The Office of the Commissioner of Insurance recommends denial of these claims. OCI points to
New York Life Ins. Co. v. State, in which exactly the same kind of claim was made: that because a New York court invalidated tax obligations required after they were imposed on WI companies, the NY company was entitled to a retroactive refund of its WI tax payment. OCI states that the Wisconsin Supreme Court rejected that argument in
New York Life. Although the claimants acknowledge that decision, they argue that subsequent changes in WI's statutory language were intended to change the rule of
New York Life. OCI believes this argument is without merit. OCI states that the statutory changes were merely for purposes of simplification. OCI believes that the plain language of the statute, which refers to the taxes "a state or foreign county requires," applies not only to a state's laws in theory, as the claimants allege, but also to how that state's officials administer and interpret those laws. OCI points to the LRB analysis and legislative history, which show that there was no intent by the legislature to create a different rule of law than that made by
New York Life. OCI also argues that the claimants did not avail themselves of the appropriate statutory recourse for relief provided by s.
76.68(2), Stats. Additionally, OCI states that the claimants failed to protest these taxes at the time of payment and therefore failed to give notice to WI so that the state could set aside the contested funds. OCI believes that the claimants' failure to do so bars their current claims. In support of that argument, OCI states that WI courts have repeatedly endorsed the voluntary payment doctrine, which places the obligation to challenge a payment, before or at the time of payment, upon the party making the challenge. The claimants allege that the voluntary payment doctrine does not apply because s.
775.01, Stats., does not specifically require protest at time of payment. OCI believes that the claimants are misinterpreting the limited exception to the voluntary payment doctrine. OCI states that this doctrine applies whether the claimants bring suit under common law or statute and that the doctrine is the default rule—there need not be an affirmative statement requiring the protest. OCI also points to the fact that the Illinois Court of Appeals has denied claims from non-protesting WI insurers for refund of the Premium Tax. OCI states that refunding the claimants, who also never protested the tax, would unjustly enrich IL insurers to the detriment of WI insurers and would be inconsistent with reciprocal and retaliatory statutes. Finally, OCI notes that the claimants are but one group of potentially 160 IL insurers doing business in WI and that the potential for additional claims is great.
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.
5. Jennifer L. Hall of Richland Center, Wisconsin claims $2,195.30 for lost income due to an allegedly unreasonable delay in restoring her farm to Grade A status. Pursuant to a license name change request, an inspection of the claimant's farm was performed on July 16, 2004. DATCP food safety inspector Amy Bender conducted the inspection and field representative Pete Dillenberg was also in attendance. The claimant states that Ms. Bender appeared dissatisfied with previous repairs that had been completed. The claimant states that Ms. Bender left without telling her the results of the inspection, and that Mr. Dillenberg informed her that the farm had been downgraded to Grade B. The claimant states that Mr. Dillenberg told her to contact him once the repairs had been completed and that he would schedule a re-inspection with Ms. Bender. The claimant states that she completed the repairs on July 25th and called Mr. Dillenberg to inform him on July 26th. The claimant states that Mr. Dillenberg began trying to reach Ms. Bender on July 30th but that she did not reply. The claimant states that Mr. Dillenberg left messages for Ms. Bender on August 13, 14, 15 and 16 but that she did not return any of his calls. Mr. Dillenberg apparently finally reached Ms. Bender by chance on August 24th. Ms. Bender allegedly told Mr. Dillenberg that she had not responded because he had not called during business hours. The re-inspection was scheduled for August 27th, six weeks after the initial downgrade. The claimant states that, during this inspection, Ms. Bender told the claimant Mr. Dillenberg was "the reason" that she had been downgraded and that Ms. Bender had not received any call from him until August 24th. The claimant noticed that there seemed to be an acrimonious working relationship between Mr. Dillenberg and Ms. Bender, which the claimant believes is the primary cause for the delay in scheduling her re-inspection. The claimant states that she lost $2,195.30 because she had to ship Grade B milk for 6 weeks instead of Grade A, and requests reimbursement for her lost income.
