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BEFORE THE WEST VIRGINIA PUBLIC EMPLOYEES GRIEVANCE BOARD
J. HUDSON YATES
Grievant.
V. Docket No. 2011-1703-DOR
TAX DEPARTMENT
Respondent.
Transcript of Level III hearing in the above
styled case held on April 27, 2012, at the Grievance
Board’s offices in Elkins, West Virginia.
BEFORE: RONALD REECE
Administrative Law Judge
APPEARANCES: Hudson Yates
Grievant, Pro Se
Charlie Fulton, Esquire
Counsel for the Respondent
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Transcriptionist’s Certificates. . . . . . . . . .pg 87 24
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I N D E X
Respondent
Witness:
Direct Cross
Redr Recr
Jeff Oakes 9 17
Michael Coutz 29 40
Kim Silvester 46 63 71
Mr. Shaw 73
E X H I B I T S
EXHIBITS Marked Rec’d
G-1 (withdrawn) 21 21
G-1 65 72
R-1 31 31
R-2 33 33
R-3 53 53
Joint 1 85 85
Agency’s AX
Agency’s BX
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BE IT REMEMBERED that the following 1
proceedings were had on April 27, 2012, to-wit: 2
THE COURT: April 27, 2012; it’s a little 3
past 10:30 and we are all situated at the senior center 4
located in Elkins, West Virginia. My name is Ron 5
Reece, I’m the administrative law judge assigned by the 6
Grievance Board to conduct this level III hearing and 7
also to offer a decision in this grievance. The 8
respondent, the Tax Department, appears by its counsel, 9
Ms. Fulton and also this morning it’s representative is 10
Mr. Oakes. Mr. Yates, the Grievant, appears in person 11
and is pro se this morning. Before we went on the 12
record we just briefly discussed that we were going to 13
make a part of the level III file what had occurred, 14
excuse me, at level I by way of a transcript and also 15
by way of Respondent’s Exhibits and Mr. Yates exhibit 16
at level I. There was a level II mediation and the 17
parties discussed that there were certain items in the 18
file concerning level II and we’re going to make the 19
settlement agreement part of the file in this matter, 20
although, to be honest with you, I haven’t read it. 21
And also indicated that Ms. Gould, the ALJ at level II 22
had left some of her notes, I’m going to remove those 23
from the file and shred those. I didn’t do that before 24
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today but I will at some point after we’re finished 1
today. 2
Today we’re going, there was a motion to 3
continue this hearing but I denied the motion because 4
of, basically what I told the parties if we, if we 5
didn’t start today and work towards finishing or at 6
least getting halfway to, into the case, it would 7
probably be late summer or the fall before we could 8
come back and convene this level III hearing. 9
Also, there was a motion to, there was a 10
motion for, request rather for subpoenas and I issued 11
those subpoenas for Mr. Yates except for the request to 12
have Ms. Fulton subpoenaed. And there was a subsequent 13
motion to quash them. After we’re done with the 14
Respondent’s case in chief (unin), we’re going to 15
briefly discuss Mr. Yates request and the motion to 16
quash the subpoena on behalf of the Respondent. 17
This is a disciplinary case. My 18
understanding is, Mr. Yates received a written 19
reprimand for some events and testimony that took place 20
at a revocation hearing some time ago. Therefore, it 21
is a disciplinary case the the Respondent bears the 22
burden of proof to establish the charges that led to 23
his reprimand by preponderance of the evidence. What 24
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that also means is Ms. Fulton will present her case in 1
chief first and then Mr. Yates will have an opportunity 2
to present his case in chief. 3
Well, good morning, Ms. Fulton, did you have 4
any openings this morning for this grievance? 5
MS. FULTON: Yes, the Tax Department position 6
on this is, the Tax Department issued written 7
reprimands to the Grievant based on two matters. There 8
was a third which was addressed at level I and which 9
the Tax Department no longer relies on. 10
One being, not having the proper 11
documentation regarding the tax payers account at a 12
business registration revocation hearing. The evidence 13
today will who that the Grievant emailed his supervisor 14
the day before the hearing to ask what documents to 15
take; that the Grievant told his supervisor he had a 16
current summary of liability and notice of intent to 17
(unin) and a certificate of service showing that he had 18
served the notice of intent to revoke. The supervisor 19
responded that he should take the file with him 20
including his notes regarding contacts and his payments 21
(unin). The evidence will show that the Grievant did 22
not take the file and the payment plan to the hearing. 23
In addition, second issue was that the 24
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Grievant testified under oath as to having three 1
payment agreements when in fact there were no signed 2
payment agreements either in (unin) or manually 3
prepared and that an unsigned agreement under tax 4
policy is not considered binding or an agreement. The 5
evidence will show that the Grievant testified to 6
having entered his payment agreements, that all three 7
were defaulted, that at that hearing the judge, the 8
administrative law judge asked for the terms of the 9
agreement (unin) the agreement to judge whether under 10
those terms they actually were in fact defaulted. But 11
the plans had not been brought. The judge took a break 12
so that the witness can (unin) folks could go back to 13
their office and get the payment plan. When they 14
return back to the record the Grievant testified that 15
the plans were not attached to the account in (unin) 16
and couldn’t say for sure whether the plans were on 17
file in his office. That it is the Tax Departments 18
plan that an unsigned agreement is not an agreement at 19
all. The Department characterized this conduct as a 20
failure to observe a standard of conduct that will not 21
request this credit on the state or on the integrity of 22
the state employee’s ability to perform their duties. 23
And based on the fact that the Department had proffered 24
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testimony at this hearing under oath that was either 1
incorrect or--that was misleading or incorrect, the Tax 2
Department voluntarily dismissed the revocation 3
proceeding. 4
The Grievant defends, attempts to defend by 5
arguing that he was not properly trained for the 6
hearing procedure that was at issue. The evidence will 7
show that in fact there was a training session on 8
revocation hearings at a 2009 annual meeting with a 9
substantial handout being distributed make it clear 10
that all payment plans must be in writing and must be 11
signed. 12
The second thing the Grievant argues is that 13
the reprimand is too harsh a penalty because other 14
employees (unin) superior’s orders were not 15
reprimanded. And he contends further that the 16
motivation for the reprimand was Mike Coutz’s dislike 17
of him. 18
And third, he asserts that the supervisor 19
failed to follow progressive disciplinary policy of the 20
Division of Personnel. The facts will show that other, 21
the other employees who (unin) supervisor’s orders were 22
not engaged in conduct of simply disobeying--that they 23
were engaged in conduct of refusing orders but it was 24
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not on a magnitude of anything as serious as providing 1
false and leading evidence under oath. Further that 2
the evidence that the Grievant relies on regarding Mr. 3
Coutz’s alleged dislike of him and his signing his name 4
to three (unin) compromise were in fact not signatures 5
but merely added to indicate what revenue agent was 6
assigned to the case. 7
And finally, the, the Division of Personnel’s 8
supervisor’s guide to progressive discipline is in fact 9
a reference and not legally binding. The only legal 10
requirement for disciplinary action against the 11
employee is that the discipline is appropriate to the 12
level of the offense. 13
THE COURT: Okay, thank you, Ms. Fulton. Mr. 14
Yates, did you have any opening this morning before we 15
get started with the evidence? 16
MR. YATES: No I did not prepare one because 17
I didn’t expect to have one until I went for my half, 18
so… 19
THE COURT: Oh, that’s fine you can… 20
MR. YATES: …I’ll have one at that time. 21
THE COURT: You’ll just reserve your right to 22
make opening before you begin your case in chief. 23
MR. YATES: Yes. 24
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THE COURT: Very well. Alright, Ms. Fulton, 1
we’ll have the testimony of Mr. Oakes, is that my 2
understanding? 3
MS. FULTON: Yes. 4
THE COURT: Alright, Mr. Oakes, you can 5
remain seated but before you testify I’ll need to swear 6
you in. If you’ll raise your right hand. 7
(Witness sworn) 8
Thank you sir, go right ahead Ms. Fulton. 9
DIRECT TESTIMONY 10
Q. What is your full name please? 11
A. Jeffery Thomas Oakes. 12
Q. What is, where do you work? 13
A. I work at the revenue center in Charleston 14
where the (unin). 15
Q. What is your position there? 16
A. I’m the acting deputy tax commissioner. 17
(unin). 18
Q. Could you explain to us what the business 19
registration requirements are under West Virginia law? 20
A. The law provides that anybody engaged in 21
(Unin) activities is required to apply for and receive 22
a West Virginia business registration certificate 23
(unin). 24
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Q. And are business registration certificates 1
ever revoked? 2
A. Yes, on occasion when a tax payer is, 3
demonstrated a level of delinquency or when they have 4
(unin). 5
THE COURT: (Unin). 6
A. Okay. 7
THE COURT: Excuse me, go ahead. 8
A. When a, when a taxpayer is not in good 9
standing, has demonstrated a level of non-compliance 10
with state tax laws, revocation is an option that is 11
provided by the West Virginia Code. 12
Q. Let me stop you there. What does it mean to 13
be not, for a taxpayer to be not in good standing? 14
A. Actually, the law says that a tax payer, 15
depending on the nature of tax payers business, there 16
are requirements to file certain taxes, certain (unin). 17
Code says that when a taxpayer fails to file a return 18
or make a payment as required by law then they’re not 19
in good standing. It’s grounds for revocation even if 20
one (unin) does occur. 21
Q. What is the procedure involved in revoking a 22
certificate of registration? 23
A. We have to notify the debtor first. They’re 24
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entitled to due process under law. The process has 1
changed slightly but during time when this particular 2
case was before a court the notice actually, we’ll, 3
we’ll provide the tax payer with a date and a time that 4
they can appear at a show cause hearing to demonstrate 5
why the revocation would not be appropriate in their 6
case. We also give them a description of the, of the 7
delinquencies that, that we have documented (unin). 8
Q. And is there a particular procedure for 9
serving (unin) tax payer (unin). 10
A. Yes, it’s required by law that the notice be 11
sent certified or delivered by personal service. 12
Q. What procedures are you--you talked, you 13
mentioned earlier that if tax payers were in good, were 14
