DOCKET NO. 12-I-268



This case comes before the Commission on a Motion to Dismiss for lack of jurisdiction filed by the Wisconsin Department of Revenue on the grounds that Petitioner failed to file an appeal within 60 days of the Notice of Refund as required by Wis. Stat. § 71.88(2)(a). Petitioner, Mr. Derek Alexander, of Brookfield, Wisconsin, appears pro se. The Respondent, the Wisconsin Department of Revenue ("the Department"), is represented by Attorney John R. Evans. Both parties have filed briefs and affidavits in support of their positions.


1. Department issued Petitioner a Notice of Refund dated January 9, 2012. (Affidavit of Attorney John R. Evans dated January 25, 2013, "Evans Aff." ¶3, Exh. A.)

2. On, or about April 24, 2012, Petitioner submitted an appeal request (Petition for Redetermination electronically through My Tax Account. (Evans Aff. ¶4, Exh. B.)

3. The Department denied Petitioner's Petition for Redetermination by Notice of Action dated on or about October 24, 2012, because the Petitioner did not file a timely Petition for Redetermination. (Evans Aff. ¶5, Exh. C.)

4. Petitioner filed a Petition for Review on December 26, 2012. (Commission file.)


The Commission grants the Motion and dismisses this case.

The specific statutes at issue here outline the requirements a Petitioner must comply with to give the Commission jurisdiction to hear an appeal:

Wis. Stat. § 73.01(5)(a) (2011-12) provides:

Any person . . . who has filed a petition for redetermination with the department of revenue and who is aggrieved by the redetermination of the department of revenue may . . . within 60 days after the redetermination but not thereafter, file with the clerk of the commission a petition for review of the action of the department . . . For the 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 of filing.

Wis. Stat. § 71.88(2) (2011-12) provides:

Appeal of the department's redetermination of assessments and claims for refund. A person feeling aggrieved by the department's redetermination may appeal to the tax appeals commission by filing a petition with the clerk of the commission as provided by law and the rules of practice promulgated by the commission. If a petition is not filed with the commission within the time provided in s. 73.01 . . . the assessment, refund, or denial or refund shall be final and conclusive.

The Wisconsin Tax Appeals Commission has repeatedly held that it lacks jurisdiction to hear an appeal in cases where a Petitioner fails to file a timely Petition for Redetermination. Beck v. Dep't of Revenue, Wis. Tax Rptr. CCH ¶400-275 (WTAC 1997).

In this case, the Department of Revenue issued a Notice of Refund to Petitioner on January 9, 2012, at his correct address. The Petition for Redetermination was not filed until April 24, 2012. This was 105 days after the Notice of Refund was sent to Petitioner.

Petitioner claims that he never received the Notice of Refund. However, the mailing of a document creates a presumption that it was delivered and received. Joann R. Mueller v. Dep't of Revenue, Wis. Tax Rptr. CCH ¶2002-020 (WTAC 1982). Petitioner has presented no proof to rebut the presumption that the Notice of Refund was received other than self-serving statements. In fact, all of the evidence supports the conclusion that Petitioner received the Notice of Refund:

1) The Notice was addressed to the correct address.

2) The Petitioner admitted receiving other correspondence from the Department of Revenue in a timely fashion.

3) There has been no correspondence addressed to the Petitioner which has been returned to the Department of Revenue. This would have occurred if the Notice of Refund was undeliverable.

Petitioner also claims that he received the refund check without receiving the Notice of Refund. However, this claim lacks credibility. The Department's WINPAK system generates adjustments to the refund claimed and the refund check together. (Aff. of Atty. Evans, Mar. 21, 2013, ¶9)

Although there is no direct proof of exactly when Petitioner received the Notice of Refund, the evidence, taken as a whole leads to the conclusion that the Notice of Refund was received by Petitioner within a short time of the mailing on January 9, 2012.

Under Wis. Stat. § 71.88(2)(a), the refund became final and conclusive 60 days after receipt. The Commission concludes that the filing of the Petition for Redetermination on April 24, 2012, was not timely and that it has no jurisdiction to hear the appeal. The Department's Motion to Dismiss is granted. The Petition for Review is dismissed.

Dated at Madison, Wisconsin, this 19th day of September, 2013.


Lorna Hemp Boll, Chair

Roger W. LeGrand, Commissioner

ATTACHMENT: NOTICE OF APPEAL INFORMATION Wisconsin Tax Appeals Commission Docket No. 12-i-268