STATE OF
TAX APPEALS COMMISSION
JAMES D. KURTZ, DOCKET
NO. 19-I-013
Petitioner,
vs.
WISCONSIN DEPARTMENT OF REVENUE,
Respondent.
RULING AND ORDER
DAVID L. COON, COMMISSIONER:
This case comes before the Commission for decision on
Respondent’s Motion to Dismiss Petitioner’s Petition for Review as untimely. The Petitioner, James D. Kurtz, of Plymouth, Wisconsin,
appears pro se. The Respondent, the
Wisconsin Department of Revenue (“the Department”), is represented by Attorney Jenine
E. Graves.[1]
The Department filed a brief and affidavit with exhibits in support of its
Motion. Petitioner has provided a response with exhibits.
The
Commission finds that the Petitioner’s Petition for Review was not filed within
the required 60-day period. As such, it was not timely. The Commission lacks
jurisdiction and therefore must dismiss this matter.
FACTS
Jurisdictional Facts
1.
On March 7, 2018, and March 14, 2018, Petitioner filed
claims for the veterans and surviving spouse credit for the tax years 2009
through 2014 (“Tax Period”). (Affidavit
of Kloss (“Kloss Aff.”) ¶ 4.)
2.
On April 3, 2018, Respondent issued Notice of Changes – Individual
Income Tax to the Petitioner regarding each year of the Tax Period denying his
claims. (Kloss Aff. ¶ 2, Ex. A.)
3.
On May 9, 2018, Petitioner filed a Petition for
Redetermination with the Department. (Kloss Aff. ¶ 3, Ex. B.)
4.
The Petition for Redetermination was considered by the
Department and denied in Department’s Notice of Action issued November 9, 2018.
(Kloss Aff. ¶ 6, Ex. E.)
5.
The Notice of Action was sent to Petitioner by USPS
Certified Mail. It was received by Petitioner on November 16, 2018. (Kloss Aff.
¶ 8, Ex. F.)
6.
The Notice of Action included language alerting
Petitioner to his right to appeal within 60 days of his receipt of the Notice
and that, if the appeal was not filed “within the 60-day period, this action
will become final and conclusive.” (Kloss Aff. Ex. E.)
7.
The 60-day time period from the date of receipt of the
Notice of Action denying the Petition for Redetermination ended on January 15,
2019.
8.
On January 18, 2019, the Commission received Petitioner’s
Petition for Review by ordinary mail. (Commission file.)
9.
On May 8, 2019, the Department filed a Motion to
Dismiss, along with an affidavit with exhibits and brief in support of the
Motion. Petitioner submitted a “Response and Objection” with affidavit and additional
documents on June 17, 2019. The Department filed a letter Reply on June 26,
2019.
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 statutes at issue here
outline 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.
Wis. Stat. § 71.88(2): 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.
ANALYSIS
The Wisconsin Tax Appeals Commission lacks
jurisdiction to hear an appeal in cases where a petitioner fails to file a
timely petition for review with the Commission.
Barth v. Dep’t of Revenue,
Wis. Tax Rptr. (CCH) ¶ 401-527 (WTAC 2012).
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 has been physically
received in the Commission office. See 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. Grange v. Dep’t of Revenue,
Petitioner received
the Notice of Action on November 16, 2018, via Certified Mail. His 60-day
deadline to file expired on January 15, 2019. He mailed his Petition using
ordinary mail rather than certified mail. A major advantage of utilizing the
certified mailing exception is that a certified mailing is considered timely
filed if postmarked by the last date for filing a petition. There is no
“postmark” exception for any other means of mailing. All other mailings must be
received at the Commission Office by the final date for filing.
Because the Petition was not timely filed, the
Commission has no jurisdiction and must dismiss the Petition. 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).
Petitioner does raise
other issues related to the filing of his Petition. He argues for a mailbox
rule or postmark exception, that the Petition was mailed “just like one does
when certify mailing,” and lists various medical and financial issues related
to the late filing.
The law is clear that
only certified mailing through the USPS will attach a postmark exception to a
Petition filed by mail. Only USPS Certified Mailing or mailings received before
the deadline comply with Wis. Stat. § 73.01(5)(a).
We do sympathize with
parties who miss a deadline by a short period of time and who may have various
personal issues that might create problems leading to the late filing. Jurisdiction,
though, is statutory. If the deadline is missed, we do not have jurisdiction to
hear the matter.
Petitioner also
threatens the Commission with reference to the American with Disabilities Act
(“ADA”) regarding this late filing issue. Petitioner has cited no law showing
that the ADA modifies state statute related to mandatory jurisdictional
requirements. The statute requires filing within 60 days. Petitioner’s Petition
to the Commission was received late. The Commission does not have jurisdiction
to hear the matter.
CONCLUSIONS OF LAW
1.
The
Notice of Action denying Petitioner’s Petition for Redetermination became
“final and conclusive” pursuant to Wis. Stat. § 71.88(2)(a) because the
Petitioner failed to file the Petition for Review with the Commission within 60
days of receiving the Notice.
2.
The
Commission lacks jurisdiction over the Petition for Review under Wis. Stat. §
73.01(5) because it was untimely. Therefore, the Department is entitled to
dismissal as a matter of law.
ORDER
The Department’s Motion to Dismiss is granted, and
the Petition for Review is dismissed.
Dated at Madison, Wisconsin, this 22nd day of November,
2019.
WISCONSIN TAX APPEALS COMMISSION
Elizabeth D. Kessler, Chair
Lorna Hemp Boll, Commissioner
David L. Coon, Commissioner
ATTACHMENT: NOTICE OF APPEAL INFORMATION