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


[WP]

STATE OF WISCONSIN

TAX APPEALS COMMISSION


TERRY E. KNOPE

1005 E. Lieg Ave.

Shawano, WI 54166-3530,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708,

Respondent.

DOCKET NO. 01-S-173

RULING AND ORDER
AWARDING
SUMMARY JUDGMENT


RICHARD F. RAEMISCH, COMMISSIONER:

This matter comes before the Commission on the motion of the respondent ("Department") for judgment on the pleadings under Wis. Stat. § 802.06(3) and for summary judgment under Wis. Stat. § 802.08(2), on the basis that there are no genuine issues as to material facts and that the Department is entitled to a judgment as a matter of law.

Petitioner represents himself. Attorney Kenneth J. Artis represents the Department.

With its motion, the Department filed an affidavit, attachments, and a brief. Petitioner filed a response.

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

UNDISPUTED MATERIAL FACTS

1. Under date of May 15, 2001, after an office audit by the Department, petitioner filed a claim for refund of sales taxes paid for his business known as Butch's Tires. Although the May 15, 2001 claim by petitioner did not specify time periods, the Department determined from its records that petitioner's claim covered sales taxes paid for the period of May, June, and July 1997.

2. By notice dated June 26, 2001, the Department denied the claim for refund.

3. Under date of July 18, 2001, petitioner filed a petition for redetermination with the Department specifying the periods and amounts in question as May 1997 ($1,129.94 overpayment), June 1997 ($1,314.66 overpayment), and July 1997 ($1,450.53 overpayment). Petitioner stated that "health problems" prevented him from getting together with Department Agent Frank Strobel in Shawano until the "spring of 2000" to discuss the dates in question.

4. Under date of October 12, 2001, and received by petitioner on October 13, 2001, the Department denied petitioner's petition for redetermination.

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

WISCONSIN STATUTES INVOLVED

77.59 Deficiency and refund determinations.

* * *

(4). . .

(b)A claim for a refund that is not to be passed along to customers under sub. (8m) may be made within 2 years of the determination of a tax assessed by office audit or field audit and paid if the tax was not protested by the filing of a petition for redetermination. . . .

ISSUE INVOLVED

Whether the Commission has subject matter jurisdiction over petitioner's petition for review.

CONCLUSIONS OF LAW

1. There are no genuine issues of material facts, and this case is appropriate for summary judgment as a matter of law under § 802.08.

2. Petitioner failed to file a timely claim for refund of his overpayment of delinquent sales taxes within the statutory 2-year time period, and therefore the Commission lacks subject matter jurisdiction over petitioner's petition for review.

RULING

Section 802.08(2) of the Wisconsin Statutes provides that summary judgment "shall be rendered if the pleadings . . . on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."(1)

There is no dispute as to material facts in this case. In his May 15, 2001 claim for refund, petitioner stated that he claimed a refund of what he asserted to be overpayments of delinquent sales taxes for the months of May, June, and July 1997. Petitioner stated that, due to being ill, he was unable to determine that he was eligible for a refund until the "spring of 2000". In his May 15, 2001 refund claim, petitioner also stated he sent a letter requesting a refund for the overpayment "Back in about June 2000." No such letter was located by the Department, and no copy was provided by petitioner. In addition, petitioner's statements are unsubstantiated and not made under oath. Regardless, even if a refund claim was made by petitioner in June of 2000, it would have been filed after the expiration of the statutory limitations, and the result here would be no different.

Wisconsin Statutes § 77.59(4)(b) requires that a claim for a sales tax refund that is not to be passed on to the customer must be made within 2 years of the determination of the assessed field audit tax. For the periods of May, June, and July 1997, petitioner would have had to file his claim for refund no later than 1999. There is no dispute that petitioner did not file his refund claim within the 2-year statutory time period, and the petitioner does not claim that he passed the refund on to his customers.

The Commission and the courts have long upheld the principle that the Commission lacks jurisdiction over late filed claims. In Gilbert v. Dep't of Revenue, 246 Wis. 2d 734 (2001), petition for review denied, 247 Wis. 2d 1035 (2001), Mr. Gilbert filed a claim for refund 4 ½ years after the expiration of the statutory 2-year claim for refund time period. Even though the law under which the tax was imposed was held unconstitutional (See State v. Hall, 207 Wis. 2d 54 (1997)), the Wisconsin Court of Appeals held (246 Wis. 2d at 739):

TAC [Tax Appeals Commission] has held that if a taxpayer fails to file a refund claim within the time prescribed by statute, it lacks subject matter jurisdiction to determine whether the refund claim is valid. See Bower v. Wis. Dep't of Revenue, Docket No. 99-I-19 (1999). We agree with TAC's interpretation.

Regardless of the merit or lack of merit of petitioner's substantive arguments, this Commission has no jurisdiction to consider them.

Therefore,

IT IS ORDERED

That the Department's motion is granted, and the petition for review is dismissed.

Dated at Madison, Wisconsin, this 6th day of September, 2002.

WISCONSIN TAX APPEALS COMMISSION

__________________________________________

Don M. Millis, Commission Chairperson

__________________________________________

Thomas M. Boykoff, Commissioner

Richard F. Raemisch, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"

1 Although the Department also cited § 802.06(3), a motion for judgment on the pleadings without supporting argument, the Commission finds this citation and motion moot, because it finds for the Department on Wis. Stat. § 802.08(2).