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STATE OF WISCONSIN

TAX APPEALS COMMISSION

JEANETTE M. KRUEGER,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE,

Respondent.

DOCKET NO. 07-I-47

RULING AND ORDER

DIANE E. NORMAN, ACTING CHAIRPERSON:

This case comes before the Commission on the motion of the Wisconsin Department of Revenue ("Department") for summary judgment on the basis that there is no genuine issue as to any material fact and the Department is entitled to judgment as a matter of law under Wis. Stat. § 802.08 and Wis. Admin. Code § TA 1.31.

Petitioner appears pro se and has filed a response, memorandum of law and an affidavit in opposition to the motion. Attorney Sheree Robertson represents the Department and has filed an affidavit with exhibits and a brief in support of the motion, as well as a reply brief.

Having considered the entire record, including the motion, affidavits, exhibits and briefs, the Commission hereby finds, rules, and orders as follows:

JURISDICTIONAL AND MATERIAL FACTS

1. Petitioner filed a 2001 Wisconsin individual income tax return with the Department as a full-year resident of the state of Wisconsin. On Schedule E attached to petitioner's 2001 Wisconsin individual income tax return, she reported rental and other income. (Affidavit of John C. Teasdale, Exhibit 4.)

2. By correspondence dated March 23, 2006, the Department sent to petitioner a request to file a Wisconsin individual income tax return for the year 2002. (Teasdale Affidavit, ¶ 7.)

3. By correspondence dated April 19, 2006, petitioner responded to the Department's request in a letter that questioned the authority of the State of Wisconsin to tax petitioner's income. (Teasdale Affidavit, Ex. 5.)

4. By correspondence dated June 9, 2006, the Department sent a second letter to petitioner requesting that she file a Wisconsin individual income tax return for the year 2002. (Teasdale Affidavit, Ex. 6.)

5. By Notice to petitioner dated August 14, 2006, the Department issued an estimated assessment of income tax for the year 2002 in the amount of $3,354.25 (comprising tax, interest, penalties and fees) (the "Assessment"). The Assessment was issued due to the failure of petitioner to file an income tax return for the year 2002 (Teasdale Affidavit, Ex. 1.)

6. Under date of October 10, 2006, petitioner filed with the Department a timely petition for redetermination of the Assessment asserting on various grounds that petitioner is not subject to Wisconsin income tax. (Teasdale Affidavit, Ex. 2.)

7. By Notice of Action dated January 23, 2007 issued to petitioner with respect to the Assessment, the Department denied the petition for redetermination on the basis that petitioner had failed to file a Wisconsin income tax return for the year 2002, as requested by the Department. (Teasdale Affidavit, Ex. 3.)

8. On March 21, 2007 petitioner filed a petition for review of the Assessment with the Commission.

9. On April 20, 2007, the Department filed a Notice of Motion, Motion for Summary Judgment and Alternative Answer along with a supporting brief, affidavit and exhibits.

10. On April 24, 2007, the Commission issued a briefing order on the Department's motion.

11. On May 24, 2007, petitioner filed a document entitled, "Motion to Compel Discovery" along with a supporting memorandum of law and affidavit in response to the motion. The "Motion to Compel Discovery" states in pertinent part:

Jeanette M. Krueger moves the State of Wisconsin Tax Appeals Commission to compel Discovery in favor of the Petitioner in the above captioned matter on the grounds that the Respondent has consistently attempted to evade, dismiss and refuse to acknowledge requests by the petitioner for clarification of the laws and statutes to which the Respondent claims the Petitioner is liable for.

12. On June 4, 2007, the Department filed a reply brief.

13. On June 11, 2007, petitioner filed copies of "Petitioner's First Set of Admission" and "Petitioner's First Set of Interrogatories" that had been sent to the Department. These documents generally request the Department to identify the authority for the state of Wisconsin to tax petitioner's income.

14. Petitioner has not filed a Wisconsin income tax return for any year after 2001. (Teasdale Affidavit, ¶ 10.)

RULING

A summary judgment motion will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Wis. Stat. § 802.08(2). A party moving for summary judgment has the burden to establish the absence of a genuine, that is, disputed, issue as to any material fact. Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980).

If a moving party establishes a prima facie case for summary judgment, the court then examines the affidavits in opposition to the motion to see if the other party's affidavits show facts sufficient to entitle that party to a trial. Artmar, Inc. v. United Fire & Casualty Co., 34 Wis.2d 181, 188, 148 N.W.2d 641, 644 (1967). Once a prima facie case is established, "the party in opposition to the motion may not rest upon the mere allegations or denials of the pleadings, but must, by affidavits or other statutory means, set forth specific facts showing that there exists a genuine issue requiring a trial." Board of Regents v. Mussallem, 94 Wis. 2d 657, 673, 289 N.W.2d 801, 809 (1980), citing Wis. Stat. § 802.08(3). Any evidentiary facts in an affidavit are to be taken as true unless contradicted by other opposing affidavits or proof. Artmar, 34 Wis.2d at 188. Where the party opposing summary judgment fails to respond or raise an issue of material fact, the trial court is authorized to grant summary judgment pursuant to Wis. Stat. § 802.08(3). Board of Regents, 94 Wis.2d at 673.

