[Rev. 8/27/2018 12:26:46 PM]

[NAC-370 Revised Date: 8-18]

CHAPTER 370 - TOBACCO: LICENSES AND TAXES; SUPERVISION OF MANUFACTURERS AND WHOLESALE DEALERS

GENERAL PROVISIONS

370.010              Definitions.

370.015              Applicant for license: Compliance with chapter 370A of NRS.

CIGARETTES

370.020              Application for subsidiary place of business.

370.030              Conditions for use of stamping machine by dealer.

370.100              Placement of cigarettes in vending machines; inspection of machines by Department.

370.120              Receipt of reports, returns and remittances sent by mail.

OTHER PRODUCTS MADE FROM TOBACCO

370.140              Wholesale dealer to notify Department of intent to sell taxable product.

370.150              Indicating tax on invoice; tax not to be charged to retail dealer as separate item.

370.160              Payment of tax; monthly return.

370.165         Allowance of tax credits.

SALES ON INDIAN RESERVATIONS AND COLONIES

370.210              Sales by tribe that imposes tax equal to or greater than state tax.

370.220              Purchase of tobacco by retail dealers; application for refund of precollected sales tax.

370.230              Refund of precollected state tax: Procedure; rate.

370.240              Refund of precollected state tax: Effect of provisions.

370.250              List of tribes eligible to purchase cigarettes with tribal tax stamps affixed and other products exempt from state tax.

MANUFACTURERS OF TOBACCO PRODUCTS

370.300              Definitions.

370.310              “Calendar quarter” defined.

370.320              “Escrow deposit” defined.

370.330              Nonparticipating manufacturer: Requirements for quarterly escrow deposits and reports; noncompliance with requirements.

ADMINISTRATIVE PROCEEDINGS: SUSPENSION OR REVOCATION OF LICENSE; REMOVAL FROM DIRECTORY OF MANUFACTURERS AND BRAND FAMILIES

370.500              Definitions.

370.510              “Directory” defined.

370.515              “Hearing officer” defined.

370.520              “Manufacturer of tobacco products” or “manufacturer” defined.

370.525              “Respondent” defined.

370.540              Notice of intent to suspend or revoke license or remove from directory; contents and service of notice; opportunity to demonstrate compliance; effect of subsequent alleged violation.

370.545              Notice of hearing; contents and service of notice; appointment of hearing officer.

370.550              Submission of documentation by respondent; exclusion by hearing officer for untimely submission.

370.555              Submission and service of motions and responses to motions.

370.560              Filing and service of briefs.

370.565              Appearance of party at hearing; representation by authorized representative of party; qualifications of attorney.

370.570              Continuances or recesses granted by hearing officer.

370.575              Failure to appear.

370.580              Order of proceedings; written findings and conclusions; issuance and service of decision; date on which decision becomes final.

370.585              Filing and service of notice of appeal; rebuttal response by opposing party.

370.590              Oral argument on appeal; consideration of certain evidence; issuance of written decision; final decision for purposes of judicial review.

370.595              Effective date of suspension or revocation of license; duties of wholesale dealer; continuation of activities until suspension or revocation is effective.

 

 

GENERAL PROVISIONS

     NAC 370.010  Definitions.  As used in this chapter, unless the context otherwise requires:

     1.  “Commission” means the Nevada Tax Commission.

     2.  “Department” means the Department of Taxation.

     (Supplied in codification)

     NAC 370.015  Applicant for license: Compliance with chapter 370A of NRS. (NRS 360.090, 370.510)  The Department will not approve an application for a license pursuant to this chapter if the applicant is not in compliance with the provisions of chapter 370A of NRS.

     (Added to NAC by Tax Comm’n by R086-02, eff. 9-20-2002)

CIGARETTES

     NAC 370.020  Application for subsidiary place of business. (NRS 360.090, 370.100, 370.510)

     1.  A cigarette wholesaler may maintain a warehouse for keeping merchandise on hand at another place than the established principal place of business, by listing the subsidiary place of business with the Department.

     2.  Application must be made to the Department for each subsidiary location and the application must specify the location by street and number.

