Feed for /code/register/2008/632b/rulemaking_notices
This rule repeals rules sections GAB 21.01 and 21.04, and amends section GAB 20.01, (which would have interpreted Subchapter I of Chapter 5 of the Wisconsin Statutes, as amended by 2007 Wisconsin Act 1), in anticipation of a future rule governing campaign finance, ethics and lobbying complaints under the new law enacted in 2007 Wisconsin Act 1.
Comparison with federal regulations
Considering that this rule repeals two existing former Ethics Board rules and effectively repeals a portion of a rule of the former Elections Board, comparison with existing federal regulations is inapposite. Federal law does enforce violations of campaign finance, lobbying and ethics laws at the federal level only.
Comparison with rules in adjacent states
The States of Illinois, Iowa, Michigan and Minnesota have not enacted legislation comparable to 2007 Wisconsin Act 1 and have not sought the repeal of enforcement provisions comparable to those included in this rule.
Given the purpose and tenor of this rule, repealing administrative provisions, comparison with existing provisions of other states, as with a comparison to federal law, is inapposite.
Summary of factual data and analytical methodologies
Adoption of the rule was predicated on eliminating provisions of the former Ethics Board's and Elections Board's rules that were inconsistent with the provisions or intent of the new law merging those agencies into the new Government Accountability Board.
Analysis and supporting documents used to determine effect on small business
Preparation of an economic impact report is not required. The Government Accountability Board does not anticipate that the repeal of the described provisions will have an economic impact.
Effect on Small Business
The creation of this rule does not affect business.
Fiscal Estimate
The creation of this rule has no fiscal effect.
Agency Contact Person
George A. Dunst, Staff Counsel
Government Accountability Board
17 West Main Street, P.O. Box 2973
Madison, Wisconsin 53701-2973
Phone: 608-266-0136; Email: (george.dunst@wi.gov)
Submission of Written Comments
Written comments should be sent to the following address: Government Accountability Board, 17 West Main Street, P.O. Box 2973, Madison, WI 53701-2973; (elections.state.wi.us)
Text of Proposed Rule
Pursuant to the authority vested in the State of Wisconsin Government Accountability Board by ss. 5.05 (1) (f) and 227.11 (2) (a), Stats., the Government Accountability Board hereby repeals rules ss. GAB 21.01 and 21.04 and amends s. GAB 20.01, as follows:
SECTION 1. GAB 21.01 and 21.04 are repealed.
SECTION 2. GAB 20.01 is amended to read:
GAB 20.01 Applicability. This chapter applies to complaints filed with the state elections government accountability board pursuant to ss.5.05(3), 5.06, 11.60(5) and 11.66 5.061, Stats., requesting the elections board to enforce the election and campaign finance laws and compliance with the Help America Vote Act. This chapter does not apply to complaints to challenge nomination papers or petitions which are filed under s. 2.05 or 2.11.
Notice of Hearing
Tax Appeals Commission
NOTICE IS HEREBY GIVEN That pursuant to s. 73.01 (4) (b), Stats., and interpreting s. 73.01 (5), Stats., the Wisconsin Tax Appeals Commission will hold a public hearing at to consider proposed changes to the Commission's rules of practice and procedure in Chapter TA 1 of the Wisconsin Administrative Code.
Hearing Information
Date:
Location:
September 17, 2008
at 10:30 a.m.
5005 University Avenue
Suite 110
Madison, Wisconsin
Following the hearing, the Commission will meet in open session. Topics on the agenda for the open session will include the status of cases before the Commission and miscellaneous matters. Following the open session, the Commission also may meet in closed session pursuant to s. 19.85 (1) (a), Wis. Stats., to deliberate on cases before the Commission.
Analysis Prepared by the Tax Appeals Commission
Statutes interpreted
Section 73.01 (5), Stats. allows parties to file petitions for review by the Tax Appeals Commission and describes the process by which the commission conducts such review. The proposed rule changes relate to the procedures for such review.
Statutory authority
Section 73.01 (4) (b), Stats., gives the commission authority to promulgate its rules of procedure.
Explanation of agency authority
Pursuant to Wis. Stat. s. 73.01 (4) and subject to judicial review, the Tax Appeals Commission is the final authority for the hearing and determination of all appeals arising in the following areas of state taxation: individual income; corporation franchise/income; fiduciary; withholding; gift; sales and use; recycling surcharge; county sales tax; car line; cigarette use; controlled substances; metalliferous minerals occupation; motor fuel and alternative fuel; International Registration Plan fees; intoxicating liquor; cigarettes and tobacco products; homestead credit; farmland preservation credit; assessments of manufacturing property; pollution abatement; taxation district appeals regarding the relative value of taxable property in taxation districts of a county; real estate transfer fees; telephone license fees; and electric cooperative association license fees. The commission's rules govern procedures in such appeals.