not in good standing this was one of the things that 15
could be done. What other kinds of procedures can be 16
used to bring up a tax payer who’s not in good standing 17
into compliance? 18
A. Well, under the law the tax commissioner has 19
the, best way to describe it is a broad authority to 20
(unin) rules and policies to (unin) the collection of 21
(unin) taxes. Obviously revocation is one such manner 22
but it’s not something that we, that we look to first. 23
Usually we, we do have, we would encourage tax payers 24
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to term the payment agreements with us because we 1
understand that often taxpayers get in a situation 2
where they can’t afford to get right with the 3
department and (unin). So, while, while payment plans 4
are not (unin), we do encourage, we do accept them when 5
circumstances suggest that that might be the best 6
remedy. We also engage occasionally in offer of 7
compromise as prescribed by law, when circumstances 8
suggest that that might be a proper remedy. Should, 9
should we find it, that the taxpayer is unwilling to, 10
to work with us to, to correct their deficiency, we do 11
have some (unin) collection measures that we (unin). 12
One being a levy where we would seek to capture funds 13
that may be due in owning or belonging to the taxpayer 14
concession of a third party. So we might levy that 15
third party to, to have those funds directed to the 16
State Tax Department and (unin) to, to get… 17
Q. Let me stop you there and… 18
A. Sure. 19
Q. …ask you, what kind of third party (Unin)? 20
A. It could be a bank. It could be, it could be 21
a customer of our debtor. We also have something 22
similar to, to a levy, it’s called wage garnishment. 23
So if the, if the debtor is employed, for instance, we 24
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can, we can garnish wages from the employer to satisfy, 1
comply to (unin). 2
Q. Let’s go back and flesh out how a payment 3
agreement works. How do payment agreements work? 4
A. Well, when it’s clear or when a taxpayer or 5
debtor makes it known or they’ve (unin) that they can’t 6
satisfy their obligation with one lump payment, we do, 7
we (unin) establishment payment agreements. There are 8
different levels and different authorities provided to 9
the people in the course of payment agreements. In 10
other words, those of lesser duration might be able to 11
be negotiated by an (Unin). Those of longer duration 12
use (unin) supervisor or (unin) director or assistant 13
director of the division depending on the length of the 14
terms. All of our agreements come with them a set of 15
terms and conditions which basically, I think, provide 16
a level of comfort to both the state and tax department 17
and the debtor that, you know while a payment agreement 18
is being complied with, the state will reframe from 19
course collection actions or things of that nature. 20
And the taxpayer then has a list of guidelines at which 21
to comply. It’s very clear and understood, these 22
agreements are, made in writing and signed, are to be 23
signed by, by the parties. 24
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Q. And when you said that longer term agreements 1
have to be approved by, who do they have to, what 2
separates a shorter term agreement from a longer term 3
agreement? 4
A. Well… 5
Q. And how do they get approved? 6
A. Simply put, the number of months for the 7
duration of time that the agreement, that it will take 8
to satisfy the obligation. You know, for instance, her 9
policy is beyond 48 months or four years, we need the 10
direction of or the approval of the director, director 11
of division. Shorter term agreements don’t require 12
that level (unin). 13
Q. Now you mentioned earlier there was a, also a 14
mechanism called an offer in compromise? 15
A. Yes. 16
Q. What circumstances are those used in? 17
A. The law says that in cases where these is 18
doubt as to collectability, or doubt as to the 19
liability itself, that the department, tax commissioner 20
and the debtor can work towards a settlement amount. 21
It would obviously be based on, (unin) collectability, 22
the financial ability of the tax payer to pay or doubt 23
as to liability. Obviously, there would need to be 24
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some evidence to show that the debt was improperly 1
calculated or certainly not the correct amount and 2
maybe a reduction would be warranted in that (unin). 3
Q. Okay, and, okay. Are there any other court 4
based remedies that are available? 5
A. Well, obviously, you know you’ve got your 6
revocation hearings but the code also recognizes that 7
failure to file and failure to pay or evading certain 8
taxes, trust fund taxes to be precise, are criminal 9
offenses, can either be a misdemeanor, or a felony 10
depending on the amount. Or, you know whether or not 11
evasion can be (unin). 12
Q. And when you say the criminal (Unin) tax, 13
which taxes are those? 14
A. Those would be your employer withholding tax 15
and your consumer sales tax. Taxes that are held in 16
trust by an employer or business and then turned over 17
to the state at prescribed times. 18
Q. And among all these remedies that you’ve 19
mentioned, levying, levying an account or reaching a 20
payment agreement, wage garnishment, an offer an 21
compromise, criminal prosecution, where does the, where 22
does the revocation of the business license fit in? 23
A. It’s typically not something that we want to 24
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engage in early on when we’re working the case. But 1
the effect, the desired effect of a revocation is that 2
the business stops operating. And obviously that makes 3
it more difficult for us to collect the amount due the 4
state when the business isn’t generating income. So 5
we, we typically like to exhaust all other means of 6
colleting the debt before we, before we take that 7
action. 8
Q. Does the Tax Department ever accept payments 9
from a taxpayer who’s not in good standings without a 10
payment plan? 11
A. Sure. 12
Q. And describe to use the circumstances in 13
which that kind of thing (unin). 14
A. Well, it’s a partial payment. You know, you 15
know, it’s a fairly common thing. I mean tax payers 16
will file returns or, or make a payment towards debt 17
but that doesn’t, doesn’t imply that the, without an 18
agreement, we’ve not agreed or we’ve not authorized 19
that method but they do it all the time. Kind of like, 20
you know, I mean I could pay half my cable bills this 21
month but it would mean that the cable company is, I’m 22
in an agreement with the cable company to operate that 23
way. 24
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Q. Are there any other kind of circumstances in 1
which the tax department might ask for a payment that 2
isn’t connected to a payment plan, an existing plan 3
(unin)? 4
A. Sure. Yeah we, I mean we can take a, let’s 5
assume that we’re in negotiations with a taxpayer for, 6
to establish terms of a payment plan. Okay we might, 7
we might suggest to a taxpayer that while we’re working 8
out those terms, because sometimes, you know, we 9
require financial information to establish the 10
appropriate amount of a monthly payment. That, you 11
know, it’s in the best interest of the tax payer to 12
make good base payments until we reach that agreement. 13
So sure, we’ll do that. 14
MS. FULTON: I have no further questions. 15
THE COURT: Okay. Mr. Yates, do you have any 16
questions for Mr. Oakes, this morning? 17
CROSS EXAMINATION: 18
Q. (Unin). Payment plan policy. You talked 19
about that, can you give us more details as to exactly 20
what it is? Like, what would happen when, by whom, and 21
such? Like how far does a revenue agent’s authority 22
extend than someone else made to take over? 23
A. Okay. I’d have to refresh my memory. It’s 24
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been a long time since I reviewed the intricacies of 1
the payment plan policy. I got a copy… 2
MS. FULTON: If it will make it easier, we’re 3
going to call another witness to do that. 4
H: Okay, it’s already part of the record, 5
and I have it. They weren’t really that long. 6
THE COURT: Yeah, I… 7
H: (Unin) folder (unin). 8
Q. While I’m looking at that, is that an upper 9
limit as to what (unin) Tax can handle for a payment 10
plan? 11
A. It’s my understanding that there is. I think 12
there’s a cutoff beyond which the computer simply can’t 13
accept the duration. I’m not certain but I believe its 14
180 months which is quite a long, long agreement. 15
Q. Alright (unin). But actually part of her 16
original proposal at level II, she had it as an 17
attachment… 18
A. This might be it actually. (unin). 19
Q. (Unin). I think it’s like about two pages. 20
Is that about two? (Unin). 21
THE COURT: Okay, let the record reflect Mr. 22
Oakes has a copy of it in front of him, he’s using it 23
to refresh his recollection. (Unin) probably has it 24
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committed to memory by now. 1
A. Okay, reading the, reading the agreement for 2
the (Unin) policy. The payment agreements that (unin) 3
12 month duration. The agents have the authority to go 4
ahead and enter into those agreements and actually 5
sign. If the payment agreement is in excess of 12 6
months they require a approval of a supervisor and a 7
submission of financial information. And as I stated 8
earlier, agreements 48 months actually need the 9
approval of the assistant director or the director for 10
those to be executed. 11
Q. I have one more question for you. 12
A. Yeah. 13
Q. Let me see which page (unin). 14
A. (unin). 15
Q. Do you (unin). Yes, okay, in this particular 16
paragraph which would be the bullet point where it says 17
payments and agreements of 12 months, the one below 18
that, the last couple of lines that start with all 19
payment agreements exceeding 12 months, would you 20
please read that? 21
A. Just that whole bullet point? 22
Q. No, no, just the starting there to the end 23
please. 24
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A. Right here? 1
Q. Yes. 2
THE COURT: Do you want him to read it into 3
the record? 4
Q. Yes, into the record please. 5
A. All payment agreements exceeding 12 months 6
but not exceeding 48 months must be reviewed and signed 7
by the manger. Any payment agreement where the 8
requested terms exceed 48 months must be reviewed by 9
the assistant director prior to execution. 10
Q. Okay. Does that say I have the authority to 11
execute any payment plan basically over 12 months 12
because it must be signed by the manger? 13
A. Right. 14
Q. I have the authority to do that? 15
A. No, it must be signed by the manager. 16
Q. Okay. Okay. That’s all I have for that one. 17
And (unin). Okay. On the second (unin) compromise. 18
Which I don’t’ think was part of any of the record, I 19
have that, and this is directly out of our policies and 20
procedures manual. 21
A. Okay. 22
MS. FULTON: May I interrupt here? 23
THE COURT: Sure. 24
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MS. FULTON: We’ve got this and we can put… 1
MR. YATES: We, do we already have it? 2
Because I don’t remember it being in there? 3
MS. FULTON: Oh no, I don’t have a, I don’t 4
have a copy of (Unin). 5
MR. YATES: You don’t have a copy? 6
THE COURT: Do you have a copy for Ms. 7
Fulton? Do you have an extra one for Mr. Oakes? If 8