     [Tax Comm’n, Cigarette Tax Reg. part No. 2, eff. 6-7-68; A by Dep’t of Taxation, 10-22-75]

     NAC 370.030  Conditions for use of stamping machine by dealer. (NRS 360.090, 370.180, 370.510)

     1.  The privilege of using a stamping machine to apply cigarette revenue stamps will be granted to licensed wholesale cigarette dealers upon written request to the Department subject to compliance with the following terms:

     (a) Cigarette revenue stamps applied by machines must be approved by the Department with the security codes provided by the manufacturer.

     (b) Only cigarettes bearing clear and legible cigarette revenue stamps may be distributed by wholesale dealers.

     (c) Cigarette revenue stamps may only be applied by machines owned or leased by the licensed wholesale dealer for which a security code has been provided to the Department.

     (d) All cigarette revenue stamps applied upon packages must be of a special type devised and specified for the machines by the manufacturer. All cigarette revenue stamps must be applied on the bottom of the original package.

     (e) The design of the cigarette revenue stamp must be that particular design approved by the Department.

     (f) All wholesale dealers permitted to use stamping machines must take every reasonable precaution to prevent the theft of, unauthorized use of or tampering with the machines.

     (g) All repairs to the machine must be made by an authorized representative of the manufacturer.

     (h) All equipment must be serviced and cleaned according to the instructions issued by the manufacturer of the machine.

     (i) All cigarette revenue stamps must be purchased from an authorized agent or representative of the Department.

     2.  Upon the failure of any licensed wholesale dealer to fully comply with subsection 1, the permission to use the machines will be summarily withdrawn and the dealer will be required to affix water decal stamps until such time as he or she satisfies the Department that the provisions of subsection 1 have been met and will be fully complied with in the future.

     [Tax Comm’n, Cigarette Tax Reg. part No. 4, eff. 4-24-69; A by Dep’t of Taxation, 1-1-76] — (NAC A by Tax Comm’n, 7-18-88)

     NAC 370.100  Placement of cigarettes in vending machines; inspection of machines by Department. (NRS 360.090, 370.270, 370.510)

     1.  All packages or packets of cigarettes in each vending machine which has an opening or transparent panel through which a sampling of all of the brands of cigarettes are visible must be placed in the machine so that the cigarette revenue stamp is visible from the front of the machine.

     2.  On demand, an operator of cigarette vending machines shall allow any authorized representative of the Department to accompany any employee of the operator on his or her route, during business hours and on working days, and the employee or operator shall open vending machines in control of the operator for inspection by the representative of the Department.

     [Tax Comm’n, Cigarette Tax Reg. part No. 3, eff. 1-18-69; A by Dep’t of Taxation, 10-22-75] — (NAC A by Tax Comm’n, 7-18-88)

     NAC 370.120  Receipt of reports, returns and remittances sent by mail. (NRS 360.090, 370.510)

     1.  Any report, return or remittance to cover a payment required by NRS 370.001 to 370.430, inclusive, which is transmitted through the United States mail, shall be deemed filed or received on the date shown by the postmark stamped upon the envelope containing it, as provided in NRS 238.100, or on the date it was mailed if other proof satisfactory to the Commission establishes that it was timely deposited in the United States mail, postage prepaid and properly addressed to the Commission.

     2.  The date on a receipt for material sent by certified or registered mail, if different from the postmark, prevails if the date on the receipt is earlier than the date of the postmark.

     3.  A record authenticated by the post office that the postmark on certain batches of mail was erroneous is proof satisfactory to the Commission that the mailing was made on a date other than the date of the postmark.

     4.  If it is known that the postal service was inoperative at a certain time because of a strike, riot, warfare or act of God or for some other reason, the Commission will consider the circumstances, and if there is other evidence of timely mailing, will accept the evidence and deem the return or payment timely.

     5.  A postmark affixed by a postage meter in the possession of the taxpayer or other person outside the post office will be disregarded as proof of the date mailed whenever it is contradicted by an official postmark stamped upon the envelope containing the payment. Unless corroborated, statements by a taxpayer or the taxpayer’s employees are not sufficient to refute the postmark as the date of mailing.

