First Level Appeal – Frequently Asked Questions

  1. What does it mean to be in appeals?
  2. If you disagree with the Warning Notice or Notice of Violation issued to you, you can contest the violation(s) by filing a timely appeal. 

    The procedures for requesting an appeal are outlined in the notices. The request must be mailed within 10 days from the date of the notice and must include your contentions and any supporting documentation.  If your request for an appeal is not filed within the 10 day period, it will be deemed that you have waived your right to appeal.

    During the appeal process, all penalties, fines, suspensions, and/or revocations will not be assessed until after your conference.  Additionally, any transfer of the business during your appeal when a pending suspension/revocation is the penalty must be at arms length.

  1. What if I do not appeal?
  2. If you choose not to file an appeal or if you file after the 10 days allotted, the Board will deem that you have waived your right to appeal.  All violation(s) will be recorded in the license of record and all penalties will become final. 

  1. I requested an appeals conference, what happens next?
  2. You will receive acknowledgement of your request for an appeals conference.

    Approximately one month prior to your telephone conference, you will receive a Notice of Conference.  When you receive this Notice of Conference, please be sure to:

    • Complete the back of the Notice of Conference and mail the notice within 10 days of the date of the Notice of Conference. 
    • Make a copy of the Notice of Conference for your record.
    • Note the date, time and telephone number for your telephone conference.
  1. Can I continue operating while the case is being settled?
  2. Yes. You may continue to operate until you receive a Notice of Decision regarding the outcome of your appeal.  You should receive your Notice of Decision approximately 4-6 weeks after your telephone conference.

  1. Can I have someone represent me?
  2. Yes. You may have your attorney, enrolled agent, Certified Public Accountant, accountant, bookkeeper, or representative participate on your behalf.  Please submit a completed Power of Attorney (Form BOE-392 ) with your appeal,

  1. Does the BOE offer interpretive services for my telephone conference hearing?
  2. Yes. Please call the Excise Taxes Division at (916) 327-4208 to make arrangements prior to your telephone conference hearing.

  1. Can I postpone my telephone conference?
  2. Yes. When you receive your Notice of Conference, you may ask for a postponement by marking the applicable box and providing your daytime phone number. Typically, you are only allowed one opportunity to reschedule your telephone conference.

  1. How is the teleconference conducted?
  2. You will call the telephone number on the specified date and time provided in the Notice of Conference.  Excise Taxes Division staff will conduct the hearing and Investigation Division staff will be present to represent the Investigations Division.

    Excise Taxes Division staff will explain the violation(s) for which you have been cited and you will have the opportunity to explain why you believe you did not commit the violation(s) or why the specific penalty should not be imposed. 

    Your contentions and supporting documents will be taken into consideration by Excise Tax Division staff on whether to uphold or dismiss the violation(s).  You will receive a Notice of Decision approximately 4-6 weeks after your telephone conference.

  1. What if I fail to call during my schedule telephone conference?
  2. If you fail to call during your scheduled telephone conference, the appeal you submitted along with the Citation Statement of Facts will be taken into consideration on whether to uphold or dismiss the violation(s).  You will receive a Notice of Decision approximately 4-6 weeks after your scheduled telephone conference.

  1. How do I withdraw my appeal?
  2. You must submit your request to withdraw in writing.  Your request should be sent to the Excise Taxes Division.  The Excise Taxes Division will acknowledge your withdrawal and all violation(s) will be recorded in the license of record and all penalties will become final.  If a pending suspension must be served, the Excise Taxes Division will send a Notice of Suspension with the effective dates within a couple of weeks.  If your appeal was in regards to a Warning Notice, you will receive acknowledgement of the withdrawal and the violation(s) will be entered on the license of record.  If your appeal was in regards to a fine, you will receive a billing for the amount due.

  1. Is it possible to pay a fine to settle the matter in lieu of the suspension/revocation? Or is it possible to “settle” my case before my hearing?
  2. No. The Board of Equalization must issues fines and penalties pursuant to Business and Professions Code and the Cigarette and Tobacco Products Licensing Act Regulations.

  1. Do I have the right to appeal the Excise Taxes Division’s decision?
  2. Yes. You may appeal the decision by completing the Request for Appeal Conference on the back of the Notice of Decision and return that notice with contentions and supporting documents within 10 days from the date of the Notice of Decision.

    The Board’s Case Management Division will notify you of the date, time and place of the scheduled appeals conference.  The appeals conferences will be conducted by a Board Appeals Division attorney.