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


[WP]

STATE OF WISCONSIN

TAX APPEALS COMMISSION


JOHN GUTSCH

N6000 370th Street

Menomonie, WI 54751

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708

Respondent.

DOCKET NO. 00-I-167

RULING AND ORDER AWARDING SUMMARY JUDGMENT


THOMAS M. BOYKOFF, COMMISSIONER:

This matter is before this commission on respondent Department of Revenue's ("Department") motion for summary judgment, pursuant to Wis. Stat. § 802.08. Both parties have submitted sworn affidavits and legal arguments. Petitioner appears pro se, and Attorney Sheree Robertson represents the Department.

Having considered the entire record, the Commission hereby finds, rules, and orders as follows:

UNDISPUTED MATERIAL FACTS

Jurisdictional Facts

1. Under date of May 22, 2000, the Department sent petitioner an estimated assessment, pursuant to Wis. Stat. § 71.74(3), for $11,522.95 of tax ($7,297.00), interest ($2,341.70), penalties ($1,824.25), and fees ($60.00) covering tax years 1997 and 1998.

2. Under date of June 2, 2000, petitioner filed a petition for redetermination with the Department. The document was captioned "Verified Affidavit of Default", with attachments. Among petitioner's assertions in the attachments were that: he was not required to file returns; he demanded the Department to show that it has jurisdiction over him; he was a Minnesota resident; he was a nonresident alien; he was a "Citizen of Wisconsin and domiciled in Dunn County, Wisconsin;" he was a "Sovereign Citizen of the Wisconsin Republic"; and the income tax assessment for 1997 and 1998 was unlawful.

3. Under date of July 3, 2000, the Department denied his petition for redetermination.

4. On August 31, 2000, petitioner's timely filed appeal was received by the Commission.

Other Material Facts

5. Under dates of March 20 and April 13, 2000, a Department employee wrote to petitioner requesting that he file Wisconsin income tax returns for 1997 and 1998. Petitioner did not file the requested income tax returns.

6. Under date of April 14, 1997, petitioner filed a 1996 Wisconsin income tax return. The address on the return was in Menomonie, Wisconsin. He reported Wisconsin residence from February 1 to December 31, 1996. He also reported $47,860.50 of federally taxable wage income and $37,649.26 of Wisconsin taxable wage income. Attached were two different(1) W-2 forms issued by Kohler Mix Specialties, Inc., of White Bear Lake, Minnesota. One W-2 form stated a Minnesota address for petitioner, and the other had a Wisconsin address.

CONCLUSIONS OF LAW

1. There is no genuine issue of material fact, and this case is appropriate for summary judgment.

2. The Department properly assessed petitioner for 1997 and 1998 income taxes under the provisions of Wis. Stat. § 71.74(3).

3. Petitioner's position in this matter, consisting exclusively of semantic gymnastics which attempt to rationalize why the state income tax laws do not apply to him, is frivolous and groundless, thereby subjecting him to an additional assessment under Wis. Stat. § 73.01(4)(am).

RULING

As the moving party, the Department must demonstrate its entitle-ment to summary judgment as a matter of law and the absence of a genuine issue as to any material fact. Wis. Stat. § 802.08(3).

There is no genuine issue of material fact in this case. The Depart-ment requested that petitioner file Wisconsin income tax returns for 1997 and 1998. Petitioner responded by demanding that the Department demonstrate that it has jurisdiction over him. He also wrote that "Petitioner exercises his Rights as provided to the Sovereign Petitioner by the Constitution of the United States and the Wisconsin Statutes and chooses to not acquiesce or volunteer into the jurisdiction of the United States or the State of Wisconsin...."(2)

Wisconsin Statutes § 71.02(1) provides, in part, that "there shall be assessed, levied, collected and paid a tax on all net incomes of individuals ... residing within the state...." Wisconsin Statutes § 71.74(3) provides "Any person required to file an income ... tax return, who fails, neglects or refuses to do so ... shall be assessed by the department according to its best judgment."