     [Tax Comm’n, Cigarette Tax Reg. part No. 6, eff. 7-24-70; A 10-9-71] — (NAC A by Dep’t of Taxation, 10-10-83)

OTHER PRODUCTS MADE FROM TOBACCO

     NAC 370.140  Wholesale dealer to notify Department of intent to sell taxable product. (NRS 370.510)  A wholesale dealer in products made from tobacco, other than cigarettes, shall notify the Department of his or her intention to sell such products in this State before making any sales. The notification must be given on a form provided by the Department.

     (Added to NAC by Dep’t of Taxation, eff. 10-10-83)

     NAC 370.150  Indicating tax on invoice; tax not to be charged to retail dealer as separate item. (NRS 370.510)  A wholesale dealer in products made from tobacco, other than cigarettes, shall indicate on his or her invoices of sale the amount of the tax he or she is required to pay pursuant to NRS 370.450 as a part of the total price of those products. This amount must not be charged to the retail dealer as a separate item.

     (Added to NAC by Dep’t of Taxation, eff. 10-10-83)

     NAC 370.160  Payment of tax; monthly return. (NRS 370.465, 370.510)

     1.  The tax imposed by NRS 370.450 must be paid to the Department on or before the 20th day of each month for sales made during the preceding month.

     2.  Each wholesale dealer shall submit with his or her payment a return on a form provided by the Department. If a wholesale dealer does not make a taxable sale during the preceding month, he or she shall file a return with the Department indicating this fact.

     (Added to NAC by Dep’t of Taxation, eff. 10-10-83)

     NAC 370.165  Allowance of tax credits. (NRS 370.490, 370.510)

     1.  The Department will allow a credit authorized by NRS 370.490 only if the wholesale dealer who files the claim for the credit is the wholesale dealer who originally reported and paid the tax to the Department.

     2.  A wholesale dealer who did not originally report and pay the tax to the Department may request from the wholesale dealer who originally reported and paid the tax to the Department payment of an amount equal to the credit authorized by NRS 370.490. Such a request must include a credit memo of the manufacturer for proof of returned merchandise or a duplicate or copy of the invoice as proof of the sale outside the State.

     3.  A wholesale dealer who is allowed a credit authorized by NRS 370.490 and who, pursuant to subsection 2, makes a payment to a wholesale dealer who did not originally report and pay the tax to the Department may complete and file with the Department an amended return.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

SALES ON INDIAN RESERVATIONS AND COLONIES

     NAC 370.210  Sales by tribe that imposes tax equal to or greater than state tax. (NRS 360.090, 370.0751, 370.501, 370.510, 370.515)

     1.  A tribe that is located and sells and delivers cigarettes or other products made from tobacco on an Indian reservation or colony whose governing body has imposed and is enforcing an excise tax on the products being sold at a rate which is equal to or greater than the rate of the tax imposed by the State on the same products shall furnish the Department a copy of the tribal ordinance which imposes the tribal tax.

     2.  The tribal tax must be applicable to at least all consumers who would otherwise be taxed under NRS 370.001 to 370.430, inclusive, and be actually collected whether or not the retail establishment from which the cigarettes or other products made from tobacco are sold is owned by the tribe.

     3.  The Department will presume that the tax is being imposed and actually enforced by the tribe if the retail price of the cigarettes or other products made from tobacco exceeds the wholesale price charged to the tribe by an amount which is at least equal to the tax.

     4.  Except as otherwise provided in NRS 370.240 and 370.255, the tribe is not required to maintain any records of cigarettes received, sold or distributed by the tribe on that reservation or colony.

     [Dep’t of Taxation, Cigarette Tax Reg. No. 9, eff. 5-26-78] — (NAC A 10-10-83; A by Tax Comm’n, 9-16-92) — (Substituted in revision for NAC 370.050)

     NAC 370.220  Purchase of tobacco by retail dealers; application for refund of precollected sales tax. (NRS 360.090, 370.280, 370.503, 370.510)

     1.  Retail dealers who are located and sell and deliver cigarettes on an Indian reservation or colony shall purchase all of the cigarettes or other products made from tobacco that are to be sold and delivered on the reservation or colony from a licensed wholesale dealer who has precollected the state tax on the cigarettes and other products.

     2.  If a tribal tax has been imposed on the cigarettes and other products made from tobacco, the tribe may apply for a refund of the precollected tax pursuant to NRS 370.280 or 370.503 and NAC 370.230.

