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STATE OF WISCONSIN

TAX APPEALS COMMISSION


CHRIS C. AND LINDA M. CULVER

1688 178th Avenue

Bloomer, WI 54724

DOCKET NO. 04-I-60

SCOTT T. CULVER

2262 County Road A

Bloomer, WI 54724

DOCKET NO. 04-I-61

DENNIS C. AND PATSY L. CULVER

17787 County Road DD

Bloomer, WI 54724,

DOCKET NO. 04-I-62

Petitioners,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708-8907,

Respondent.

RULING AND ORDER

JENNIFER E. NASHOLD, CHAIRPERSON:

These matters come before the Commission on the motion filed by respondent, Wisconsin Department of Revenue (Department), to dismiss the petitions for review based on petitioners' failure to prosecute their appeals and failure to comply with Commission orders, Wis. Stat. 805.03 and 802.10(7).

Petitioners are represented by James L. Wilson, of Wilson Consultants, Inc., and have not submitted a response to the motion. The Department is represented by Attorney Mark S. Zimmer, who filed an affidavit with exhibits and a letter brief in support of the motion.

Having considered the entire record, including the motion, affidavit, exhibits, and brief of the Department, the Commission hereby finds, rules, and orders as follows:

FACTS

1. Under the date of February 3, 2003, the Department issued Notices of Amount Due for tax years 1998, 1999, and 2000 in the total amounts of $9,807.15 against Chris C. and Linda M. Culver, $4,205.67 against Scott T. Culver, and $7,646.14 against Dennis C. and Patsy L. Culver.

2. Under date of March 4, 2003, Mr. Wilson filed a joint petition for redetermination with the Department on behalf of petitioners.

3. By Notices of Action dated March 4, 2004, the Department denied the joint petition for redetermination.

4. On March 12, 2004, Mr. Wilson filed timely petitions for review with the Commission on petitioners' behalf.

5. At a telephone scheduling conference held on September 2, 2004, Mr. Wilson informed the Commission that petitioners had a case pending in federal Tax Court. The Scheduling Conference Memorandum and Order, dated September 3, 2004, memorialized that Mr. Wilson "shall keep respondent informed of hearing dates in Federal tax court on their pending case." The Order set a telephone status conference for July 12, 2005, and further stated:

IT IS ORDERED

That the parties or their representatives shall participate in this 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.

6. On July 12, 2005, the Commission held the telephone status conference, at which the Department appeared by Attorney Zimmer. No one appeared on behalf of petitioners. Attorney Zimmer represented that petitioners failed to keep the Department informed of hearing dates in federal Tax Court, as agreed to at the September 2, 2004 conference. The Commission issued a Status Conference Memorandum on July 13, 2005 which set another telephone status conference for September 20, 2005, and further stated, in part:

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 petitions for review.

7. The telephone status conference was held on September 20, 2005, at which Attorney Zimmer appeared. No one appeared on behalf of petitioners.

8. On October 11, 2005, the Department filed a motion to dismiss based on petitioners' failure to prosecute their appeals and failure to comply with the Commission's orders.

9. The Commission issued a Briefing Order on October 14, 2005, ordering petitioners to file a response within 30 days of the filing of the Department's brief in support of its motion. The Department submitted a letter brief in support of its motion on November 15, 2005. Petitioners failed to file any response.

10. In his affidavit in support of the motion to dismiss, Attorney Zimmer represents that neither Mr. Wilson nor petitioners ever provided the Department with any additional information regarding the hearing dates in federal Tax Court.

RULING

Wisconsin Statutes 805.03 provides as follows:

Failure to prosecute or comply with procedure statutes. For failure of any claimant to prosecute or for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court in which the action is pending may make such orders in regard to the failure as are just, including but not limited to orders authorized under s. 804.12(2)(a). Any dismissal under this section operates as an adjudication on the merits unless the court in its order for dismissal otherwise specifies for good cause shown recited in the order. A dismissal on the merits may be set aside by the court on the grounds specified in and in accordance with s. 806.07. A dismissal not on the merits may be set aside by the court for good cause shown and within a reasonable time.

Wisconsin Statutes 804.12(2)(a) provides for a number of sanctions for failure to prosecute or comply with procedure, including dismissal of the action or proceeding. In addition, Wis. Stat. 802.10(7) states that "[v]iolations of a scheduling or pretrial order are subject to ss. 802.05, 804.12 and 805.03."

The Commission has held two telephone conferences in these matters at which neither petitioners nor their representative appeared, despite being ordered to do so and despite being informed that their appeals could be subject to dismissal for failure to appear. Furthermore, petitioners have failed to keep the Department aware of pending hearing dates in their federal Tax Court case, as instructed to do in the September 3, 2004 Scheduling Order. Indeed, petitioners have done nothing to move these cases forward since the telephone status conference held over a year ago on September 2, 2004.

In not appearing at the scheduled conferences, not keeping the Department informed of the status of their federal Tax Court case, and not acting on their cases before the Commission in any way for over a year, petitioners have failed to comply with the Commission's orders dated September 3, 2004 and July 13, 2005, and have also failed to prosecute their cases. Accordingly, the Department has shown good cause for granting its motion to dismiss on these grounds.

IT IS ORDERED

The Department's motion is granted, and petitioners' petitions for review are 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"