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


[WP]

STATE OF WISCONSIN

TAX APPEALS COMMISSION


MARVIN D. COLEMAN

1193 U. S. Highway 63

Turtle Lake, WI 54889,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708,

Respondent.

DOCKET NO. 01-I-183

DECISION AND ORDER


THOMAS M. BOYKOFF, COMMISSIONER:

This case comes before the Commission on stipulated facts, exhibits, and briefs. Petitioner Marvin D. Coleman is represented by Larry J. Coleman, CPA, of Coleman & Associates, Amery, Wisconsin. Respondent Wisconsin Department of Revenue ("Department") was represented by Attorney Neal E. Schmidt and is now represented by Deputy Chief Counsel Robert J. Hackman.

Having reviewed the entire record, the Commission finds, concludes, and orders the following:

FINDINGS OF FACT

The Commission bases its Findings of Fact on the parties' stipulated facts, making non-substantive changes and deleting references to exhibits.

1. Petitioner did not file a 1996 Wisconsin income tax return by the due date of April 15, 1997. The Department sent him a letter on July 1, 1998 requesting that he file a 1996 return. Petitioner claims he did not receive the letter.

2. The Department issued an estimated assessment to petitioner on November 9, 1998 for $8,291.00 (including income tax, interest, penalties, and a late filing fee).

3. Petitioner, concerned over the demand for payment without proper representation, paid the updated assessment of $9,728.83 in October 1999.

4. Petitioner filed his 1996 Wisconsin income tax return with the Department on January 25, 2001. The return reflected an $84.00 refund, not including the estimated assessment made and paid.

5. On February 23, 2001, the Department issued a Notice of Refund stating that a $54.00 refund was due to petitioner (the claimed $84.00 refund less a $30.00 late filing fee).

6. Petitioner filed a petition for redetermination with the Department, dated May 8, 2001, in which he did not object to the $54.00 refund but asked for an additional refund of the $9,728.83 paid in October 1999.

7. The Department issued a Notice of Action, dated October 26, 2001, denying the petition for redetermination.

8. Petitioner filed a timely appeal to the Commission.

APPLICABLE WISCONSIN STATUTES

1995-1996

71.75 Claims for refund.

* * *

(5) A claim for refund may be made within 2 years after the assessment of a tax or an assessment to recover all or part of any tax credit, including penalties and interest, under this chapter, assessed by office audit or field audit and paid if the assessment was not protested by the filing of a petition for redetermination . . . . (Emphasis added.)

1997-1998

71.75 Claims for refund.

* * *

(5) A claim for refund may be made within 4 years after the assessment of a tax or an assessment to recover all or part of any tax credit, including penalties and interest, under this chapter, assessed by office audit or field audit and paid if the assessment was not protested by the filing of a petition for redetermination . . . . (Emphasis added.)

1997 Wisconsin Act 27

Section 9343. Initial applicability; revenue.

* * *

(10c) INCOME TAX REFUNDS. The treatment of section 71.75(5) of the statutes first applies to refunds for taxable years beginning on January 1, 2000.

OPINION

The pertinent facts are straightforward. In November 1998, because petitioner had not filed a 1996 Wisconsin income tax form, the Department issued petitioner a $8,291.00 estimated assessment under Wis. Stat. § 71.74(3). Petitioner paid the updated $9,728.83 assessment in October 1999.

Petitioner filed his 1996 Wisconsin income tax return on January 25, 2001, requesting a refund of $84.00. The Department paid petitioner $54.00 and retained $30.00 as a late filing fee. Petitioner filed a petition for redetermination, requesting a refund of the $9,728.83 paid in October 1999. The Department denied the petition for redetermination on the basis that Wis. Stat. § 71.75(5) (1995-96), in effect when the assessment was made and paid, provided that a claim for refund must be made within 2 years after the assessment (i.e., by November 2000).

Petitioner contends that the amended § 71.75(5) (1997-98) applies, that he had 4 years from the assessment to file his claim for refund (i.e., until November 2002), and, therefore, that the refund request was timely. He asserts that "Since there is not an effective date on this amendment there is as equal grounds to take the position [that] the legislation intended to allow taxpayers in this exact situation some relief when a claim for refund is filed within the amended four year window."(1)

The Department counters that the legislature did provide an effective date for the amendment. We agree. In the same Act that extended the time to file a refund claim from 2 to 4 years, the legislature (and governor) provided that "The treatment of section 71.75(5) . . . first applies to refunds for taxable years beginning on January 1, 2000."(2)

The year in question is 1996. At the time of the November 1998 assessment, the law allowed a claim for refund to be filed within 2 years of the assessment. Thus, the time expired on November 9, 2000.

The law was subsequently changed to allow a claim for refund to be filed within 4 years after an assessment. This amendment clearly applied, by its own terms, to refund claims for taxable years beginning on January 1, 2000. Petitioner's claim pertains to 1996 and does not fall under the terms of the amendment.

Petitioner makes assertions as to what the legislature may have intended by amending § 71.75(5), and public policy arguments. The Commission does not address these arguments because we conclude that both the statute and its initial applicability provision are clear and unambiguous. See State v. Hall, 207 Wis. 2d 54, 82 (1997), and Wis. Stat. § 990.01(1). This may be a bitter pill for petitioner to swallow, but the law is clear.

IT IS ORDERED

That the Department's action on petitioner's petition for redetermination is affirmed.

Dated at Madison, Wisconsin, this 28th day of February, 2003.

WISCONSIN TAX APPEALS COMMISSION

__________________________________________

Don M. Millis, Commission Chairperson

__________________________________________

Thomas M. Boykoff, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"

1 Petitioner's Brief, unnumbered p. 1, filed on October 22, 2002.

2 1997 Wisconsin Act 27, section 9343(10c).