Wisconsin Legislature: 2003-01-10 Senate Journal

Charles R. Pittelkow

Howard "Dan" Poulson

Willaim A. Raaths

Richard F. Raemisch

Gerard A. Randall Jr.

Kathleen M. Rasmussen

Joel Read

Mary Reavey

L. Anne Reid

Jennifer Reinert

Frederick T. Rikkers

James T. Rogers

Jean Rogers

Linda Roos-Stutz

Donna M. Rozar

Dr. Jeff M. Sarazen

Jerry J. Schallock

Lee Schmalz

Lolita Schneiders

Patricia A. Schultz

Robert Skinner

Bill G. Smith

Steven R. Sorenson

Andrea Steen Crawford

George K. Steil (2)

Lisa Stewart-Boettcher

Kathleen F. Stolpman

Peter A. Sveum

Gary "Joe" Sweeney

Dr. Elmer R. Taake

Mathew P. Tharaniyil

Francis R. Thousand

Danny Trotter

Debra S. Truckey

Mary Jo Walsh

Cheryl A. Weisensel

Darylann T. Whitemarsh

Gerald L. Wilkie

E. Ray Willoughby

Dale C. Zabel

John J. Zwadich

Mark A. Zwaska

Sincerely,

Jim Doyle

Governor

State of Wisconsin

Claims Board

January 9, 2003

The Honorable, The Senate:

Enclosed is the report of the State Claims Board covering the claims heard on December 19, 2002.

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.

Sincerely,

John E. Rothschild

Secretary

STATE OF WISCONSIN CLAIMS BOARD

The State Claims Board conducted hearings at the Department of Administration Building, St. Croix Room, Madison, Wisconsin, on December 19, 2002, upon the following claims:

Claimant Agency Amount

1. Russell & Edna Jeske Department $29,955.61

of Revenue

2. Terrance A. Kaucic Department $14,553.26

of Revenue

3. Megan E. Weinhandl University $70.00

of Wisconsin

4. Genevieve G. McBride University $2,805.00

of Wisconsin

In addition, the following claims were considered and decided without hearings:

Claimant Agency Amount

5. Tara Hoekman Department of $7,768.55

Health and Family Services

6. Jeremy S. Daubon Department $70.40

of Corrections

7. Dennis Gonzalez Department $144.50

of Corrections

8. Dennis Gonzalez Department $32.16

of Corrections

9. M.H. Ranch, Inc. Department of $1,636.40

Transportation

10. Heinn/Trend Corporation Department of Administration $23,291.32

The Board Finds:

1. Russell and Edna Jeske of New Berlin, Wisconsin claim $29,955.61 for overpayment of property taxes. The claimants state that they sold 2 acres of land to a developer in 1984. This land was added to the developer's tax parcel but was not removed from the claimants' tax parcel, allegedly due to an error by DOR. As a result, the claimants paid taxes from 1984 to 1999 on two acres of land that they no longer owned. The new owner of the land also paid taxes on the 2 acres. The claimants state that they discovered the error in 1999 when they hired a third party to conduct a real estate appraisal. The claimants state that they received a notice in May 1999, in which DOR allegedly admitted that they had made an error. The claimants did receive a partial refund for the overpayment from the Village of Elm Grove in the amount of $3,660 for the year 1999. The claimants also note that the description on their property tax bill did change in 1990. Prior to that year, the description read "3AC" but in 1990 the description stated "0.895AC," the correct description. Despite the change, however, there was no reduction in the claimants' taxes from 1990 to 1999. The claimants request reimbursement for the amount they overpaid on the land they no longer owned.

S10 DOR recommends denial of this claim. DOR is responsible for assessing all manufacturing property, however, the taxes on such property are collected and kept by the local municipality, not DOR. DOR states that it was not notified of the sale of the 2 acres until 1999. DOR states that it relies on owners of property to report changes in property ownership. Section 70.995(12)(a), Stats., provides that manufacturers shall submit an annual form to DOR for each real estate parcel assessed. DOR records indicate that no change in ownership was ever reported on this form. DOR states that they made the appropriate changes as soon as they were notified of the change in ownership. DOR states that it is usually the municipality's responsibility to notify DOR when they split a parcel of land. DOR also states that it is the local municipality that is responsible for sending out the tax bill and collecting the payment. Finally, DOR points to the fact that state statutes allow for a 60-day period to appeal an annual assessment. DOR states that the claimants never filed any appeal to their annual assessments, so the assessments became final and the appeal periods for all years in question have long since expired.

The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.

2. Terrance A. Kaucic of Milwaukee, Wisconsin claims $14,553.26 for overpayment of employee withholding taxes related to his now defunct corporation, Northern Building Products. The claimant states that he owed $35,625.04 in taxes and that DOR began taking large monthly payments from him in 1990, which continued until July 2002. The claimant states that the garnishments had a severe negative impact on his financial situation and also alleges that they led to his divorce. The claimant later discovered that he had overpaid the amount owed by $14,553.26. The claimant believes that, in fairness, this money should be returned to him.

DOR recommends denial of this claim. DOR states that in April 1993, it issued an estimated assessment based on the claimant's failure to file withholding tax reports for June 1991 through September 1991. That assessment was due May 31, 1993. DOR records indicate that certification of the claimant's wages began in January 1994 and continued for eight years with three different employers. DOR alleges that during this time period, it held several informal hearings with the claimant and that DOR twice lowered the certification percentage in response to the claimant's complaints that he could not live on his reduced income. DOR states that the claimant inquired about a petition for compromise in April 1998 and that he was advised at that time to file the missing reports. On May 5, 1999, the claimant's request for amnesty was denied based on his failure to file the requested reports. DOR states that in January 2001, it informed the claimant's Power of Attorney that the reports needed to be filed. According to DOR records, the claimant contacted DOR in September 2001 and stated that he had no records and therefore could not file the reports. Another hearing was held in July 2002 to discuss the claimant's wage certification. At that time the estimated assessment was compromised under the fair and equitable provisions of s. 71.92(4), Stats. DOR personnel prepared mock withholding reports based on previous withholding tax and the remaining balance of the assessment was cancelled. Based on the mock tax reports, the calculated overpayment on the assessment is $18,810.63. DOR points to the fact that at no time did the claimant ever provide the actual tax information needed to calculate the correct tax liability, which would have allowed him to file a claim for refund of any overpayments.

3. Megan E. Weinhandl of Marengo, Illinois claims $70.00 for money that was allegedly stolen while she was attending a summer camp at the UW. The claimant and other campers were housed in a UW dormitory and were all given keys to their rooms. Police reports indicated that sometime between 9:15 and 11:30 a.m. on July 17, 2002, an unknown person entered the dormitory and stole items and cash from the campers' rooms. The claimant states that her door was locked at the time of the thefts but that $70 was stolen from her room. The police report indicates that there was no sign of forced entry to the claimant's room. The claimant points to the fact that the room doors can only be locked from outside the room using the key, therefore, the only way that the claimant's door could be locked after the theft was with a master or room key. The claimant also points to the fact that one of the other rooms involved in the thefts was found locked with the room keys still inside the room. The claimant believes that this evidence proves that the thief would have had to possess a master key to enter the rooms and she therefore believes that the UW was negligent in its handling of keys.

The UW recommends denial of this claim. The UW alleges that, at the time of the thefts, all building keys were accounted for. The UW states that the doors to the building were locked between 11:30 p.m. and 6:30 a.m. but that they remained open during the daytime. The UW states that it finds no evidence that the theft was due to negligence by any state employee. The UW believes that it exercised due care in providing facilities to campers and that it should not be held responsible for the claimant's loss.