Related statute or rule
Appeals of state taxation assessments to the commission are permitted pursuant to Wis. Stats. §§ 70.38(4) (a), 70.397, 70.64, 70.995(8), 71.07(9e), 71.55(6m), 71.61, 71.88, 76.38(12) (a), 76.39(4) (c), 76.48(6), 76.91, 77.26(3), 77.59(5m) and (6) (b), 78.01, 78.22, 78.40, 78.555, 139.02, 139.03, 139.06, 139.31, 139.315, 139.33, 139.76, 139.78, 341.43 and 341.45.
Plain language analysis
Section by section details of this rule order are outlined as follows:
Section 1: TA 1.001 (1), (2), (3), (4), (5), (6), (7), (8) and (9) are created to provide definitions of certain terms used in this chapter. The definition of "business hours" conforms to the commission's current business hours. The definition of "party" is added to clarify that an intervenor or amicus curiae may participate in a matter under review only to the extent granted by order of the commission. The definition of "working day" is found in Wis. Stat. § 227.01 (14). Legal holidays are designated in Wis. Stat. § 230.35(4) (a). The definition of "small claims" is found in Wis. Stat. § 73.01 (1) (b).
Section 2: TA 1.01 (1), (2) and (3) are amended to show a preference for documents to be printed by a computer printer, to replace the term "petitioner" with the more inclusive term of "party" and to remove the requirement of filing additional copies of papers in a consolidated proceeding.
Section 3: TA 1.01 (4) and (5) are created to make the prescribed form of pleading mandatory. Sub. (4) is added to clarify that this rule does not apply to exhibits. Sub. (5) provides a method for the commission to enforce TA 1.01.
Section 4: TA 1.03 is renumbered to 1.03(1) and amended for consistency.
Section 5: TA 1.03(2) is created to codify the commission's current practice of requiring the filing of a written notice of appearance by a party's representative.
Section 6: The title of Subchapter II is amended from "Filing an Appeal" to "Petitions and Related Filings" to better describe the contents of this subchapter.
Section 7: TA 1.11 is amended to add references to TA 1.01 and 1.15 to the rule, and to change the note following the rule.
Section 8: The title of TA 1.13 is amended to "When a petition is filed" for consistency. TA 1.13(1) and (2) are amended to codify the practice of the commission to treat petitions filed after business hours as filed on the next working day, and to clarify that a petition may be timely filed even if it is not accompanied by the required filing fee.
Section 9: TA 1.13 (3) is created to conform the commission's rules to the holding of the Court of Appeals in Kuntz v. Dep't of Revenue, 149 Wis. 2d 399, 439 N.W.2d 644 (Ct. App. 1989) (unpublished decision). In that case, the court held that a petitioner's failure to pay the commission's required filing fee by the date the petition is due under Wis. Stat. § 73.01 (5) (a) does not deprive the commission of jurisdiction in the case. The court effectively held that a petitioner's failure to pay the filing fee by the statutory due date is curable, and the commission's longstanding practice since that decision has been to assert jurisdiction in such a case if the petitioner subsequently pays the fee in a prompt manner. As an unpublished decision, Kuntz does not have precedential value. However, this issue arises frequently in connection with petitions filed with the commission, and it is likely that the courts would follow the rationale explained in Kuntz in reviewing the commission's handling of this issue in similar future cases. In cases where the petition is not accompanied by the required filing fee, the commission now requires payment of the filing fee within 30 days of receipt of notice from the commission, as provided in this new rule.
Section 10: The title of TA 1.15 is amended to "Forms for petitions" for consistency. TA 1.15 (1), (2), (3) and (4) are amended to clarify these subsections. Subs. (1) and (4) are amended to change the reference to "department of revenue" to "department" for consistency. With regard to existing sub. (2), many of the suggested elements of the model petition for review are mandated by Wis. Stats. §§ 70.995 (8) (c) and (d) and 73.01 (5). For example (2) (c) and (d) are largely mandated by Wis. Stat. § 73.01 (5) (b). The amendment makes the elements specified in sub. (2) mandatory. The number of copies of each petition for review is reduced from four to three in sub. (3) for consistency. The notes following TA 1.15 are deleted, and new notes are created following TA 1.15 (5).
Section 11: TA 1.15 (5) is created to codify the practice of the commission to permit a petitioner to file an amended petition for review if the initial petition for review lacks information required by statute.
Section 12: TA 1.17 is renumbered to TA 1.17 (1) and amended for consistency and to refer to the newly created subsection 2.
Section 13: TA 1.17 (2) is created to adopt the policy the commission followed in City of Niagara v. Dep't of Revenue and Niagara of Wisconsin Paper Corp., Wis. Tax Rptr. (CCH) ¶400-329 (WTAC Nov. 25, 1997), to assign the same docket number to a cross-appeal that it had assigned to the petition for review to which the cross-appeal relates.
