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[WP]

STATE OF WISCONSIN

TAX APPEALS COMMISSION


THOMAS J. AND CHRISTINE SHEWCZYK

7918 Pleasant Valley

Saukville, WI 53080

Petitioners,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708

Respondent.

DOCKET NO. 00-I-77

RULING AND ORDER


DON M. MILLIS, COMMISSIONER:

This matter was heard by the Commission on August 2, 2001, in Waukesha. Petitioners failed to appear either in person or by their representative. Respondent appeared by Attorney Michael J. Buchanan. Respondent moved to dismiss the petition for review on the basis of petitioners' failure to appear and make full disclosure under oath as required by section 71.89(2) of the Statutes.

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

FACTS

1. By notice dated March 23, 1998, respondent issued an income tax assessment to petitioners for the years 1993 through 1996 in the amount of $197,690.02 ($150,468.52 tax and $47,221.50 interest).

2. By letter dated July 20, 1998, petitioners filed a petition for redetermination with respondent.

3. By notice dated January 19, 2000, respondent granted in part and denied in part petitioners' petition for redetermination, reducing the assessment to $56,152.70 ($35,831.59 tax and $20,321.11 interest).

4. On May 1, 2000, petitioners filed a timely petition for review with the Commission.

5. During each of the first four scheduling/status conferences held in this matter, the presiding Commissioner and respondent's counsel made unsuccessful attempts to convince petitioners and their representative to provide respondent with substantiation of their position on disputed items.

6. The Commission served good and sufficient notice of hearing upon petitioners and their representative by a Notice of Hearing and a separate Scheduling Order Memorandum, both dated May 15, 2001.

7. The Scheduling Order Memorandum also required petitioners to serve on respondent and file with the Commission, no later than June 8, 2001, the following:

A. A description of each adjustment that petitioners were to raise at trial;

B. Copies of all exhibits petitioners were to introduce at trial; and

C. The name and address of each witness petitioners were to call at trial.

8. Petitioners never complied with that portion of the Scheduling Order Memorandum described in finding no. 7.

9. On July 10, 2001, respondent filed with the Commission and served on petitioners its Notice of Motions and Motion to Dismiss and, in the alternative, Motion in Limine. The basis for respondent's motions was petitioners failure to comply with that portion of the Scheduling Order Memorandum described in finding no. 7.

10. Petitioners never responded to respondent's motions.

11. On August 1, 2001, Commission staff telephoned petitioners' representative to inquire whether petitioners planned to go ahead with the trial given that petitioners had not complied with that portion of the Scheduling Order Memorandum described in finding no. 7.

12. In response to the Commission's inquiry, neither petitioners nor their representative informed the Commission of petitioners' intent with respect to their attendance at trial.

13. Because neither petitioners nor their representative informed the Commission of petitioners' intent with respect to their attendance at trial, the trial was held as scheduled. Petitioners and their representative failed to appear at trial.

14. Respondent declined to waive petitioners' appearance at trial.

CONCLUSIONS OF LAW

1. Petitioners' failure to appear at trial bars them from questioning the assessment at issue. Wis. Stat. § 71.89(2); Wis. Admin. Code §§ TA 1.03 and 1.51(2).

2. It appears to the Commission that petitioners maintained this proceeding primarily for delay, subjecting them to an additional assessment of $1,000. Wis. Stat. § 73.01(4)(am).

ORDER

1. Respondent's motion is granted, and the petition for review is dismissed;

2. Petitioners' assessment is increased by $1,000.

Dated at Madison, Wisconsin, this 9th day of August, 2001.

WISCONSIN TAX APPEALS COMMISSION

Don M. Millis, Acting Chairperson

Thomas M. Boykoff, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"

September 19, 2001 Petition for rehearing denied under § 227.49(3)

October 22, 2001 Appealed to Ozaukee County Circuit Court (01CV426-B2)