Wednesday, November 1, 2000
Ninety-Fourth Regular Session
Senate Journal
The Chief Clerk makes the following entries under the above date.
petitions and communications
State of Wisconsin
Claims Board
October 27, 2000
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on October 20, 2000.
The amounts recommended for payment under $5,000 on claims included in this report have, under the provisions of s. 16.007, Stats., been paid directly by the Board.
The Board is preparing the bill(s) on the recommended award(s) over $5,000, if any, and will submit such to the Joint Finance Committee for legislative introduction.
This report is for the information of the Legislature. The Board would appreciate your acceptance and spreading of it upon the Journal to inform the members of the Legislature.
Edward D. Main
The State Claims Board conducted hearings in the State Capitol, Grand Army of the Republic Memorial Hall, Madison, Wisconsin, on October 20, 2000, upon the following claims:
Claimant Agency Amount
1. Larry & Department $1,907.00
Joanne Buwalda of Revenue
2. Estate of Department $46,840.00
Yvonne A. Ozzello of Revenue
3.Robert & Department $21,726.70
Rebecca Duckworth of Transportation
4. Jane Pope Department of $5,002.40
Health and
Family Services
In addition, the following claims were considered and decided without hearings:
Claimant Agency Amount
5. Conlee Cox Dept. of Ag., Trade $10.00
& Consumer Protection
6. Lori Ann Cygan Department $177.00
of Corrections
7. Paula J. Habeck Department $177.00
-Ihlenfeldt of Corrections
8. Duane Dorn Department of $250.00
Regulation and Licensing
9. Thomas & Department $237.36
Rosalie Mikich of Revenue
In addition, the following claim, which was considered at a previous meeting, was considered and decided without hearing:
Claimant Agency Amount
10. Michael R. Schon Department $190.31
of Revenue
In addition, the board considered the question of whether or not to hold a hearing for the following claim prior to resolution of legal appeals.
Claimant Agency
11. Anthony T. Hicks Wrongful Imprisonment
(s. 775.05, Wis. Stats.)
The Board Finds:
1. Larry and Joanne Buwalda of Waupun, Wisconsin claim $1,907.00 for partial 1997 Farmland Preservation Credit disallowed by the Department of Revenue. The claimants state that the DOR incorrectly determined that their 1997 farm depreciation exceeded $25,000 and therefore, only allowed them a credit of $1,062. The claimants state that they received a notice informing them of the DOR's decision on April 21, 1998. The notice stated that the claimants had 60 days to respond. The claimants state that on May 31, 1998, their farm was devastated by a tornado, which caused considerable damage to their farm buildings and home. Because of this disaster, the claimants were unable to respond to the DOR's notice in a timely fashion. The claimants allege that it was only due to these mitigating circumstances that they did not respond to the DOR's notice in a timely fashion. Due to the DOR's error and the undue hardship experienced by the claimants, they request that the board award the remainder of their 1997 Farmland Preservation Credit.
The Department of Revenue admits that it erred in adjusting the claimants' income and that the DOR incorrectly issued a Notice of Adjustment to the taxpayers. The claimants had claimed a Farmland Preservation Credit of $2,969 but because of its error the Department only allowed a credit of $1,062. Because the claimants did not file a timely appeal as allowed by statute, the adjustment is final and conclusive and the Department is unable to allow any additional credit for 1997. However, the DOR acknowledges that it does appear that circumstances beyond the claimants' control could have been a significant factor in their not meeting the 60-day deadline.
The Board concludes the claim should be paid in the amount of $1,907.00 based on equitable principles. The Board further concludes, under authority of s. 16.007 (6m), Stats., payment should be made from the Claims Board appropriation s. 20.505 (4)(d), Stats.
S688 2. The Estate of Yvonne A. Ozzello of Madison, Wisconsin claims $46,840.00 for refund of overpayment of taxes for the years 1992 through 1995. Ms. Ozzello was diagnosed with terminal cancer and was very ill throughout this period. The claimant states that Ms. Ozzello's illness was so severe that it was difficult for her even to pay someone to prepare her tax returns. Ms. Ozzello died in November 1999. The claimant states that before her death, Ms. Ozzello made every effort to get her tax filing up to date, but that her illness prevented it. The claimant believes that the DOR's assessments were excessive, especially in consideration of the taxpayer's illness. The claimant points to section 71.74 (3), Stats., which states that an assessment "shall be assessed by the department according to it's best judgement." The claimant does not believe that the DOR used its best judgement in determining these excessive assessments. The claimant also believes that there is inequity regarding the 2-year versus 4 year statute of limitations for claiming refunds under section 71.75 (5), Stats. This taxpayer would have fallen under the 4-year statute of limitations for claiming refunds for the 1993-1995 assessments had the statute's effective date not been deferred. The claimant requests refund of the overpayments, plus interest.
