STATE OF WISCONSIN

TAX APPEALS COMMISSION

RULING AND ORDER

LORNA HEMP BOLL, CHAIR:

This case comes before the Commission for decision on Respondent's Motion to Dismiss Petitioner's Petition for Review as untimely. The Petitioner, Keyyanna Jones, of Milwaukee, Wisconsin, appears pro se. The Respondent, the Wisconsin Department of Revenue ("the Department"), is represented by Attorney Sheree Robertson. The Department filed a brief and affidavit with exhibits in support of its Motion. Petitioner has provided a response with exhibits.

The Commission finds that the Petitioner's Petition for Review was not filed within the required 60-day period. As such, it was not timely. The Commission lacks jurisdiction and therefore must dismiss this matter.

FACTS

Jurisdictional Facts

1. On July 29, 2013, the Department issued to the Petitioner a Notice of Amount Due for the calendar years 2009-2012 in the amount of $8,547.79. (Dep't Ex. 1.)

2. On January 28, 2014, Petitioner filed a timely Petition for Redetermination with the Department. The Petition for Redetermination was considered by the Department and denied in Department's Notice of Action dated April 11, 2014. (Dep't Exs 2 and 3.)

3. Petitioner received the Notice of Action on April 16, 2014. The Notice included language alerting Petitioner to her right to appeal within 60 days of her receipt of the Notice. (Dep't Exs. 3 and 4.)

4. The 60-day time period from the date of receipt of the Notice of Action denying the Petition for Redetermination ended on June 15, 2014. Because June 15, 2014, was a Sunday, the time to appeal expired on Monday, June 16, 2014.

5. On June 23, 2014, the Commission received Petitioner's Petition for Review by ordinary mail. (Commission file.)

6. On July 22, 2014, the Department filed a Motion to Dismiss, along with an affidavit with exhibits and brief in support of the Motion. Petitioner has submitted a response with additional information concerning the merits of her appeal.

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.

Petitioner received the notice on April 16, 2014. Her 60-day deadline to file expired on June 16, 2014. She mailed her Petition using ordinary mail rather than certified mail. A major advantage of using the certified mailing exception is that certified mailing provides documentary evidence of the mailing date. In this case, all we know is that the Petition was not received at the Commission until June 23, 2014, one week 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 24^th day of March, 2015.

WISCONSIN TAX APPEALS COMMISSION

Lorna Hemp Boll, Chair

David D. Wilmoth, Commissioner

ATTACHMENT: NOTICE OF APPEAL INFORMATION