you’re going to ask him questions about it. Do you 9
want me to mark this as your exhibit? 10
MR. YATES: Yes, please. 11
THE COURT: Okay, I’ll mark it as Grievant’s 12
Exhibit Number 1, level III. 13
(Grievant Exhibit number 1 marked for 14
identification) 15
MR. YATES: (Unin). 16
Q. Okay, on the second page, under section two, 17
and it’s titled, the offer and (unin) process, part A, 18
there’s that first paragraph that states the offer. 19
Would you please read that into the record? 20
A. The offer and compromise is a taxpayers 21
written proposal to the state and if accepted is an 22
agreement enforceable by either party under the law of 23
contracts. Therefore, the offer and it’s acceptance 24
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must be definite in its terms and conditions. 1
Q. Okay, thank you. And now--What are the 2
requirements for an offer and compromise to be 3
approved? 4
A. Well they would, they would differ (unin) 5
depending on the individual situation but under the 6
code we have to demonstrate doubt as to what ability or 7
doubt as to (Unin). 8
Q. (Unin). 9
THE COURT: Mr. Yates, I’m going to pause the 10
record, you let me know when you’re ready. 11
(RECORDING PAUSED) 12
THE COURT: Okay, we’re back on the record. 13
Go ahead, Mr. Yates. 14
MR. YATES: I apparently do not have the 15
information I have been looking for so I cannot ask the 16
question I was going to ask, but I reserve the right to 17
ask that question again in the future for the purposes, 18
you know of (Unin). I wouldn’t necessarily say the 19
parties would need to be present, just a brief 20
telephone conversation. 21
THE COURT: They might stipulate to it as 22
well if you’re just asking questions about policy. 23
MR. YATES: Okay. 24
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THE COURT: You can talk to Ms. Fulton about 1
that once, what is it? Do you know what you’re 2
missing? 3
MR. YATES: Yes. It was a list of 4
requirements, actual part of the policy that list 5
requirements for an offer and compromise that was in a 6
(unin) I actually have it cut out and taped to the 7
front of my desk so I can follow it. But I don’t’ 8
remember seeing it and I cannot put my fingers on it. 9
THE COURT: That’s okay. 10
MR. YATES: (Unin) summary. 11
THE COURT: That’s alright. Well, you can 12
bring that to the next hearing and if you want to offer 13
it as an exhibit at the next hearing. 14
MR. YATES: I, I would. I’ll have to look 15
for it. 16
THE COURT: Mr. Oakes might know what you’re 17
talking about but I don’t know (unin). Is it something 18
all fellow employees use or is it something you need 19
to… 20
MR. YATES: Yeah. Yeah. (unin). 21
THE COURT: That’s alright, do you have any 22
other questions for Mr. Oakes this morning? 23
MS. FULTON: I would, I object to the 24
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admission of Grievant’s Exhibit 1. When I talked to 1
the legal counsel at, regarding offers and compromise, 2
because there is a large variation in what is 3
acceptable and what is not acceptable, they don’t deem 4
this document which has been submitted as Exhibit 1, 5
they don’t deem that as public. It is not a, it is not 6
a rule that’s been adopted under any rules and they, 7
the Department feels that the actual detailed thing 8
such as the list that Mr. Yates is talking about, are 9
not public documents. They would not like every 10
taxpayer to know exactly how to structure a case so 11
that they can get compromises approved. So, I don’t 12
have any objection to leaving on the record the parts 13
that he, that has been read but we do object to the 14
admission of this Grievant’s Exhibit 1 and to the list 15
that was being proposed to (Unin). 16
MR. YATES: If I remember most of the list 17
off the top of my head but I don’t have it. 18
MS. FULTON: That’s exactly what we’re 19
objecting to coming into the record. Not the document 20
but the information. 21
MR. YATES: It’s just a, the one point I was 22
going to point out, one of the requirements is, it must 23
be signed by the revenue agent. That is a requirement. 24
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MS. FULTON: Well you don’t need the document 1
to prove that. If you ask the witness he’ll probably 2
tell you that. I mean, but we do not want the entire 3
set of procedures going into a record that going 4
(Unin). 5
MR. YATES: Which you… 6
MS. FULTON: That’s regarded as an internal 7
document that’s not open to the public. 8
MR. YATES: Would you object to not 9
necessarily putting the list that I am talking about in 10
but admitting to that one point if I do, if I can 11
provide you a copy of that list of the points that it 12
must be signed by the revenue agent. 13
MS. FULTON: We’re willing to stipulate, 14
well… 15
A. I’d like to see, you know, what he’s 16
referring to before I answer the question. (unin). 17
Q. I understand. I completely respect that and 18
I apologize that I don’t have that with me. 19
THE COURT: Well, we’ll have to take care of 20
that at a point after today’s hearing. And you don’t 21
have it. I’ve just marked this for identification 22
purposes, it’s a document called compliance division 23
offer and compromise policy and procedure. Do you have 24
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any, see any need, Mr. Yates, for this whole document 1
to be made part of the record or just that part that 2
Mr. Oakes read into the record? 3
MR. YATES: Just that part Mr. Oakes read 4
(unin). I don’t have copies for everybody. 5
THE COURT: Because I’m, you know instead of 6
going through the long exercise of placing this under 7
seal and, I just assume handle it the way Ms. Fulton 8
suggested it. Mr. Oakes doesn’t want this to be made, 9
which conceivably could be made part of public record, 10
down the road. If that’s okay with you, Mr. Yates? As 11
long as you’re getting in what you want out of this 12
document, my understanding was, you know you have to 13
remember I’m here to talk about and hear evidence on 14
the written reprimand and I don’t know the facts as 15
well as you do but my understanding was that there was 16
an indication there was a payment plan entered into. I 17
didn’t hear, I didn’t remember anything about offering 18
compromise. 19
MR. YATES: She spoke to us about… 20
THE COURT: Just generally, yeah. 21
MR. YATES: Just generally. And my 22
contention of it is, is regarding the (unin) as my name 23
the offer of compromise memorandum as approval. 24
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THE COURT: Is that part of this case? IS 1
that part of what led to your reprimand? 2
MR. YATES: (Unin). 3
THE COURT: Is that part of what led to your 4
written reprimand? Do you… 5
MR. YATES: (Unin). 6
THE COURT: …understand what I’m saying? 7
MR. YATES: (Unin) to the written reprimand. 8
(Unin). 9
THE COURT: I’m here to hear about the 10
written reprimand. 11
MS. FULTON: I might be able to make, I think 12
what he’s saying, that is part of his defense is that, 13
I think he’s saying that the fact that someone printed 14
his name onto an offer and compromise was an indication 15
that his, the person who issued the letter or reprimand 16
didn’t like him or treated him differently than someone 17
else… 18
THE COURT: Okay. 19
MS. FULTON:…as a defense. It’s not directly 20
related to the reprimand but arguable in dispute 21
(unin). 22
THE COURT: Why don’t we do this, Mr. Yates… 23
MR. YATES: (unin). 24
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THE COURT: …well, if you have any more 1
questions for Mr. Oakes about the offer and compromise 2
policy that I’ve marked as Grievant’s exhibit number 1. 3
Anything else you want him to read into the record? 4
MR. YATES: No, I’m done. 5
THE COURT: Well, let me just give you the, 6
I’m going to grant the motion. I don’t think we need 7
to have the whole policy in the record because you were 8
able to get the pertinent parts that you felt, Mr. 9
Oakes read into that. Okay, so I’m going to grant the 10
motion and that’s not going to be admitted as an 11
exhibit in this case. Mr. Yates, do you have any more 12
questions for Mr. Oakes? 13
MR. YATES: No, I don’t. I’m sorry. 14
THE COURT: That’s alright, you, I’m not 15
trying to cut you off. I just wanted to let you know 16
that it was a motion made and I need to make a ruling 17
on the record, that’s all. If you, if you need a 18
couple minutes to review your material before we move 19
on the next witness I will be happy to give you that. 20
MR. YATES: Who do you plan on calling as 21
your next witness? 22
MS. FULTON: Mike Coutz. 23
MR. YATES: Mike Coutz, okay. 24
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THE COURT: You don’t have any more questions 1
for Mr. Oakes at this time? 2
MR. YATES: No, I have no more questions for 3
Mr. Oakes. 4
THE COURT: Alright, let’s take a, I’m going 5
to pause the record. 6
RECORD PAUSED 7
THE COURT: Okay, we’re back on the record 8
and Mr. Coutz has been called as a witness to testify 9
on behalf of the respondent this morning. But before 10
you do so sir, I’ll need to swear you in. You can 11
remain seated but please raise your right hand. 12
(Witness sworn) 13
THE COURT: Go right ahead, Ms. Fulton. 14
DIRECT EXAMINATION 15
Q. What is, where do you work? 16
A. I work for West Virginia in the tax 17
department. 18
Q. And what is your job there? 19
A. I’m currently the acting director of the 20
compliance (unin). 21
Q. We earlier had some testimony that payment 22
plans that last more than 48 months require the 23
approval of the assistant director or the director. 24
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Are you that person, are you one of those people? 1
A. Yes. 2
Q. Okay, so we’re talking about the director of 3
the compliance? 4
A. Yes. 5
Q. What is the job of the compliance department, 6
division? 7
A. The compliance division is responsible for 8
(unin) taxpayers, collecting delinquent taxes (unin) 9
collection activities. Generally promoting and 10
enforcing the state laws of West Virginia regarding tax 11
(unin). 12
Q. And how many employees are there to do this 13
job? 14
A. The current number of employees compliance 15
and tax (unin), probably over a hundred. Compliance 16
section, (unin) revenue agents (unin), taxpayers, and 17
customers and (unin). 18
Q. And do you know exactly how many (unin)? 19
A. (unin) revenue (unin)? 20
Q. Revenue. 21
A. 37 (unin). 22
Q. I am going to hand you what has been marked 23
as Tax Department’s exhibit 1, and ask you if you 24
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recognize that? 1
A. Yes. 2
Q. What is that? 3
A. The organizational chart compliance division. 4
Q. And how recent is that chart? 5
A. It’s actually the March 5th 2011. 6
Q. And what do these revenue agents, how do they 7
conduct their, their collections (unin)? 8
A. Field revenue agents are responsible for 9
(unin). Working in the (unin) to try to get the 10
taxpayer to promote compliance with the law. But we 11
also have revenue agents who work in house, actually 12
don’t travel. 13
Q. And is this, does this chart show, is it a 14
true and accurate representation of people that are 15
(unin)… 16
A. Yes. 17
Q. …(unin)? 18
MS. FULTON: I move the entry of Exhibit 19
number 1. 20
THE COURT: Okay, Mr. Yates, any objection 21
the admission of this document? 22
MS. FULTON: Okay, it’s admitted. 23
24
