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


[WP]

STATE OF WISCONSIN

TAX APPEALS COMMISSION


ALICE KEITH

1851 N. 28th Street

Milwaukee, WI 53208-2008,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708-8907,

Respondent.

DOCKET NO. 03-I-90

RULING AND ORDER
GRANTING MOTION
TO DISMISS


THOMAS M. BOYKOFF, COMMISSIONER:

This matter comes before the Commission on the motion of the respondent, Wisconsin Department of Revenue ("Department"), to dismiss petitioner's petition for review because it was not filed within 60 days after petitioner's receipt of the Department's action on her petition for redetermination, as required by Wis. Stat. §§ 71.88(2)(a) and 73.01(5)(a).

Petitioner represents herself. The Department is represented by Deputy Chief Counsel Robert J. Hackman.

With its motion, the Department submitted an affidavit and exhibits. A letter and attachments(1) on behalf of petitioner was filed by her daughter, Katherine Keith. The Department filed a reply brief.

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

1. Under date of July 8, 2002, the Department issued an assessment to petitioner for $9,154.61, consisting of income tax and interest.

2. Under date of September 9, 2002, petitioner filed a petition for redetermination with the Department in which she requested a copy of the Department's previous letter to her asking for additional information. The record does not reflect whether the Department sent petitioner a copy of the letter, nor if she supplied to the Department any additional information requested in the letter.

3. Under date of December 30, 2002, and received by petitioner on January 2, 2003, the Department issued its Notice of Action denying the petition for redetermination. The Notice of Action states that petitioner had not supplied any additional information requested.

4. On March 31, 2003, petitioner filed a petition for review with the Commission, merely stating "not my fault."

5. The 60-day period for filing a timely petition for review with the Commission under Wis. Stat. § 73.01(5)(a) expired on March 3, 2003, 28 days prior to petitioner filing her petition.

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 of 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).

Petitioner received the redetermination ("Notice of Action" letter) of the Department on January 2, 2003. Under §§ 71.88(2)(a) and 73.01(5)(a), appeals to the Commission must be made within 60 days of petitioner's receipt of the Department's action. The 60-day period expired on March 3, 2003. Petitioner filed her appeal with the Commission on March 31, 2003, 28 days 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 by the judiciary. See, McDonald Lumber Co. v. Dep't of Revenue, 117 Wis. 2d 446 (1984). The Commission has no authority under the statutes to ignore or make exceptions to the 60-day provision. Even if the Commission wanted to, it could not act on an appeal filed with it after the due date other than to dismiss it for lack of timely filing.

IT IS ORDERED

That respondent's motion is granted, and petitioner's petition for review is dismissed.

Dated at Madison, Wisconsin, this 14th day of July, 2003.

WISCONSIN TAX APPEALS COMMISSION

Don M. Millis, Chairperson

Thomas M. Boykoff, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"

1 None of these address the issue of petitioner's late filing of the petition for review.