STATE OF WISCONSIN
TAX APPEALS COMMISSION
|
WILLIAM C. AND JOANNE M. TORREY, Petitioners,
vs. WISCONSIN DEPARTMENT OF REVENUE, Respondent. | DOCKET NO. 14-I-165 |
RULING AND ORDER
LORNA HEMP BOLL, CHAIR:
This case comes before the Commission for decision on Respondent's Motion to Dismiss Petitioners' Petition for Review as untimely. The Petitioners, William C. and Joanne M. Torrey, of Marco Island, Florida, are represented by their accountant, Jeffrey B. Hanson of Superior, Wisconsin. The Respondent, the Wisconsin Department of Revenue ("the Department"), is represented by Attorney Peter D. Kafkas. The Department filed a brief and affidavit with exhibits in support of its Motion. Petitioners have declined to respond.
The Commission finds that the Petitioners' Petition for Review was not filed within the 60-day period. As such, it was not timely. Therefore, the Commission lacks jurisdiction and therefore must dismiss this matter.
FACTS
Jurisdictional Facts
1. On September 9, 2013, the Department issued to the Petitioners a Notice of Amount Due for the calendar years 2008 and 2010 in the amount of $2,919.83. (Dep't Ex. A.)
2. Petitioners filed a timely Petition for Redetermination, which was considered by the Department and denied in Department's Notice of Action dated March 20, 2014. Petitioners received the Notice of Action on March 24, 2013. (Dep't Exs B and C.)
3. The 60-day time period from the date of receipt of the Notice of Action denying the Petition for Redetermination expired on May 23, 2014.
4. On May 27, 2014, the Commission received Petitioners' Petition for Review by ordinary mail. (Commission file.)
5. On June 17, 2014, the Department filed a Motion to Dismiss, along with an affidavit with exhibits in support of the Motion. Petitioners have not submitted a response to the Motion. (Commission file.)
APPLICABLE LAW
A motion to dismiss will be granted if the Commission finds it does not have proper jurisdiction. Without jurisdiction to hear the matter, the Commission has no alternative other than to dismiss the action. See Alexander v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-650 (WTAC 2002). The specific statutes at issue here outline the requirements for filing a valid and timely petition for review with the Commission:
Wis. Stats. § 73.01(5)(a): Any person who is aggrieved . . . by the redetermination of the department of revenue may, within 60 days of the redetermination . . . but not thereafter, file with the clerk of the commission a petition for review of the action of the department of revenue. . . . For purposes of this subsection, a petition for review is considered timely filed if mailed by certified mail in a properly addressed envelope, with postage duly prepaid, which envelope is postmarked before midnight of the last day for filing.
Wis. Stat. § 71.88(2): Appeal of the department's redetermination of assessments and claims for refund. A person feeling aggrieved by the department's redetermination may appeal to the tax appeals commission by filing a petition with the clerk of the commission as provided by law and the rules of practice promulgated by the commission. If a petition is not filed with the commission within the time provided in s. 73.01 . . . the assessment, refund, or denial or refund shall be final and conclusive.
ANALYSIS
The Wisconsin Tax Appeals Commission lacks jurisdiction to hear an appeal in cases where a petitioner fails to file a timely Petition for Review with the Commission. Barth v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 401-527 (WTAC 2012).
The date on which a petition for review is "filed" with the Commission under Wis. Stat. § 73.01(5)(a) has consistently been held to be the date on which the petition has been physically received in the Commission office. See Edward Mischler v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 202-159 (WTAC 1983).
Unless otherwise provided by statute, a document is filed on the date it is received by the Commission, not the date it is mailed. See Laurence H. Grange v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-017 (Dane Co. Cir. Ct. 1993). The one exception in Wis. Stat. § 73.01(5)(a) states that a petition is timely if it is mailed (1) by certified mail (2) in a properly addressed envelope (3) with postage prepaid, and (4) postmarked before midnight of the last day for filing.
In this case, Petitions received the notice on March 24, 2014. Thus, their 60-day deadline to file expired on May 23, 2014. Petitioners mailed their Petition with a letter dated one day after that date. The Petition was sent by ordinary mail and was not received at the Commission until May 27, 2014, four days after the deadline allowed by statute.
Because the Petition was not timely filed, the Commission has no jurisdiction and must dismiss the Petition. This is not a matter for discretion; the Commission has no choice in the matter. Alexander v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-650 (WTAC 2002).
CONCLUSIONS OF LAW
1. The Notice of Action denying Petitioners' Petition for Redetermination became "final and conclusive" pursuant to Wis. Stat. § 71.88(2)(a) because the Petitioners failed to file the Petition for Review with the Commission within 60 days of the Notice.
2. The Commission lacks jurisdiction over the Petition for Review under Wis. Stat. § 73.01(5) because it was untimely. Therefore, the Department is entitled to dismissal as a matter of law.
ORDER
The Department's Motion to Dismiss is granted, and the Petition for Review is dismissed.
Dated at Madison, Wisconsin, this 27th day of August, 2014.
WISCONSIN TAX APPEALS COMMISSION
Lorna Hemp Boll, Chair
Roger W. LeGrand, Commissioner
David D. Wilmoth, Commissioner
ATTACHMENT: NOTICE OF APPEAL INFORMATION