not have fiscal impact on the Commonwealth.
Paperwork
The proposed rulemaking will not create additional paperwork for the public or the Commonwealth.
Effectiveness/Sunset Dates
The proposed rulemaking will become effective upon final-form publication in the Pennsylvania Bulletin. The regulations are scheduled for review within 5 years of final-form publication. A sunset date has not been assigned.
Contact Person
Interested persons are invited to submit in writing comments, suggestions or objections regarding the proposed rulemaking to Mary R. Sprunk, Office of Chief Counsel, Department of Revenue, P. O. Box 281061, Harrisburg, PA 17128-1061 within 30 days after the date of the publication of this proposed rulemaking in the Pennsylvania Bulletin.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 28, 2012, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Finance and the Senate Committee on Finance. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
DANIEL MEUSER,
SecretaryFiscal Note: 15-454. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 61. REVENUE
PART I. DEPARTMENT OF REVENUE
Subpart A. GENERAL PROVISIONS
CHAPTER 7. BOARD OF APPEALS (Editor's Note: As part of this proposed rulemaking, the Board is proposing to rescind §§ 7.1—7.7 which appear in 61 Pa. Code pages 7-1—7-7, serial pages (198141)—(198147).)
§§ 7.1—7.7. (Reserved).
(Editor's Note: Sections 7.11—7.16 are new and printed in regular type to enhance readability.)
§ 7.11. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Administrative proceeding—As defined in 2 Pa.C.S. § 101 (relating to definitions), including proceedings related to registrations and licenses.
Appeal—A request for or a review or protest of one of the following:
(i) A resettlement, reassessment, redetermination, review or refund of taxes, interest, penalties, additions or payments made into the State Treasury, including a reassessment or refund as provided under section 2703(a) of the TRC (72 P. S. § 9703(a)).
(ii) A denial of an application for tax exempt status as a charitable, volunteer firemen's or religious organization or nonprofit educational institution.
(iii) A reconsideration of interest payable on a tax overpayment.
(iv) A redetermination of the Department's action regarding a claim for a property tax rebate or rent rebate as provided for under section 1311 of the Taxpayer Relief Act (53 P. S. § 6926.1311).
(v) A review of other actions, other than administrative proceedings, arising under statutes administered by the Department.
Board—The Board of Appeals of the Department consisting of the Chairperson and members as designated by the Secretary.
§ 7.12. Jurisdiction.
The Board will exercise the powers and duties of the Department and the Secretary with respect to appeals and administrative proceedings before the Department.
§ 7.13. Manner of proceeding before the Board.
A proceeding before the Board shall be initiated by the filing of a petition, whether the proceeding is an appeal or administrative proceeding.
§ 7.14. Petitions.
(a) Place. Petitions shall be filed with the Board.
(b) Time.
(1) Petitions shall be filed within the time limits prescribed by statute, this title or other regulation. The burden is on the petitioner to present evidence sufficient to prove that a petition is timely filed.
(2) In the absence of a specific time limit for filing as prescribed in paragraph (1), a petition shall be filed no later than 90 days after the date of the Department's decision or action that is the subject of the petition.
(3) The date of a Department decision or action for purposes of the filing of a petition is the date of the notice of the decision or action. If a there is not a notice, then the date is when the petitioner became aware of the Department's decision or action.
(c) Receipt.
(1) General rule. A petition is filed with the Board on the date the Board receives it. A petition that is received by electronic means after the close of business is received on the date of transmission as long as the Board receives the transmission by 12 midnight.
(2) Appeals. Section 1102.1 of the FC (72 P. S. § 1102.1) and section 3003.6 of the TRC (72 P. S. § 10003.6) apply to appeals that are transmitted to the Department by mail.
(3) Department personnel. A petition that the Board receives after the date prescribed by statute or this title that is presented to other Department personnel prior to or on the date prescribed by statute or this title is deemed filed as of the date the other Department personnel receives it.
(d) Manner and form. A petition may be delivered to and filed with the Board by hand delivery, mail or electronically, including facsimile transmittal or through the Department's web site. A petition shall be in writing. A writing includes an electronic petition submitted through the Department's web site. The Department will prescribe the form for a petition.