     [Dep’t of Taxation, Cigarette Tax Reg. part No. 8, eff. 5-26-78] — (NAC A by Tax Comm’n, 9-16-92) — (Substituted in revision for NAC 370.060)

     NAC 370.230  Refund of precollected state tax: Procedure; rate. (NRS 360.090, 370.280, 370.503, 370.510)

     1.  As used in this section, unless the context otherwise requires:

     (a) “Department” means the Department of Taxation of the State of Nevada.

     (b) “Governing body” means the governmental entity that has the authority to make decisions for a tribe, commonly known as a tribal government.

     (c) “Month” means a calendar month.

     (d) “Reservation” means an Indian reservation, Indian colony or lands set aside for the use and occupancy of a tribe.

     (e) “Retail dealer” means any person, other than a wholesale dealer or a smokeshop owned by a tribe, who is located on a reservation and who offers to sell or who is engaged in selling cigarettes, other tobacco products or both of them at retail on the reservation.

     (f) “Tribe” means any Indian tribe, Indian band, Indian colony or group of Indians recognized by the Federal Government as possessing a government-to-government relationship with the United States.

     2.  Upon application being made by a governing body which meets the requirements of this section, the Department shall refund to the governing body the tobacco taxes collected by the State on sales of tobacco to retail dealers in accordance with NRS 370.280 and 370.503.

     3.  A refund made pursuant to this section must be made at the tax rate less any discounts allowed for a tobacco wholesaler or importer.

     4.  Except as otherwise provided in subsection 6, only the governing body may apply for refunds of taxes on sales of cigarettes or other tobacco products to retail dealers. Each application for a refund must be made for all sales which occurred during not less than 1 month. The application must include:

     (a) The amount of tobacco purchased by retail dealers during the month or months for which the refund is requested;

     (b) The name and location of the wholesaler or importer from whom the tobacco was purchased; and

     (c) The county or counties where the retail dealers are located, and the quantity of tobacco purchased by retail dealers located in each county.

     5.  The governing body shall maintain, and provide to the Department upon request, documentation substantiating all refunds requested. The documentation must include:

     (a) Identification of the purchasers of tobacco as retail dealers, by name and address;

     (b) For each transaction for which a refund is requested, the:

          (1) Name and address of the retail dealer;

          (2) Price paid;

          (3) Quantity purchased; and

          (4) Date of sale; and

     (c) Such other information as the Department determines is reasonably necessary to document that a purchase qualifies for a refund pursuant to this section.

     6.  If a governing body fails to maintain the records required by this section, files a fraudulent refund request or refuses to transmit to the Department information required pursuant to this section, the Department may alter the refund procedure authorized by this section and, in lieu thereof, make direct refunds to a retail dealer who:

     (a) Is located on the reservation;

     (b) Purchases tobacco;

     (c) Pays the applicable tax imposed on the tobacco by the tribe; and

     (d) Complies with the requirements of this section that are applicable to governing bodies.

     (Added to NAC by Tax Comm’n, eff. 5-27-92)

     NAC 370.240  Refund of precollected state tax: Effect of provisions. (NRS 360.090, 370.510, 370.520)  NAC 370.230 does not limit state statutes regarding the sale of cigarettes or other tobacco products, including, without limitation, chapter 370 of NRS, and is not a waiver of the sovereign powers of tribes.

     (Added to NAC by Tax Comm’n, eff. 5-27-92)

     NAC 370.250  List of tribes eligible to purchase cigarettes with tribal tax stamps affixed and other products exempt from state tax. (NRS 360.090, 370.510)  The Department will, as frequently as it deems necessary, publish and distribute to all licensed cigarette wholesale dealers a list of all tribes that are eligible to purchase:

     1.  Cigarettes to which tribal tax stamps are affixed instead of state tax stamps; and

     2.  Other products made from tobacco, exempt from the tax imposed by the State on products made from tobacco.

     [Dep’t of Taxation, Cigarette Tax Reg. part No. 8, eff. 5-26-78] — (NAC A by Tax Comm’n, 9-16-92) — (Substituted in revision for NAC 370.090)

MANUFACTURERS OF TOBACCO PRODUCTS

     NAC 370.300  Definitions. (NRS 360.090, 370.510, 370.690)  As used in NAC 370.300 to 370.330, inclusive, unless the context otherwise requires, the words and terms defined in NRS 370.610 to 370.660, inclusive, and NAC 370.310 and 370.320 have the meanings ascribed to them in those sections.