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(Tax Division’s Exhibit number 1 1
admitted into evidence) 2
Q. How many current cases does the compliance 3
division have open? 4
A. Last time I looked at it, well over (unin) 5
thousand. Those are (unin). 6
Q. When was that last time (unin)? 7
A. Yesterday. 8
Q. I’m handing you what’s been marked as Tax’s 9
Exhibit number 2 and ask you if you recognize this? 10
A. Yes. 11
Q. What is that? 12
THE COURT: Thank you. 13
A. That’s a report we use (unin). Identify the, 14
will have their (unin) cases and what (unin). 15
Q. And when you just testify, when was this 16
report printed? 17
A. I think yesterday. 18
Q. Okay. And so is that the source of your 19
testimony that there were 56,000 roughly, open cases? 20
A. Yeah. 21
Q. And could you explain about the unassigned 22
cases indicated on here, 17,000 (unin). 23
A. Yeah, a majority is unassigned cases. 24
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Personal income tax. Our case (unin) just the amount 1
of debt incurred and we try to assign that and have our 2
staff work on the most pressing matters to where, the 3
most cost benefit can be gained by (unin) as possible. 4
Q. So this, this chart indicates an average case 5
load per, per RA, what’s RA? 6
A. Revenue Agent. 7
Q. And there’s a, one figure figure at the top 8
right that says (unin) and one at the bottom that says 9
1,382. Which one of these is, explain why there’s two 10
different figures and what that means. 11
A. The average case load for a revenue agent is 12
what has actually been assigned revenue agents. The 13
number at the bottom, 1,382 would be the amount that 14
all, if every case (unin), the 17,043 were assigned, 15
agents, that would, that would reflect the increase. 16
Q. Okay, so in terms of what the 966 means, are 17
you talking, is that the average case load that the 18
grievant would would have it had an average (unin)? Is 19
this a true and accurate copy of a report (unin). 20
A. Yes. 21
MS. FULTON: I move the admission of Exhibit 22
2. 23
THE COURT: Mr. Yates, any objection to the 24
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admission of Exhibit 2? 1
MR. YATES: No, Sir. 2
THE COURT: Okay, it’s admitted. 3
(Tax’s Exhibit 2 admitted into evidence) 4
Q. Were you present at a revenue, a revocation 5
hearing that occurred on April 28, 2011? 6
A. Yes. 7
Q. And in what capacity were you there? 8
A. I was representing the West Virginia State 9
Tax Department. 10
Q. And when you say representing, what exactly 11
is your role in that kind of procedure? 12
A. From a management standpoint. Usually we 13
have a revenue agent come to the hearing and issues may 14
arrive that warrant some type of discussion between the 15
(unin) and (unin). 16
Q. And you aren’t considered the legal 17
representative? 18
A. No. 19
Q. Where there’s a (unin). What was the basis 20
of the revocation against this particular tax payer? 21
A. It was a show cause hearing of failure to 22
submit trust fund tax (unin). 23
Q. Were you present for the whole hearing? 24
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A. Yes. 1
Q. What was the substance of, and was Mr. Yates 2
present at the hearing? 3
A. Yes. 4
Q. What was the substance of his testimony? 5
A. Substance meaning? 6
Q. What was the general, was was the general 7
(unin) his testimony? 8
A. The testimony was centered around the 9
taxpayer had not submitted taxes (unin) the state of 10
West Virginia and we were requesting that the business 11
license be revoked. Show cause (unin) the taxpayer 12
should no longer be operating. 13
Q. And was there evidence at that hearing that a 14
payment agreement? 15
A. Yes, (unin) testimony. 16
Q. And what was that testimony? 17
A. Mr. Yates testified that they payment 18
agreement had been (unin). 19
Q. And do you recall how many, how many payment 20
agreements he testified about? 21
A. Three. 22
Q. And after, and was, did he testify that the 23
taxpayer was in default on all three of these? 24
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A. Yes. 1
Q. What happened after that testimony? 2
A. We took a small break and met with a legal 3
counsel and I asked Mr. Yates to go back to the revenue 4
center to produce the actual payment agreements. 5
Q. And why was it that you sent him to get the 6
payment agreements? 7
A. Because he did not have those with him 8
(unin). 9
Q. And had there been a request to have those, 10
those payment plans? 11
A. I think the judge had requested to see them, 12
if I remember correctly. 13
Q. Okay and so, and I understand is that you 14
instructed him to go back to the revenue (unin). 15
A. Yes. 16
Q. …and print it out? What do you mean by print 17
it out? What’s the (unin)? 18
A. Our computer system stores information where 19
if someone prints out information it will still be 20
(unin) and you can go print it out if we had at least 21
five payment agreements, print it out, make it 22
available to present at the hearing. 23
Q. And did Mr. Yates come back to the hearing? 24
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A. He returned, yes. 1
Q. Did he have the payment agreements with him? 2
A. No ma’am. 3
Q. What happened next? 4
A. Next we had a meeting with our legal counsel 5
and made a determination based on not having signed 6
payment agreements that we would withdraw (unin). 7
Q. Why did the tax department decide to withdraw 8
the revocation issue? 9
A. Basically, because we did not have a 10
completed agreement with the customer’s signature 11
acknowledging that he accepted he terms which is 12
required by our procedures in any agreement. 13
MS. FULTON: I just marked the Tax 14
Department’s Exhibit 3 which is the official transcript 15
of the hearing. It was previously Tax Exhibit 1. 16
THE COURT: (Unin). Okay. 17
MS. FULTON: (Unin). 18
THE COURT: Bear with me. Alright, I have 19
that document. It’s been made a part of the file. 20
It’s marked as Respondent’s Exhibit number 1, level I, 21
I’ll just keep it as is. It’s titled official 22
transcript, evidentiary hearing held on April 28, 2011, 23
that the witness is testifying to. 24
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(Respondent’s Exhibit 1, Level I, marked for 1
identification). 2
MS. FULTON: Do I need to move this back into 3
evidence? 4
THE COURT: No, it’s already been made a part 5
of the file. It’s a part of the file, level III. 6
Q. After the, after that proceeding was 7
dismissed by the Tax Department did you initiate any 8
disciplinary action? 9
A. Yes. 10
Q. And I’m now referring to what was Tax’s 11
Exhibit 2 (unin), the letter, it is a letter of 12
reprimand dated May 11th 2011. I’m pretty sure (Unin). 13
THE COURT: Yeah, that’s been made part of 14
the file as well so. 15
MS. FULTON: Tax number 2 (unin). 16
THE COURT: Yeah, it’s a May 11, 2011, 17
correspondence to Mr. Yates. 18
Q. I’ll show you what was Tax Exhibit 2 at Level 19
I and ask you if that’s the letter of reprimand that 20
you wrote? 21
A. Yes. 22
Q. What was the basis of the letter? 23
A. The letter… 24
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Q. (unin) write it? 1
A. Well it revolved around two things; Mr. Yates 2
did not bring the case and information with him to the 3
hearing and (unin) testified under oath having payment 4
plan agreements (unin). 5
Q. Did the Tax Department recognize a payment 6
agreement that is not signed by the (unin)? Why are 7
employees required to bring their file to the hearing? 8
A. Just preparedness. Occasionally a customer 9
may bring up something or the judge that may not be 10
brought up before the hearing and it’s part of being 11
prepared (Unin). 12
Q. Have you previously, that’s already admitted. 13
THE COURT: Right, that’s been made part of 14
the file at Level III. It was previously marked 15
Exhibit number 2, the letter of reprimand. 16
MS. FULTON: The final exhibit we have for 17
this witness is, was formally Tax, Tax number 4, the 18
employee’s performance appraisal dated 11/21/08. 19
THE COURT: Yeah, that has also been made 20
part of the file at Level III, I have a copy of it. 21
The EPA? 22
MS. FULTON: Yeah. 23
Q. I’m showing you what’s been marked as, what 24
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is Tex Exhibit 4 at Level I and ask you, are you the 1
person that performed that employee performance 2
appraisal of Mr. Yates? 3
A. Yes. 4
Q. And were you his direct supervisor at the 5
time? 6
A. Actually, we had a manager that was just an 7
added position (Unin). She hadn’t had enough time to 8
properly evaluate the work (Unin). 9
Q. And what, did you evaluate only Hudson? 10
A. No, every employee in that office if I 11
remember correctly. 12
Q. And which office was that? 13
A. Clarksburg (unin). 14
Q. Is Mr. Yates considered a part of that 15
office? 16
A. Yes, he’s actually situated in the (Unin) 17
office which is located in Elkins but reports to a 18
regional office manager (unin). 19
MS. FULTON: I have no further questions. 20
THE COURT: Okay, Mr. Yates, do you have any 21
questions for this witness? 22
MR. YATES: I do. 23
MS. FULTON: Those are the ones (unin). 24
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THE COURT: Oh, okay. 1
CROSS EXAMINATION 2
Q. The transcript of the hearing (unin) file. 3
Would you please turn to page 18 and read lines 21 and 4
22? 5
THE COURT: He’ll have to get it in front of 6
him, if the witness doesn’t have it in front of him. 7
If he doesn’t have it, I’ll let the record reflect. 8
A. Line 21 and 22? 9
Q. On page 18. 10
A. Ms. Boyd, we have three time payment 11
agreements by them that have (Unin). 12
Q. Okay. The letter of reprimand is already on 13
record. You stated that I testified to that. 14
Apparently, according to this, is it not Ms. Boyd that 15
said that? 16
A. That’s not what I was referring to your 17
testimony. I would (unin) point out in the 18
documentation that (unin). 19
Q. You specifically used the word sign. 20
A. Sign means anything (unin). We use the term 21
payment agreements (Unin). 22
Q. Okay. 23
A. I’ll be glad to show you the transcripts 24
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(Unin). 1
Q. Oh no, that’s perfectly alright. The Judge, 2
we’ve all read that. Let’s move to payment agreements. 3
Can you briefly tell us what a payment agreement is? 4
A. A payment is a verbal, verbal contract that 5
you modify in writing for the Tax Department has (unin) 6
agreement terms are agreed upon. 7
Q. Okay. What are some of the procedures 8
involving payment plan? 9
A. Procedures involve first initially 10
identifying debt, identifying what type of terms it’s 11
going to be, six months, 12 months 48 months, (Unin) 12
extended past that. (Unin) identifying the financial 13
ability of the customer to be able to meet that 14
modification. (Unin), so forth. 15
Q. Okay, on payment agreement, when does it need 16
to be approved and signed by a manger or supervisor? 17
A. Any payment agreement ultimately, (unin) 18
revenue agents (unin). Anything above 48 months has to 19
be brought to the assistant director or director 20
(unin). 21
Q. Okay, so your testimony is that a revenue 22
agent signs all payment agreements even if somebody 23
else would have to approve it, like say yourself 24
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because it extended over the 48 months? 1
A. No, I’m saying you have a signature and 2
acknowledgement that we look at that we have (unin) Tax 3