(e) Contents. A petition must contain the information, documentation and attachments required by statute and the following:
(1) General. Petitions must contain the following:
(i) The petitioner's name, address and telephone number.
(ii) The name, address and telephone number of the petitioner's authorized representative, if any.
(iii) The petitioner's signature. If the petitioner is a corporation or association, an officer of the corporation or association shall sign the petition. If an authorized representative files the petition for the petitioner, the authorized representative may sign the petition on behalf of the petitioner.
(iv) A detailed statement in separate numbered paragraphs of the facts and grounds relied upon. If based upon a written document, a copy of the document, or material part thereof, shall be attached.
(v) A statement specifying the relief requested.
(vi) A statement indicating whether or not a hearing is requested.
(vii) A signed statement certifying that the facts in the petition are true and correct to the petitioner's knowledge and belief and that the petition is not made for purposes of delay.
(2) Appeal petitions. In addition to the requirements of paragraph (1), an appeal petition must contain the following:
(i) Designation of the tax, including the year or other period, and the amount involved. A copy of any document relating shall be attached.
(ii) The petitioner's license number, account number, employer identification number, Social Security number, claim number, file number, corporate box number or other appropriate identifying designation.
(iii) In the case of an Inheritance and Estate Tax protest, the petition must contain the decedent's name, last known address, the file number and the assessment control number, if applicable.
(f) Docketing of petitions.
(1) The Department will docket upon receipt a filing that purports to be a petition or which otherwise claims relief that may be sought through the filing of a petition. If a filing fails to satisfy any statutory requirement for the filing of a petition, the Board will notify the petitioner of the deficiency in the filing and give the petitioner an opportunity to correct the deficiency. The petitioner shall remedy the deficiency within 30 days of the Board's notice. If the petitioner fails to remedy the deficiencies, the Board will summarily dismiss the petition.
(2) For purposes of section 806.1(a)(4) of the FC (72 P. S. § 806.1(a)(4)), the administrative review procedure will be deemed to be initiated on the date the Board dockets the petition.
(g) Additional information. Upon written request, the Board may require a petitioner to furnish additional information that may be necessary to define the issues or to determine the case.
(h) Signatures. A signature includes an electronic signature issued by the Department to the petitioner.
§ 7.15. Board practice and procedure.
(a) General rules. Practice and procedure before the Board is as follows:
(1) Burden of proof. The petitioner shall have the burden of proof on all issues except fraud.
(2) Representation.
(i) An individual may appear on his own behalf or be represented by a person possessing the requisite technical education, training or experience. There is not a requirement that a petitioner be represented before the Board by an attorney or certified public accountant. A petitioner's representative shall be authorized in writing to represent the petitioner. A letter signed by the petitioner or a listing as a representative on the face of the petition signed by the petitioner will be accepted as authorization for representation. An authorization continues until the Board is notified in writing by the petitioner that the authorization is rescinded.
(ii) Only an attorney-at-law representing a petitioner, or the petitioner acting without representation before the Board, shall be permitted to raise or make a legal argument at a hearing before the Board.
(iii) A notice or other written communication to the petitioner shall be given to the petitioner's authorized representative and have the same force and effect as if given to the petitioner directly. Action before the Board taken by petitioner's authorized representative shall have the same force and effect as if taken by the petitioner.
(3) Consolidation. The Board may, upon its own motion or the request of a petitioner, consolidate or sever two or more proceedings at its discretion.
(4) Hearings.
(i) Request for hearing. The Board will provide a petitioner the opportunity for a hearing upon written request.
(ii) Waiver. The petitioner may waive the right to a hearing and rest the case upon the petition and record, with or without a written brief. The Board on its own motion may require a hearing.
(iii) Notice of hearing. When the petitioner requests a hearing in writing, or when the Board requires a hearing, reasonable notice will be given to the petitioner in writing specifying the date, time and place for the hearing.
(iv) Continuances. The Board may grant a reasonable request for continuance of a scheduled hearing. The request shall be made or confirmed in writing, state the reasons for the continuance and be received at least 5 days prior to the scheduled hearing. The Board may grant a request not in conformity with this paragraph in extraordinary circumstances.
