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STATE OF WISCONSIN

TAX APPEALS COMMISSION


BOESEN MILWAUKEE, LLC

3422 Beaver Avenue

Des Moines, IA 50310,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708-8907,

Respondent.

DOCKET NO. 05-S-115

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. Petitioner appears pro se and has not responded to respondent's motion. Respondent is represented by Attorney Lili Best Crane and has filed an affidavit with exhibits in support of its motion.

Based on the motion of respondent, supporting documents, and the entire record in this matter, the Commission finds, concludes, rules, and orders as follows:

FACTS

1. Respondent issued 36 separate tax assessment notices to petitioner between January 2002 and June 2005 based on late-filed or non-filed (estimated) sales and exposition tax returns (the "Assessments").

2. Petitioner did not file a petition for redetermination or otherwise appeal any of the Assessments with respondent within the 60-day period mandated by Wis. Stat. 77.59(6), each of which consequently became final and conclusive. Respondent set up a delinquent tax account for each of the Assessments.

3. Petitioner subsequently filed most of the required returns past due and began paying amounts due pursuant to the Assessments.

4. Petitioner and respondent attempted to settle the amounts due under the Assessments, but failed to reach an agreement.

5. On July 1, 2005, petitioner filed a petition for review with the Commission appealing a number of the Assessments. Petitioner attached to the petition copies of payment schedules and correspondence with respondent related to the Assessments, but did not attempt to organize this information with respect to any Assessment. The petition refers to the Assessments by "delinquency number" rather than by date or amount, making it virtually impossible to discern which Assessments are being appealed; however, petitioner refers to approximately 17 separate contested delinquencies, which appear to be the Assessments submitted for review (the "Appealed Assessments").

6. By letter dated July 5, 2005, the Commission advised petitioner that the petition did not appear to be appealing a redetermination issued by respondent and that the Commission therefore may not have jurisdiction to consider the petition pursuant to Wis. Stat. 73.01(5)(a). The Commission also requested that petitioner pay the $25.00 filing fee due in connection with the petition by July 18, 2005, but further advised petitioner that respondent would "very likely bring a motion to dismiss your petition based on a lack of jurisdiction by the Commission." At that time, petitioner still had time under Wis. Stat. 77.59(6) to petition respondent for a redetermination of any Assessment issued within the previous 60 days (i.e., most of May and all of June 2005).

7. On July 18, 2005, petitioner paid the $25.00 filing fee due in connection with the petition and reiterated its request that the Commission consider its petition, without addressing the Commission's jurisdictional concerns.

8. On October 14, 2005, respondent filed with the Commission a Notice of Motion and motion, with accompanying affidavit and exhibit, to dismiss the petition for review based on (A) petitioner's failure to file a petition for redetermination with respect to any Assessment and (B) the Commission's lack of jurisdiction over respondent's collection of delinquent taxes.

9. On October 21, 2005, respondent filed a brief with affidavit and exhibit in support of its motion.

10. Petitioner did not file a response to respondent's motion.

CONCLUSIONS OF LAW

1. The Commission lacks jurisdiction over this petition for review because petitioner never filed a petition for redetermination with respondent in connection with any of the Appealed Assessments, and thus was not aggrieved by respondent's redetermination, which is required 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.

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. 77.59(6)(b) and 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 petitioner had timely petitioned respondent for a redetermination of any of the Assessments and subsequently filed a timely petition for review with the Commission, the Commission could have addressed the questions raised by petitioner regarding the tax liability underlying that Assessment. However, that is not the case here. Petitioner never filed a petition for redetermination with respondent with respect to any of the Appealed Assessments. The Appealed Assessments are now final and conclusive and subject to collection by respondent. Because petitioner did not file a petition for redetermination with respondent with respect to any Appealed Assessment, the Commission lacks jurisdiction over the petition for review.

ORDER

Respondent's motion to dismiss is granted on the basis that the Commission lacks jurisdiction in this matter, and the petition for review is dismissed.

Dated at Madison, Wisconsin, this 21st 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"