1997 Wisconsin Act 27

(2) “File" means mail or deliver a document that the department prescribes to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.

(3) “Last day prescribed by law" means the unextended due date of the return or of the claim made under subch. VIII.

(4) “Sign" means write one's signature or, if the department prescribes another method of authenticating, use that other method.

27,2309 Section 2309 . 71.74 (1) of the statutes is amended to read:

71.74 (1) Office audit. The department of revenue shall, as soon as practicable, office audit such returns as it deems advisable and if it is found from such office audit that a person has been over or under assessed, or found that no assessment has been made when one should have been made, the department of revenue shall correct or assess the income of such person. Any assessment, correction or adjustment made as a result of such office audit shall be presumed to be the result of an audit of the return only, and such office audit shall not be deemed a verification of any item in said return unless the amount of such item and the propriety thereof shall have been determined after hearing and review as provided in s. 71.88 (1) (a) and (2) (a). Such office audit shall not preclude the department of revenue from making field audits of the books and records of the taxpayer and from making further adjustment, correction and assessment of income.

27,2310 Section 2310 . 71.74 (3) of the statutes is amended to read:

71.74 (3) Default assessment. Any person required to make file an income or franchise tax return, who fails, neglects or refuses to do so in the manner and form and within the time prescribed by this chapter, or makes files a return that does not disclose the person's entire net income, shall be assessed by the department according to its best judgment.

27,2311 Section 2311 . 71.74 (6) of the statutes is amended to read:

71.74 (6) Consolidated statements. For the purpose of this chapter, whenever a corporation which is required to file an income or franchise tax return is affiliated with or related to any other corporation through stock ownership by the same interests or as parent or subsidiary corporations, or whose income is regulated through contract or other arrangement, the department of revenue may require such consolidated statements as in its opinion are necessary in order to determine the taxable income received by any one of the affiliated or related corporations.

27,2312 Section 2312 . 71.74 (8) (a) of the statutes is amended to read:

71.74 (8) (a) If an audit of a claim for a credit under s. 71.07, 71.28 or 71.47 or subch. VIII or IX indicates that an incorrect claim was filed, the department of revenue shall make a determination of the correct amount and notify the claimant of the determination and the reasons therefor under sub. (11) within 4 years of the last day prescribed by law for filing the claim. If the claim has been paid, or credited against income or franchise taxes otherwise payable, the credit shall be reduced or canceled, and the proper portion of any amount paid shall be similarly recovered by assessment as income or franchise taxes are assessed.

27,2313 Section 2313 . 71.74 (8) (d) of the statutes is amended to read:

71.74 (8) (d) If a claim for a state historic rehabilitation credit under s. 71.07 (9r) is false or excessive, the department of revenue shall disallow the claim in full. If a credit has been allowed against income taxes otherwise payable, the credit shall be canceled and the amount may be recovered by assessment as income taxes are assessed. Notwithstanding par. (a) and s. 71.77, the department shall notify the claimant of the determination and shall give reasons for the disallowance under sub. (11) within 4 years after the date that the state historical society notifies the department that the preservation or rehabilitation is not in compliance with s. 71.07 (9r) (b) 3. b. or 4., but that notification must be made within 6 years after the date that the physical work of construction, or destruction in preparation for construction, begins.

27,2314 Section 2314 . 71.74 (9) of the statutes is amended to read:

71.74 (9) Liability may be assessed to more than one person. If the department of revenue determines that a liability exists under this chapter and that the liability may be owed by more than one person, the department may assess the entire amount to each person, specifying that it is assessing in the alternative.

27,2315 Section 2315 . 71.74 (14) of the statutes is amended to read:

71.74 (14) Additional remedy to collect tax. The department of revenue may also proceed under s. 71.91 (5) for the collection of any additional assessment of income or franchise taxes or surtaxes, after notice thereof has been given under sub. (11) and before the same shall have become delinquent, when it has reasonable grounds to believe that the collection of such additional assessment will be jeopardized by delay. In such cases notice of the intention to so proceed shall be given by registered mail to the taxpayer, and the warrant of the department of revenue shall not issue if the taxpayer within 10 days after such notice furnishes a bond in such amount, not exceeding double the amount of the tax, and with such sureties as the department of revenue shall approve, conditioned upon the payment of so much of the additional taxes as shall finally be determined to be due, together with interest thereon as provided by s. 71.82 (1) (a). Nothing in this subsection shall affect the review of additional assessments provided by ss. 71.88 (1) (a) and (2) (a), 71.89 (2), 73.01 and 73.015, and any amounts collected under this subsection shall be deposited with the state treasurer and disbursed after final determination of the taxes as are amounts deposited under s. 71.90 (2).