(v) Presiding officer. Hearings will be conducted by a presiding officer who will be a Board member or a hearing officer designated by the Board. Additional Board members or hearing officers may participate in a hearing at the discretion of the Board.
(vi) Authority of presiding officer. The presiding officer has authority to do the following:
(A) Regulate the conduct of hearings, including the scheduling thereof, subject to Board policy, and the recessing, reconvening and adjournment thereof, and to do acts and take measures necessary or proper for the efficient conduct of hearings.
(B) Administer oaths and affirmations.
(C) Rule upon offers of proof and receive evidence.
(D) Take or cause depositions to be taken.
(E) Hold appropriate conferences before or during hearings.
(F) Dispose of procedural requests or similar matters.
(G) Take other action necessary or appropriate to the discharge of the presiding officer's vested duties, consistent with statutory authority, regulations and Board policy.
(vii) Contemptuous conduct. Contemptuous conduct is grounds for exclusion from the hearing.
(5) Evidence. Hearings before the Board do not need to adhere to the technical rules of evidence or procedure. In cases involving issues of fact, oral testimony shall be under oath or affirmation. At the discretion of the Board's presiding officer, depositions or affidavits may be received instead of oral testimony if the actual presence of a witness is not feasible.
(6) Subpoenas. The Board, on its own motion or at the request of a petitioner, may compel the production of books, records, documents and other data pertinent to the issues and may require persons having information to appear and submit to oral examination under oath or affirmation. The petitioner shall pay the costs associated with the issuance of a subpoena requested by the petitioner as a condition precedent to the issuance of the subpoena.
(7) Additional hearings and evidence. After the conclusion of a hearing but prior to the issuance of a final decision, the Board or the presiding officer may, upon its own motion or upon request of the petitioner, allow one or more additional hearings or the submission of additional evidence.
(8) Decision and order. The Board will issue a final decision and order, as follows:
(i) The Board's final decision and order will include findings of facts and conclusions of law and dispose of all issues raised in the petition.
(ii) The Board's final decision and order will be in writing and signed by one or more members of the Board.
(iii) When provided by statute, the Board's exercise of equity power will be limited to situations when the petitioner establishes that he has acted in good faith, without negligence and with reasonable diligence.
(iv) One copy of the final decision and order will be mailed to the petitioner or to the petitioner's authorized representative at the mailing address shown on the petition.
(v) The Board may publish precedential decisions if the identity of the taxpayer is kept confidential.
(9) Reconsideration.
(i) Within the statutory appeal period and prior to the statutory time when the Board's failure to act results in a denial of an appeal, and upon the written request of a petitioner or upon request of the Department, the Board may reopen a case in which a final decision and order has been issued, for the following purposes:
(A) Correcting clerical or computational errors.
(B) Considering evidence that the Department or the Board received on or prior to the mailing date of the final decision and order and not taken into consideration as part of the final decision and order.
(ii) If the Board decides to reopen a case, a member of the Board will notify the petitioner in writing and provide an opportunity for a hearing. An amended decision and order will be issued.
(b) Appeals. In addition to subsection (a), practice and procedure before the Board related to appeals shall be as follows:
(1) Nonapplicable law. Sections 501—508 and 701—704 of 2 Pa.C.S. (relating to Administrative Agency Law) do not apply.
(2) Confidential character of hearings. Information gained from hearings shall be considered confidential information under section 731 of the FC (72 P. S. § 731).
(3) Transcripts. Written transcripts of hearings will not be prepared by the Board. A recording of the hearing may be made at the discretion of either the Board or the petitioner.
(4) Decision and order. In the Board's discretion, the Board's final decision and order involving an assessment of tax, interest, penalties or additions may separate the reassessment into one of the following:
(i) Reporting periods involving disputed and nondis- puted tax, interest, penalties or additions.
(ii) Disputed and nondisputed tax, interest, penalties or additions.
(5) Bonds and security.
(i) Sales, use and hotel occupancy tax bonds.
