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


[WP]

STATE OF WISCONSIN

TAX APPEALS COMMISSION


GABRIEL F. DE RANGO

c/o Oshkosh Correctional Institution

P.O. Box 3310

Oshkosh, WI 54903,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708-8907,

Respondent.

DOCKET NOS. 98-I-149
and 98-I-190

RULING AND ORDER


DON M. MILLIS, COMMISSION CHAIRPERSON:

These matters come before the Commission on respondent's motions to dismiss. Respondent contends that the Commission lacks subject matter jurisdiction over the petitions for review because, in Docket No. 98-I-149, the underlying claim for refund was filed too late and, in Docket No. 98-I-190, the petition for review was filed too early. Respondent has submitted briefs in support of its motions. Petitioner has not addressed the substance of the motions.

Petitioner represents himself.(1) Respondent is represented by Attorney Robert C. Stellick, Jr.

Based on the submissions of the parties and the entire record in these matters, the Commission hereby finds, concludes, rules, and orders as follows:

UNDISPUTED MATERIAL FACTS

Docket No. 98-I-149

1. Petitioner filed his original 1992 Wisconsin income tax return in April of 1993.

2. On or about June 21, 1997, petitioner filed an amended 1992 Wisconsin income tax return ("1992 Refund Claim") dated June 6, 1997.

3. Respondent denied the 1992 Refund Claim on the basis that it was filed more than 4 years following the unextended due date of the original 1992 return, April 15, 1993.

4. Petitioner filed a timely petition for redetermination objecting to the denial of the 1992 Refund Claim. The petition for redetermination was denied by respondent.

5. Petitioner filed a timely petition for review with the Commission that was assigned Docket No. 98-I-149.

Docket No. 98-I-190

6. Petitioner filed his original 1996 Wisconsin income tax return, dated April 15, 1997, in April or May of 1997.

7. Petitioner filed an amended 1996 Wisconsin income tax return ("1996 Refund Claim"), dated June 6, 1997, and received by respondent on June 23, 1997.

8. Under the date of October 31, 1997, respondent denied the 1996 Refund Claim.

9. Petitioner filed a timely petition for redetermination with the respondent objecting to the denial of the 1996 Refund Claim.

10. On April 29, 1998, petitioner and respondent agreed to extend the due date to May 11, 1999 for respondent to act on the petition for redetermination.

11. On July 16, 1998, petitioner filed a petition for review with the Commission with respect to his 1996 Refund Claim. This petition for review was assigned Docket No. 98-I-190.

12. Under the date of May 11, 2001, respondent denied petitioner's petition for redetermination with respect to the 1996 Refund Claim.

13. Petitioner subsequently filed a timely petition for review appealing the May 11, 2001 denial of his petition for redetermination on the 1996 Refund Claim. This timely petition for review was assigned Docket No. 01-I-96 and is not a part of these proceedings.

CONCLUSIONS OF LAW

1. The Commission lacks subject matter jurisdiction over the 1992 Refund Claim in Docket No. 98-I-149 because the claim was filed more than 4 years following the unextended due date of the original 1992 Wisconsin income tax return. Wis. Stat. § 71.75(2).

2. The Commission lacks subject matter jurisdiction over the petition for review in Docket No. 98-I-190 because it was filed before respondent acted on the petition for redetermination. Wis. Stat. § 73.01(5)(a).

RULING

Petitioner has not offered any evidence or argument to challenge these motions. Because he is incarcerated, he requested a stay of these proceedings pending his release. The Commission granted this request based on petitioner's assertion that he was unable to prosecute his claims while incarcerated. The stay was subsequently lifted when petitioner commenced an action in federal court against respondent, belying his assertion that he was unable to prosecute his cases.

Petitioner is involved in two other dockets pending before the Commission. However, because respondent's motions in those dockets pertain to the merits of the claims, and because petitioner is seeking documentation from the federal government to prosecute his appeal in those dockets, the Commission has allowed petitioner an extended period of time to respond to respondent's motions in those dockets.

Docket No. 98-I-149

Petitioner offers no defense to respondent's motion that the 1992 Refund Claim was filed after the 4-year statute of limitations in section 71.75(2) of the Statutes. Because the 1992 Refund Claim was not timely filed, the Commission lacks subject matter jurisdiction over the petition for review.

Docket No. 98-I-190

The petition for review in Docket No. 98-I-190 was filed while the petition for redetermination objecting to the denial of the 1996 Refund Claim was pending before respondent and was filed nearly 3 years prior to respondent's action on the petition for redetermination. In fact, in Docket No. 01-I-96, which is not the subject of this Ruling and Order, petitioner has filed a petition for review appealing respondent's denial of this petition for redetermination. The Commission lacks subject matter jurisdiction over an appeal that is filed prior to the time of respondent's action on redetermination. McCollum v. Dep't of Revenue, Docket No. 01-I-136, Slip Op. at 2 (WTAC Nov. 27, 2001).

ORDER

Respondent's motions to dismiss are granted, and the petition for review in each of the above-captioned dockets is dismissed.

Dated at Madison, Wisconsin, this 2nd 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"

1 Petitioner was previously represented by counsel in Docket No. 98-I-190, but counsel has withdrawn.