STATE OF WISCONSIN

TAX APPEALS COMMISSION

RULING & ORDER

DAVID D. WILMOTH, COMMISSIONER:

This case comes before the Commission for decision on the Respondent's Motion to Dismiss the Petitioner's Petition for Review as untimely. The Petitioner, Lizette M. Echevarria, of Green Bay, Wisconsin, appears pro se in this matter. The Respondent, the Wisconsin Department of Revenue ("the Department"), is represented by Chief Counsel Dana J. Erlandsen. For the reasons stated below, the Commission finds that the Petitioner did not file her Petition in a timely manner as required by statute and, therefore, concludes that dismissal is appropriate.

FACTS

1. The Department issued to the Petitioner a Notice of Amount Due dated September 12, 2014, assessing additional income tax for calendar years 2010 through 2012. (Affidavit of Department Resolution Office Audit Supervisor Mary E. Nelson ("Nelson Aff."), ¶ 2, Ex. A.)

2. On or about October 9, 2014, the Petitioner submitted a Petition for Redetermination to the Department. (Nelson Aff. ¶ 3, Ex. B.)

3. The Department denied the Petition for Redetermination by Notice of Action dated December 18, 2014, which, prior to mailing, was provided to and signed for by the Petitioner at an in-person meeting at the Department's offices on December 17, 2014. (Nelson Aff. ¶ 4, Ex. C.)

4. The Petitioner's Petition for Review, appealing the Department's denial of her Petition for Redetermination, was received in the office of the Commission on February 19, 2015. The Petition for Review was sent via Priority Mail Express on February 18, 2015. (Nelson Aff. ¶ 5, Commission file.)

5. Because the 60^th day after the date on which the Petitioner received the Notice of Action denying her Petition for Redetermination fell on Sunday, February 15, 2015, the 60-day period for the timely filing a Petition for Review in this case expired on Monday, February 16, 2015. Wis. Stat. § 990.001(4)(b).

6. On March 20, 2015, the Department filed a Motion to Dismiss the Petitioner's Petition for Review as untimely, along with an affidavit, exhibits, and a Brief in support of the Motion. (Commission file.)

7. On March 25, 2015, the Commission issued a Briefing Order, directing the Petitioner to file a response to the Department's Motion to Dismiss no later than April 20, 2015. The Petitioner did not file a response on or before such date. (Commission file.)

8. On April 21, 2015, the Commission issued a revised Briefing Order, directing the Petitioner to file a response to the Department's Motion to Dismiss no later than May 5, 2015, and stating that if the Petitioner did not file a response, the case would be decided based upon the record as presently constituted. The Petitioner did not file a response on or before such date. (Commission file.)

APPLICABLE LAW

A motion to dismiss will be granted if the Commission finds it does not have proper jurisdiction. Without jurisdiction to hear the matter, the Commission has no alternative other than to dismiss the action. Alexander v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-650 (WTAC 2002).

The specific statute at issue here outlines the requirements for filing a valid and timely petition for review with the Commission:

Wis. Stat. § 73.01(5)(a): Any person who is aggrieved . . . by the redetermination of the department of revenue may, within 60 days of the redetermination . . . but not thereafter, file with the clerk of the commission a petition for review of the action of the department of revenue . . . . For 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 for filing.

ANALYSIS

The date on which a petition for review is "filed" with the Commission under Wis. Stat. § 73.01(5)(a) has consistently been held to be the date on which the petition is physically received in the Commission's office. See Edward Mischler v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 202-159 (WTAC 1983). Unless otherwise provided by statute, a document is filed on the date it is received by the Commission, not the date it is mailed. Laurence H. Grange v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-017 (Dane Co. Cir. Ct. 1993). The one exception in Wis. Stat. § 73.01(5)(a) states that a petition is timely if it is mailed: (1) by certified mail; (2) in a properly addressed envelope; (3) with postage prepaid; and (4) postmarked before midnight of the last day for filing.

The Petitioner mailed her Petition by Priority Mail Express on February 18, 2015, two days after the final date for filing. Even if the Petitioner had taken advantage of the statutory exception for certified mail, the mailing date would still have been two days after the statutory deadline.⁽¹⁾

The Petition was received by the Commission on February 19, 2015, three days after the final date for filing. Under any of the rules of Wis. Stat. § 73.01(5)(a) applicable to the time for filing a petition for review with the Commission, the Petition in this matter was not timely filed. As the Wisconsin Supreme Court has said: "To dismiss an appeal because it comes one day late may seem harsh. However, if statutory time limits to obtain appellate jurisdiction are to be meaningful they must be unbending." Ryan et al. v. Dep't of Revenue, 68 Wis. 2d 467, 472, 228 N.W.2d 357, (1975), quoting Kohnke v. ILHR Dep't, 52 Wis.2d 687, 690, 191 N.W.2d 1 (1971).

CONCLUSION OF LAW

The Petitioner's Petition for Review was not timely filed as required by Wis. Stat. § 73.01(5)(a) and, thus, the Commission lacks jurisdiction in this matter.

ORDER

The Department's Motion to Dismiss is hereby granted and the Petition for Review is dismissed.

Dated at Madison, Wisconsin, this 23^rd day of July, 2015.

WISCONSIN TAX APPEALS COMMISSION

Lorna Hemp Boll, Chair

David D. Wilmoth, Commissioner

ATTACHMENT: NOTICE OF APPEAL INFORMATION

¹ Vasudeva v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶401-601, (WTAC 2012) (Use of Priority Mail instead of certified mail found insufficient to meet the requirements of Wis. Stat. § 73.01(5)(a)).