(A) In the case of petitions involving the sales, use and Hotel Occupancy Tax, the Department may by notice require a petitioner to file a surety bond. This bond shall be filed within 5 days of the date of the notice. Surety bonds shall be on a form approved by the Department, in an amount of 120% of the amount of the assessment remaining unpaid at the time of notice of bond requirement and shall be issued by a surety company authorized to do business in this Commonwealth.
(B) A petitioner, instead of filing a bond, may deposit with the Department a certified check payable to the ''Pennsylvania Department of Revenue'' in the amount of the bond required. On written application to and approval by the Department, the petitioner may post other security.
(C) If a surety bond is required, a petitioner may, within the time for filing the bond, file a written request for a hearing before the Board regarding the need for or amount of the bond. The petitioner shall furnish a financial statement to the Board at the time the request for hearing is made. The validity of the assessment itself may not be considered at the hearing. The determination of the Board will be final and its order shall be complied with within 15 days after notice thereof is mailed to the petitioner. If a taxpayer fails to appear at a scheduled hearing, the Board may immediately cause a lien to be filed under section 242 of the TRC (72 P. S. § 7242).
(ii) Personal income tax security requirement in jeopardy assessment appeals. A petition for reassessment of a jeopardy assessment shall be accompanied by a bond or other security in an amount that the Department deems necessary. The bond shall be executed by a surety company which is authorized to do business in this Commonwealth. A petitioner may deposit with the Department cash or a certified check payable to the ''Pennsylvania Department of Revenue'' in the amount required by the Department. On written application to and approval by the Department, the petitioner may post other security. In the case of failure to post an acceptable bond or other security, the Board will nonetheless accept the petition, if filed within the 10-day period provided by statute. If an acceptable bond or other security is not posted, the Department has the right to file a lien or otherwise proceed with collection of the assessment, even though the assessment has been appealed.
(c) Administrative proceedings. In addition to subsection (a), practice and procedure before the Board related to administrative proceedings shall be as follows:
(1) Applicable law. Sections 501—508 and 701—704 of 2 Pa.C.S. (relating to Administrative Agency Law) and other applicable laws and regulations related to the proceeding apply.
(2) Record. A full and complete record shall be kept of the proceedings.
(3) Transcripts. Hearings and testimony provided during hearings shall be stenographically recorded. Copies of hearing transcripts will be made available to the petitioner at the petitioner's cost.
§ 7.16. Security upon petition for review.
(a) General rule. The Pennsylvania Rules of Appellate Procedure provide that a petition for review of an order of the Board of Finance and Revenue in a tax matter filed with the Commonwealth Court operates as a supersedeas upon the filing of appropriate security.
(b) Alternate procedure. If appropriate security is not filed as described in subsection (a), the Department will pursue collection activity, including the filing of a lien, to collect unpaid tax, interest, additions or penalties subject to the Commonwealth Court's review except as provided subsection (c).
(c) Rules and procedures.
(1) Request for Department review. A person may submit a request to the Department to determine whether the amount of unpaid tax, interest, additions or penalties is in jeopardy of collection if appropriate security is not provided.
(2) Determination. If the Department determines that the amount of unpaid tax, interest, additions or penalties is not in jeopardy, then the Department will not pursue collection activities during the Commonwealth Court's review. The Department's determination will be based upon the documentation required to be submitted in paragraph (3). The Department's determination under this paragraph is made solely at the Department's discretion.
(3) Procedure. The request under paragraph (1) shall be made in writing on a form prepared by the Department. The written request shall include the person's most recent financial statements, including a balance sheet, income statement and all notes pertaining to the statements. The Department may request other financial documentation. An individual may be required to submit a personal balance sheet.
(4) Appeal rights. There is not a right to appeal the Department's determination under paragraph (2).
PART VII. LOCAL OPTION SMALL GAMES OF CHANCE
CHAPTER 901. LOCAL OPTION SMALL GAMES OF CHANCE
Subchapter A. GENERAL PROVISIONS
DEFINITIONS § 901.1. Definitions.
The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Board—[The Small Games of Chance Board of the Department] The Board of Appeals of the Department as provided for in Chapter 7 (relating to Board of Appeals).
