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STATE OF WISCONSIN

TAX APPEALS COMMISSION


LAVERNE BENNETT

4548 N. Teutonia

Milwaukee, WI 53209-6255,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P. O. Box 8907

Madison, WI 53708-8907,

Respondent.

DOCKET NO. 04-I-253

RULING AND ORDER


JENNIFER E. NASHOLD, CHAIRPERSON:

This matter comes before the Commission on a motion filed by respondent, Wisconsin Department of Revenue (Department), to dismiss the petition for review based upon petitioner's failure to comply with Commission orders and failure to prosecute her petition.

Petitioner, Laverne Bennett, represents herself and has not filed a response to the motion. The Department is represented by Attorney Lili Best Crane, who filed an affidavit with exhibits along with her motion to dismiss.

Based on the motion of the Department and the entire record in this matter, the Commission hereby finds, rules, and orders as follows:

MATERIAL FACTS

1. Under date of October 13, 2003, the Department issued an income tax assessment against petitioner in the total amount of $10,448.99 for tax years 1999-2002.

2. By letter dated October 22, 2003, petitioner filed a petition for redetermination of the assessment with the Department.

3. By Notice of Action dated July 28, 2004, the Department denied petitioner's petition for redetermination. The Notice of Action was personally served on petitioner on October 7, 2004.

4. On October 26, 2004, petitioner filed a petition for review with the Commission.

5. On November 17, 2004, the Department filed its Answer to the petition.

6. On February 17, 2005, the Commission issued a Notice of Telephone Scheduling Conference setting a telephone conference for April 19, 2005. The Notice reads, in pertinent part:

NOTICE TO PETITIONER

Unless included with the petition for review, AT LEAST ONE WEEK PRIOR to the time stated in this notice, you or your representative shall notify the Commission (in writing or by telephone) of the area code and telephone number where you or your representative can be reached for the telephone conference. If the Commission is unable to reach you or your representative by telephone, the conference will proceed, and the petition for review will be subject to dismissal, pursuant to Wis. Stat. 802.10(7) and 805.03.

7. The Commission held the April 19, 2005 telephone conference, at which the Department appeared by Attorney Crane. Petitioner failed to provide her telephone number and failed to appear at the telephone conference.

8. On April 20, 2005, the Commission issued a Status Conference Memorandum and Order scheduling a second telephone status conference for May 3, 2005. The Memorandum states, in pertinent part:

Ms. Bennett did not appear at the scheduled conference. Attorney Crane indicated that the Department's last contact with Ms. Bennett was February 22, 2005, when Ms. Bennett represented that she would provide the Department with her accountant's name. Ms. Bennett never provided that information.

Commissioner Nashold indicated that if Ms. Bennett failed to appear at the next scheduled conference or timely contact the Commission to re-schedule it, Commissioner Nashold would entertain the Department's motion to dismiss Ms. Bennett's petition for review.

IT IS ORDERED

(1) The parties or their representatives shall participate in the next scheduled status conference. Failure to comply with the terms of this order may result in any sanction authorized by law, including dismissal of the petition for review.

9. The Commission held the May 3, 2005 telephone conference, at which the Department appeared by Attorney Crane. Petitioner again failed to appear.

10. On May 5, 2005, petitioner telephoned the Commission, explained her failure to appear at the May 3, 2005 telephone conference, and requested another telephone conference.

11. On May 6, 2005, the Commission issued a Notice scheduling a third telephone conference for May 17, 2005. The Notice states, in part:

NOTICE IS FURTHER GIVEN That if petitioner fails to participate in the May 17, 2005 telephone conference, her petition for review will be dismissed for failure to prosecute and failure to comply with Commission orders.

