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STATE OF WISCONSIN

TAX APPEALS COMMISSION


JAMES E. AND SHARON WILLIAMS

3083 W. Mason St.

Green Bay, WI 54313,

Petitioners,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708-8907,

Respondent.

DOCKET NO. 05-I-85

RULING AND ORDER

DAVID C. SWANSON, COMMISSIONER:

This matter comes before the Commission on a motion filed by the Wisconsin Department of Revenue ("respondent") to dismiss the petition for review for lack of jurisdiction. Both parties have filed supporting papers with respect to respondent's motion. Petitioners appear pro se. Respondent is represented by Attorney Mark S. Zimmer.

Based on the submissions of the parties and the entire record in this matter, the Commission finds, concludes, rules, and orders as follows:

FACTS

1. Under the date of October 4, 2004, respondent issued an income tax assessment against petitioners in the amount of $3,915.15 (the "Assessment").

2. Petitioners did not file a petition for redetermination or otherwise appeal the Assessment with the respondent. The Assessment subsequently became final, and respondent set up a delinquent tax account for the Assessment on December 24, 2004.

3. By letter dated March 28, 2005, respondent notified petitioners that an installment payment plan had been approved, and a copy of the related installment agreement (the "Agreement") was enclosed with the letter. The Agreement provided for petitioners to make payments of $220.00 per month toward satisfaction of the Assessment.

4. On May 10, 2005, respondent received a payment of $250.00 from petitioners, which respondent applied to the Assessment.

5. On May 23, 2005, petitioners filed a petition for review with the Commission appealing the Assessment and Agreement, with an unsigned copy of the Agreement attached.

6. On June 22, 2005, respondent filed with the Commission a notice of motion, and accompanying affidavit, to dismiss the petition for review based on petitioners' failure to file a petition for redetermination and the Commission's lack of jurisdiction over respondent's collection of delinquent taxes.

7. On September 8, 2005, petitioners filed a response to respondent's motion to dismiss.

8. On November 4, 2005, respondent filed a reply brief.

CONCLUSIONS OF LAW

1. The Commission lacks jurisdiction over this petition for review because petitioners never filed a petition for redetermination with respondent and, thus, were not aggrieved by respondent's redetermination, a requirement necessary to confer jurisdiction on the Commission under Wis. Stat. 73.01(5).

2. The Commission does not have jurisdiction to review respondent's collection actions with respect to delinquent tax accounts and installment agreements.

RULING

The Commission has jurisdiction to review actions of the respondent pursuant to a timely petition for review filed by any person "who has filed a petition for redetermination with the department of revenue and who is aggrieved by the redetermination of the department of revenue . . . ." Wis. Stat. 73.01(5)(a). Except for certain claims for refund, "if no petition for redetermination is made within the time provided the assessment, refund, or denial of refund shall be final and conclusive." Wis. Stat. 71.88(2)(a). Finally, the Commission does not have jurisdiction over respondent's collection of delinquent taxes. Beck v. Dep't of Revenue, Wis. Tax Rptr. CCH ¶400-275 (WTAC 1997).

If petitioners had timely petitioned the respondent for a redetermination of the Assessment and subsequently filed a timely petition for review with the Commission, the Commission could have addressed the questions raised by petitioners regarding the tax liability underlying the Assessment. However, that is not the case here. Petitioners never filed a petition for redetermination with respondent, and did not otherwise attempt to appeal the Assessment with respondent. After the Assessment became final, petitioners even made a payment under the installment Agreement approved by respondent.

Because petitioners did not file a petition for redetermination with respondent and did not request review until the Assessment was final and subject to collection by respondent, the Commission lacks jurisdiction over the petition for review. This is not a matter for discretion; the Commission has no choice in the matter.

ORDER

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

Dated at Madison, Wisconsin, this 3rd day of February, 2006.

WISCONSIN TAX APPEALS COMMISSION

Jennifer E. Nashold, Chairperson

Diane E. Norman, Commissioner

David C. Swanson, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"