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STATE OF WISCONSIN

TAX APPEALS COMMISSION


JOHN C. STUBLER

2311 La Crosse Street

La Crosse, WI 54601-3874,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708-8907,

Respondent.

DOCKET NO. 05-I-198

RULING AND ORDER

DAVID C. SWANSON, COMMISSIONER:

This case comes before the Commission on the motion of the Wisconsin Department of Revenue (" respondent" ) to dismiss the petition for review on the basis that it was not timely filed under Wis. Stat. � 73.01(5)(a).

Petitioner represents himself and has filed no objection to the motion. Attorney Donald J. Goldsworthy represents respondent, and has filed an affidavit with exhibits and a brief in support of the motion.

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

MATERIAL FACTS

1. By notice dated January 10, 2005, respondent issued an assessment of income tax, interest, penalties, and fees to petitioner in the total amount of $6,858.71 for tax year 2002.

2. Under date of March 10, 2005, petitioner filed with respondent a timely petition for redetermination of the assessment.

3. By certified mail dated September 9, 2005, respondent issued a Notice of Action to petitioner denying the petition for redetermination. Petitioner signed for and received the Notice of Action on September 24, 2005.

4. On November 28, 2005, petitioner filed his petition for review with the Commission. The petition was dated November 24, 2005 and was mailed by ordinary mail postmarked November 25, 2005.

5. On December 23, 2005, respondent filed a motion to dismiss the petition for review on the basis of untimely filing.

6. On December 28, 2005, the Commission issued a Briefing Order scheduling briefs on the motion. Respondent filed a brief with affidavit and exhibits in support of its motion on January 27, 2006; petitioner failed to file any response to the motion.

RULING

Section 73.01(5)(a) of the Wisconsin Statutes requires that a petition for review be filed with the Commission within 60 days of receipt of respondent's Notice of Action on a petition for redetermination. A petition sent by ordinary mail is considered filed on the date on which the petition and filing fee are received by the Commission. Wis. Admin. Code � TA 1.13. The requirement of timely filing has been strictly interpreted by the Commission and by the judiciary. See McDonald Lumber Co. v. Dep't of Revenue, 117 Wis. 2d 446 (1984).

Petitioner received the Notice of Action from respondent on September 24, 2005. Thus, the 60-day period permitted under Wis. Stat. � 73.01(5)(a) for petitioner to file a timely petition for review with the Commission expired on November 23, 2005. Petitioner dated his petition for review November 24, 2005, one day after the expiration of the 60-day period, and mailed it by ordinary mail on November 25, 2005, as evidenced by the date stamp placed on the envelope by the United States Postal Service. The Commission received and filed the petition for review on November 28, 2005, five days past the 60th day for filing a timely petition for review in this case.

Petitioner did not file his petition for review with the Commission within 60 days after receipt of the Notice of Action on his petition for redetermination. The Commission has no authority under the Wisconsin Statutes to ignore or make exceptions to the 60-day provision. The Commission cannot act on a petition for review filed with it after the statutory due date other than to dismiss it for lack of timely filing.

ORDER

Respondent's motion is granted, and the petition for review is dismissed.

Dated at Madison, Wisconsin, this 5th day of May, 2006.

WISCONSIN TAX APPEALS COMMISSION

Jennifer E. Nashold, Chairperson

Diane E. Norman, Commissioner

David C. Swanson, Commissioner

ATTACHMENT: " NOTICE OF APPEAL INFORMATION"