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


[WP]

STATE OF WISCONSIN

TAX APPEALS COMMISSION


MIGUEL G. AND FELIPA I. MALDONADO

3218 Hickory Grove Avenue

Racine, WI 53403-4315,

Petitioners,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708 -8907,

Respondent.

DOCKET NO. 03-I-114

RULING AND ORDER


THOMAS M. BOYKOFF, COMMISSIONER:

This case comes before the Commission on a motion to dismiss by the respondent, Wisconsin Department of Revenue ("Department"), pursuant to the provisions of Wis. Stat. § 73.01(5)(a), on the grounds that petitioners did not file their petition for review timely.

Petitioners are represented by Bennie Ozuna. The Department is represented by Attorney Mark S. Zimmer.

With its motion, the Department submitted an affidavit and exhibits. Mr. Ozuna submitted a letter brief on behalf of petitioners, and the Department submitted a reply letter brief.

After reviewing the entire record, the Commission finds, rules, and orders as follows:

1. Under date of June 10, 2002, the Department issued an assessment to petitioners for income tax year 1998 in the amount of $4,748.91, consisting of income tax, interest, and a 25% negligence penalty.

2. Under date of June 13, 2002, petitioners filed with the Department a letter and attachments which was deemed to be a petition for redetermination.

3. By notice of action dated August 26, 2002, sent to petitioners by certified mail, return receipt requested, the Department denied the petition for redetermination in full. On September 20, 2003, the certified mail containing the notice of action was returned to the Department marked "Unclaimed."

4. On February 10, 2003, the notice of action was personally served on petitioners.

5. On April 18, 2003, petitioners filed a petition for review with the Commission by ordinary mail.

6. The 60-day period for filing a timely petition for review with the Commission, under Wis. Stat. §§ 71.88(2)(a) and 73.01(5)(a), expired on April 11, 2003.

RULING

Section 73.01(5)(a) of the Wisconsin Statutes states, in part:

Any person who . . . has filed a petition for redetermination with the department of revenue and who is aggrieved by the redetermination . . . may . . . within 60 days after the redetermination but not thereafter, file with the . . . [Tax Appeals] [C]ommission a petition for review of the action of the department of revenue . . . . [Emphasis added.]

Also see § 71.88(2)(a).

Petitioners were served the redetermination ("Notice of Action") letter of the Department on February 10, 2003. Under §§ 71.88(2)(a) and 73.01(5)(a), appeals to the Commission must be made within 60 days after petitioners' receipt of the Department's action. In this case, the 60-day period expired on April 11, 2003. Petitioners filed their appeal with the Commission on April 18, 2003, one week after the final day for filing.

The statutes cited above are clear and unambiguous. The requirement of timely filing has been strictly construed by the Commission and the judiciary. See, Alice Keith v. Dep't of Revenue, Docket No. 03-I-90 (WTAC July 14, 2003), and McDonald Lumber Co. v. Dep't of Revenue, 117 Wis. 2d 446 (1984).

In petitioners' letter brief, Mr. Ozuna stated that the reason for the late filed petition for review is that petitioners "are Spanish language speakers only and were unable to read or understand the correspondence" of the Department. (Petitioners' Letter Brief, para. two.) However, the Commission has no authority under the statutes to ignore or make exceptions to the 60-day provision. Even if it wanted to, the Commission cannot act on an appeal filed after the due date, other than to dismiss it for lack of timely filing.

IT IS ORDERED

The Department's motion is granted, and petitioners' petition for review is dismissed.

Dated at Madison, Wisconsin, this 11th day of September, 2003.

WISCONSIN TAX APPEALS COMMISSION

__________________________________________

Don M. Millis, Commission Chairperson

__________________________________________

Thomas M. Boykoff, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"