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[WP]

STATE OF WISCONSIN

TAX APPEALS COMMISSION


GRAYCOR INDUSTRIAL CONSTRUCTORS, INC.

One Graycor Drive

Homewood, IL 60430,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708-8907,

Respondent.

DOCKET NO. 02-I-307

RULING AND ORDER


DON M. MILLIS, COMMISSION CHAIRPERSON:

This matter comes before the Commission on respondent's motion to dismiss the petition for review for lack of subject matter jurisdiction. Both parties have filed briefs with respect to respondent's motion. Petitioner is represented by Mr. W. Jed Mundell, its Vice President of Finance. Respondent is represented by Attorney Robert J. Hackman, its Deputy Chief Counsel.

Based on the submissions of the parties and the entire record in this matter, the Commission hereby finds, rules, and orders as follows:

On April 16, 2001, respondent issued an income tax assessment against petitioner. By letter dated June 15, 2001, petitioner filed a petition for redetermination with respondent objecting to the assessment.

By notice of action letter dated June 17, 2002, respondent denied the petition for redetermination. The notice of action letter was mailed to petitioner via certified mail, return receipt requested. The notice of action letter was received by petitioner on June 19, 2002.

Petitioner filed its petition for review with the Commission on September 23, 2002, via ordinary mail, in an envelope postmarked September 19, 2002. The 60th day following receipt of the notice of action letter was August 18, 2002--a Sunday. Therefore, the due date for filing the petition for review with the Commission was Monday, August 19, 2002. Wis. Stat. § 73.01(5)(a).

Petitioner points out that it had sent a letter to respondent's resolution officer on June 18, 2002, the day before petitioner received the notice of action letter and complains that the resolution officer did not forward the letter to the Commission. This argument does not excuse petitioner's failure to file a timely petition for review.

Petitioner's letter to the resolution officer, dated June 18, 2002, explicitly referred to earlier correspondence from the resolution officer and provided the information requested by that earlier letter. It would be unreasonable for the resolution officer to conclude that the June 18, 2002, letter was a misdirected petition for review that should be forwarded to the Commission, especially given the fact that petitioner did not receive the notice denying its petition for redetermination until June 19, 2002.

The notice of action letter explicitly warned petitioner that if it did not file a petition for review with the Commission at the Commission's address within 60 days of receiving the notice of action letter, the "additional tax and interest will become final and payable on or before the date indicated on the attached statement." It is unreasonable for petitioner to think that its letter to a resolution officer employed by respondent would double as a petition for review filed with the Commission.

Even if we conclude that petitioner's action in this case was reasonable, it would not alter the simple fact that the petition for review was not timely filed. Because the petition for review was not filed with the Commission within the 60-day period prescribed by law, the Commission lacks subject matter jurisdiction over the petition for review, and it must be dismissed.

ORDER

Respondent's motion to dismiss is granted, and the petition for review is dismissed.

Dated at Madison, Wisconsin, this 12th day of March, 2003.

WISCONSIN TAX APPEALS COMMISSION

Don M. Millis, Commission Chairperson

Thomas M. Boykoff, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"

April 14, 2003 Petition for rehearing denied pursuant to s. 227.49(3)