* * * * *
Subchapter B. LICENSING AND REGISTRATION
BOARD PROCEDURES § 901.161. Jurisdiction and purpose.
The Board will receive and review petitions challenging the Department's decisions to deny an application for a manufacturer registration certificate or game of chance approval or a distributor license. The Board will also receive and review petitions from manufacturers or distributors challenging the Department's revocation of a manufacturer registration certificate, game of chance approval or a distributor license. [The Board will provide petitioners with the opportunity for a hearing and will make recommendations to the Secretary regarding petitions.]
§ 901.162. [Composition] (Reserved).
[The Board will be comprised of the following members appointed by the Secretary:
(1) A Deputy Secretary of the Department or a designee.
(2) The Chief Counsel of the Department or a designee.
(3) A Department employee.]
§ 901.163. [Powers and duties] (Reserved).
[The Board will do the following:
(1) Receive, consider and act upon petitions for review of decisions of the Department.
(2) Conduct hearings at the request of the Petitioner prior to making a recommendation to the Secretary.
(3) Determine procedural matters.
(4) Determine issues of fact and law raised by petitions.
(5) Make findings, decisions and orders as may be necessary and proper.
(6) Make recommendations to the Secretary regarding the disposition of petitions.
(7) Perform other acts which may be necessary and proper.]
§ 901.164. Petitions.
[(a) Time for filing.] A petition shall be filed within 15 days after the applicant, registrant or licensee receives notice of the Department's decision.
[(b) Place for filing. A petition shall be filed with the Bureau of Business Trust Fund Taxes, Department 280901, Harrisburg, Pennsylvania 17128-0901. A change of address will be published as a notice in the Pennsylvania Bulletin.
(c) Form and content. A petition shall be in writing, signed by the petitioner, a responsible person or authorized representative, and shall contain:
(1) The petitioner's name, address and telephone number.
(2) The name, address and telephone number of the authorized representative, if any.
(3) A copy of the notice of the Department's decision.
(4) A detailed statement in separate numbered paragraphs of the facts and grounds relied upon, specifically stating why the Department's decision is improper.
(5) A copy of the documents relevant to the petition.
(6) A statement specifying the relief requested by the petitioner.
(7) A statement indicating whether or not a hearing is requested.
(8) A signed statement certifying that to the petitioner's knowledge and belief, the facts contained in the petition are true and correct and that the petition is not made for purposes of delay.
(9) The petition shall contain pertinent data known to the petitioner.
(d) Number of copies. Four copies of the petition and documentation shall be submitted.
(e) Additional information. Upon written request, the Board may require a petitioner to furnish additional information that may be necessary to define the issues or to determine the case. The Board may deny the petition for failure to furnish the additional information within a stated, reasonable amount of time after the request.]
§ 901.165. Board practice and procedure.
[(a) General. The provisions of 2 Pa.C.S. §§ 501—508 and 701—704 (relating to the administrative agency law) do not apply to practice and procedure before the Board to the extent that those provisions are inconsistent with §§ 901.161—901.164, this section and §§ 901.166—901.168 (relating to Board recommendation; decision and order; and stay of appeal).
(b) Representation.
(1) A petitioner is not required to be represented before the Board by an attorney. An individual or a partner in a partnership, corporation or association may be represented by a bona fide officer thereof or another person upon a showing of adequate authorization. A petitioner's representative shall be authorized in writing to represent the petitioner. A letter signed by the petitioner or a listing as a representative on the face of the petition signed by the petitioner will be accepted as authorization for representation. An authorization continues until the Board is notified in writing by the petitioner that the authorization is rescinded. A party may be represented by a member in good standing of the bar of this Commonwealth.
(2) Only an attorney-at-law representing a petitioner, or the petitioner acting without representation before the Board, is permitted to raise or argue a legal question at a hearing before the Board.
(3) Notices and other written communications to the petitioner will be given to the petitioner's authorized representative, and will have the same force and effect as if given to the petitioner directly. Action before the Board taken by the petitioner's authorized representative will have the same force and effect as if taken by the petitioner.
(c) Hearings.
(1) Waiver. The petitioner has the right to a hearing or to have the case decided upon the petition and record. A hearing shall be requested in writing. If a hearing is not requested, it is considered waived.