     (Added to NAC by Tax Comm’n by R191-05, eff. 11-13-2006)

     NAC 370.310  “Calendar quarter” defined. (NRS 360.090, 370.510, 370.690)  “Calendar quarter” means a period of 3 consecutive calendar months ending on March 31, June 30, September 30 or December 31 in each calendar year.

     (Added to NAC by Tax Comm’n by R191-05, eff. 11-13-2006)

     NAC 370.320  “Escrow deposit” defined. (NRS 360.090, 370.510, 370.690)  “Escrow deposit” means a deposit required from a manufacturer of tobacco products pursuant to subsection 2 of NRS 370A.140.

     (Added to NAC by Tax Comm’n by R191-05, eff. 11-13-2006)

     NAC 370.330  Nonparticipating manufacturer: Requirements for quarterly escrow deposits and reports; noncompliance with requirements. (NRS 360.090, 370.510, 370.690)

     1.  A nonparticipating manufacturer shall make escrow deposits in quarterly installments for the calendar year in which the sales covered by those deposits are made if:

     (a) The nonparticipating manufacturer:

          (1) Has not previously established a qualified escrow fund and made escrow deposits to that fund for sales in Nevada;

          (2) Has not made any escrow deposits for more than 1 year;

          (3) Has failed to make any escrow deposits in a complete and timely manner for any prior calendar year;

          (4) Has failed to pay any judgments entered against the nonparticipating manufacturer in any jurisdiction, including, without limitation, any judgments for any civil penalties arising from a failure to comply with the law of any jurisdiction requiring a deposit into a qualified escrow fund; or

          (5) Sells more than 1.6 million cigarettes in Nevada during a calendar quarter; or

     (b) The Department, in consultation with the Attorney General:

          (1) Has reasonable cause to believe that the nonparticipating manufacturer may not make the entire annual escrow deposit otherwise required by subsection 2 of NRS 370A.140 in a timely manner for a particular year; and

          (2) Serves the nonparticipating manufacturer with a notice that the nonparticipating manufacturer is required to make quarterly installments for that year.

     2.  A nonparticipating manufacturer who is required to make a quarterly installment pursuant to this section shall:

     (a) Deposit the full amount of that installment on or before the last day of the month following the calendar quarter in which the sales covered by the installment are made; and

     (b) Not later than 10 days after the last date upon which that installment is required pursuant to paragraph (a), provide the Attorney General with a quarterly report that includes such information as the Attorney General determines to be necessary to ascertain whether the nonparticipating manufacturer is in compliance with NRS 370.600 to 370.705, inclusive, chapter 370A of NRS and NAC 370.300 to 370.330, inclusive. The report required pursuant to this paragraph must be provided:

          (1) On a form prescribed by the Attorney General; or

          (2) Electronically, in a format prescribed by the Attorney General.

     3.  If a nonparticipating manufacturer fails to comply with any provision of subsection 2, the Department shall:

     (a) Serve the nonparticipating manufacturer with a notice that the Department will remove the name and brand families of the nonparticipating manufacturer from the directory in 5 days, excluding weekends and holidays, unless the nonparticipating manufacturer fully complies with the provisions of subsection 2 within that time; and

     (b) Upon the expiration of 5 days, excluding weekends and holidays, after the service of the notice pursuant to paragraph (a), remove the name and brand families of the nonparticipating manufacturer from the directory unless the nonparticipating manufacturer has fully complied with the provisions of subsection 2 within that time.

     (Added to NAC by Tax Comm’n by R191-05, eff. 11-13-2006)

ADMINISTRATIVE PROCEEDINGS: SUSPENSION OR REVOCATION OF LICENSE; REMOVAL FROM DIRECTORY OF MANUFACTURERS AND BRAND FAMILIES