Wisconsin Statutes § 71.02(1) provides that "there shall be assessed, levied, collected and paid a tax on all net incomes of individuals . . . residing within the state . . . ." Net income is derived from gross income, after subtracting allowable statutory deductions and exemptions. See Wis. Stat. § 71.01(16) (defining "Wisconsin taxable income"). "Gross income" is defined as "all income, from whatever source derived and in whatever form realized, whether in money, property or services, which is not exempt from Wisconsin income taxes", and includes, but is not limited to, "compensation for services, including wages [and] salaries . . . ." Wis. Stat. § 71.03(1).

Any resident of Wisconsin whose gross income exceeds the threshold amount set annually by the Department is required to file a Wisconsin income tax return with the Department. Wis. Stat. § 71.03(2). For the year at issue, this threshold amount was $9,000. "Any person required to file an income . . . tax return, who fails, neglects or refuses to do so . . . shall be assessed by the department according to its best judgment." Wis. Stat. § 71.74(3). In the performance of its duty to assess incomes, the Department is empowered to estimate incomes. Wis. Stat. § 71.80(1)(a). Assessments made by the Department are presumed to be correct, and the burden is on petitioner to prove by clear and satisfactory evidence in what respects the Department erred in its determination. Edwin J. Puissant, Jr. v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 202-401 (WTAC 1984); Wis. Stat. § 77.59(1).

The Department estimated petitioner's Wisconsin gross income for the year 2002 because petitioner failed to file a Wisconsin income tax return for that year, and the Department issued the Assessment based on that estimate. Petitioner has failed to meet her burden to prove that the Assessment is incorrect.

Petitioner filed a petition for review and responded to the Department's motion, but she has never submitted any evidence to support her own claims or rebut the Department's evidence or arguments. Petitioner instead recites arguments typically offered by tax protestors, stressing her conclusion that, for various reasons, the State of Wisconsin does not have the authority to tax her income.

Petitioner does not deny that she was a Wisconsin resident during the year 2002, nor that she earned income in Wisconsin in excess of $9,000 during the year 2002, nor that she has failed to file a Wisconsin income tax return for the year 2002. She does not even question the Department's estimate of her income for the year 2002. Thus, there are no material facts in dispute in this case. However, petitioner asserts that her income was not taxable in Wisconsin as claimed in the Assessment, and requests proof of her liability for Wisconsin income tax.

In Callahan v. Dep't of Revenue, WTAC Docket No. 05-I-107 (January 9, 2006) and Jerry E. and Lorilee L. King v. Dep't of Revenue, WTAC Docket No. 06-I-32 (September 18, 2006), the Commission recently considered cases with facts and legal arguments that were similar to the facts and law at issue in this case. In those cases, the petitioners argued, on a variety of grounds, that various types of wages are effectively immune from Wisconsin income tax. We rejected those arguments in Callahan and King, and we reject them again here.

These arguments and ones like them have been consistently rejected in prior cases before the Commission and the courts. They are groundless and frivolous, and have never prevailed in Wisconsin, nor, as far as the Commission is aware, in any court in the country. See Tracy v. Dep't of Revenue, 133 Wis. 2d 151 (Ct. App. 1986); Steele v. Dep't of Revenue, WTAC Docket No. 05-I-79 (December 12, 2005); Kroeger v. Dep't of Revenue, WTAC Docket No. 04-I-228 (March 21, 2005); Boon v. Dep't of Revenue, 1999 Wisc. Tax LEXIS 7 (WTAC 1999), aff'd on other grounds (Milwaukee Co. Cir. Ct. 1999).

There is no genuine issue of material fact in this case, and the Department is entitled to summary judgment as a matter of law. In addition, in light of the well-established authority cited above, petitioner's claims are groundless, frivolous, and a waste of state resources. Petitioner is therefore subject to an additional assessment in the amount of $300.00, pursuant to Wis. Stat. § 73.01(4)(am).

IT IS ORDERED

1. The Department's motion for summary judgment is granted, and its action on petitioner's petition for redetermination is affirmed.

2. An additional assessment of $300.00 is imposed on petitioner pursuant to Wis. Stat. § 73.01(4)(am).

Dated at Madison, Wisconsin, this 26th day of June, 2007.

WISCONSIN TAX APPEALS COMMISSION

Diane E. Norman, Acting Chairperson

David C. Swanson, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"

July 25, 2007 - Petition for Judicial Review filed with Vilas County Circuit Court - Case No. 2007CV194.