STATE OF WISCONSIN
TAX APPEALS COMMISSION
CHARLES AND NANCY HERR
2101 W. Forest Home Avenue
Milwaukee, WI 53215,
WISCONSIN DEPARTMENT OF REVENUE
P.O. Box 8907
Madison, WI 53708,
| DOCKET NO. 01-I-165
RULING AND ORDER
THOMAS M. BOYKOFF, COMMISSIONER:
This case comes before the Commission on a motion of the respondent Wisconsin Department of Revenue ("Department") to dismiss the petition for review on two grounds: 1) petitioners' failure to prosecute their appeal pursuant to Wis. Stat. § 805.03; and 2) petitioners' failure to comply with two orders of the Commission pursuant to Wis. Stat. §§ 802.10(6) and (7) and 805.03. The statutes forming the basis of this motion have been adopted by the Commission by Wis. Admin. Code § TA 1.39, which reads in part: ". . . the practice and procedures before the commission shall substantially follow the practice and procedures before the circuit courts of this state."
Petitioners represent themselves. Attorney Kenneth J. Artis represents the Department. With its motion, the Department submitted an affidavit with exhibits. Neither party filed a brief.
Having considered the entire record, the Commission hereby finds, rules, and orders as follows:
1. By notice dated February 5, 2001, the Department issued an assessment of income taxes to petitioners in the amount of $3,704.44.
2. Under date of March 25, 2001, petitioners filed with the Department a petition for redetermination of the assessment.
3. Under date of August 27, 2001, the Department denied the petition for redetermination.(1)
4. Petitioners filed a timely petition for review with the Commission on October 22, 2001.
5. Under date of December 13, 2001, the Commission issued a notice to the parties that a telephone conference was scheduled on this case for February 5, 2002 at 11:00 a.m.. The notice required petitioners or their representative to notify the Commission of the area code and telephone number where petitioners or their representative could be reached so they could participate in the telephone conference. Neither petitioners nor any representative complied with this request.
6. The February 5, 2002 telephone conference for this case was held as scheduled at 11:00 a.m. Neither of the petitioners participated, because the Commission had no way of reaching them by telephone.
7. On February 6, 2002, the Commission issued a Status Conference Memorandum and Order which scheduled another telephone conference for 10:30 a.m. on March 12, 2002. The memorandum summarized the discussion between Commissioner Boykoff and Attorney Artis, and it contained the following Order:
IT IS ORDERED
That petitioners contact this Commission, either by telephone or in writing, and provide a telephone number at which they can be reached for the next telephone conference. If the date is unsatisfactory, they should also notify the Commission of this and suggest an alternative date and time. Failure to give this Commission a telephone number at which to contact them and failure to participate in the next telephone conference may lead the Department to file a written motion to dismiss this case for lack of prosecution by petitioners.
Petitioners did not comply with this order by providing the requested information.
8. The March 12, 2002 telephone conference was held as scheduled, during which Attorney Artis told the Commission petitioners' telephone number. When the Commission called petitioners' telephone number, neither petitioner answered the telephone, and neither petitioner responded to the voice mail message the Commission left requesting that one of them contact the Commission to participate in the resolution of this case.
9. On April 8, 2002, the Department filed its motion to dismiss.
10. Under date of April 16, 2002, the Commission issued an Order establishing a briefing schedule which, in part, ordered petitioners to file a brief in response to the Department's motion by May 16, 2002.
11. Under date of May 28, 2002, the Commission issued an Order directing petitioners to either file a brief by June 7, 2002 or notify the Commission that no brief would be forthcoming. Petitioners did not comply with this order.
12. Petitioners have not communicated with the Commission since they filed their petition for review on October 22, 2001.
Under Wis. Stat. § 805.03, the Commission may dismiss a case for the "failure of [petitioner] to prosecute or for the failure of [petitioner] to comply with the statutes governing procedure in civil actions or [failure] to obey any order of [the commission] . . . ."
Under Wis. Stat. § 802.10(6), the Commission "may require that a party or the party's representative be . . . reasonably available by telephone to consider possible settlement of the dispute." Also, under § 802.10(7), "Violations of a scheduling . . . order are subject to" dismissal of the case.
In the case before us, on October 22, 2001, petitioners filed a timely appeal with the Commission objecting to an action of the Department. Since then, neither petitioner has communicated with the Commission or has complied with the Commission's orders scheduling telephone conferences and briefs.
More than eight months have passed since petitioners filed their appeal with the Commission. They have made no effort to communicate with the Commission, either by telephone or by mail. If they had done so, reasonable changes could have been made to accommodate their schedules or their needs for telephone conferences or briefing schedules. However, petitioners have been silent. And in this instance, silence is not golden.
The Department's motion is granted, and the petition for review is dismissed.
Dated at Madison, Wisconsin, this 17th day of July, 2002.
WISCONSIN TAX APPEALS COMMISSION
Don M. Millis, Commission Chairperson
Thomas M. Boykoff, Commissioner
Richard F. Raemisch, Commissioner
ATTACHMENT: "NOTICE OF APPEAL INFORMATION"
1 Facts 1, 2, and 3 are not in the Department's affidavit, but they are stated in the copy of the Department's August 27, 2001 denial letter to petitioners which they attached to their petition for review. They are also admitted in the Department's Answer filed with the Commission on November 6, 2001.