The Department of Agriculture, Trade & Consumer Protection recommends payment of this claim. The department states that when deficiencies are found during routine inspections, normal practice is to issue a notice indicating the intent to downgrade and setting a date for re-inspection. If the deficiencies were found to be corrected during the re-inspection, the Grade A permit would be retained. It appears that in this instance, the normal notice of intent was not provided to the claimant. If this notice had been issued, the claimant would have received the date for her re-inspection on that day and would therefore have known the date by which she would have to correct the deficiencies in order to maintain her Grade A permit without interruption. DATCP agrees that the 6 week delay to restore the Grade A permit was unwarranted and that the claimant received a lower price for her milk during that period. DATCP does not dispute the amount of the differential claimed by the claimant and recommends payment of her claim.
The Board concludes the claim should be paid in the amount of $2,195.30 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Agriculture, Trade & Consumer Protection appropriation s.
20.115 (1)(a), Stats.
S229
6. Randy Neu
of Hartland, Wisconsin makes six claims in the amounts of $1447.79, $2895.60, $2034.62, $625.74, $3076.07, and $3076.07, for refunds of sales taxes overpaid for various periods from August 1995 through September 1996. The claimant states that DOR levied his bank accounts and garnisheed his wages for payment of these estimated assessments, interest and penalties for the periods in question. The claimant states that, when he filed the requested returns in April 2004, he discovered that, even though he had liabilities on at least 31 other open accounts, the DOR allocated all of the monies seized to these assessments, resulting in overpayment on those accounts, when the remaining owed accounts still had balances and were accruing interest charges. The claimant states that DOR denied all request for refund, credit or other consideration of the overpayments because of the statute of limitations. The claimant does not believe that it was fair for DOR to appropriate the seized monies is such a way and that there was no way for him to know this was occurring. He requests reimbursement of the overpaid amounts.
The Department of Revenue recommends denial of these claims. DOR states that the claimant has had experience filing and paying sales taxes since registering with DOR in 1991. DOR records indicate that late sales tax filings began in 1992 and continued into 1995. Several periods prior to those claimed were also estimated for failure to file sales tax returns and there were also estimated income tax assessments for the years 1989 through 1993. The claimant filed the requested sales and income tax returns in April 2004. DOR states that, following the adjustment of the estimated sales tax assessments that are the subject of this claim, in consideration of the overpayments made, DOR adjusted the $20,788.45 remaining delinquent balance on the claimant's other accounts to zero. DOR therefore believes that the claimant has received more than sufficient consideration and relief for the total overpayments he claims of $13,155.88.
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.
The Board concludes:
1. The claims of the following claimants should be denied:
Andrea L. Mudrey
2.
Payment of the following amounts to the following
claimants from the following statutory appropriations is justified under s.
16.007, Stats:
Dated at Madison, Wisconsin this 10th day of May, 2005.
Alan Lee
Chair, Representative of the Attorney General
John E. Rothschild
Secretary, Representative of the Secretary of Administration
Amy Kasper
Representative of the Governor
Mary Lazich
Senate Finance Committee
Dan Meyer
Assembly Finance Committee
__________________
State of Wisconsin
Office of the Governor
May 10, 2005
The Honorable, The Senate:
I am pleased to nominate and with the advice and consent of the Senate, do appoint Rodriguez, Mariana,
of Milwaukee, as a member of the Council on Domestic Abuse, to serve for the term ending July 1, 2008.
Sincerely,
JIM DOYLE
Governor
Read and referred to committee on Health, Children, Families, Aging and Long Term Care.
State of Wisconsin
Office of the Governor
May 16, 2005
The Honorable, The Senate:
I am pleased to nominate and with the advice and consent of the Senate, do appoint Darling, Alberta,
of River Hills, as a member of the College Savings Program Board, to serve for the term ending May 1, 2009.
Sincerely,
JIM DOYLE
Governor
Read and referred to committee on Higher Education and Tourism.
__________________
Relating to renewal, conduct, and continuing education for veterinarians and veterinary technicians.
Submitted by Department of Regulation and Licensing.
Report received from Agency, May 13, 2005.
Referred to committee on Agriculture and Insurance, May 18, 2005
.
Relating to definitions, temporary trainees, continuing education, temporary licenses, and unprofessional conduct.
Submitted by Department of Regulation and Licensing.
Report received from Agency, May 13, 2005.
Referred to committee on Health, Children, Families, Aging and Long Term Care, May 18, 2005
.
__________________
Senate amendment 1 to Senate Bill 19 offered by Senator Kanavas.