     NAC 370.500  Definitions. (NRS 370.250, 370.253, 370.510, 370.675)  As used in NAC 370.500 to 370.595, inclusive, unless the context otherwise requires, the words and terms defined in NAC 370.510 to 370.525, inclusive, have the meanings ascribed to them in those sections.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.510  “Directory” defined. (NRS 370.250, 370.253, 370.510, 370.675)  “Directory” means the directory created pursuant to NRS 370.675.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.515  “Hearing officer” defined. (NRS 370.250, 370.253, 370.510, 370.675)  “Hearing officer” means an administrative law judge appointed by the Commission pursuant to subsection 4 of NAC 370.545.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.520  “Manufacturer of tobacco products” or “manufacturer” defined. (NRS 370.250, 370.253, 370.510, 370.675)  “Manufacturer of tobacco products” or “manufacturer” has the meaning ascribed to the term “manufacturer of tobacco products” in NRS 370A.060.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.525  “Respondent” defined. (NRS 370.250, 370.253, 370.510, 370.675)  “Respondent” means a licensee or manufacturer of tobacco products to whom the Department has issued a notice of hearing pursuant to NAC 370.545.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.540  Notice of intent to suspend or revoke license or remove from directory; contents and service of notice; opportunity to demonstrate compliance; effect of subsequent alleged violation. (NRS 370.250, 370.253, 370.510, 370.675)

     1.  When the Department has cause to believe that:

     (a) The license of a retail dealer or wholesale dealer should be temporarily suspended or permanently revoked; or

     (b) A manufacturer of tobacco products and its brand families should be removed from the directory,

Ê the Department may issue a notice of intent to suspend or revoke the license or a notice of intent to remove the manufacturer and its brand families from the directory, as applicable.

     2.  A notice issued pursuant to subsection 1 must include:

     (a) A statement of the legal authority for the suspension or revocation of the license or removal of the manufacturer and its brand families from the directory, as applicable;

     (b) A statement of the facts which support the belief of the Department that the license should be suspended or revoked or that the manufacturer and its brand families should be removed from the directory, as applicable; and

     (c) Except as otherwise provided in subsection 6, if the notice issued is:

          (1) A notice of intent to suspend or revoke a license, a statement that the Department may issue a notice of hearing pursuant to NAC 370.545 if the licensee does not, within 10 business days after receipt of the notice issued pursuant to subsection 1, demonstrate to the satisfaction of the Department that the licensee is in full compliance with all lawful requirements for retention of the license; or

          (2) A notice of intent to remove a manufacturer and its brand families from the directory, a statement that the Department may issue a notice of hearing pursuant to NAC 370.545 if the manufacturer does not, within 10 business days after receipt of the notice issued pursuant to subsection 1, demonstrate to the satisfaction of the Department that the manufacturer is in compliance with all applicable legal requirements necessary to remain listed in the directory.

     3.  A notice of intent to suspend or revoke a license must be served on the licensee by certified mail at the location mailing address identified by the licensee on the license application submitted by the licensee to the Department.

     4.  A notice of intent to remove a manufacturer of tobacco products and its brand families from the directory must be served on the manufacturer by certified mail at the address identified by the manufacturer in the most recent annual certification made by the manufacturer to the Attorney General pursuant to NRS 370A.160.

     5.  Any evidence to demonstrate compliance offered by a licensee or a manufacturer of tobacco products within the period described in subparagraph (1) or (2) of paragraph (c) of subsection 2 must be delivered in person or by certified mail to the employee of the Department identified in the notice served on the licensee or manufacturer.

     6.  If a licensee or manufacturer of tobacco products has received a notice issued pursuant to subsection 1, for any subsequent alleged violation of the same statutory provision during the 2-year period immediately following the issuance of such notice, the licensee or manufacturer is not entitled to the 10-day period to demonstrate compliance described in subparagraphs (1) and (2) of paragraph (c) of subsection 2 and the Department may immediately issue a notice of hearing pursuant to NAC 370.545.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.545  Notice of hearing; contents and service of notice; appointment of hearing officer. (NRS 370.250, 370.253, 370.510, 370.675)

     1.  If a licensee or manufacturer of tobacco products does not demonstrate compliance within the 10-day period described in subparagraph (1) or (2) of paragraph (c) of subsection 2 of NAC 370.540, or if, pursuant to subsection 6 of NAC 370.540, a licensee or manufacturer of tobacco products is not entitled to the 10-day period to demonstrate compliance, the Department may issue a notice of hearing.

