TESSA M. AND CHRISTOPHER MYERS,                               DOCKET NO. 20-I-012













This case comes before the Commission for decision on Respondent’s Motion to Dismiss Petitioners’ Petition for Review for failure to file a timely Petition for Redetermination. The Petitioners, Tessa M. and Christopher Myers, appear by Olga Lavrenova, PricewaterhouseCoopers, LLC, Chicago, Illinois. The Respondent, the Wisconsin Department of Revenue (“the Department”), is represented by Attorney Jenine E. Graves. Respondent has filed a brief and affidavit in support of its Motion. Petitioners failed to file a response to the Motion. For the reasons stated below, we find for the Respondent.


1.                  On March 5, 2019, the Department issued a Notice of Refund – Individual Income Tax (“Notice”) to the Petitioners regarding their Wisconsin income tax and refund claim for the 2017 tax year. (Affidavit of Mary Nelson, Resolution Office Audit Supervisor, Wisconsin Department of Revenue (“Nelson Aff.”) ¶¶ 2 and 3, Ex. A.) 

2.                  The Notice contains information regarding the 60-day time-period in which to file an appeal with the Department. (Nelson Aff. ¶ 3, Ex. A.)

3.                  On March 29, 2019, Petitioners' representative called the Department to ask questions about the Notice. The Department reminded their representative of the sixty-day appeal period. (Nelson Aff. ¶ 6, Ex. B.)

4.                  On May 16, 2019, the Department received a letter dated May 13, 2019 with attachments from Petitioners’ representative appealing the March 5, 2019 Notice. (Nelson Aff. ¶ 7, Ex. C.)

5.                  By a letter dated July 31, 2019, the Department advised Petitioners that it had received Petitioners' appeal beyond the sixty-day appeal period as calculated by the Department.[1] However, the Department asked Petitioners to provide more information within twenty days if Petitioners disagreed. (Nelson Aff. ¶ 8, Ex. D.) 

6.                  On October 3, 2019, more than 20 days after its July 31, 2019 letter, the Department received a letter dated September 30, 2019 with attachments from Petitioners’ representative. Petitioners did not address in the letter nor any of the attachments the untimeliness of Petitioners' request for redetermination. (Nelson Aff. ¶ 9, Ex. E.)

7.                  On October 23, 2019, the Department sent a letter to the Petitioners stating that their appeal was untimely. The Department again asked Petitioners to provide additional information, by November 8, 2019, if they disagreed. (Nelson Aff. ¶ 10, Ex. F.) 

8.                  After Petitioners failed to respond to this request, the Department sent Petitioners a Notice of Action dated November 13, 2019, denying the late appeal. (Nelson Aff., ¶11, Ex. G.) 

9.                  On January 9, 2020, Petitioners filed their Petition for Review with the Commission. (Nelson Aff. 11 and Commission file.)

10.               In the Petition for Review, Petitioners’ representative states, “We understand that there was a deadline set by the Wisconsin Department of Revenue to address the questions raised; however, it took additional time to gather the additional information required to submit our response” and the “timeliness of our response was limited by the time required to obtain the required documents to include in our response.”

11.               On June 19, 2020, the Department filed a Motion to Dismiss along with an affidavit and exhibits. Petitioners failed to respond to the Motion. (Commission file.)


State statutes outline the requirements for filing a valid and timely petition for redetermination:

Wis. Stat. § 71.88(1)(a): . . . any person feeling aggrieved by a notice of additional assessment, refund, or notice of denial of refund may, within 60 days after receipt of the notice, petition the department of revenue for redetermination.


Wis. Stat. § 71.88(2)(a): [I]f no timely petition for redetermination is made within the time provided, the assessment, refund, or denial of refund shall be final and conclusive.



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. See Alexander v. Dep’t of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-650 (WTAC 2002). 

In order to contest a notice of refund from the Department, a person must petition the Department for redetermination of the notice within 60 days after receipt of the notice. Wis. Stat. § 71.88(1)(b). Except for certain claims for refund[2] not at issue in this case, “if no petition for redetermination is made within the time provided the assessment, refund, or denial of refund shall be final and conclusive.” Wis. Stat. § 71.88(2)(a).

The Commission has long held that it does not have jurisdiction under Wis. Stats. § 71.88(2)(a) to review actions of the Department where a petitioner fails to file a timely petition for redetermination with the Department. See Lyman v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-917 (WTAC 2006). A petitioner must be “aggrieved” by the Department’s redetermination to bring the issue to the Commission. Wis. Stat. § 71.88(2)(a). A petitioner cannot be aggrieved by the Department’s redetermination, when there has been no redetermination and, as a result, the Department’s initial determination has become final.

In this case, the Department mailed a Notice of Refund to Petitioners dated March 5, 2019. Petitioners’ Petition for Redetermination dated May 13, 2019, and received by the Department on May 16, 2019, was filed about 72 days after the date of the Notice of Refund. While the Department fails to establish the actual date of receipt of the Notice, Petitioners admit in the Petition for Review that their filing was late.

Further, the Department on multiple occasions requested Petitioners address the late filing issue. Petitioners did not do so. Petitioners also did not respond to the Motion to Dismiss. Thus, Petitioners have failed to refute the Department’s assertion that their Petition for Redetermination was untimely.

Therefore, having admitted in the Petition for Review that their response to the Department was not timely, having failed to provide any information in response to the Department’s requests regarding the late filing, and having failed to respond to the Motion to Dismiss, we determine that the Petition for Redetermination was not timely and, therefore, we dismiss because the Notice is final and conclusive. This is not a matter for discretion; the Commission has no choice in the matter. Alexander v. Dep’t of Revenue, Wis. Tax Rptr. (CCH) ¶ 400-650 (WTAC 2002).

The Petitioners’ Petition for Review appears to include a request for equitable relief based upon additional time needed to obtain documents. While we often sympathize with petitioners who miss a deadline for a variety of reasons, the Commission does not have equitable powers to grant such relief. “The legislature has empowered this agency to determine and apply Wisconsin tax statutes, but not to preempt application of a statute under a doctrine of equity.” Peterson v. Dep't of Revenue, Wis. Tax Rptr. (CCH) ¶ 203-026 (WTAC 1989).



1.                  Because Petitioners failed to file a timely Petition for Redetermination, the underlying determination is final.

2.                  The Commission lacks jurisdiction to hear this appeal.

3.                  The Department is entitled to dismissal as a matter of law.


Based on the foregoing, it is the order of this Commission that the Department’s Motion to Dismiss is granted and the Petitioners’ Petition is dismissed.

Dated in Madison, Wisconsin, this 3rd day of February, 2021.





Elizabeth Kessler, Chair




Lorna Hemp Boll, Commissioner




David L. Coon, Commissioner




[1] The Department’s letter also addressed the merits of the issue, confirming the Department’s position as to the Department’s actions in the Notice.

[2] See Wis. Stat. § 71.75(5).