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STATE OF WISCONSIN

TAX APPEALS COMMISSION

MICHAEL SCHRAUFNAGEL (PP),

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE,

Respondent.

DOCKET NO. 05-I-161PP

ORDER GRANTING MOTION TO WITHDRAW PETITIONER'S REPRESENTATIVE OF RECORD AND GRANTING RESPONDENT'S MOTION TO DEEM MATTER ADMITTED

On January 11, 2006, the respondent Wisconsin Department of Revenue, represented by Attorney Mark S. Zimmer, filed motions to deem matters admitted and for summary judgment in this matter, along with an affidavit, exhibits, and brief in support of the motions. No response to the motions was filed on behalf of petitioner.

By Ruling and Order dated April 12, 2006, the Commission denied the Department's motions, and scheduled a telephone status conference for April 27, 2006. At the conference, petitioner Michael Schraufnagel appeared in person and by Mary J. Wilcox, CPA. The Department appeared by Attorney Zimmer.

FACTUAL BACKGROUND

1. By notice dated July 26, 2004, the Department issued an income tax assessment to petitioner for tax years 2000, 2002, and 2003 in the amount of $2,444.98, including interest and penalty.[1]


2. By letter dated September 13, 2004 from Ms. Wilcox, who is a Certified Public Accountant, petitioner filed a petition for redetermination with the Department.

3. On January 18, 2005, petitioner signed a Power of Attorney appointing Ms. Wilcox to represent him in this matter.

4. On January 24, 2005, Department Resolution Officer Shirley Henika met with Ms. Wilcox and petitioner's father, Richard Schraufnagel, to discuss this case.

5. On October 7, 2005, petitioner filed a petition for review with the Commission by certified mail received on October 12, 2005, signed by petitioner, which authorized Ms. Wilcox to act on petitioner's behalf.

6. On November 14, 2005, the Department sent Ms. Wilcox a copy of its First Request for Admissions via first class mail, which Ms. Wilcox received.

7. Ms. Wilcox failed to respond to the Request for Admissions, stating at the April 27, 2006 conference that she believed the Request for Admissions simply summarized a meeting she had had with the Department.

8. The first paragraph of the Request for Admissions states:

PLEASE TAKE NOTICE that, pursuant to � 804.33, Stats., and Wis. Adm. Code � TA 3.35, Respondent, Wisconsin Department of Revenue, requests that the Petitioner admit to the truth of the following matters for the purposes of this action within thirty (30) days after service hereof. Failure to respond will cause the requests to be deemed conclusively established for purpose of this action.

9. On January 11, 2006, the Department filed its Notice of Motion, Motion for Order that Matters are Admitted, and Motion for Summary Judgment, addressed to Ms. Wilcox. Ms. Wilcox received that document.

10. On January 12, 2006, the Commission issued its Briefing Order, giving petitioner until February 13, 2006 to file a response to the Department's motion. The Commission mailed the Briefing Order to Ms. Wilcox at the address provided on the petition for review. The Commission's correspondence was not returned to it by the post office.[2] At the bottom of the Briefing Order appears the following:

pc: Mary J. Wilcox, POA

Attorney Mark S. Zimmer

11. No response to the Department's motions was filed on behalf of petitioner.

12. On April 12, 2006, the Commission issued a Ruling and Order denying the Department's motion for summary judgment on grounds that the record before it raised an issue as to whether Ms. Wilcox continued to represent petitioner after filing the petition for redetermination with the Department. The Commission also questioned whether the case was a small or large claims case. Accordingly, the Commission denied, without prejudice, the Department's motion to deem matters admitted and for summary judgment, " subject to renewal, if appropriate," and ordered a telephone status conference for April 27, 2006 at which petitioner or Ms. Wilcox would inform the Commission whether Ms. Wilcox is representing him in this matter. If Ms. Wilcox represented petitioner, she was ordered to " show why the matters which were the subject of the Department's Request for Admissions should not be deemed admitted under Wis. Stat. � 804.11(1)(b)." In addition, the Department was ordered to " show why this matter should not be treated as a small claims case under Wis. Stat. � 73.01(1)(b)."

13. Following the Commission's Ruling and Order, the Department filed a motion with the Commission to supplement the record with additional information demonstrating that Ms. Wilcox's representation continued throughout the administrative proceedings and that the case qualified as a large claims case. Ms. Wilcox did not object to the motion to supplement the record, and admitted that her representation had been on-going and continued up to the April 27, 2006 conference. At the conference, the Commission granted the motion to supplement the record and has incorporated some of the additional information into its facts herein.