     2.  A notice of hearing issued pursuant to this section must:

     (a) State the date, time and location of the hearing, which may be held at an office of the Department or at such other place in this State as is designated in the notice;

     (b) Include a statement of the legal authority for the suspension or revocation of the license or removal of the manufacturer and its brand families from the directory, as applicable;

     (c) Identify the specific provision or provisions of chapter 370 or 370A of NRS which the Department alleges the licensee or manufacturer of tobacco products has violated;

     (d) Include a statement of the facts which support the belief of the Department that the license should be suspended or revoked or that the manufacturer and its brand families should be removed from the directory, as applicable; and

     (e) Include as attachments all documentary evidence on which the Department intends to rely to demonstrate that the licensee or manufacturer of tobacco products, as applicable, is in violation of the provision or provisions of chapter 370 or 370A of NRS identified pursuant to paragraph (c).

     3.  A notice of hearing issued pursuant to this section must be served on:

     (a) All parties at least 20 business days before the date of the hearing;

     (b) A licensee by certified mail at the location mailing address identified by the licensee on the license application submitted by the licensee to the Department; and

     (c) A manufacturer of tobacco products by certified mail at the address identified by the manufacturer in the most recent annual certification made by the manufacturer to the Attorney General pursuant to NRS 370A.160.

     4.  Upon the issuance of a notice of hearing by the Department pursuant to this section, the Commission will appoint an administrative law judge to act as a hearing officer.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.550  Submission of documentation by respondent; exclusion by hearing officer for untimely submission. (NRS 370.250, 370.253, 370.510, 370.675)

     1.  Except as otherwise provided in subsection 2, a respondent must, not later than 5 business days before the date of the hearing set forth in the notice of hearing issued pursuant to NAC 370.545, provide to the Department a copy of each document which is reasonably available to the respondent and which the respondent reasonably believes will be used in support of his or her position.

     2.  A respondent may supplement the documents provided pursuant to subsection 1 on or before the date of the hearing only if good cause exists to demonstrate why the supplemental documents were not provided within the time required by subsection 1.

     3.  A hearing officer may exclude any document not timely provided pursuant to subsection 1 or 2.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.555  Submission and service of motions and responses to motions. (NRS 370.250, 370.253, 370.510, 370.675)

     1.  All motions, unless made at a hearing, must be:

     (a) Made in writing; and

     (b) Served on the opposing party and the hearing officer at least 10 business days before the date of the hearing.

     2.  Any response to a motion, other than a motion made at a hearing, must be:

     (a) Made in writing; and

     (b) Served on the opposing party and the hearing officer within 7 business days after receipt of the motion.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.560  Filing and service of briefs. (NRS 370.250, 370.253, 370.510, 370.675)

     1.  A hearing officer may order the parties to file briefs with the hearing officer before the hearing.

     2.  Any brief filed with a hearing officer must be accompanied by an affidavit from the proponent showing service on all other parties of record.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.565  Appearance of party at hearing; representation by authorized representative of party; qualifications of attorney. (NRS 370.250, 370.253, 370.510, 370.675)

     1.  A party may appear in person at a hearing or may be represented by an attorney, an accountant or an officer, employee or other authorized representative of the party.

     2.  An attorney who represents a party at a hearing:

     (a) Must be admitted to practice and in good standing before the highest court of any state of the United States; and

     (b) If the attorney is not admitted to practice and in good standing before the Supreme Court of Nevada, must be associated with an attorney so admitted and in good standing.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.570  Continuances or recesses granted by hearing officer. (NRS 370.250, 370.253, 370.510, 370.675)  A hearing officer may, in his or her discretion, either before or during a hearing, grant continuances or recesses.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.575  Failure to appear. (NRS 370.250, 370.253, 370.510, 370.675)  If:

     1.  A respondent fails to appear at a hearing;

     2.  The hearing officer has not granted a continuance;

     3.  The Department offers proof that the respondent was given proper notice of the hearing; and

     4.  The hearing officer makes a determination that the respondent was given proper notice of the hearing,

Ê the hearing officer may proceed to consider the case on its merits without the participation of the respondent and dispose of the case based on the evidence before him or her.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.580  Order of proceedings; written findings and conclusions; issuance and service of decision; date on which decision becomes final. (NRS 370.250, 370.253, 370.510, 370.675)

     1.  At a hearing conducted pursuant to NAC 370.500 to 370.595, inclusive:

     (a) The Department will present witnesses and evidence and the respondent may cross-examine the witnesses in the order in which they are presented by the Department.

