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[WP]

STATE OF WISCONSIN

TAX APPEALS COMMISSION


ERNESTO AND MYRNA ZUÑIGA

1251 Reber Street

Green Bay, WI 54302,

Petitioners,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708-8907,

Respondent.

DOCKET NO. 02-I-338

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. Respondent has filed an affidavit in support of its motion. Petitioners have not responded to respondent's motion. Petitioners represent themselves. Respondent is represented by Deputy Chief Counsel Robert J. Hackman.

Based on the submission of respondent and the record in this matter, the Commission finds, rules, and orders as follows:

On January 21, 2002, respondent issued an income tax assessment against pettioners in the principal amount of $2,297, plus $811.90 in interest. Petitioners filed a timely petition for redetermination with respondent.

On July 19, 2002, Ms. Ruth Lindgren, a resolution officer employed by respondent, sent a letter to petitioners seeking additional information relating to their petition for redetermination. In her letter, Ms. Lindgren noted that the six-month period within which respondent must act on the petition for redetermination would soon expire and, therefore, asked petitioners to sign an agreement extending the time for respondent to act on the petition for redetermination to March 4, 2003.

On September 4, 2002--the deadline for respondent to act on the petition for redetermination as set forth in section 71.88(1)(a) of the Wisconsin Statutes--respondent issued a Notice of Action letter denying the petition for redetermination. Along with the Notice of Action letter, Ms. Lindgren included a separate letter that provided, in part, as follows:

Enclosed with this letter is a notice of action denying your petition for redetermination of the income tax assessment dated January 21, 2002.

We are taking this action because we have not received the signed stipulation and agreement to extend the time period within which the department is directed to act. We sent you the agreement on July 19, 2002.

However, if you forward the signed stipulation and agreement to me within the next ten days, we will be able to withdraw this notice of action.

The Notice of Action letter was received by petitioners on September 6, 2002.

Petitioners promptly signed the extension stipulation and returned it to Ms. Lindgren. Respondent then withdrew the September 4, 2002, Notice of Action letter.

On October 10, 2002, petitioners filed their petition for review with the Commission, appealing the Notice of Action letter dated September 4, 2002.

Withdrawing the notice of action letter means that the petition for redetermination is now before respondent and was before respondent when the petition for review was filed. Therefore, the petition for review was filed prematurely, and the Commission lacks subject matter jurisdiction over the petition for review. See, De Rango v. Dep't of Revenue, Docket No. 98-I-190, Slip Op. at 5 (WTAC Jan. 2, 2003); McCollum v. Dep't of Revenue, Docket No. 01-I-136, Slip Op. at 2 (WTAC Nov. 27, 2001).

ORDER

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

Dated at Madison, Wisconsin, this 17th day of January, 2003.

WISCONSIN TAX APPEALS COMMISSION

Don M. Millis, Commission Chairperson

Thomas M. Boykoff, Commissioner

Richard F. Raemisch, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"