(2) Notices of hearing. When the petitioner requests a hearing in writing, reasonable notice will be given to the petitioner in writing specifying the date, time and place of the hearing.
(3) Continuances. The Board may grant a reasonable request for continuance of a scheduled hearing. The request shall be made or confirmed in writing, state the reasons for the continuance and be received at least 5 days prior to the scheduled hearing. The Board may grant a request that is not in conformity with this paragraph under extraordinary circumstances. The Board will notify the petitioner of its decision on the requested continuance.
(4) Presiding officer. The Deputy Secretary or a designee shall conduct the hearings.
(5) Transcripts. Written transcripts of hearings will not be prepared by the Board unless specifically requested in writing. The cost of the transcript is $1.50 per page. A recording of the hearing will be made.
(6) Contemptuous conduct. Contemptuous conduct is grounds for exclusion from the hearing.
(d) Authority of presiding officer. The presiding officer has authority to:
(1) Regulate the conduct of hearings, including scheduling, recessing, reconvening and adjourning, and to do acts and take measures necessary or proper for the efficient conduct of hearings.
(2) Administer oaths and affirmation.
(3) Receive evidence.
(4) Take or cause depositions to be taken.
(5) Hold appropriate conferences before or during hearings.
(6) Take other action necessary or appropriate to the discharge of the duties vested in the officer, consistent with statutory authority, regulations and Board policy.
(7) Participate in making decisions.
(8) Rule upon offers of proof and receive relevant evidence.
(9) Dispose of procedural requests or similar matters.
(e) Service. Notices and decisions issued under §§ 901.161—901.164, this section and §§ 901.166—901.168 will be sent by first class mail, postage prepaid.
(f) Consolidation. Two or more proceedings may be consolidated or severed by the Board at its discretion.
(g) Bond. A registrant or licensee whose license or registration has been revoked due to Commonwealth tax liabilities, and who has been notified of the revocation, shall file a bond in an amount of 120% of the tax and interest with the Department for an appeal of the revocation to stay the revocation.
(h) Evidence and subpoenas. The presentation of evidence and the issuance of subpoenas relating to hearings before the Board are governed by 1 Pa. Code Chapter 35 Subchapter C (relating to evidence and witnesses).
(i) Burden of proof. The petitioner has the burden of proof.]
This section and Chapter 7 (relating to Board of Appeals) govern practice and procedure before the Board.
§ 901.166. [Board recommendation] (Reserved).
[The Board will make its recommendation to the Secretary within 15 days after a hearing, or if a hearing is not held, within 15 days of submission of documentation that the Board deems sufficient upon which to make a recommendation.
(1) The Board's recommendation will include findings of fact and conclusions of law that the Board deems necessary and upon which its recommendation is based.
(2) The Board's recommendation will be in writing and signed by a majority of the Board members.
(3) A dissenting recommendation may also be submitted. It will conform to the requirements of this section and will be attached to the Board's recommendation.
(4) The Board's recommendation will be the result of deliberations of a quorum of the members. If a hearing is held, only members present at the hearing will be eligible to participate in the Board's recommendation.]
§ 901.167. [Decision and order] (Reserved).
[(a) The Secretary's final decision will include findings of facts and discussion of law that the Secretary deems necessary.
(b) The Secretary's final decision will be in writing and signed by the Secretary.
(c) One copy of the final decision will be mailed to the petitioner or to the petitioner's authorized representative at the mailing address shown on the petition.
(d) The Secretary's final decision will be made within 15 days of the receipt of the Board's recommendation.]
§ 901.168. Stay of appeal.
(a) [Actions] After a petition is filed, actions to revoke a registration, license or game approval will be stayed pending the decision of the [Secretary when a petition has been filed with the] Board.
(b) [During the pendency of the appeal] Pending the Board's decision and order, the certificate, game approval or license of the petitioner will be suspended. (See § 901.23a (relating to effect of denial, suspension, revocation, expiration of a certificate, license or game of chance).)
[Pa.B. Doc. No. 12-393. Filed for public inspection March 9, 2012, 9:00 a.m.]
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