Department and the customer. 4
Q. Okay. 5
A. Now his approval process was for the 6
different levels of (unin). 7
Q. Okay, let’s say there’s a payment agreement 8
for 49 months. Who signs it? 9
A. The manager actually has (Unin) the assistant 10
director. 11
Q. Okay. 12
A. Has to approve them first. 13
Q. Okay, 47 months? 14
A. It’s within the discretion of the manager on 15
(unin). 16
Q. Okay. Do you still have a copy of the 17
(Unin). 18
A. (Unin). 19
Q. You do? 20
MS. FULTON: The what? 21
Q. The payment agreement (unin). 22
MS. FULTON: (Unin). 23
MR. YATES: Part of the, I have it attached 24
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to the letter I (Unin). 1
MS. FULTON: Oh. 2
MR. YATES: The payment agreement policy. 3
THE COURT: Go off the record for a second 4
and just let me know when - 5
(RECORD PAUSED) 6
THE COURT: Okay, we’re back on the record 7
and Mr. Yates has directed the witness’s attention to 8
page 3 of the, a policy relating to payment plants. 9
Q. The very top line on page 3, would you please 10
read that? 11
A. Liability is a lean against… 12
Q. No. I apologize, line, page 2, page 2. I 13
apologize, page 2, very top line. 14
A. Revenue agents will have the authority to 15
counter (unin) formal payment agreement where (unin) 16
require the balance due to be paid within 12 months. 17
Q. Is that the limitations that a revenue agent 18
has to sign on a payment agreement? 19
A. (unin) policy. 20
Q. Okay. 21
A. That’s under the 12 month policy agreement, 22
that’s (unin) to that. 23
Q. Okay, so would you please go to the second 24
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full paragraph, it would actually be the third section 1
down. From that to, three lines up from the bottom of 2
that where it says all payment agreements exceeding, 3
would you please read that? 4
A. All payment agreements (unin) 12 months but 5
not exceeding 48 months must be reviewed and signed by 6
the manager. 7
Q. Okay. Do you directly supervise any revenue 8
agents? 9
A. Yes. 10
Q. Who? 11
A. (Unin). 12
Q. How many payment agreements over 12 months 13
have you signed for her as her manager? 14
A. Not that (Unin). 15
Q. Did you have a conversation with her when she 16
asked you about that and I’m paraphrasing, not making 17
an exact quote that basically you couldn’t be bothered 18
with that? 19
A. NO, that’s incorrect. 20
Q. So when I called in Ms. (Unin) she would 21
testify that I’m making that up? 22
A. I don’t’ know what she would testify to 23
(Unin). 24
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Q. So if she did say that would you say she 1
would be lying? 2
A. It’s not my place to say what she’d thing. I 3
know what I know. 4
THE COURT: Yeah, you’re just making a 5
proffer, Mr. Yates, there’s no testimony that what, you 6
could challenge as being previously inconsistent or 7
not, you just made a proffer and the witness has 8
indicated he doesn’t have any idea (unin). 9
MR. YATES: Okay. 10
THE COURT: What was the, what was the name 11
of the witness? I didn’t catch it. 12
MR. YATES: (Unin) Swindler. 13
THE COURT: Swindler, okay, thank you. I 14
didn’t… 15
MR. YATES: I’m don’t’ with the witness. 16
THE COURT: Okay, any other redirect, Ms. 17
Fulton? 18
MS. FULTON: No. 19
THE COURT: Okay, thank you Mr. Coutz, what’s 20
next Ms. Fulton? 21
MS. FULTON: Kim Silvester. 22
THE COURT: Okay. Okay, we’re back on the 23
record and Ms. Silvester has joined us to testify on 24
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behalf of the Respondent. Good morning Ms. Silvester. 1
MS. SILVESTER: Good morning. 2
THE COURT: My name is Ron Reece, 3
Administrative Law Judge assigned by the Grievance 4
board to conduct this hearing. Before you testify 5
ma’am, I’ll need to swear you in. You can remain 6
seated but please raise your right hand. 7
(Witness sworn) 8
THE COURT: Go right ahead Ms. Fulton. 9
DIRECT TESTIMONY 10
Q. Where do you work Ms. Silvester? 11
A. I work in the North Central Regional Office, 12
Compliance Division. 13
Q. (Unin). 14
A. Yes. 15
Q. And what is your position there? 16
A. I am the tax regional supervisor. 17
Q. And who do you supervise, what kind of 18
employees do you supervise? 19
A. Revenue agents. I have one revenue agent 20
(Unin). 21
Q. And are you Mr. Hudson Yate’s direct 22
supervisor? 23
A. (Unin). 24
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Q. What kind of--Can you explain to us how an 1
offer to compromise is set up? 2
A. An offer and compromise is a collection tool 3
used by the Division in instances where there is doubt 4
that the liability or valid possibly or maybe a 5
combination of both. 6
Q. And how does, how would a, how would such an 7
offer get made? 8
A. Initially the taxpayer would work with the 9
revenue agent (unin). It would be discussed. The 10
revenue agent would look to the taxpayer to get initial 11
paperwork. There is an offer and compromise form that 12
(unin) complete. On that form they would actually list 13
the amount they they’re offering. It would have the 14
tax (unin) under the compromise (unin) as well as the 15
period to cover, total the tax, insurance, penalty, and 16
a grand total. That form would also (unin) 17
information. If the taxpayer was going to make a 18
payment with the offer, make a payment upon acceptance 19
of the offer or (unin) and then the taxpayer would have 20
to sign that. 21
Q. And what kind of proof does the taxpayer have 22
to provide to the revenue agent to get a (unin)? 23
A. If there is doubt of the collectability, we 24
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collect financial statements from the taxpayer, form 1
433-A from the (unin) or 433-B for businesses. The 2
revenue agent, their goal would be to (unin). If there 3
is doubt of collectability, the taxpayer would need to 4
provide proof and (unin) saying they (unin) liabilities 5
(unin). 6
Q. And what’s the procedure or the steps that--7
Let me back up, I’m not sure I got everything. What 8
are the, what are the options to pay (unin)? 9
A. (Unin), they can make an initial payment with 10
the offer, make the payment with the offer or payment 11
on acceptance of the offer, or, (Unin) the payments on 12
(Unin). 13
Q. And when you say payments with the offer, are 14
you saying that they offer x number of dollars and then 15
the proffer a payment of x number of dollars? 16
A. Right. (Unin). They are offering $50,000.00 17
to settle their, their case, they make that payment 18
with the offer. 19
Q. And what they, once that information gets 20
gathered and all the forms are together., what’s the 21
procedure for getting, for getting such an offer 22
approved? 23
A. Again, initially, the revenue agent would get 24
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the paperwork, maybe sure everything is in (Unin). If 1
they think that it’s a good offer they would then 2
forward that paperwork to me. I would review it, the 3
revenue agent would also make sure all facts were 4
(unin) because the offer would have to (unin). But 5
again they would get that paperwork to me, I would 6
review it. If It think everything is in order I would 7
sign off on it or recommend it from there we would get 8
it to Charleston, my Division director, or 9
consideration. From there, if he think it’s a good 10
offer it will go to legal counsel for consideration and 11
then ultimately get the (unin). 12
Q. So, when you say your director, are you 13
talking about Mr. Coutz? 14
A. Yes. 15
Q. Compliance (unin)? 16
A. Yea. 17
Q. The Compliance Division, correct? 18
A. The revenue agents have a (unin). They can 19
recommend here. 20
Q. Do you have any authority to the (unin) 21
office? 22
A. No. (Unin) recommend, (unin) recommend the 23
offer for consideration but I have no authority to 24
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approve (unin). 1
Q. And what happens if the revenue agent gets an 2
offer but doesn’t (unin). 3
A. A revenue agent could deny it if they don’t 4
think it’s a good offer or maybe the taxpayer has not 5
completed the paperwork properly. If we don’t have 6
enough information (unin), they can actually deny the 7
offer (unin) simple matter that we need additional 8
information or they don’t feel it’s in the best 9
interest of the (unin). As (unin). 10
MS. FULTON: I don’t think this is part of 11
the record. It may be somewhere but… 12
Q. I’m handing you what’s been marked Tax 13
Exhibit number 3, which is a three-page heavily 14
redacted document. Which has, slightly below the 15
middle it’s got Hudson Yate’s name. Do you know how 16
and--let me ask you, is that your signature to the 17
right where it says unit manager? 18
A. Yes, that is my (unin). 19
Q. And is that Hudson Yate’s signature there to 20
the left? 21
A. (Unin). 22
Q. Do you know how it was, happened to be that 23
your signature would be on there but (Unin) would not? 24
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A. As the supervisor I’m, being involved in the 1
(unin) the agency and collection papers. Sometimes in 2
doing so the taxpayer will send me documents directly 3
and I believe that’s what happened in this case. We 4
were discussing (unin) compromise and taxpayer simply 5
sent it to me (unin). I reviewed it, (unin) the offer 6
(unin) consideration and I, I signed off on it and sent 7
it on to Charleston. 8
Q. And so at the time you sent it to Charleston 9
was the tax division’s employee line where the (unin) 10
is now printed, was it blank when you went it to 11
Charleston? 12
A. It was blank, yes. 13
Q. And do you know what happened to it after 14
that? 15
A. Not really. 16
Q. Okay. (Unin). If you had approved an offer 17
and--strike that. If you had recommended an offer and 18
compromise based on information that you received 19
directly from the taxpayer was there any requirement 20
that Mr. Yates sign it? 21
A. (Unin). 22
Q. Would the, could you look at the other two 23
pages that, that are attached here and tell us whether 24
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that is your signature on the, for unit manager? 1
A. Yes, that is my signature. 2
Q. And do you recall these? 3
A. I know they’re redacted, but it’s possible 4
but (unin) again I would say what happened is that I 5
became involved in the offer and compromise process 6
(unin) taxpayer (unin) sent me the paperwork and I just 7
expedite the process I went ahead and sent them to 8
Charleston for consideration. 9
MS. FULTON: I’d move the admission… 10
Q. With the exception that Hudson Yate’s name 11
was not on there at the time, it’s a true and accurate 12
copy that (unin) reacted, it’s a true and accurate copy 13
of what recall seeing? 14
A. (unin). 15
MS. FULTON: I move the admission of Tax 16
Exhibit Number 3. 17
THE COURT: Okay, any objection Mr. Yates to 18
the admission of this document? 19
MR. YATES: No, Sir. 20
THE COURT: Okay, it’s admitted. 21
(Tax’s Exhibit 3 admitted into the 22
record) 23
Q. Okay, did you have any contact with Mr. Yates 24
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at the time of the revocation hearing that was subject 1
of this reprimand? 2
A. Prior to, yes. 3
Q. And what was that contact? 4
A. I know we spoke by phone but there were 5
varied emails as well. 6
Q. And I’m going to hand you what’s been marked 7
as, I don’t have it marked yet. This is Grievant’s 8
Exhibit 1 below but we would like to admit here. So I 9
