State Bar of Wisconsin Return to wisbar.org Wisconsin Tax Appeals Commission


[WP]

STATE OF WISCONSIN

TAX APPEALS COMMISSION


JACK E. AND MARY M. BRUE

Route 7

Pewaukee, WI 53072,

Petitioners,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8933

Madison, WI 53708-8933,

Respondent.

Docket No. 97-I-236

DECISION AND ORDER


DON M. MILLIS, COMMISSIONER:

This matter came before the Commission for trial on March 12, 1998, in Waukesha. Both parties submitted post-hearing briefs. Petitioners were represented by petitioner Jack E. Brue.(1) Respondent was represented by Attorney Donald J. Goldsworthy.

Based upon the evidence received at trial, the submissions of the parties, and the record in this matter, the Commission finds, concludes, and orders as follows:

FINDINGS OF FACT

1. Under the date of November 25, 1996, respondent assessed petitioners $2,934.89 in additional income taxes, plus interest, for years 1992 through 1995.

2. Respondent based its assessment on a number of factors, including: (1) inclusion of a lump sum distribution, (2) inclusion of a distribution from a retirement plan, (3) adjustment to the taxation of certain unemployment compensation, (4) adjustment to the taxation of certain social security benefits, and (5) adjustments to the itemized deduction credit.

3. Under the date of December 9, 1996, petitioners filed a petition for redetermination objecting to the assessment.

4. Under the date of May 12, 1997, respondent granted in part and denied in part the petition for redetermination, resulting in an adjusted assessment of $2,185.04 in principal tax, plus interest.

5. Petitioners filed a timely petition for review with the Commission.

CONCLUSION OF LAW

Petitioners have failed to present any evidence or legal authority to rebut the presumption that respondent's assessment is correct, and, therefore, respondent's action on the petition for redetermination is affirmed.

OPINION

It is an oft-stated maxim that respondent's assessment is presumed to be correct and the petitioners bear the burden of showing that the assessment is in error. Woller v. Dept. of Taxation, 35 Wis. 2d 227, 232-33 (1976). "Failure to present any evidence showing error means that the case must be decided against the taxpayer." Id. at 233. In this case, petitioners presented absolutely no evidence or legal argument that would tend to show respondent's assessment is incorrect. At trial, the Commission asked Mr. Brue several times if he had any evidence he wished to present in support of his case. Mr. Brue either would not or could not provide any such evidence.

In post-hearing submissions, petitioners offered no cognizable legal basis to challenge respondent's assessment. The bulk of petitioners' "argument" appears to be a plea to reverse the assessment based on petitioners' financial condition. Such discretion lies solely with respondent. When the assessment has become final and conclusive, petitioners may ask respondent to compromise the amount they owe based on their ability to pay. The Commission lacks the authority to make such discretionary decisions.

Therefore,

IT IS ORDERED

That respondent's action on the petition for redetermination is affirmed.

Dated at Madison, Wisconsin, this 3rd day of February, 1999.

WISCONSIN TAX APPEALS COMMISSION

Mark E. Musolf, Chairperson

Don M. Millis, Commissioner

Thomas M. Boykoff, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"

1 Respondent waived the appearance of petitioner Mary M. Brue.