14. As a result of the Commission's Ruling and Order calling Ms. Wilcox's representation into question, the Department sent petitioner himself a Request for Admissions, dated April 14, 2006. At the April 27, 2006 conference, Ms. Wilcox stated that, as of that date, no response on behalf of petitioner had been submitted to this second Request for Admissions, though she intended to submit a response within the 30-day time limitation.

15. At the conference, Attorney Zimmer renewed his motion to deem the matters admitted and for summary judgment. Ms. Wilcox failed to provide any argument as to why the motion should not be granted, stating that she " dropped the ball."

16. At the conclusion of the conference, petitioner stated that he no longer wished to be represented in this case by Ms. Wilcox. He was then given the opportunity to make an argument regarding the motions before the Commission, but provided no comments.

ANALYSIS

In its January 11, 2006 motion, renewed at the April 27, 2006 conference, the Department asserts that petitioner's failure to respond to the Department's Request for Admissions within the 30-day period prescribed by Wis. Stat. � 804.11(1)(b) means that the matters contained in the request are deemed admitted. If the matters are admitted, the Department asserts, summary judgment in favor of the Department is warranted.

Wisconsin Statutes � 804.11(1)(b) provides:

804.11 Requests for admission.

(1) REQUEST FOR ADMISSION.

* * *

(b) . . . The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or attorney. . . .

Wisconsin Statutes � 804.11(2) states, in part, that " [a]ny matter admitted under this section is conclusively established unless the court on motion permits withdrawal or amendment of the admission."

These provisions are made applicable to the Commission by Wis. Admin. Code � TA 1.35(1), which provides, in part, " Parties may obtain discovery before the commission in the same manner and by the same methods as provided under ch. 804, Stats., unless inconsistent with or prohibited by statute, or as otherwise determined by the commission." Wisconsin Administrative Code � TA 1.39 further provides in part, " [T]he practice and procedures before the commission shall substantially follow the practice and procedures before the circuit courts of this state."

Ms. Wilcox, petitioner's representative at the time, failed to provide any reason for her failure to respond to the November 14, 2005 Request for Admissions, beyond her assertion that she believed the Request was merely the Department's summary of a prior conversation. This assertion demonstrates a lack of any meaningful review of the Request for Admissions, which specifically demanded a response and warned Ms. Wilcox that, if no response was provided within thirty days, the matters would be deemed admitted. This inaction is consistent with Ms. Wilcox's failure to take any action on this case before the Commission, including neglecting to file a response to the Department's January 11, 2006 motions, which, if granted, would conclusively establish petitioner's tax liability.

Mr. Schraufnagel chose to petition for review before the Commission and chose Ms. Wilcox as his representative, apparently not following up in any way on the status of this case after filing his petition on October 7, 2005. Based on the law and facts of this case, the matters contained in the November 14, 2005 Request for Admissions are deemed admitted. Having deemed these matters admitted, the Commission takes the Department's motion for summary judgment under advisement.

Finally, the Commission construes petitioner's statement at the conference that he no longer wished to be represented in this case by Ms. Wilcox as a motion to withdraw Ms. Wilcox's representation. The Commission grants petitioner's request.

IT IS ORDERED

1. Petitioner's motion to withdraw Mary J. Wilcox as his representative of record is granted.

2. The Commission deems petitioner to be appearing pro se in this matter, and shall send all future documents to petitioner at the following mailing address: Michael Schraufnagel, 369 Schraufnagel Drive, Hartland, WI 53029.

3. In the event petitioner retains a new representative, such representative shall immediately file a notice of appearance with the Commission and Attorney Zimmer, including the name, address, and telephone number of the representative.

4. The Department's November 14, 2005 motion to deem matters admitted is granted.

5. The Department's November 14, 2005 motion for summary judgment is under advisement before the Commission, which will issue its Ruling and Order within 30 days of this Order.

Dated at Madison, Wisconsin, this 4th day of May, 2006.

WISCONSIN TAX APPEALS COMMISSION

Jennifer E. Nashold, Chairperson

pc: Michael Schraufnagel

Mary J. Wilcox

Attorney Mark S. Zimmer


[1]Pursuant to Commissioner Nashold's request at the April 27, 2006 conference, on May 1, 2006, the Department submitted an affidavit by Department Resolution Officer Shirley Henika demonstrating an amount due of $2,634.93 on August 8, 2005, the date the Notice of Action was issued. Based on that information, the Commission is satisfied that this is a large claims case.

[2] At the April 27, 2006 conference, Ms. Wilcox, in reviewing her file in this case, claimed that she did not receive the Commission's Briefing Order. However, she also stated that she did not have all of the documents related to this case with her at the conference.