RULE 260. PROCEEDING TO ENFORCE OVERPAYMENT DETERMINATION
- (a) Commencement of Proceeding:
- (1) How Proceeding Is Commenced: A proceeding to enforce an overpayment
determined by the Court under Code section 6512(b)(1)
shall be commenced by filing a motion with the Court. The
petitioner shall place on the motion the same docket number
as that of the action in which the Court determined the overpayment.
- (2) When Proceeding May Be Commenced: A proceeding
under this Rule may not be commenced before the expiration
of 120 days after the decision of the Court determining
the overpayment has become final within the meaning
of Code section 7481(a).
- (b) Content of Motion: A motion to enforce an overpayment
determination filed pursuant to this Rule shall contain
the following:
- (1) The petitioner?s identification number (e.g., Social
Security number or employer identification number) and
current mailing address.
- (2) A statement whether any dispute exists between the
parties regarding either the fact or amount of interest payable
in respect of the overpayment determined by the
Court and, if such a dispute exists, clear and concise lettered
statements of the facts regarding the dispute and the
petitioner?s position in respect of each disputed matter.
- (3) A copy of the Court?s decision which determined the
overpayment, together with a copy of any stipulation referred
to therein and any computation filed pursuant to
Rule 155 setting forth the amount and date of each payment
made by the petitioner.
- (4) A copy of the petitioner?s written demand on the
Commissioner to refund the overpayment determined by
the Court, together with interest as provided by law; this
demand shall have been made not less than 60 days before
the filing of the motion under this Rule and shall have
been made on the Commissioner through the Commissioner?s
last counsel of record in the action in which the
Court determined the overpayment which the petitioner
now seeks to enforce by this motion.
- (5) If the petitioner requests an evidentiary or other
hearing on the motion, then a statement of the reasons
why the motion cannot be disposed of by the Court without
a hearing. For the circumstances under which the Court
will direct a hearing, see paragraph (d) of this Rule.
- (c) Response by Commissioner: Within 30 days after
service of a motion filed pursuant to this Rule, the Commissioner
shall file a written response. The response shall specifically
admit or deny each allegation set forth in the petitioner?s
motion. If a dispute exists between the parties regarding
either the fact or amount of interest payable in respect
of the overpayment determined by the Court, then the
Commissioner?s response shall also include clear and concise
statements of the facts regarding the dispute and the Commissioner?s
position in respect of each disputed matter. If the
Commissioner agrees with the petitioner?s request for a hearing,
or if the Commissioner requests a hearing, then the response
shall include a statement of the Commissioner?s reasons
why the motion cannot be disposed of without a hearing.
If the Commissioner opposes the petitioner?s request for
a hearing, then the response shall include a statement of the
reasons why no hearing is required.
- (d) Disposition of Motion: A motion to enforce an
overpayment determination filed pursuant to this Rule will
ordinarily be disposed of without an evidentiary or other
hearing unless it is clear from the motion and the Commissioner?s
written response that there is a bona fide factual dispute
that cannot be resolved without an evidentiary hearing.
- (e) Recognition of Counsel: Counsel recognized by
the Court in the action in which the Court determined the
overpayment which the petitioner now seeks to enforce will
be recognized in a proceeding commenced under this Rule.
Counsel not so recognized must file an entry of appearance
pursuant to Rule 24(a)(3) or a substitution of counsel pursuant to Rule 24(d).
- (f) Cross-Reference: For the need, in the case of an
overpayment, to include the amount and date of each payment
made by the petitioner in any computation for entry of
decision, see paragraphs (a) and (b) of Rule 155.
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