Section 14: TA 1.19 is amended to conform the language of that section to the other sections of these rules.
Section 15: TA 1.20 is created to codify the commission's current practices concerning intervenors.
Section 16: TA 1.21 and note are amended to make the amendment of pleadings more consistent with the rules of civil procedure and Wis. Stat. § 802.09 (1).
Section 17: TA 1.23 and note are created to allow the filing of certain documents other than petitions by electronic transmission.
Section 18: TA 1.24 is created to codify the commission's current practice of permitting amicus curiae briefs as a matter of discretion.
Section 19: The title of Subchapter III is amended from "Procedures Prior to a Hearing" to "Practice and Procedure," because this subchapter includes rules applicable to practice and procedure prior to, during and after a hearing, as well as practice and procedure in cases in which no hearing is held.
Section 20: TA 1.30 is created to replace TA 1.39 and state the commission practice of generally following the circuit court rules of civil procedure at the beginning of Subchapter III. The enumeration of statutes in the note is intended to assist non-lawyer representatives and pro se litigants.
Section 21: TA 1.31 (1) and (2) are renumbered to TA 1.31 (4) and (5) and amended to eliminate superfluous language in light of the newly created TA 1.30. The amended rule clarifies the current commission practice that only the commission issues notices of hearings.
Section 22: TA 1.31 (1), (2) and (3) are created to describe what types of motions may be made before the commission and when those motions may be made, and to require sufficient copies of motions and supporting papers be provided in cases where all three commissioners must render a decision.
Section 23: TA 1.32 is created to codify the commission's current practices concerning consolidation of matters before the commission.
Section 24: TA 1.33 (1) is renumbered to TA 1.33.
Section 25: TA 1.33 (2) and (3) are repealed to conform this section to the commission's current practices concerning prehearing conferences.
Section 26: The note following TA 1.33 (3) is amended for consistency.
Section 27: TA 1.34 (1), (2), (3), (4) and (5) and note are created to clarify that attorneys authorized to practice law in Wisconsin may issue subpoenas in proceedings before the commission, just as in civil proceedings, as authorized by Wis. Stat. § 227.45 (6m), and provides a framework for issuing subpoenas and subpoenas duces tecum in matters pending before the commission.
Section 28: TA 1.35 (1), (2) and note are amended to clarify certain language and replace the term "counsel" with the more inclusive term "party."
Section 29: TA 1.37 is amended to make it clear that the commission's authority to grant extensions is limited.
Section 30: TA 1.39 is repealed in favor of TA 1.30.
Section 31: The title of TA Subchapter IV is amended from "Hearings" to "Hearings and Briefs."
Section 32: TA 1.51 (1), (2) and note are amended to place the statutory reference in the note and to require a longer notice period for a hearing.
Section 33: TA 1.51 (3), (4), (5) and note are created to codify the commission's practice of exchanging witness names and exhibits prior to a hearing, to codify the commission's practice in allowing telephonic testimony as allowed by Wis. Stat. § 807.13, and to provide a penalty for unreasonable conduct by a party in a hearing.
Section 34: TA 1.53 and note are amended to clarify that evidence may be excluded at the presiding commissioner's discretion and for consistency.
Section 35: TA 1.55 (1), (2), (3) and (4) are amended to reflect that recordings are no longer recorded exclusively on "tape," to allow for the use of different methods of recording in the future, and to reflect the commission's current practices regarding recordings and transcripts. The note following TA 1.55 (1) is amended for consistency and to state the correct statutory authority for recording contested hearings in Wis. Stat. § 227.44 (8).
Section 36: TA 1.57 (1) and (2) are amended to remove unnecessary language and to provide the method for disregarding briefs that are filed after the time designated by the commission.
Section 37: TA 1.57 (3), (4), (5) and (6) are created to provide specific guidelines for filing briefs with the commission.
Section 38: TA 1.61 and note are repealed in favor of TA 1.001.
Section 39: TA 1.63 (1) is renumbered and amended and the note is amended to simplify this rule and conform it more closely to Wis. Stat. § 73.01 (4) (am).
Section 40: TA 1.63 (2) and (3) are repealed to simplify TA 1.63 and conform it more closely to Wis. Stat. § 73.01 (4) (am).
Comparison with federal regulations
There are no federal regulations governing practice and procedure before the commission. The commission's rules are analogous to the rules of the U. S. Tax Court, and the commission consulted those rules in drafting these rule changes. However, as a state administrative agency, the commission's rules of practice and procedure are much less restrictive that the Tax Court's rules.
Comparison with rules in adjacent states
Adjacent states have various entities that review state tax appeals that range from a state tax court in Minnesota to a hearing division within the Departments of Revenue in Iowa and Illinois. These entities have procedures for hearings that are generally comparable to those of the commission.
Summary of factual data and analytical methodologies
Loading...
Loading...