12. The Commission held the May 17, 2005 telephone conference, at which petitioner and Attorney Crane appeared.

13. On May 18, 2005, the Commission issued a Status Conference Memorandum and Order setting a fourth telephone status conference for July 12, 2005. The Memorandum states, in part:

Ms. Bennett offered explanations for her failure to appear at the April 19 and May 3, 2005 status conferences. Attorney Crane represented that the Department did receive a recent letter from Ms. Bennett. She further stated that rather than pursuing her motion to dismiss Ms. Bennett's appeal, she would give Ms. Bennett the opportunity to meet with a Department auditor and agent to discuss the possibility of re-doing Ms. Bennett's taxes and determining a payment plan.

IT IS ORDERED

(1) Attorney Crane shall direct an auditor to contact Ms. Bennett at [her telephone number] to schedule a meeting between Ms. Bennett and Department representatives in Milwaukee.

(2) Ms. Bennett shall meet with the Department auditor and agent prior to the next-scheduled conference.

14. On July 8, 2005, petitioner telephoned the Commission and requested a postponement of the July 12, 2005 telephone conference, stating that she had been delayed in getting the papers requested of her by the Department's agent.

15. On July 12, 2005, the Commission issued a Notice postponing the telephone status conference and setting a fifth telephone status conference for August 16, 2005 to afford petitioner an opportunity to meet with the Department's resolution officer and provide the requested documentation.

16. On August 10, 2005, petitioner telephoned the Commission and requested that the August 16, 2005 telephone conference be postponed for 2-3 months to allow her time to provide the Department's agent with the requested information.

17. In response to an inquiry from the Commission's Legal Assistant, on August 11, 2005 the Department informed the Commission that its agent had not heard from petitioner since July 18, 2005.

18. On August 12, 2005, the Commission issued a Notice of Telephone Hearing setting this matter for hearing on September 26, 2005.

19. On September 15, 2005, petitioner telephoned the Commission and requested that the September 26, 2005 telephone hearing be postponed for 30 days.

20. On September 19, 2005, the Commission issued a Notice and Order which rescheduled the telephone hearing to November 3, 2005 and stated, in part:

IT IS ORDERED

1. No further postponements shall be granted to petitioner in this matter.

2. Petitioner shall appear by telephone for the hearing at 1:30 p.m. on November 3, 2005. If she fails to appear and participate in the hearing, the Commission shall issue a Ruling and Order dismissing her petition for review based upon a failure to prosecute her appeal.

21. The telephone hearing was held as scheduled on November 3, 2005, at which petitioner appeared in person and the Department appeared by Attorney Crane. During the preliminary portion of the hearing, petitioner hung up and did not participate further in the hearing.

22. On November 7, 2005, Attorney Crane filed a motion to dismiss. Attached to the motion was a revised assessment, which Attorney Crane stated the Department will honor at the close of petitioner's case before the Commission.

23. On November 8, 2005, the Commission issued a Briefing Order requiring petitioner to file a response to the motion no later than December 9, 2005. Petitioner failed to file a response.

RULING

Petitioner initiated this matter when she filed a petition for review with the Commission on October 26, 2004. Since that time, the Commission has scheduled 5 telephone conferences and 2 hearing dates in order to provide petitioner with an opportunity to prosecute her petition. In addition, the Department has made a good faith effort to work with petitioner to resolve her case.

The Commission has granted petitioner several postponements in order to allow more time for her to provide the Department with the information it has requested, but she failed to use such time to provide the information. Although petitioner initially participated in the telephone hearing on November 3, 2005, she hung up rather than attempt to provide the Department and the Commission with any information which would assist in the prosecution of her petition.

Petitioner has failed to comply with Commission orders and has clearly failed to prosecute her petition for review. Those failures constitute good cause for the Commission to grant the Department's motion to dismiss her petition pursuant to Wis. Stat. 805.03 and Wis. Admin. Code TA 1.39.

IT IS ORDERED

The Department's motion is granted, and the petition for review in this matter is dismissed.

Dated at Madison, Wisconsin, this 12th day of January, 2006.

WISCONSIN TAX APPEALS COMMISSION

Jennifer E. Nashold, Chairperson

Diane E. Norman, Commissioner

David C. Swanson, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"