Petitioner did not file Wisconsin income tax returns for 1997 and 1998. Therefore, as authorized by § 71.74(3), the Department issued an assessment to petitioner for these years according to its best judgment.

Petitioner claims protection from paying income tax by citing various provisions of the U. S. Constitution and by citing quotations from cases from the federal courts and the courts of various states. He asserts that he "is engaged in a private occupation of common right in Dunn County, Wisconsin;" that he is "a Sovereign Citizen of [and "natural born in"] the Wisconsin Republic;" and that he is not subject to the federal or state income tax laws.(3)

These arguments and ones like them have been given no credence when argued by others in prior cases before the Commission and the courts. Groundless and frivolous, they have not prevailed in the past and they do not prevail now. See, Susan Boon v. Dep't of Revenue, 1999 Wisc. Tax LEXIS 7 (WTAC 1999), aff'd on other grounds (Milwaukee County Cir. Ct. Aug. 23,

1999); Derick J. Norskog v. Dep't of Revenue, 1999 Wisc. Tax LEXIS 19 (WTAC 1999); Tracy v. Department of Revenue, 133 Wis. 2d 151 (Ct. App. 1986); and Lonsdale v. CIR, 661 F. 2d 71 (5th Cir. 1981).

On March 12, 2001, this commission received an additional filing from petitioner, measuring about one-quarter of an inch thick, comprised of a 5-page affidavit plus copies of many documents previously filed. The Department responded on March 14, 2001 with a single paged letter.

Petitioner's submission was filed almost seven weeks after expiration of his time for filing a brief. It contains only frivolous, irrelevant, and useless ramblings about statutes and cases.

The conclusion of this commission 19 years ago in Betow v. Wisconsin Department of Revenue, Wis. Tax Rptr. (CCH) ¶ 202-032 (WTAC 1982) (at p. 11,608) is equally applicable to petitioner's case today:

... [P]etitioner's arguments are stale ones, long settled against their proponents. As such, they are meritless and frivolous. Even bending over backwards, in indulgence of petitioner's pro se status, ... this Commission should not encourage this petitioner and future similar petitioners to continue advancing these hollow and long-defunct arguments. See Lonsdale v. Commissioner of Internal Revenue,81-2 USTC para. 9772 (November 12, 1981).

And paraphrasing from the often quoted forewarning in McCoy v. Commissioner of Internal Revenue, 76 T.C. 1027, 1029 (1981) ...: It may be appropriate to note further that this Commission has ... [received] a large number of so-called tax protester cases in which thoroughly meritless issues have been raised in, at best, misguided reliance upon lofty principles. Such cases tend to disrupt the orderly conduct of serious litigation in this Commission, and the issues raised therein are of the type that have been consistently decided against such petitioners and their contentions often characterized as frivolous. The time has arrived when the Commission should deal summarily and decisively with such cases without engaging in scholarly discussion of the issue or attempting to sooth the feelings of the petitioners by referring to the supposed "sincerity" of their wildly espoused positions. This is all the more impel-ling today in view of the ... increasing complexity of the issues presented to this Commission.

The McCoy case was subsequently affirmed. McCoy v. Commissioner of Internal Revenue, 696 F. 2d 1234 (9th Cir. 1983).

Because petitioner has offered nothing but groundless and frivolous arguments to disprove the Department's assessment, an additional assessment of $500 is imposed, as provided in Wis. Stat. § 73.01(4)(am).

ORDER

1. The Department's motion for summary judgment is granted, and the petition for review is dismissed.

2. Petitioner is assessed an additional $500 pursuant to Wis. Stat. § 73.01(4)(am).

Dated at Madison, Wisconsin, this 23rd day of March, 2001.

WISCONSIN TAX APPEALS COMMISSION

___________________________________________

Mark E. Musolf, Chairperson

___________________________________________

Don M. Millis, Commissioner

___________________________________________

Thomas M. Boykoff, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"

April 23, 2001 Appealed to Dunn County Circuit Court(01CV74)

1 Three W-2 forms were attached to the tax return. Two were identical.

2 Petitioner's Brief, p. 1.

3 Petitioner's Brief, p. 1.