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STATE OF WISCONSIN

TAX APPEALS COMMISSION


CRAFTSMEN UNITED

1550 N. Prospect Avenue

Milwaukee, WI 53202,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708-8907,

Respondent.

DOCKET NO. 05-S-214

RULING AND ORDER

DIANE E. NORMAN, COMMISSIONER:

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

Petitioner is represented by its president, Peter J. Van Slett, who has filed an affidavit with exhibits and a response objecting to the motion. Attorney Robert C. Stellick, Jr., represents the Department, and has filed an affidavit with exhibits, a brief, and a reply brief in support of the motion.

Having considered the entire record, the Commission hereby finds, rules, and orders as follows:

FACTS

1. The Department issued an assessment of sales and use tax plus interest to petitioner for tax years 1996-2001, dated August 11, 2003, in the amount of $38,721.74.

2. Petitioner filed with the Department a timely petition for redetermination of the assessment, dated October 3, 2003.

3. By letter dated September 22, 2004, the Department issued a Notice of Action in which the petition for redetermination was granted in part and denied in part. The Notice of Action stated that petitioner owed taxes and interest in the amount of $40,886.08. Petitioner received the Notice of Action on September 23, 2004.

4. On October 10, 2005, the Department sent petitioner a Notice of Hearing scheduling a delinquent tax hearing for October 25, 2005 on petitioner's failure to pay the tax due.

5. On November 15, 2005, Peter J. Van Slett, president of petitioner, spoke with Randy Stilling of the Department and stated petitioner's objections to the delinquent tax assessment. By letter dated November 16, 2005 to Mr. Stilling, Mr. Van Slett stated that petitioner continued to dispute whether or not it owed the sales tax and interest for tax years 1996-2001.

6. On December 14, 2005, the clerk of the Commission received a certified mail envelope from petitioner containing a letter dated December 8, 2005 stating that it enclosed a copy of an appeal letter sent October of 2004 and the $25 filing fee. The envelope also contained a copy of a letter dated October 7, 2004 that reads as follows:

October 7, 2004

To Whom It May Concern

WI Tax Appeals Commission

5005 University Ave., Suite 110

Madison, WI 53705

Fax # Pages

Main #

RE: Craftsmen United. Inc.

Dear To Whom It May Concern,

In response [to] the Wisconsin Department of Revenue letter dated 9.23.04

I am requesting an appeal regarding the sales tax assessment for all Wisconsin based firms during the audit period. It is unrealistic to expect myself or anyone with their best intentions to comply with the law correctly if the requirements are ambiguous, the application of the law is inconsistent, enforcement of the law is inconsistent and the department's own personnel teach incorrect tax reporting methods exposing me to tax liabilities and interest. Enclosed is my letter to the Resolution Unit.

Sincerely,

(signed)

Peter J. Van Slett, President

7. Mr. Van Slett stated in an affidavit that he personally delivered the petition for review to a mailbox in front of the post office near the corner of Van Buren and Juneau in Milwaukee, Wisconsin, on the evening of October 7, 2004, but there is no proof that the petition for review was filed with the Commission prior to December 14, 2005.

8. The Commission has no record of having received the letter from petitioner dated October 7, 2004 until its enclosure with the petitioner's letter dated December 8, 2005.

9. On January 13, 2006, the Department filed its motion, along with affidavits and exhibits, to dismiss the petition on the basis of untimely filing.

10. On January 18, 2006, the Commission issued a Briefing Order scheduling briefs on the motion. The Department filed its brief on February 6, 2006, petitioner filed an affidavit with exhibits on February 13, 2006, the Department filed its reply brief on February 24, 2006, and petitioner filed a response on March 13, 2006.

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 the Department's notice of action on a petition for redetermination. In this case, the 60th day was November 22, 2004. As stated in David A. and Jane L. Alexander v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-650 (WTAC 2002), this means the petition had to " either be physically filed with the Commission by this date or 'mailed by certified mail in a properly addressed envelope, with postage duly prepaid, which envelope is postmarked before midnight'" of November 22, 2004. The Commission and courts have consistently required strict compliance with the time limitations set forth in Wis. Stat. � 73.01(5)(a). Kurtis and Donna Borre v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-540 (WTAC 2001), and cases cited therein. Failure to comply with the statutory time limitations deprives the Commission of subject matter jurisdiction. Id.

In this case, the Department issued to petitioner a Notice of Action on the petition for redetermination on September 22, 2004, and petitioner received it on September 23, 2004. Petitioner did not file a petition for review with the Commission within 60 days after receiving the Notice of Action. Instead, the petition for review was filed with the Commission on December 14, 2005, over a year later.

Petitioner asserts that the petition for review was actually mailed on October 7, 2004. Although October 7, 2004 is the date typed on the letter attached to petitioner's December 8, 2005 letter, and petitioner states that the October 7, 2004 letter was mailed on that same date, the letter dated October 7, 2004 was not received in the office of the Commission until December 14, 2005, along with the filing fee.

. . . [T]he filing of a petition does not occur upon its (first class) mailing. . . . a petitioner remains solely responsible for assuring that the petition is physically received and filed by the clerk in a timely fashion in order to vest jurisdiction; the risk of potential vagaries in mail delivery . . . must be assumed if that method of transmittal is chosen.

Edward Mischler v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 202-159 (WTAC 1983).

It is petitioner's responsibility to prove that the Commission received its letter dated October 7, 2004 within 60 days of receipt (November 22, 2004) of the Department's notice of action on the petition for redetermination. Petitioner has not provided this proof, and the Commission has no record of having received the letter from petitioner dated October 7, 2004 until its enclosure with petitioner's letter dated December 8, 2005, over a year later.

If the petition for review had been sent to the Commission on October 7, 2004, as alleged by petitioner, it is strange that petitioner then re-sent the petition and filing fee over a year later, after petitioner had received the Notice of Hearing from the Department regarding the delinquent tax and after petitioner had met with the Department on November 15, 2005 about this delinquency. The Commission will not speculate as to why the petition for review was sent in after petitioner's meeting with the Department about the delinquent taxes. For whatever reason, and unfortunately for petitioner, by that time the November 22, 2004 deadline for filing a timely petition was already well past.

Petitioner did not file its petition for review with the Commission within 60 days after receipt of the Department's Notice of Action on its petition for redetermination. Therefore, the Commission lacks jurisdiction over the appeal and must grant the Department's motion to dismiss.

ORDER

The Department's motion is granted, and the petition for review is dismissed on the basis that it was not timely filed.

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"