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STATE OF WISCONSIN

TAX APPEALS COMMISSION


KEITH W. WHEELER

W7870 Highway B

Lake Mills, WI 53551,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8907

Madison, WI 53708-8907,

Respondent.

DOCKET NO. 05-W-219

RULING AND ORDER

DIANE E. NORMAN, 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 filed a reply brief. Respondent is represented by Attorney Donald J. Goldsworthy, and has filed affidavits with exhibits and a brief in support of its motion.

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

FACTS

1. Respondent issued two tax assessment notices to petitioner, dated April 3, 2001 and February 14, 2003, for withholding tax, interest, and penalty due as an officer, employe, or other responsible person of Humentity, Inc. (the "Assessments").

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

3. Petitioner does not dispute that the withholding taxes stated in the Assessments are due, and has consented to garnishment of his wages to pay the overdue taxes.

4. On December 14, 2005, petitioner filed a petition for review with the Commission, in which he admitted that he owed the taxes as stated in the Assessments, but disputed the manner in which respondent was collecting the taxes as being in violation of Wisconsin Statutes and the U. S. and Wisconsin Constitutions.

5. On January 19, 2006, respondent filed with the Commission a Notice of Motion and Motion and an Alternative Answer, with accompanying affidavits and exhibits, to dismiss the petition for review based on (A) petitioner's failure to file a petition for redetermination with respect to the Assessments, making them final and conclusive, and (B) the Commission's lack of jurisdiction over respondent's collection of delinquent taxes.

6. On February 14, 2006, petitioner filed a brief in response to respondent's motion.

7. On February 22, 2006, respondent filed a brief in support of the Motion to Dismiss.

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 the 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)(a).

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. �� 71.88(2)(a) and 77.59(6)(b).

Petitioner does not dispute that he failed to file a petition for redetermination with respondent. Nor does petitioner dispute that delinquent taxes are owed in this matter and that he is the responsible party for the unpaid taxes. Petitioner is attempting to dispute the delinquent tax collection procedure as applied to him. He alleges that the tax collection procedure is in violation of Wis. Stats. �� 71.91(7)(b) and 71.83(1)(b)2, as well as the U. S. and Wisconsin Constitutions.

The statutes cited by petitioner relate to collection matters, and 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). The Commission's jurisdiction is limited to those sections of the tax laws specifically enumerated in Wis. Stat. � 73.01(4)(a), and �� 71.91(7)(b) and 71.83(1)(b)2 are clearly not among those sections enumerated. Evert v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-082 (WTAC 1994).

Since the Commission lacks jurisdiction over tax collection by respondent, the constitutional issues raised by petitioner in his petition for review cannot be addressed by the Commission. The constitutional issues raised by petitioner only relate to the collection of delinquent taxes by respondent.

The Assessments are now final and conclusive, and are subject to collection by respondent. Because petitioner did not file a petition for redetermination with respondent with respect to either of the Assessments, the Commission lacks jurisdiction over the petition for review.

ORDER

Respondent's motion 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 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"