27,2315m Section 2315m. 71.75 (5) of the statutes is amended to read:

71.75 (5) A claim for refund may be made within 2 4 years after the assessment of a tax or an assessment to recover all or part of any tax credit, including penalties and interest, under this chapter, assessed by office audit or field audit and paid if the assessment was not protested by the filing of a petition for redetermination. No claim may be allowed under this subsection for any tax, interest or penalty paid with respect to any item of income, credit or deduction self-assessed or determined by the taxpayer or assessed as the result of any assessment made by the department with respect to which all the conditions specified in this subsection are not met. If a claim is filed under this subsection, the department of revenue may make an additional assessment in respect to any item of income or deduction that was a subject of the prior assessment. No claim for refund may be made in respect to items that were not adjusted in the notice of assessment or of refund. A person whose returns for more than one year have been adjusted may make a claim under this subsection whether or not the net result of the adjustments for those years is an assessment. This subsection does not extend the time to file under s. 71.53 (2) or 71.59 (2), and it does not extend the time period during which the department of revenue may assess, or the taxpayer may claim a refund, in respect to any item of income or deduction that was not a subject of the prior assessment.

27,2316 Section 2316 . 71.75 (6) and (7) of the statutes are amended to read:

71.75 (6) Every claim for refund or credit of income taxes, franchise taxes or surtaxes, if any, shall be filed with the department of revenue in the manner, and on a form, prescribed or approved by the department and signed by the person or, in the case of joint returns, by both persons who filed the return on which the claim is based and shall set forth specifically and explain in detail the reasons for and the basis of the claim. After the claim has been filed it shall be considered and acted upon in the same manner as are additional assessments made under s. 71.74 (1) and (2). No marital property agreement or unilateral statement under ch. 766 affects claims for refund or credit under this section.

(7) The department of revenue is directed to shall act on any claim for refund or credit within one year after receipt and failure to act shall have the effect of allowing the claim and the department shall certify the refund or credit unless the taxpayer has consented in writing to an extension of the one-year time period prior to its expiration.

27,2317 Section 2317 . 71.76 of the statutes is amended to read:

71.76 Internal revenue service and other state adjustments. If for any year the amount of federal net income tax payable, of a credit claimed or carried forward, of a net operating loss carried forward or of a capital loss carried forward of any taxpayer as reported to the internal revenue service is changed or corrected by the internal revenue service or other officer of the United States, such taxpayer shall report such changes or corrections to the department within 90 days after its final determination and shall concede the accuracy of such determination or state how the determination is erroneous. Such changes or corrections need not be reported unless they affect the amount of net tax payable under this chapter, of a credit calculated under this chapter, of a Wisconsin net operating loss carried forward, of a Wisconsin net business loss carried forward or of a capital loss carried forward under this chapter. Any taxpayer filing submitting an amended return with to the internal revenue service, or with to another state if there has been allowed a credit against Wisconsin taxes for taxes paid to that state, shall also file, within 90 days of such filing date, an amended return with the department if any information contained on the amended return affects the amount of net tax payable under this chapter of a credit calculated under this chapter, of a Wisconsin net operating loss carried forward, of a Wisconsin net business loss carried forward or of a capital loss carried forward under this chapter.

27,2317m Section 2317m. 71.77 (2m) of the statutes is created to read:

71.77 (2m) Notwithstanding sub. (2), the department of revenue may assess a deficiency related to a contribution to the capital of the taxpayer, as defined in section 118 (c) of the Internal Revenue Code, within 4 years after the department receives notice by the taxpayer, in the manner that the department prescribes, of any of the following:

(a) The amount of the expenditure under section 118 (c) (2) (A) of the Internal Revenue Code.

(b) The intent of the person against whom the deficiency is to be assessed not to make the expenditure under section 118 (c) (2) (A) of the Internal Revenue Code.