     (b) After the Department has completed its presentation of witnesses and evidence, the respondent may present witnesses and evidence and the Department may cross-examine the witnesses in the order in which they are presented by the respondent.

     (c) After the respondent has completed its presentation of witnesses and evidence, the Department may call any rebuttal witnesses and the respondent may cross-examine the witnesses.

     (d) The hearing officer may question any witness, party, counsel or representative at any time.

     2.  After the close of the hearing, the hearing officer shall prepare written findings of fact, conclusions of law and his or her decision on the issues presented at the hearing.

     3.  A hearing officer shall issue his or her decision and serve on all parties of record a copy of the decision and the accompanying findings of fact and conclusions of law within 45 business days after the date on which the hearing concluded.

     4.  A decision issued by a hearing officer pursuant to this section becomes final 20 business days after the date of service of the decision unless a party files a timely notice of appeal pursuant to NAC 370.585.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.585  Filing and service of notice of appeal; rebuttal response by opposing party. (NRS 370.250, 370.253, 370.510, 370.675)

     1.  A party may, within 20 business days after service of a decision issued by a hearing officer pursuant to NAC 370.580, file a notice of appeal with the Commission.

     2.  A notice of appeal filed pursuant to this section must be served on all parties and must:

     (a) Identify the decision from which the party appeals, the date on which the decision was issued and the basis for the appeal;

     (b) State with particularity each point of law or fact which, in the opinion of the appellant, the hearing officer overlooked or misconstrued;

     (c) Identify the parts of the record before the hearing officer that the appellant deems relevant to the appeal; and

     (d) State each argument in support of the appeal that the appellant intends to present.

     3.  An opposing party may, not later than 15 business days after service of a notice of appeal, file with the Commission a response rebutting only the issues raised in the notice of appeal. Such a response may include identification of the parts of the record before the hearing officer that the opposing party deems relevant to his or her response.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.590  Oral argument on appeal; consideration of certain evidence; issuance of written decision; final decision for purposes of judicial review. (NRS 370.250, 370.253, 370.510, 370.675)

     1.  Upon the filing of a response to the notice of appeal pursuant to NAC 370.585 or the expiration of the time for filing such a response, the Executive Director will schedule oral argument on the appeal at the next meeting of the Commission.

     2.  Oral argument before the Commission will be limited to 15 minutes for each party. The appellant must present his or her argument first but may reserve time for rebuttal following the presentation of argument by the opposing party. The Commission will consider only evidence which was submitted to the hearing officer and identified in the notice of appeal or response to the notice of appeal.

     3.  The Commission may affirm, reverse or modify the decision of the hearing officer or remand the case to the hearing officer. The Executive Director shall, on behalf of the Commission, issue a written decision on the appeal.

     4.  Unless the Commission remands a case to the hearing officer, the decision of the Commission is a final decision in a contested case for the purposes of judicial review.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)

     NAC 370.595  Effective date of suspension or revocation of license; duties of wholesale dealer; continuation of activities until suspension or revocation is effective. (NRS 370.250, 370.253, 370.510, 370.675)  If a final order issued by a hearing officer or the Commission temporarily suspends or permanently revokes the license of a wholesale dealer:

     1.  The final order must not become effective and the license of the wholesale dealer must not be suspended or revoked until 20 business days after the date of issuance of the final order.

     2.  The wholesale dealer shall, within 5 business days after the date on which the final order is issued:

     (a) Notify each retail dealer that is a customer of the wholesale dealer of the revocation or suspension of the license of the wholesale dealer and the date on which the revocation or suspension becomes effective; and

     (b) Notify each manufacturer of tobacco products from whom the wholesale dealer purchases tobacco products of the revocation or suspension of the license of the wholesale dealer and the date on which the revocation or suspension becomes effective.

     3.  Until the date on which the revocation or suspension of the license is effective, the wholesale dealer may continue to engage in any lawful activity otherwise authorized or permitted pursuant to chapters 370 and 370A of NRS.

     (Added to NAC by Dep’t of Taxation by R146-15, eff. 9-9-2016)