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Currier v. Wisconsin Dep't of Revenue12/14/2005
Before Brown and Nettesheim, JJ., and Daniel L. LaRocque, Reserve Judge.
Whistle B. Currier appeals pro se from a circuit court order dismissing his petition for judicial review of a decision and order of the Wisconsin Tax Appeals Commission. At issue is Currier's compliance with the statutory time limits for filing his petition for rehearing and his subsequent petition for judicial review of the Commission's decision. Currier argues that he complied with the deadline for filing his petition for rehearing because his petition was postmarked before midnight of the last date for filing as required by WIS. STAT.§ 73.01(5) (2003-04). He also maintains that his petition for rehearing served to extend the deadline for seeking judicial review of the Commission's decision and that he complied with the extended deadline.
We hold that WIS. STAT.§ 73.01(5) does not apply to petitions for rehearing from adverse Commission decisions. Further, Currier's petition for rehearing from the Commission's decision was untimely under WIS. STAT.§ 227.49(1), the controlling statute, because it was not physically delivered to and received by the Commission until twenty-one days after the Commission's decision. We further conclude that Currier's untimely petition for rehearing of the Commission's decision did not extend the time for seeking judicial review of the Commission's decision under WIS. STAT.§ 227.53(1)(a)2. and, as a result, his petition for judicial review was tardy. Accordingly, the circuit court lacked competency to proceed and we affirm its order dismissing Currier's petition for judicial review.
Facts
The relevant facts are brief and relate to the procedural history of Currier's case. In May 2003, the Wisconsin Department of Revenue (DOR) levied an income tax assessment against Currier in the amount of $9588.57. Currier filed a petition for redetermination of the assessment, which the DOR subsequently denied. In December, Currier filed a petition for review with the Commission.
On June 16, 2004, the Commission served Currier with a decision and order upholding the DOR's assessment against Currier. Currier sent a petition for rehearing by mail on July 6. The petition was received by the Commission's clerk on July 7.
On July 13, the Commission issued an order denying the petition for rehearing. The Commission held that that Currier's petition was untimely under WIS. STAT.§ 227.49(1). The Commission stated, "The 20-day period for filing a timely petition for rehearing expired on July 6, 2004. Petitioner filed his petition for rehearing on July 7, 2004, one day late. [See WIS. STAT.§ 227.49(1)]."
On August 11, 2004, Currier filed a petition for review in the circuit court pursuant to WIS. STAT.§ 227.53(1), the statutory provision authorizing judicial review of agency decisions. On September 1, the DOR moved to dismiss the petition for judicial review for lack of subject matter jurisdiction (competency to proceed) and lack of personal jurisdiction. The DOR reminded the circuit court that pursuant to § 227.53(1)(a)2. a party must file its petition for judicial review within thirty days of service of the Commission decision and Currier had filed his petition for judicial review on August 11, obviously more than thirty days after service of the Commission's June 16 decision. The DOR recognized that § 227.53(1)(a)2. expands the time for filing of a petition for judicial review if the party has requested a rehearing, but submitted that Currier's untimely petition for rehearing did not serve to extend the deadline.
In his response, Currier maintained that his petition for rehearing was timely because it was postmarked
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