guess we could just, we’ll just mark it Grievant’s 10
Exhibit 1, Level I. 11
THE COURT: That’s fine. I, I probably have 12
a copy of it already. 13
MS. FULTON: Here’s one just in case. 14
THE COURT: Okay, thank you sir. Yeah, I’ll 15
mark this, well Ms. Fulton has already marked it as 16
Grievant’s Exhibit number 1, Level I. Looks like I 17
have a, I already have a copy of it as well. So it’s 18
already been made part of the file. 19
Q. I’m showing you now what was marked as 20
Grievant’s Exhibit 1 (unin). And ask you to flip to 21
the, I’m counting from the back, one, two, three, four, 22
seven. To the page, at the top it’s marked page 203 23
and it has an email that says Kim A Silvester, from Kim 24
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A. Silvester to Danielle E. Boyd. And it’s dated April 1
20th. 2
A. Okay. 3
Q. Do you, do you recall sending that email? 4
A. Yes. 5
Q. And in that email you state that, well let me 6
ask you, why did you write this email? 7
A. I believe prior to the hearing there was a 8
conference between the taxpayer, the state attorney, 9
and the office of tax appeals, Danielle (unin) per that 10
conversation. 11
Q. And who is Danielle? 12
A. Danielle Boyd, she was the attorney with the 13
tax (unin) during revocation. 14
Q. And why was she following up with you? 15
A. I believe the taxpayer mentioned they wanted 16
(unin) something to that effect. 17
Q. And in this letter you state that they had 18
already entered into a payment agreement? 19
A. (unin). 20
Q. And what made you believe that they had 21
entered into a payment agreement? 22
A. In our system, our integrated tax system 23
there is a (unin) manager. As a user I can go in on 24
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pretty much any account and pull up any letter that’s 1
it has generated on that account. I did go into a 2
particular sales tax account for this taxpayer and 3
there was a payment plan that was generated on that 4
account. 5
Q. And did you check to verify that it had been 6
signed? 7
A. No, I, (Unin) the signatures (unin). 8
Q. Have you checked it since? Have you checked 9
that account since? Have you seen that letter since? 10
A. Oh yes, mm-hmm. 11
Q. And is it signed? 12
A. No. 13
Q. What was the payment plan? Let me ask you, 14
what is GenTax? 15
A. GenTax is our integrated tax (unin). 16
Q. What, what kind of data is kept there? 17
A. Taxpayer data with names, addresses, account 18
numbers, individuals we have records of personal income 19
tax information, businesses that are registered, 20
various taxes the businesses are subject to. Filings 21
(Unin). 22
Q. And what does a payment plan look like in 23
GenTax? 24
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A. One generated through GenTax, once printed it 1
would have of course the taxpayer name and address, an 2
account number, it will (unin) the tax type covered by 3
the payment plan as well as periods covered by the 4
payment plan. It will also show the taxes, penalty 5
(unin) paid by the taxpayer over the course of the 6
(Unin). And a revenue agent would have to input if the 7
taxpayer is making a down payment, that would be 8
reflected when (Unin). Generally there’s a discussion 9
of the amount to be paid. That amount would be entered 10
and then the system will calculate the number of months 11
it will take to cover, to pay the liability based on a 12
monthly payment entered. It will give the, the due 13
date of the first payment. Then there’s a voucher at 14
the bottom of the first page for the taxpayer to make 15
the first payment. The next page there would be terms 16
and conditions of the payment plan, as well as a 17
signature page for both the revenue agent and the 18
taxpayer’s to sign and date. There is (unin) schedule 19
that shows the taxpayer each due date of the, the 20
payment and the balance (unin). 21
Q. How does a, how does a revenue agent get--Let 22
me back up. If the data you were just talking about, 23
the first, the amount of the monthly installment, how 24
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many months the plan would go for, the amount of the 1
first payment and the (unin) schedule, can that all be 2
done direct, directly input into the computer? 3
A. Yes. I mean that’s, and that’s, the revenue 4
agent would obtain that information in dealing with the 5
taxpayer and again there would be original (Unin) 6
payment. The taxpayer might say they can only pay 7
$500.00 a month, that would be entered into the system 8
and again the system would calculate the number of 9
months it would take to pay at that, at that monthly 10
installment amount. 11
Q. And what about the signature page for the 12
revenue agent and the taxpayer. How, how does that get 13
input into (unin)? 14
A. Of course when the payment agreement is 15
initially generated from the system it is blank. Then 16
the revenue agent and the taxpayer would sign it. Then 17
it’s (unin) attached. And attached to that particular 18
account (unin). 19
Q. Getting back to the hearing that caused, that 20
was the, that caused this reprimand. And referring you 21
to the third page (unin) or of this Exhibit, Grievant’s 22
Exhibit 1 at Level I. I’m on, it’s third page from the 23
front. 24
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MR. YATES: From the front. 1
Q. We’re looking at… 2
MR. YATES: (Unin) third page from the front. 3
What’s the very top of it (unin)? 4
MS. FULTON: The very top of it says (unin) 5
it’s the (unin). 6
MR. YATES: What’s the date? 7
MS. FULTON: It is, Wednesday, April 27th. 8
From Kim Silvester to Hudson Yates, that’s not this 9
(unin). Oh okay. (Unin), I’ve got two (unin). 10
MR. YATES: I (Unin). 11
MS. FULTON: That’s it right there. 12
MR. YATES: Okay, that’s my page 2. Okay. 13
MS. FULTON: Okay, sorry. 14
Q. When you testified just now that you had some 15
emails from Hudson Yates in connection with the 16
grievance hearing, are they the emails to which you 17
referred? 18
A. Yes. 19
Q. And in your email to him, when you said, have 20
your notes regarding contact pay plan set up, etcetera, 21
what did you mean by that? 22
A. Contacts, I mean, during a course of working-23
-Well, I’ll back up. The revenue agent literally has 24
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hundreds of collection cases that they work. Just, in 1
my opinion (unin) the documented conversations because 2
there are going to be many conversations. (unin) 3
documentation. (Unin) revenue agent and the taxpayer, 4
often will give them a deadline to gather certain 5
information. So that’s what I, when I said regarding 6
contacts, the number of maybe telephones conversations, 7
telephone conversations that had taken place (unin) 8
Hudson would have to go visit the taxpayer or contact 9
(unin) the taxpayer actually went to the, the (unin) 10
office. 11
Q. And do revenue agents typically keep dates in 12
paper form or in the computer (unin)? 13
A. It can be done either way. If it’s, you 14
manually make a note you would just keep that in a 15
file. If it’s done in GenTax, it can be up to exported 16
to a Word document and printed. 17
Q. And when you were referring, when you, in 18
your email you talk about have your notes regarding 19
contacts pay plan, what did you mean by play plan? 20
A. A copy of the payment agreement for that 21
(unin). 22
Q. Now looking at the very first page of that 23
document that you got from Hudson (unin), Hudson Yates 24
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from you. This is May 3rd 2011. 1
MR. YATES: What’s the (unin). 2
MS. FULTON: I put a compliance non-renewal. 3
MR. YATES: Okay. 4
A. Okay. 5
Q. Got it? 6
A. Yes. 7
MR. YATES: (Unin). 8
Q. Looking at that term a compliance non-renewal 9
indicator. 10
A. Yes. 11
Q. What is that? 12
A. At that time we would like (unin) every two 13
years. In this case since we were not able to revoke 14
that business license, I wanted to be sure that they 15
were not given a new license, since they were not in 16
compliance. We can’t place an indicator on the account 17
and so the compliance (unin) non-renewal is the correct 18
term. And any user of the system would see that 19
indicator and know that that (unin) should not be 20
issued (unin). And that’s to prevent them from going 21
to a, maybe another regional office or anywhere else 22
and just trying to go around us. 23
Q. So once it has that indicator on it then, 24
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would anybody in the compliance division would be able 1
to see that this should not, this business should not 2
be issued a (unin). 3
A. Not just within the compliance division but 4
the tax department (unin). 5
Q. Had Hudson Yates, prior to this revocation 6
hearing, had he ever had previous hearings? 7
A. I believe so, yes. 8
Q. And do you recall how many he had had? Two? 9
A. I think earlier in 2011 (unin). 10
Q. And were there any (unin)? 11
A. None that I know. 12
Q. Does the department ever accept tax (unin) 13
not connected to a payment plan? In other words, 14
somebody is behind on their account, do they ever make 15
payments that are not connected to an approved payment 16
plan? 17
A. Yes. (Unin). 18
Q. What kind of circumstances (Unin)? 19
A. Maybe during the negotiation process (unin) 20
trying to negotiate a payment plan, taxpayer will give 21
you (unin). Ironically, sometimes taxpayers will just 22
(Unin) they have some extra money they’ll (unin). We 23
accept it. (Unin) payment plan (unin). 24
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Q. Why is it required that a payment (Unin)? 1
A. (Unin) agreement (Unin). 2
Q. And if there had been a payment plan in 3
effect at the time of this hearing would it, would it 4
have been (unin)? 5
A. Generally they are. Sometimes (Unin) might 6
go for more months and (Unin) calculate through our 7
system. In that case (unin) recommend (Unin). 8
Q. How is a manual (unin)? 9
A. Literally just that. It is a, it’s a paper 10
copy, form used actually prior to GenTax but it 11
contains pretty much the same information; taxpayer 12
name and address, account number, the types of tax 13
covered by the (Unin). 14
Q. Is the approval for that any different from 15
(unin)? 16
A. No. 17
MS. FULTON: I have no further questions. 18
THE COURT: Okay, Mr. Yates, do you have any 19
questions for Ms. Silvester? 20
MR. YATES: I do. 21
CROSS EXAMINATION: 22
Q. Referring to the copy she provided to you 23
regarding the offer and compromise, okay you pretty 24
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much said that you most likely, I mean I can tell you 1
who they were and you would know, but I can’t right 2
now. But, would it be safe to say that you most likely 3
prepared these documents without my signature? 4
A. Yes. (Unin). 5
Q. And then you would have submitted them on for 6
further approval or denial? 7
A. Right. 8
Q. Correct? 9
A. That’s correct. 10
Q. Is there a reason that you didn’t put my name 11
on it and you just left it blank? 12
A. Like I said, just to expedite the process. I 13
go the information, I reviewed it, thought it was a 14
good offer and just sent it on to Charleston. 15
Q. But you didn’t see the need in putting my 16
name on it? 17
A. No. 18
Q. What would be your reaction if an offer and 19
compromise was initiated and you didn’t have any hand 20
in preparing it or such and your name was applied to 21
it? 22
