State Bar of Wisconsin Return to Wisconsin Tax Appeals Commission





10935 Sherwood Drive

Mequon, WI 53092,




P.O. Box 8907

Madison, WI 53708-8907,


DOCKET NO. 00-I-201


This matter comes before the Commission on its own motion to dismiss the petition for review for failure to prosecute and for violation of scheduling orders.

Petitioners represent themselves. Respondent is represented by Attorney Veronica Folstad.


Based upon the submissions of the parties and the record in this matter, the Commission hereby finds, concludes, and orders as follows:

Under the date of January 3, 2000, respondent issued an income tax assessment against petitioners in the total amount of $12,544.13. Petitioners filed a timely petition for redetermination with respondent objecting to the assessment. Respondent denied the petition for redetermination by a notice of action letter dated July 17, 2000. Petitioners filed a timely petition for review with the Commission on October 13, 2000.

At a telephone scheduling conference on May 21, 2001, the parties agreed to a trial date of October 9, 2001. In addition, petitioners were told that they would have to provide information on the items they were challenging, the witnesses they would call, and the exhibits they would use at trial. This mandate was included in a Scheduling Order Memorandum dated May 23, 2001 ("May 23 Order"), which ordered petitioners to file with the Commission and serve on respondent the following items no later than August 17, 2001:

A list of each adjustment petitioners would challenge at trial,

Copies of all exhibits petitioners would introduce at trial, and

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

The May 23 Order provided that witnesses not disclosed and exhibits not exchanged as required by the May 23 Order would not be allowed to testify or be admitted into evidence without good cause shown by petitioners. The May 23 Order also provided that failure to abide by the terms of the order may result in "sanctions against that party to the extent permitted by law."

At the May 21, 2001 scheduling conference, petitioners expressed frustration with their inability to compel their bank to provide copies of checks from an account of Adair Construction that they believed would substantiate their position. The Commission informed petitioners that the Commission could issue a subpoena duces tecum seeking the documents they requested. However, petitioners were told that they would have to submit a written request to the Commission, with a copy to respondent, that described with particularity the documents sought and a date and place for their production. Petitioners were also informed that they would have to provide the bank with adequate time to obtain the documents and provide them to petitioners.

On August 9, 2001--just eight days before the due date for exhibits in the May 23 Order--petitioners sent the Commission a letter requesting that it issue a subpoena duces tecum. However, their request did not provide any information on when or where the documents sought were to be produced.

On August 16, 2001, the Commission sent a letter to petitioners describing the information they would need to provide to the Commission before it would issue a subpoena duces tecum.

Petitioners did not file with the Commission or serve on respondent any of the material required by the May 23 Order. As a result, the Commission scheduled a telephone conference for September 25, 2001 to discuss the status of the case. At the September 25 status conference, petitioners were told once again what they would need to provide to the Commission for a subpoena duces tecum to be issued. Rather than schedule a new trial, the Commission afforded petitioners an opportunity to get their request for a subpoena duces tecum in order, and then established November 2, 2001 as the new deadline for petitioners to supply the Commission and respondent with the exhibits and list of witnesses they planned to present at trial. A status conference was set for November 14, 2001, at which time the Commission anticipated that trial could be rescheduled. These mandates were contained in a Scheduling Order Memorandum issued on September 25, 2001, that also repeated the above cited warnings from the May 23 Order: (1) witnesses and exhibits not disclosed by November 2, 2001 could not be used at trial, and (2) violation of the order may result in sanctions permitted by law.

Petitioners never submitted information necessary for the issuance of a subpoena duces tecum and never provided exhibits or a list of witnesses they intended to rely upon at trial. Moreover, petitioners failed to participate in the status conference held on November 14, 2001.

On November 29, 2001, Randall Adair called the Commission to relate that petitioners had received some checks from their bank. Commission staff informed Mr. Adair that he should contact counsel for respondent and attempt to settle the case.

On January 3, 2002, the Commission contacted counsel for respondent, who explained that neither additional information nor a proposed settlement offer had been received from petitioners.

Despite knowing exactly what documents they claim to need to prosecute this case, petitioners have failed to provide these documents, in direct violation of two orders of the Commission. Therefore, we will dismiss the petition for review on the basis of petitioners' failure to prosecute their claim and for violation of the scheduling orders of the Commission. Wis. Stat. §§ 802.10(3) and 805.03.


The petition for review is dismissed.

Dated at Madison, Wisconsin, this 8th day of January, 2002.


Don M. Millis, Acting Chairperson

Thomas M. Boykoff, Commissioner


February 21, 2002 Petition for rehearing granted under § 227.49(3)