S-25-0144 and S-25-0145 MLB Advanced Media, L.P. (Appellant) v. Nebraska Department of Revenue and James Kamm, in his official capacity as Nebraska Tax Commissioner (Appellee)
Appeal from the District Court for Lancaster County, Judge Matthew O. Mellor
Attorneys: Nicholas K. Niemann and Matthew R. Ottemann (McGrath North Mullin & Kratz, PC LLO for Appellant) and Zachary B. Pohlman (Deputy Solicitor General for Michael T. Hilgers, Attorney General of Nebraska)
Civil: Transfer of tax incentives under the Nebraska Advantage Act
Proceedings below: Appellant requested a transfer of tax incentives pursuant to Nebraska Advantage Act, but Appellee declined this request. Appellant filed two protests, and on appeal to the district court, it dismissed one appeal as untimely filed and remanded the other matter back to the Department of Revenue to determine whether Appellant filed a timely protest. On its own motion, the Nebraska Supreme Court ordered this case to be transferred from the docket of the Nebraska Court of Appeals to its docket.
Issues: Appellant assigns the following errors: 1) In case S-25-0144, the Lancaster County District Court erred by finding that the Department’s service of the Notice of Deficiency Determination (“March 2021 Notice”) issued by the Nebraska Department of Revenue (“Department”) to MLB, which was dated March 10, 2021, complied with Neb. Rev. Stat. § 77-27,135 (Reissue 2018) as such statute existed on March 10, 2021; 2) In case S-25-0144, the district court erred by failing to find that the Department did not acquire personal jurisdiction over MLB pursuant to 14 the March 2021 notice because the March 2021 notice was not properly served on MLB as required under Neb. Rev. Stat. § 77-27,135 (Reissue 2018) as such statute existed on March 10, 2021; 3) In case S-25-0144, the district court erred by failing to find that the March 2021 notice was void, and that the taxes assessed in the March 2021 notice could not be collected, because the March 2021 notice was not properly served on MLB as required under Neb. Rev. Stat. § 77-27,135 (Reissue 2018) as such statute existed on March 10, 2021; 4) In case S-25-0144, the district court erred by failing to find that the March 2021 notice was void, and that the Department did not have the power to impose a tax on MLB under the March 2021 notice, because the March 2021 notice was based on a denial of the request filed by MLB on October 1, 2018 to transfer MLB’s Nebraska Advantage project to BAMTech, LLC (“transfer request”) and that such transfer request had not actually been denied by the Department; 5) In case S-25-0144, the district court erred by limiting its remand to the Tax Commissioner to the timeliness of MLB’s May 2021 Petition, rather than granting MLB a full and fair hearing on MLB’s May 2021 Petition; 6) In case S-25-0145, the district court erred in determining that MLB’s appeal of the Department’s purported denial of the transfer request was untimely filed and that the district court therefore lacked jurisdiction over the appeal; 7) In case S-25-0145, the district court erred in failing to remand the transfer request back to the Tax Commissioner for the Tax Commissioner to hold a full and fair hearing on the transfer request; and 8) In case S-25-0145, the district court erred by failing to find that the Tax Commissioner, by and through the Department, had not issued a final determination on the transfer request.
On cross-appeal, the State assigns the following error: The district court erred in remanding the deficiency dispute for a hearing because the record reveals no dispute of any material jurisdictional fact.