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STATE OF WISCONSIN

TAX APPEALS COMMISSION


CALIFORNIA DEPARTMENT OF

MOTOR VEHICLES(P)

and

SCHNEIDER SPECIALIZED CARRIERS, INC.,(P)

Petitioners,

vs.

WISCONSIN DEPARTMENT OF

TRANSPORTATION,

Respondent,

DOCKET NOS. 02-O-288(P)
AND 02-O-452(P)
DOCKET NO. 02-O-293(P)

RULING AND ORDER ON
MOTION TO INTERVENE


vs.

SCHNEIDER SPECIALIZED CARRIERS, INC.,

Intervenor.

DON M. MILLIS, COMMISSION CHAIRPERSON:

These matters come before the Commission on the motion of Schneider Specialized Carriers, Inc. ("Schneider"), to intervene in Docket No. 02-O-452. Petitioner California Department of Motor Vehicles ("California") has consented to the relief requested by Schneider, with certain provisos. Respondent has taken no position with respect to the motion to intervene.

Schneider is represented in these proceedings by Attorneys Dennis M. Grzezinski, James L. Curtis, and Thomas E. Vandenberg. California is represented by Martin, Brown & Sullivan, Ltd., by Attorney William G. Sullivan, and by its staff counsel, Attorney Barbara H. Zweig. Respondent is represented by Attorney Allyn Lepeska.

Under the date of March 28, 2002, California issued an assessment ("First Assessment") based on an audit pursuant to the International Registration Plan ("IRP") against Schneider in the total amount of fees, interest, and penalties of $6,046,077.(1) Of this amount, $8,435 applies to its Wisconsin base jurisdiction which is the subject of proceedings before the Commission.

Under the date of April 23, 2002, Schneider appealed the First Assessment to respondent. Schneider paid the amounts specified in the First Assessment to each respective base jurisdiction at the time of its appeal. Following a hearing on June 18, 2002, and the receipt of post-hearing submissions, respondent issued its Decision ("First Decision") on August 13, 2002. The First Decision determined that the First Assessment was "improper and should be withdrawn," and that "California instruct the State of Wisconsin to refund the audit assessment that has been paid by Schneider."

On September 6, 2002, California filed a petition for review with the Commission appealing the First Decision. This petition for review was assigned Docket No. 02-O-288.

On September 11, 2002, Schneider filed a petition for review with the Commission that was assigned Docket No. 02-O-293. In its petition, Schneider agreed with the First Decision as far as it went, but asserted that it was entitled to additional relief not provided under the First Decision.

Under the date of September 30, 2002, California issued a contingent audit assessment ("Second Assessment") against Schneider in the total amount of fees, interest, and penalties of $10,744,101. Of this amount, $13,413 applies to its Wisconsin base jurisdiction which is the subject of proceedings before the Commission.

Under the date of October 10, 2002, Schneider filed an appeal with respondent objecting to the Second Assessment. Schneider paid the amounts specified in the Second Assessment to each respective base jurisdiction at the time of its appeal. Following an informal hearing on October 23, 2002, respondent, under the date of November 22, 2002, issued a Decision ("Second Decision") that determined that the Second Assessment should be withdrawn, and that California should "instruct the State of Wisconsin to refund the audit assessment that has been paid by Schneider."

On December 18, 2002, California filed its petition for review with the Commission appealing the Second Decision. This petition for review was assigned Docket No. 02-O-452.

On February 25, 2003, Schneider filed with the Commission its motion to intervene in Docket No. 02-O-452 to "defend the decision being appealed, and to thereby protect Schneider's own rights and interests." California does not object to granting the motion, provided that Schneider's participation is limited and that Schneider is not granted "party" status.

This is the first case under the IRP to be considered by the Commission. Moreover, this case presents procedural implications that appear to be the result of a statute that may not be designed to afford all interested parties the opportunity to a hearing. Specifically, section 341.43(2) of the Statutes grants only to those persons aggrieved by respondent's decisions the right to file an appeal with the Commission. Unlike manufacturing assessment cases, where the party who prevails before the State Board of Assessors is entitled to cross-appeal to defend the determination of that body (see Wis. Stat. § 70.995(8)(a)), section 341.43(2) provides no such right to cross-appeal.

Schneider apparently felt it was aggrieved by the First Decision and filed a petition for review. Apparently, Schneider was not aggrieved by the Second Decision, and seeks only to defend the Second Decision. It is appropriate, therefore, for Schneider to be afforded the opportunity to defend the Second Decision, but not appear as a party.(2) Schneider will be permitted to intervene in Docket No. 02-O-452 with the limitations specified below. Of course, these limitation do not apply with respect to the petitions arising from the First Decision. To the extent an action of Schneider could reasonably be construed to pertain to either the First Decision or Second Decision, the presumption shall be that it pertains to the First Decision.

1. Schneider will not be entitled to any relief with respect to any item of personal property that is more favorable to Schneider than that provided in the Second Decision;

2. Schneider will not have the power to object to any stipulation or settlement entered into by California and respondent;

3. Schneider will be able to participate in all hearings, conferences, and trial; offer evidence (both documents and witness testimony); make arguments; and file briefs, except that Schneider may not offer evidence that contradicts a fact established by a stipulation between California and respondent or that has been rendered moot or irrelevant by such a stipulation.

4. Subject to the limitations of this paragraph, Schneider may engage in discovery of California and respondent as provided in Chapter 804, and California and respondent may engage in discovery of Schneider as provided in Chapter 804. California and respondent shall not serve requests for admissions upon Schneider, because an admission by Schneider is meaningless and not binding on respondent and California. Schneider may serve requests for admissions upon both California and respondent; however, any admission established by such service and response/non-response shall be disregarded to the extent it is contradicted by a stipulation between California and respondent.

ORDER

The motion to intervene by Schneider is granted in part, subject to the limitations set forth above.

Dated at Madison, Wisconsin, this 4th day of April, 2003.

WISCONSIN TAX APPEALS COMMISSION

Don M. Millis, Commission Chairperson

122 W. Washington Ave. ­ Suite 800

Madison, WI 53703

(608) 266-1391

pc: Attorney Dennis M. Grzezinski

Attorney James L. Curtis

Attorney Thomas E. Vandenberg

Attorney William G. Sullivan

Attorney Barbara H. Zweig

Attorney Allyn Lepeska

1 All of the facts recited in this Ruling and Order are based on the pleadings filed in the above-captioned dockets. Because no responsive pleadings have been filed, these cannot be considered findings of fact, but merely a recitation of procedural facts that are subject to refutation at a later date.

2 For more information on the Commission's rationale, see Xerox Corp. v. Wisconsin Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-653 (WTAC 2002).