A protest is a written statement contesting or challenging a Wage Transcript and Monetary Determination, notice of a tax assessment resulting from a determination issued by an adjudicator, or a decision issued by a designated DES official. A protest must be signed and dated by a claimant or an employer’s owner, partner, or corporate officer. The protest must not be signed by a third party. Employers should also include the name and title of the individual filing the protest on its behalf. You do not need to use any special form for filing a protest.
The issue may be administratively resolved by a DES representative, referred to the DES Tax Administration Section for further investigation, or referred for an evidentiary hearing before the Board of Review.
A tax hearing is an administrative evidentiary hearing where interested parties to a protest can present testimony and evidence. A hearing will be scheduled. The Board of Review will provide you with instructions on how to participate in the hearing and how the hearing will proceed.
Typically, the parties in tax hearings are claimants, employers and DES.
Hearings are conducted by the Board of Review.
The hearing officials in tax hearings are typically the members of the Board of Review.
The Board of Review of hearing will mail you a notice with the date, time and location of the tax hearing. The notice will also provide the issues that will be addressed at the hearing.
Hearings are generally held at the Board of Review's administrative offices. In limited circumstances, the Board of Review may hold hearings at the North carolina Department of Commerce, Division of Workforce Solutions (DWS) public employment offices around the State or in Raleigh, North Carolina.
The Board of Review will schedule the tax hearing as quickly as possible, during normal business hours Monday through Friday.
The hearing will be recorded. The Board of Review will explain the hearing issues, the purpose of the hearing, and how the hearing will proceed. Each party will be allowed to testify, have its witnesses testify, offer documents and/or recordings as evidence, and review and ask questions about any evidence that the other party offers. Each party and its witnesses may be questioned by the other party and Board of Review. Each party will have a chance to give a summary of its case after each side has presented its case. If you are a party in a tax case, you and your witnesses should appear and present all testimony and other evidence at this hearing because it will probably be your only chance to give evidence in the case.
Tax hearings are typically scheduled for two hours, but additional time may be allowed for cases with multiple participants or complex issues. If a hearing requires more than the scheduled time, the Board of Review will either continue with the hearing until it is concluded, or it may be adjourned and completed at a later date and/or time.
Sworn testimony is required. If you want witnesses to testify, they must do so at the hearing. If you have documents, electronic recordings or other evidence that you want to be considered by the Board of Review, you must mail or deliver them to the Board of Review and to each party. The evidence must be received before the hearing.
Claimants and employers may file their own protest and represent themselves (pro se) throughout the administrative appeal process, or may have a legal representative file a protest and represent them. Legal representatives should be obtained prior to any administrative hearing or review. A legal representative (including individuals from a third party company serving as an employer’s unemployment insurance administrator) must be a licensed attorney, or a person supervised by a licensed attorney in accordance with the N.C. Gen. Stat. § 96-17(b) and Chapter 84. Notices and/or certification of attorney supervision must be in writing and sent with the appeal to become part of the official record.
If you have a legal representative, all documents or information required to be provided to you will only be sent to the legal representative. Any information provided to your legal representative will have the same force and effect as if it had been sent directly to you.
A legal representative may obtain information about a party’s case, present evidence on behalf of the party, present opening statements and closing arguments, make requests or motions, and give any notice about the administrative proceedings.
Legal aid organization attorneys, such as Legal Aid of North Carolina, may be able to help you. The State Bar of North Carolina provides resources to help you find an attorney.
The Board of Review will issue a written a tax opinion that will contain findings of fact, conclusions of law, and its decision. The tax opinion will also have information on how to file exceptions if you disagree with the tax opinion. If the appealing party did not request a postponement of the hearing date and does not appear at the hearing, the appeal will be dismissed.
After considering the evidence gathered at a tax hearing, the Board of Review will issue a written decision on the issue to be decided from the evidentiary hearing. The decision usually addresses an individual’s monetary eligibility for UI benefits, the legal relationship between a claimant and an employer, or an employer’s tax liability status. A decision may also be issued dismissing a party’s case. The written decision is called a tax opinion.
You can file exceptions to the tax opinion pursuant to N.C. Gen. Stat. § 96-4(q).
Exceptions are the grounds or reasons that you disagree with a tax opinion. The tax opinion will include instructions on how to file your exceptions and the deadline for doing so. You do not need to use a special form to file exceptions.
Any party that disagrees with the the tax opinion may file exceptions.
The Board of Review will include instructions on how to file exceptions in the tax opinion. Exceptions must be sent to:
Board of Review
Post Office Box 28263
Raleigh, NC 27611
Fax: 919-341-5693
Email: BOR@nccommerce.com
Exceptions must be received within ten (10) days after the party receives notice of the tax opinion.
The Board of Review will review the case, law, and letter containing the exceptions. In some cases, oral arguments may be scheduled. If the Board of Review schedules oral arguments, written notice of the location, date, time and other instructions for oral arguments will be mailed to you. Scheduling oral arguments is completely up to the Board of Review. After its review, the Board of Review will issue a written decision on your exceptions.
Oral argument means appearing in person in Raleigh, North Carolina to present statements and arguments for your position in the appeal. Oral arguments must be based only on testimony and evidence presented at the tax hearing. Oral arguments are not an opportunity for a party or a witness to present testimony or other evidence. Instead, it is an opportunity for the parties to summarize whether or not the tax hearing had substantial defects or met all legal requirements. Each party is given fifteen (15) minutes to make arguments.
The Board of Review will make a decision on your exceptions, and will issue a written order addressing the exceptions. If you have a legal representative, the order will be mailed to your legal representative.
You may file an appeal of the tax opinion in superior court. To do so, you must file a notice of appeal within ten (10) days after receiving notice of the order overruling your exceptions. Please refer to the instructions in the order on how to submit your notice of appeal. You may also choose to seek legal representation.
An appeal of a tax opinion or an order on exceptions is a written request for judicial review of a decision that is unfavorable to the party making the request.
Within ten (10) days after filing your notice of appeal, you must file a written appeal statement containing the specific grounds for your appeal pursuant to the instructions in the order and N.C. Gen. Stat. §§ 96-4(q) and (r).
Within thirty (30) days of receiving your appeal statement, the Board of Review will file the complete record, including your grounds for the appeal with the superior court in the county where you live, maintain a place of business, or conduct business. If the appealing party lives or conducts business out-of-state, the record and grounds for the appeal will be filed in the Superior Court of Wake County, in Raleigh, North Carolina. You will receive written notice of the time and date for the court hearing. If you have a legal representative, all documents or information required to be provided will only be sent to the legal representative. Any information provided to your legal representative will have the same force and effect as if it had been sent directly to you.
Court filing fees in tax cases come out of the agency's UI funds, and are paid by DES.
Representation in judicial proceedings must comply with Chapter 84 of the North Carolina General Statutes and the North Carolina State Bar Rules.