STATE OF WISCONSIN
TAX APPEALS COMMISSION
MUNEM S. ABUKHAMIREH, DOCKET
NO. 20-I-188
Petitioner,
v.
WISCONSIN DEPARTMENT OF REVENUE,
Respondent.
RULING
& ORDER
LORNA HEMP BOLL, 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, Munem S. Abukhamireh, of Franklin, Wisconsin, is represented by Sher
K. Sharwani, Senior Tax Consultant, SS Tax &
Accounting. 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’s Petition was
not filed in a timely manner as required by statute and, therefore, grants dismissal.
FACTS
1.
On July 23, 2019, the
Department issued the Petitioner a Notice of Office Audit Amount Due –
Individual Income Tax in the amount of $78,833.21 for the periods ending December
31, 2014 through December 31, 2017. (Affidavit of Resolution Officer Jason
Ledger (“Ledger Aff.”), Ex. A.)
2.
On or about August 23, 2019,
the Petitioner filed a Petition for Redetermination with the Department. (Ledger
Aff., Ex. B.)
3.
The Department denied the Petition
for Redetermination by Notice of Action dated July 3, 2020, which Petitioner received
by certified mail on July 8, 2020. (Ledger Aff., Ex. C.)
4.
The 60-day period provided
for in Wis. Stat. § 73.01(5)(a), for the timely filing a Petition for Review
appealing the action of the Department of Revenue on the Petitioner’s Petition
for Redetermination expired on September 6, 2020. That date fell on a Sunday,
so the deadline is extended to Monday, September 7, 2010.
5.
The Tax Appeals Commission
received Petitioner’s Petition for Review appealing the Department’s denial of his
Petition for Redetermination on September 11, 2020, via regular U.S. mail. (Commission
file.)
6.
On October 2, 2020, 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.
The Petitioner responded with
information regarding the substance of its claim but without evidence refuting
the untimeliness of the filing.
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. See 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. See 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. Petitioner’s
Petition was filed by ordinary mail, so this exception does not apply.
The 60-day period for the
timely filing a Petition for Review in this case expired on September 7, 2020. The
Petitioner mailed this Petition by regular, not certified, mail, and the
Commission received it on September 11, four days after the final date allowable
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 untimely. Therefore, the redetermination is final and no longer
appealable. Wis. Stat. § 71.88(2)(a).[1]
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 3rd day of February, 2021.
WISCONSIN TAX APPEALS COMMISSION
Elizabeth
Kessler, Chair
Lorna Hemp
Boll, Commissioner
David L. Coon, Commissioner
ATTACHMENT: NOTICE OF
APPEAL INFORMATION