A. My name printed it or a signature? 23
Q. Either or. (unin) however you… 24
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A. Well, I mean it… 1
Q. How about the same style that mine was 2
applied there, let’s go with that. 3
A. I mean honestly, it wouldn’t (unin) if 4
someone wrote my name there and you’re not signing the 5
form. They’re just recognizing that I’m (unin). 6
Q. Okay. Has anybody done that for you? 7
A. Not that I’m aware of. 8
Q. Can you check? 9
A. No. 10
Q. Well, I have. And I would like to, before I 11
go further I see that based upon Ms. Fulton’s copy, 12
she’s redacted a lot more information than I have on 13
these. So, I would request that before this be put 14
forward that, you know, they would be checked to make 15
sure they’re thoroughly redacted because I, you know, 16
I’m not an attorney. I redacted what I felt was more 17
identifying. 18
THE COURT: Well, I’m not really getting your 19
point. I mean I’m getting your point on the redaction 20
but can you just merely proffer to Ms. Silvester that 21
on such and such a date an offer of compromise was 22
submitted for approval? 23
MR. YATES: I can, and may, am I allowed to 24
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show her? 1
THE COURT: Yeah, you can show her, that’s 2
fine. It’s (Unin). 3
MR. YATES: (Unin). 4
THE COURT: Let me, I got to, I got to take a 5
break so I’m going to - 6
RECORD PAUSED 7
THE COURT: Okay, we’re back on the record 8
and the parties have redacted a document that I’ve 9
marked as Grievant’s Exhibit number 1, Level III. Go 10
ahead, Mr. Yates. 11
(Grievant’s( Exhibit number 1 marked for 12
identification) 13
Q. Okay. (Unin), you indicated that you did not 14
know that this had happened and that you wouldn’t 15
necessarily be upset, per say, that your name was 16
applied but how did you feel that you didn’t’ know 17
about it, that it was never mentioned to you that this 18
was being done? 19
A. I mean, again, honestly it doesn’t bother me. 20
I would recommend the offer anyway. 21
Q. Okay. 22
A. And it wasn’t my signature. 23
Q. Right, right, okay. But what if you didn’t 24
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recommend the offer? 1
MS. FULTON: Objection (unin). 2
THE COURT: That’s overruled. He’s just 3
asking, asking her a hypothetical. I take it there’s 4
some mechanism that once you found, if you found out 5
this document had been submitted for approval you could 6
lodge a, whether a comment of whether you recommend it 7
or not. 8
A. Sure, I mean I would want to know why I 9
wasn’t approving it, if I didn’t think it was, I would 10
really want to know why (unin) an offer, a good offer 11
when I didn’t. 12
Q. Okay. 13
THE COURT: Is that what happened with Mr. 14
Yates, did he not recommend the previous exhibit that 15
we had discussed where you had written his name in? 16
A. Not… 17
MR. YATES: Not, she didn’t write my name in. 18
THE COURT: Oh, okay. 19
A. And not that I’m aware, like I said through 20
working with the taxpayer I believe they just sent the 21
information to me… 22
THE COURT: Okay. 23
A. …instead of sending it to him. In a matter 24
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of logistics we (unin). 1
THE COURT: Okay, alright. 2
A. …sent it on to Charleston. 3
THE COURT: Alright, thank you. Go ahead, 4
Mr. Yates, (unin). 5
MR. YATES: I’m sure Ms. Fulton will have an 6
objection but may I make a comment on the three in 7
question that were done? 8
THE COURT: Well, you’re probably need to 9
reserve that for when you present your case in chief 10
because you’re not under oath right now. 11
MR. YATES: Okay. 12
THE COURT: Why don’t we do it that way. 13
MR. YATES: Okay. 14
THE COURT: I mean, I don’t know what Ms. 15
Fulton, I couldn’t let you, it would just be a, it’d 16
just be a proffer. If you want to give sworn testimony 17
we’ll have to swear you in. 18
MR. YATES: No that’s quite alright. 19
THE COURT: We can do that, we’re flexible. 20
MR. YATES: That’s quite alright. I’m done 21
with that one. 22
Q. Let’s go back to payment plans. Did you give 23
her a copy of the one that you had, I mean I have more 24
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(unin) payment plans. 1
MS. FULTON: What exhibit are you talking 2
about? 3
MR. YATES: I’m not sure what number it is. 4
It’s whatever, it was already part of the file that we 5
agreed to, you’re (unin) statement where you’ve 6
attached the payment plan policy. I mean I questioned 7
Jeff with it, Mike with it. I mean I have copies I can 8
give her, I just want to, you know you already have it. 9
I have it, I can (unin) refer to (unin). 10
MS. FULTON: I think it was attached to my 11
proposal and (unin) agreement. 12
MR. YATES: Just the payment plan. Yes, yes, 13
yes it is. 14
THE COURT: There’s a copy right here. It’s 15
not marked exhibit or anything. 16
MS. FULTON: Yeah, but wait, never mind, I’ve 17
got it. 18
THE COURT: Okay. 19
MS. FULTON: Okay. 20
MR. YATES: I mean if it’s just the payment 21
plan in general that’s all I need her to look at. 22
MS. FULTON: Okay, go ahead and (unin). 23
MR. YATES: Yeah, if it’s not stapled to 24
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anything else I just wanted to… 1
THE COURT: Just this. 2
MR. YATES: Right. But since it’s already 3
part of the, you know the docket. 4
Q. What are the general terms of a payment plan? 5
A. All tax returns would have to be filed. The 6
taxpayer would have to stay current and that means in 7
addition to making the monthly payment plan payment 8
they would have to file and pay all required (unin). 9
Q. Okay. At what stage does a revenue agent 10
need to have a (unin)? 11
A. Well any.. 12
Q. Like, after I, after x number of months or, 13
or such? 14
A. A payment plan over 48 months has to be 15
written in Charleston and (unin). 16
Q. And under 48, say 47 or less? 17
A. I mean you should (unin) confer with your 18
unit leader but we can execute a payment agreement 19
under 48 months at the regional offices. 20
Q. Okay. In that payment plan would you please 21
turn to, it would be the second page and the first 22
bullet point where it--I’m sorry, back up. Right above 23
that first bullet point where it read (Unin), would you 24
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please read that? 1
A. (Unin) will have the authority to countersign 2
any formal payment agreement where the terms require, 3
require a (unin). 4
Q. Okay, would you please move down to (Unin) it 5
would be the second full paragraph but it would be the 6
third section where it, the section that begins the 7
financial information. 8
A. Okay. 9
Q. Skip down towards the end where you say all 10
payment agreements exceeding, I believe it’s the third 11
line up from the bottom of that paragraph, and please 12
read that. 13
A. All payment plans, excuse me, all payment 14
agreements exceeding 12 months but not exceeding 48 15
months must be reviewed and signed by the manager. 16
Q. Okay, how many revenue agents do you 17
supervise? 18
A. Five. 19
Q. Five? And how often do payment plans exceed 20
12 months? 21
A. In a lot of cases. 22
Q. In a lot of cases, have you signed any of 23
them? 24
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A. No, but they’ve always been in contact with 1
me on (unin) agents (unin). But no, I haven I have not 2
signed (unin). 3
Q. Okay. 4
MR. YATES: That’s all I have. 5
THE COURT: Okay, any redirect, Ms. Fulton? 6
MS. FULTON: I just have one brief redirect. 7
REDIRECT EXAMINATION 8
Q. Grievant’s Exhibit number 2, this two page 9
document, does the fact that you had a cover letter 10
with it indicate that you approved this offer? 11
A. Yes, I always use a cover letter (unin). 12
MS. FULTON: No further questions. 13
THE COURT: Okay, Mr. Yates, you move the 14
admission of Grievant’s number 1? This is the redacted 15
copy. Any objection to it being made a part of the 16
file? 17
MS. FULTON: No. 18
THE COURT: Okay, it’s made a part of the 19
file. 20
MS. FULTON: I’m sorry, a question about the 21
number. It’s number 1? 22
THE COURT: Yeah, I labeled it number 1. I’m 23
going to scratch the previous number one since it was 24
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objected to and Mr. Yates agreed to withdraw it with 1
the recognition that Mr. Oakes read the pertinent parts 2
into the record. 3
(Grievant’s Exhibit 1 admitted into 4
evidence) 5
Okay, any more questions for Ms. Silvester? 6
Anything else? 7
MR. YATES: I have no (unin). 8
THE COURT: Okay, what’s next Ms. Fulton? 9
Are you going to take the testimony of Mr. (Unin)? 10
MS. FULTON: I’ve got Mr. Shaw… 11
THE COURT: Mr. Shaw. 12
MS. FULTON: And it will be really brief. 13
THE COURT: Okay, Mr. Shaw. Would you do us 14
a huge favor and send him in? Thank you. 15
RECORD PAUSED 16
Okay, we’re back on the record and Mr. Shaw 17
has joined us to testify on behalf of the respondent. 18
Good afternoon, Mr. Shaw. My name is Ron Reece, I’m 19
the administrative Law Judge assigned to conduct this 20
hearing and author a decision in Mr. Yates grievance. 21
You’ve been called to testify on behalf of the Tax 22
Department but before you do I’ll need to swear you in. 23
You can remain seated but please raise your right hand. 24
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(Witness sworn) 1
THE COURT: Thank you sir, go right ahead Ms. 2
Fulton. 3
DIRECT EXAMINATION 4
Q. What is, where do you work, Mr. Shaw? 5
A. I work for the North Central Regional Office 6
(unin) Tax Department. 7
Q. And what is your title there (unin). 8
A. Revenue Agent 2. 9
Q. Is that the same job that Mr. Yates has? 10
A. Yes it is. 11
Q. (Unin). Are you part of the Compliance 12
Division? 13
A. Yes I am. 14
Q. Did you attend an October 2009 annual meeting 15
of the Compliance Division? 16
A. Yes I did. 17
Q. I’m handing you what’s been marked Tax 18
Exhibit number 3, (Unin) off the record a minute Judge 19
but I think this is… 20
THE COURT: Hold on. 21
RECORD PAUSED 22
Q. Showing you what’s been marked Tax Exhibit 23
number 3 at level I and ask you, do you recall that 24
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Compliance Division meeting? 1
A. Yes I do. 2
Q. Were you present at it? 3
A. Yes I was. 4
Q. And looking down the the 11:00 to 11:30 slot, 5
business revocation (unin). 6
A. Yes, I remember that. 7
Q. Were, you were present for that? 8
A. Yes. 9
Q. What was the, what was the, what was that 10
workshop or presentation about? 11
A. It was an overview of business revocation 12
process from start to (unin). 13
Q. And, okay and moving on to the third page of 14
this handout, in flipping through it, do you recognize 15
these documents? 16
A. Yes I do. 17
Q. And what are they? 18
A. Those are the policies and codes of business 19
revocation acts. 20
Q. And were they distributed at that 11:00 to 21
11:30 presentation? 22
A. Yes. 23
Q. And did you receive a copy? 24
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A. Yes I did. 1
Q. Do you recall any particulars about the, the 2
presentation? 3
A. Basically it went over the, you know, process 4
of, like I said, you know, working the cases and we 5
have business revocation, you know, and what we’ve done 6
on each case. And, you know, I know they address 7
payment plans. I do remember the (unin) saying that, 8
going payment plants, as far as that goes if they 9
weren’t signed then we didn’t have one. I remember 10