The DOR recommends denial of this claim. Section 71.75 (5), Stats., prevents the DOR from refunding the amounts paid on the estimated assessments for the years 1992-1995, since no refund was claimed within the prescribed two-year statute of limitations. The DOR issued a $24,589.95 refund to the claimant for years that were still eligible for refund and has no authority to issue any further refunds because of the statute of limitations.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
3. Robert and Rebecca Duckworth of Mauston, Wisconsin claim $21,726.70 for various damages allegedly caused by Department of Transportation errors and delays in processing their house moving permit applications. The claimants needed to move a house 1.5 miles to another location in Mauston. Moving the house would require police escort and utility company personnel to move power and phone lines. The claimants had received an approved permit and were ready to move the house on 11/11/99. The claimants state that on 11/10, a State Patrol Officer inspected the moving equipment and stated that the house could not be moved because there were no brakes on the dolly wheels. The claimants allege that the mover had never been required to use dolly wheel brakes and that when they tried to find out what law required them, no one could give them an answer. They state that the Patrol Officer told them the law had only been on the books since March 1999. The claimants state that this delayed the move several weeks, which increased the chance of bad weather. On 12/9/99, the mover told them that they had the brakes and were ready to go. The claimants allege that they applied for another permit on 12/10, but that their permit application was not processed in a timely fashion because the office was closed for a retirement party. They claim that this delay caused them to have to cancel the move scheduled for 12/15. The claimants further allege that the move could not be scheduled again until 1/13/00, because the DOT does not process permits during the holidays. The claimants state that a move scheduled for 1/18 was canceled due to bad weather and that the State Patrol canceled a 1/25 move because of lack of personnel to provide escort. The claimants allege that they applied for another permit on 2/3, but that errors by the DOT caused another delay. A 2/16 move was canceled by the phone company for lack of personnel. The house was moved on 2/23. The claimants also allege that there was no need for the DOT to require that the house move occur in the early morning hours (2:30-5:30 AM). They point to the fact that two other homes in the area were recently moved in the daytime and do not believe that a daytime move would have caused major disruption for the community. The claimants state that a requiring a nighttime move resulted in extra expenses for police escorts, utility personnel overtime, and damage to their house, when a tree was struck because the movers could not see. They request damages as follows: $3,899.90 additional cost to utilities. $11,250.00 lost time of three workers at 25 hours per week for 15 weeks. $100.00 damage to the basement caused by the house sitting unheated during the winter. $825.00 damage to exterior of house. $1,225.00 damage to interior of house. $4,231.80 difference in interest over life of loan caused by rate increases. $195.00 overtime charge for police escorts.
The Department of Transportation recommends denial of this claim. The DOT states that the dolly wheel brake law was not a new law, as the claimants allege, but an existing law, which was explained by the DOT in a meeting with a house moving association in 1998. The DOT states that the 11/10 inspection revealed a number of violations in addition to the missing wheel brakes, including the fact that the actual load size was 7' longer and 4' wider than stated on the permit application. The DOT states that this size change alone, was enough to stop the move. The application permit submitted by Elver Permit Service on 12/10 was incomplete and therefore faxed back to Elver. On 12/13, Elver returned the completed permit and did not request priority processing. The DOT states that the change of the size of the load required another review of the permit application, which was completed within 72 hours, the normal turnaround time for reviews. The DOT further states that the retirement party had no effect on the claimants' permit processing. The office was not closed, but staff did take an hour-long break to honor a retiring employee. When the completed permit was received at 2:49 PM on 12/13, the party was already over. The DOT states that there is no prohibition on issuing permits during the holidays. An inspection on 1/3/00 found new violations and the load failed inspection. The DOT states that the State Patrol has no records of a move scheduled for 1/25 and that the 2/17 move was canceled by the movers because of phone company problems. The DOT points to the fact that the majority of the move delays were caused by uncontrollable circumstances, such as the weather, or by problems with utility or police personnel availability, none of which can be attributed to any alleged DOT errors. The DOT states that the original permit application submitted by Elver Permit Service indicated that the house would be moving directly through downtown Mauston, a heavy traffic area, through which it would be impossible to do a daytime move without major disruption to the local community. Although the route for the move was eventually changed in a later permit, the DOT still found that the size of the home, which because of its unusual height required the removal of many power lines, necessitated a nighttime move. The DOT believes that any damage caused to the home because the movers ran the house into tree branches is the responsibility of the movers, not the state. The mover has experience with nighttime movers and should have exercised more caution. Finally, the DOT states that the two houses moved during the daytime received their permits in another district. DOT had recommended that they also be moved at night, in accordance with standard procedure, however, the City of Elroy had reasons to expedite the moves and put pressure on the DOT to allow a daytime move. These daytime moves were exceptions to DOT's normal procedures. The DOT believes that the claimants' damages were caused by errors by their permit service and their movers and recommends denial of the claim.