STATE OF WISCONSIN
TAX APPEALS COMMISSION
MICHAEL M. AND BRENDA B. RAJEK, DOCKET NO. 16-I-154
Petitioners,
vs.
WISCONSIN DEPARTMENT OF REVENUE,
Respondent.
RULING
AND ORDER
This
matter comes before the Commission on the Department’s motion to dismiss the
Petitioners’ Petition for Review. The
Petitioners are Michael M. and Brenda B. Rajek of Eau Claire, Wisconsin. Mr. Rajek is an attorney practicing in Eau Claire, Wisconsin and has been representing the
Petitioners in this matter. The
Department is represented by Attorney Kelly A. Altschul. For the reasons set forth below, we dismiss
the Petition for Review.
This case has been
pending before the Commission for more than two years. The Petitioners
filed a Petition for Review with the Commission on May 20, 2016, objecting to
an assessment made by the Department for tax years 2009 and 2010. The
Department filed an Answer to the Petition on
June 17, 2016. Telephone status conferences in the case were held on
December 8, 2016, February 15, 2017, March 8, 2017, May 24, 2017, August 16,
2017, September 21, 2017, December 1, 2017, January 24, 2018, February 8, 2018,
April 12, 2018, May 23, 2018, August 8, 2018, October 17, 2018, and December
12, 2018.
At the first status
conference on December 8, 2016, Chief Counsel Dana Erlandsen appeared for the
Department and Attorney Rajek appeared for the Petitioners.
The case was reassigned from Chief Counsel Erlandsen to Department Attorney
Kelly Altschul on December 14, 2016. Attorney Altschul appeared for the
Department at the second status conference on February 15, 2017, but Attorney Rajek failed to appear. At that conference, which
went on as scheduled, Attorney Altschul informed the Commission that she had
requested certain documentation from Attorney Rajek
which she had not received, and that she had tried to contact him via email and
phone, but he had not contacted her. She also stated that Attorney Rajek had requested certain documents from the Department,
which were provided to him in December of 2016.
At each of the status
conferences held from March 8, 2017 through August 8, 2018, both Attorney Altschul and Attorney Rajek
appeared (except for the January 24, 2018 conference, where another Department
attorney appeared on Attorney Altschul’s behalf).
At each conference, the parties informed the Commission that Mr. Rajek was attempting to assemble documentation requested by
the Department, some of which related to a federal tax case pending at the US
Tax Court involving the same or similar issues as those involved in this
case.
At the telephone status
conference held on October 17, 2018, Attorney Altschul appeared for the
Department, but Attorney Rajek failed to
appear. The Commission telephoned Attorney Rajek
at his office, which was the telephone number used for all prior status conferences, but was told by the office staff that he was not
available. The Commission advised the office staff that the conference
would go on as scheduled. Attorney Altschul informed the Commission that
she had received no information or communication from Attorney Rajek since the last conference on August 8, 2018, and that
she had not received responses to multiple discovery requests made to the
Petitioners. The Commission asked Attorney Altschul to provide
information detailing the discovery requests previously made.
On October 17, 2018,
Attorney Altschul sent an email message to the Commission, with a copy to
Attorney Rajek, providing the following information:
August 1, 2017:
Mailed
Respondent’s First Set of Interrogatories and Request for Production of
Documents. No response received from Petitioners.
November 15, 2017: Discovery
requests resent via email with a request for a response. No response
received from Petitioners.
December 1,
2017: Discovery requests resent
again via email with a request for a response. No response received from
Petitioners.
January 8,
2018: Email
request for update on response to outstanding discovery requests. No
response received from Petitioners.
May 21,
2018: Mailed
Respondent’s Second Set of Interrogatories and Request for Production of
Documents. No response received from Petitioners.
October
12, 2018: Mailed
Respondent’s Third Set of Interrogatories and Request for Production of
Documents.
Attorney
Altschul made a motion requesting that the Commission issue an Order to Compel
Discovery or, alternatively, to dismiss the Petitioners’ Petition for Review
for failure to prosecute the appeal.
On October 18, 2018, the
Commission issued a Status Conference Memorandum and Order outlining what had
occurred at the October 17, 2018 status conference, ordering the Petitioners to
respond to the Department’s discovery requests on or before November 30, 2018,
and stating that: “If the Petitioners fail to comply with this order, the
Commission will dismiss the Petitioners’ Petition for Review pursuant to Wis.
Stats. §§ 805.03 and 804.12(2)(a) for failure to
prosecute and for failure to follow the Commission's orders.”
At the telephone status
conference held on December 12, 2018, Attorney Altschul appeared for the
Department but Attorney Rajek again failed to
appear. The Commission telephoned Attorney Rajek
at his office but was again told by the office staff that he was not
available. The Commission advised the office staff that the conference
would go on as scheduled. Attorney Altschul informed the Commission that
she had received no responses to the Department’s outstanding discovery
requests nor any other communication from Attorney Rajek.
Now,
upon the Department’s oral Motion to Dismiss, the Commission finds adequate
grounds upon which to dismiss the Petition for Review based upon the
Petitioners’ failure to comply with the orders of this Commission, their
failure to appear at scheduled conferences, and their failure to prosecute their
appeal. Therefore, pursuant to Wis. Stats.
§§ 805.03 and 804.12(2)(a):
IT
IS HEREBY ORDERED that the
Petition for Review in this matter is dismissed.
Dated
at Madison, Wisconsin, this 14th day of December, 2018.
WISCONSIN TAX APPEALS COMMISSION
Lorna
Hemp Boll, Chair
David
D. Wilmoth, Commissioner
David
L. Coon, Commissioner
ATTACHMENT: NOTICE
OF APPEAL INFORMATION