that being said that that meeting. 11
Q. Are there occasions on which you as a revenue 12
agent received (unin) payments without the payment 13
agreement? 14
A. Yes I do, (Unin) from different tax payers 15
but (unin) it’s not considered a valid legal payment 16
plan unless you have one signed agreement. You know, I 17
always work towards the taxpayers, you know, letting 18
them know basically, you know, I’m not going to turn 19
money down but we need to get you on a signed 20
agreement. 21
Q. What’s the advantage to a tax payment (unin)? 22
A. Well it’s, it’s, there are (Unin) advantages. 23
I mean one, they’re, you know basically promising 24
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they’re going to pay this back and for our purposes 1
its’ our, you know what we need to have. We have to 2
have a signature, you know basically (unin) we have 3
their written word that they’re what (unin). 4
Q. And what does the Tax Department (unin)? 5
A. that we will not do any further collection 6
actions as long as they’re in compliance with their 7
agreement with us. 8
MS. FULTON: I have no further questions. 9
THE COURT: Okay, Mr. Yates, any questions 10
for Mr. Shaw? 11
MR. YATES: No. 12
THE COURT: Okay, no questions for Mr. Shaw 13
by Mr. Yates. Thank you, Mr. Shaw. 14
MR. SHAW: I can go? 15
THE COURT: Any other, any other redirect for 16
Mr. Shaw? 17
MS. FULTON: No (unin). 18
THE COURT: Go ahead, thank you sir. Nice to 19
meet you. 20
MS. FULTON: The state rest. 21
THE COURT: Okay. So, let’s take… 22
RECORD PAUSED: 23
Okay, we’re back on the record and the, the 24
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Respondent, Tax Department has completed its case and 1
chief and there was an issue that came up prior to 2
today’s hearing that Mr. Yates requested subpoenas be 3
issued for Ms. Elmore and Ms. James and I customarily 4
issue subpoenas and then if, unless it’s just so 5
apparent that the subpoena shouldn’t be issued, I’ll go 6
ahead and issue them as a administrative law judge and 7
then rely on the respondent to review that and file the 8
appropriate motion to quash the subpoenas and state 9
your grounds. And, Ms. Fulton has done that. She, I 10
guess the subpoenas were issued. I don’t know if they 11
were served by Mr. Yates but Ms. Fulton filed a motion 12
to quash the subpoenas for Ms. Elmore and Ms. James. I 13
guess I’d really like to explore with Mr. Yates and Ms. 14
Fulton if there’s some alternative way we can get this 15
evidence in and I guess I should start with you, Mr. 16
Yates and if you could just explain to me what the 17
relevance of this particular evidence might be. 18
MR. YATES: (unin) Elmore, she has been a 19
long time supervisor (unin) office. She is well versed 20
in policy at the Department and those are some of the 21
questions I would have for her. I feel that she would 22
be the best (unin) for (unin). 23
THE COURT: What policy are you talking 24
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about? The pay, pay plan? 1
MR. YATES: Payment plan, offers and 2
compromise, personnel issues. 3
THE COURT: Would you concede that (unin) at 4
the revocation hearing that took place in April of 5
2011, that led to the written reprimand, is that 6
correct? 7
MR. YATES: That’s correct. 8
THE COURT: Okay. 9
MR. YATES: But she does have knowledge of 10
policy that is in question in that (unin). 11
THE COURT: What about Ms. James? Same 12
relevance? 13
MR. YATES: Yes, Ms. James has actually been 14
a revenue agent in the same area since basically this 15
begun. I’ve been there slightly longer, maybe only a 16
couple of months, less than a year I’m sure, than she 17
has. We’ve had the same interaction, she knows the 18
relationship, she knows, you know all the events. You 19
know, so her testimony in that would be crucial. 20
THE COURT: How crucial. I mean why is it 21
crucial? I mean we’ve had a lot of testimony about 22
policy and certainly you can testify to your 23
understanding. I mean, is there some disagreement you 24
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have about whether the payment plan should be singed? 1
You have to explain it to me. 2
MR. YATES: No, no, no. Hers is basically 3
more on the, my claim of the treatment is different 4
than other people. 5
THE COURT: What treatment are you talking 6
about? 7
MR. YATES: The, you know where Mike Coutz 8
had singled me out, talked to me differently, treated 9
me differently. 10
THE COURT: And you, do you have evidence 11
that Mr. Coutz has had similar situations where a 12
revenue agent didn’t appear with his file and give 13
sworn testimony… 14
MR. YATES: Not that specifically. 15
THE COURT: Okay. 16
MR. YATES: We’re talking like inner office 17
(unin) relationships. 18
THE COURT: Okay, Alright, Ms. Fulton, do you 19
want to put anything on the record other than what 20
you’ve already filed in writing? 21
MS. FULTON: I don’t think so. I mean, our 22
view basically is, is with respect to Ms. Elmore is 23
that we’ve had substantial testimony about the policy 24
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and I don’t’ think most of it is in dispute. We’re 1
already had the testimony, director, director of the 2
agency… 3
THE COURT: Right. 4
MS. FULTON: (Unin) we don’t feel the nee 5
anymore (unin0. With respect to Ms. James, I don’t 6
think that (unin) pertinent issue, the issues about 7
treatment is really relevant to this. The evidence is 8
that the Grievant didn’t follow the policy, disobeyed 9
the direct order of his supervisor (unin). I really 10
don’t’ see anything else that’s very relevant. 11
THE COURT: Go ahead. 12
MR. YATES: You both have copies to my 13
objections. 14
THE COURT: I have it. 15
MR. YATES: And I stand by whatever, you know 16
I had, I had writ, as to my reasons. That’s, I feel 17
that’s more of a detailed explanation of the objection. 18
THE COURT: Well, I mean the, was Ms. James 19
the revenue agent you referenced, she’s in a North 20
Central, she’s in Clarksburg so she (unin) supervised 21
by Mr. Coutz, is that correct? 22
MR. YATES: She’s been supervised Mr. Coutz, 23
she’s been same supervisor as me, Ms. Silvester, Janet, 24
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(unin). She’s worked at the Tax Department before, 1
left and then came back. 2
THE COURT: Well, I would, I would (unin), I 3
would be inclined to deny the motion to quash for Ms. 4
James. We would take, Ms. Fulton can certainly make a 5
relevance objections when we have our next hearing but, 6
I wonder if we couldn’t arrange to take her testimony 7
telephonically. Do you think you could do that Mr. 8
Yates. I’m sure she could… 9
MR. YATES: For Ms. Elmore? 10
THE COURT: Well, no relates to Ms. James. 11
I’m sure she could testify telephonically whenever we 12
get a comeback date. DO you see any problem with that? 13
We do that all the time. Elevate her need to drive 14
from Clarksburg or wherever she lives, to Elkins. 15
MR. YATES: Yes, I would, I would agree to 16
telephonic conferencing. 17
THE COURT: Well… 18
MR. YATES: She’d call in (unin) of being 19
here. 20
THE COURT: Right, she’d just call in. We 21
have some… 22
MR. YATES: It would be a live, it wouldn’t 23
be anything recorded, it would still be live. 24
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THE COURT: Absolutely. 1
MR. YATES: (unin). 2
THE COURT: Right. 3
MR. YATES: Okay, I would, I would find that 4
acceptable. 5
THE COURT: I mean, you know I’ll let you 6
make those arrangements and I’ll deny the motion to 7
quash the subpoena. And of course you’ll have to get 8
with, you’ll have to get with Ms. James and get news 9
dates but I don’t, I don’t understand the, the 10
necessity of having, you know, Ms. Elmore testify. 11
Give me a minute. Let me read your… 12
RECORD PAUSED: 13
Okay, we’re back on the record and I’m going 14
to deny the motion to quash the subpoena for, let me 15
make sure I get the name right, for Ms. James. She 16
apparently is a revenue agent too at the North Central 17
Regional Office in Clarksburg and that subpoena has 18
already been issued. And I’m going to, Mr. Yates and 19
Ms. Fulton have agreed to take her testimony 20
telephonically whenever we get a comeback date to have 21
Mr. Yates present his case in chief. But as far as the 22
subpoena request for Ms. Elmore, I’m going to grant the 23
motion to quash that subpoena and Mr. Yates exceptions 24
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and objection to that ruling are noted for the record. 1
Mr. Yates, who else would, will we anticipate having 2
testify besides Ms. Ms. James, when we have our next 3
hearing, so we know how much time to set aside? Do 4
you, what other witnesses do we have that we haven’t 5
already? 6
MR. YATES: I have Jamie Grinich, I would 7
have Janet Swinler, and I would like to call back Tim 8
Silvester. 9
THE COURT: Okay. Okay, very well. Sir, you 10
can let Ms. Elmore, have you served your subpoenas yet? 11
MR. YATES: Oh yeah. 12
THE COURT: You’ll probably have to get, 13
you’ll probably have to get a new, a new batch of 14
subpoenas so with that in mind, my ruling is in Ms. 15
Elmore is, if you request that again I’m just not going 16
to execute a subpoena for her, okay? I won’t make the 17
state go back through and file a motion to quash 18
because I’ve ruled on that. So, Ms. Elmore won’t be 19
available as a witness. The other one, the other 20
witness I’m going to, I’ll issue a subpoena with the 21
new, with the new hearing date for Ms. James and you 22
can make arrangements to have her, you know, call in 23
and testify. It’s kind of a, it’s not impossible, it’s 24
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not even really complicated but you’re going to have to 1
get the phone number, or we’ll have to get the phone 2
number for the, for the senior center and have to call 3
in here and we’ll make arrangement for her to be 4
patched in, okay? Alright, is there anything else you 5
want to talk about today before we go off the record? 6
MS. FULTON: The only thing I would like to 7
clarify is what we’re going to call this when we 8
introduce it to evidence that never got an exhibit. 9
That was the one where I objected to the Level II 10
documents and instead of removing them we added 11
settlement proposals so we need to indicate (unin) all 12
of that on the record. 13
THE COURT: Okay, we’re back on the record 14
and the parties have agreed to make the packet that had 15
the payment plan and the settlement, proposed 16
settlement agreement as Joint Exhibit Number 1. 17
(Join Exhibit number 1 marked for 18
identification). 19
It also has the registration certificate 20
revocation policy as well. And we, and the parties 21
have told me they’re going to get to five mutually 22
agreed upon dates and going to submit those and we’ll 23
reconvene, hopefully not too far down the road and 24
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we’ll, we’ll hear Mr. Yates case in chief and rebuttal 1
that might be necessary. Is there anything else for 2
the record, Ms. Fulton? 3
MS. FULTON: No, Your Honor. 4
THE COURT: Anything else, Mr. Yates? 5
MR. YATES: No, Sir. 6
THE COURT: I noted your exception and 7
objection to my ruling on the motion to quash your 8
subpoena request for Ms. Elmore, okay? That’s 9
preserved for the record. I’ll see you guys later and 10
if there’s nothing else, thank you very much. 11
(HEARING CONCLUDED) 12