Wisconsin Tax Appeals Commision Docket No. 11-I-232

STATE OF WISCONSIN

TAX APPEALS COMMISSION

GARY LIZALEK,

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE,

Respondent.

DOCKET NOS. 11-I-232

AND 11-I-233

RULING AND ORDER

ROGER W. LEGRAND, COMMISSIONER:

These matters come before the Commission on a Motion to Dismiss filed by the Respondent, the Wisconsin Department of Revenue, on April 2, 2012. The basis for the motion is that Petitioner has not made a claim upon which relief can be granted. The Department is represented in these matters by Attorney Peter D. Kafkas. The Petitioner in these matters, Mr. Gary C. Lizalek, appears pro se and has filed a response in opposition to Respondent's motion.

These cases involve income tax assessments made by the Department against Petitioner for the years 2008 and 2009. The Department asserts that Petitioner did not file income tax returns for the years 2008 and 2009. (Affidavit of Mary E. Nelson, "Nelson Affidavit," Exhibits D and F.) The Department made estimated assessments against Petitioner of $10,040.67 for the period ending December 31, 2008; and $8,874.58 for the period ending December 31, 2009. (Nelson Affidavit, Exhibits C and E.) Petitioner filed Petitions for Review regarding these assessments. Petitioner claims to have complied with the obligation to file income taxes by filing as a trust. (Nelson Affidavit, Exhibits A and B.)

Wis. Stat. § 71.03(2)(a)(1) requires individuals domiciled within the state with a threshold gross income to file income tax returns.

Wis. Stat. § 71.74(3) gives the Department the power to assess parties who fail to file income tax returns according to its best judgment.

The Commission finds that Petitioner failed to file income tax returns for the years 2008 and 2009. The Commission rejects Petitioner's claim that he fulfilled his obligation to file income tax returns by virtue of his filing as a trust. In an earlier case by this same Petitioner, using the same argument, the Commission stated "Petitioner's claim that he is a trust is frivolous and properly disregarded by respondent" Gary C. Lizalek v. Dep't of Revenue, Docket No. 03-I-219-SC, (November 7, 2003).

The Commission finds that the Department was correct in issuing estimated assessments against Petitioner under Section Wis. Stat. §§ 71.74(3) and 71.80(1)(a) and disregards Petitioner's claim that filing as a trust somehow defeats his obligation to file and pay state income taxes. Accordingly, the Commission grants Respondent's Motion to Dismiss under Wis. Stat. § 802.06(2)(a)(6).⁽¹⁾

As part of its motion, the Department asks for an additional sanction of $1,000 for a frivolous appeal under Wis. Stat. § 73.01(4)(am) and Wis. Admin. Code § TA 1.63. This statute allows the Commission to make such an assessment when the taxpayer's position in those proceedings is frivolous or groundless. The Code requires the Commission to find one or more grounds for assessing costs. The specific code provision states as follows:

The petitioner or petitioner's representative knew, or should have known, that the appeal was without reasonable basis in law or equity or could not be supported by a good faith argument for an extension, modification or reversal of existing law.

Wis. Admin. Code § 1.63(2)(c).

The Commission has imposed sanctions against Petitioner several times in the past. See, for example, Gary C. Lizalek v. Dep't of Revenue, Docket No. 08-I-180, (April 19, 2010), Gary C. Lizalek v. Dep't of Revenue, Docket No. 04-T-110, (May 19, 2005), Gary C. Lizalek v. Dep't of Revenue, Docket No. 03-I-219-SC, (November 7, 2003). In the latter case, Petitioner made the same arguments he makes in these cases. The Commission found his submissions "filled with frivolous ramblings."

Given the previous rulings of this Commission, Petitioner knew or should have known that his arguments in this appeal are without reasonable basis in law or equity and do not support a change in existing law. Thus, the Commission finds that Petitioner's position in these cases is frivolous and groundless, and that his various submissions in these cases are filled with frivolous ramblings. Accordingly, the Commission makes an additional assessment of $1,000 against Petitioner pursuant to Wis. Stat. § 73.01(4)(am).

THEREFORE, IT IS ORDERED

1. Respondent's Motion to Dismiss is granted.

2. The assessments against Petitioner of $10,040.67 for 2008 and $8,874.58 for 2009 are upheld.

3. The additional assessment against Petitioner in the amount of $1,000 ($500 for Docket No. 11-I-232, and $500 for Docket No. 11-I-233), is imposed pursuant to Wis. Stat. § 73.01(4)(am). th day of October, 2012. WISCONSIN TAX APPEALS COMMISSION Roger W. Le Grand, Commissioner

Thomas J. McAdams, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"

¹ There may be some contentions left from the Petitioner's submissions which we did not address directly. If there are, we consider them to be so without merit that they are not worth additional consideration by the Commission. As the Wisconsin Supreme Court has observed, "An appellate court is not a performing bear, required to dance to each and every tune played on an appeal." State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). To the extent that we have not addressed these other contentions, they are rejected.