STATE OF WISCONSIN

TAX APPEALS COMMISION

Ruling & Order

DAVID D. WILMOTH, COMMISSIONER:

This case comes before the Commission for decision on the Respondent's Motion to Dismiss the Petitioner's Petition for Review as untimely. The Petitioner, Kerry Larson, of Verona, Wisconsin, appears pro se in this matter. The Respondent, the Wisconsin Department of Revenue ("the Department"), is represented by Attorney Axel F. Candelaria, Madison, Wisconsin. The Department filed an affidavit, exhibits, and brief in support of its Motion. The Petitioner was offered an opportunity to respond to the Department's Motion, but he did not do so. For the reasons stated below, the Commission finds that the Petitioner did not file his Petition in a timely manner as required by statute and, therefore, concludes that dismissal is appropriate.

FACTS

Jurisdictional Facts

1. The Department issued a Notice of Amount Due to the Petitioner, dated August 2, 2013, assessing Wisconsin sales taxes, interest, and penalties, for the taxable period May 1, 2010, through August 31, 2010, in total amount of $3,827.09. The assessment was the result of the Department's determination that the Petitioner was personally responsible for the unpaid sales taxes, interest, and penalties of Blue Chip Street Rods, LLC. (Affidavit of Attorney Axel F. Candelaria ("Candelaria Aff."), ¶ 2, Ex. 1.)

2. On or about September 4, 2013, the Petitioner submitted a timely Petition for Redetermination objecting to the Department's Notice of Amount Due. (Candelaria Aff., ¶ 3, Ex. 2.)

3. The Department denied the Petitioner's Petition for Redetermination by Notice of Action dated February 12, 2014. (Candelaria Aff., ¶ 4, Ex. 3.).

4. The Notice of Action was sent via certified mail and was received by the Petitioner on February 13, 2014. (Candelaria Aff., ¶ 5, Ex. 4.).

5. The Notice of Action stated that, if the Petitioner disagreed with the Notice, he could send a written appeal to the Commission within 60 days of receiving the Notice. The Notice of Action also stated that, if an appeal was not filed within 60 days, the action taken in the Notice would become "final and conclusive." (Candelaria Aff., ¶ 6, Ex. 3.).

6. The last day for the Petitioner to file a timely appeal to the Commission was April 14, 2014.

7. The Commission received Petitioner's Petition for Review, appealing the Department's Notice of Action, on May 9, 2014. The Petition for Review was sent by Certified Mail in an envelope postmarked May 8, 2014. (Commission file.)

Other Facts

8. On September 10, 2014, the Department filed a Motion to Dismiss the Petitioner's Petition for Review as untimely, along with an affidavit, exhibits, and a brief in support of the Motion.

9. The Commission issued a Briefing Order dated September 11, 2014, providing that no later than October 14, 2014, the Petitioner shall file with the Commission a response to the Department's Motion. The Petitioner did not file a response brief, and did not notify the Commission that his brief would not be filed.

10. The Commission issued an Order dated October 21, 2014, providing that no later than November 4, 2014, the Petitioner shall either file a brief in response to the Department's Motion or notify the Commission that no brief would be filed. The Petitioner neither filed a responsive brief nor notified the Commission that no brief would be filed.

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 statute at issue here outlines the requirements for filing a valid and timely petition for review with the Commission:

Wis. Stat. § 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.

ANALYSIS

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 is physically received in the Commission's 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, Petitioner mailed his Petition by certified mail in a properly addressed envelope with postage prepaid. But the envelope in which the Petition was mailed was postmarked on May 8, 2014, which was 24 days after the time to appeal expired. It was received by the Commission on May 9, 2014. Under any of the rules of Wis. Stat. § 73.01(5)(a) applicable to the time for filing a petition for review with the Commission, the Petition in this matter was not timely filed.

Wis. Stat. § 73.01(5)(a) establishes a statutory, date specific, bright line for filing a timely petition for review. The Commission cannot create subject-matter jurisdiction over an untimely petition for review. McDonald Lumber Co. v. Dep't of Revenue, 117 Wis. 2d 446, 344 N.W.2d 210 (Ct. App. 1984).

CONCLUSION

The Petitioner's Petition for Review was not timely filed as required by Wis. Stat. § 73.01(5)(a) and, thus, the Commission lacks jurisdiction in this matter.

ORDER

The Department's Motion to Dismiss is hereby granted, and the Petition for Review is dismissed.

Dated at Madison, Wisconsin, this 7^th day of January, 2015.

WISCONSIN TAX APPEALS COMMISSION

Lorna Hemp Boll, Chair

Roger W. LeGrand, Commissioner

David D. Wilmoth, Commissioner

ATTACHMENT: NOTICE OF APPEAL INFORMATION