(c) Expiration of the time period under section 118 (c) (2) (B) of the Internal Revenue Code and failure of the person against whom the deficiency is to be assessed to make the expenditure under section 118 (c) (2) (B) of the Internal Revenue Code.

27,2318 Section 2318 . 71.77 (3) of the statutes is amended to read:

71.77 (3) Irrespective of sub. (2), if any person has made filed an incorrect income tax or franchise tax return for any of the years since January 1, 1911, year with intent to defeat or evade the income tax or franchise tax assessment provided by law, or has failed to file any income tax or franchise tax return for any of such years, income of any such year may be assessed when discovered by the proper assessing authority. The department of revenue shall assess the taxes owed for taxable years beginning before January 1, 1990, by using the definition of “Internal Revenue Code" that applied to the year for which the assessment was made, as modified by P.L. 104-188 if P.L. 104-188 applied for federal purposes for that year.

27,2319 Section 2319 . 71.77 (5) of the statutes is amended to read:

71.77 (5) The limitation periods provided in this section may be extended by written agreement between the taxpayer and the department of revenue entered into prior to the expiration of such limitation periods or any extension of such limitation periods. During any such extension period, the department may issue an assessment or a refund, and the taxpayer may file a claim for a refund, relating to the year which the extension covers. Subsection (4) shall not apply to any assessment made in any such extended period. The department of revenue shall assess the taxes owed or compute the refund due for taxable years beginning before January 1, 1990, by using the definition of “Internal Revenue Code" that applied to the year for which the assessment was made, as modified by P.L. 104-188 if P.L. 104-188 applied for federal purposes for that year.

27,2320 Section 2320 . 71.78 (1) of the statutes is amended to read:

71.78 (1) Divulging information. Except as provided in subs. (4), (4m) and (10), no person may divulge or circulate or offer to obtain, divulge or circulate any information derived from an income, franchise, withholding, fiduciary, partnership, limited liability company or gift tax return or tax credit claim, including information which may be furnished by the department of revenue as provided in this section. This subsection does not prohibit publication by any newspaper of information lawfully derived from such returns or claims for purposes of argument or prohibit any public speaker from referring to such information in any address. This subsection does not prohibit the department of revenue from publishing statistics classified so as not to disclose the identity of particular returns, or claims or reports and the items thereof. This subsection does not prohibit employes or agents of the department of revenue from offering or submitting any return, including joint returns of a spouse or former spouse, separate returns of a spouse, individual returns of a spouse or former spouse and combined individual income tax returns, or from offering or submitting any claim, schedule, exhibit, writing or audit report or a copy of, and any information derived from, any of those documents as evidence into the record of any contested matter involving the department in proceedings or litigation on state tax matters if, in the department's judgment, that evidence has reasonable probative value.

27,2321m Section 2321m. 71.78 (4) (p) of the statutes is created to read:

71.78 (4) (p) The secretary of revenue and employes of that department for the purpose of calculating the penalty under s. 71.83 (1) (d).

27,2324 Section 2324 . 71.78 (8) (d) (intro.) of the statutes is amended to read:

71.78 (8) (d) (intro.) The department of revenue may allow an examination of information under par. (c) only if a district attorney petitions a court of record in this state for an order allowing the examination and the court issues an order after finding:

27,2325 Section 2325 . 71.78 (9) and (10) of the statutes are amended to read:

71.78 (9) Disclosure of debtor address. The department of revenue may supply the address of a debtor to an agency certifying a debt of that debtor under s. 71.93 or to a municipality or county certifying a debt of a debtor under s. 71.935.

(10) Divulging information to requester. The department of revenue shall inform each requester of the total amount of taxes withheld under subch. X during any reporting period and reported on a return filed by any city, village, town, county, school district, special purpose district or technical college district; whether that amount was paid by the statutory due date; the amount of any tax, fees, penalties or interest assessed by the department; and the total amount due or assessed under subch. X but unpaid by the filer, except that the department may not divulge tax return information that in the department's opinion violates the confidentiality of that information with respect to any person other than the units of government and districts specified in this subsection. The department shall provide to the requester a written explanation if it fails to divulge information on grounds of confidentiality. The department shall collect from the person requesting the information a fee of $4 for each return.

27,2326 Section 2326 . 71.80 (1) (a) of the statutes is amended to read:

71.80 (1) (a) The department of revenue shall assess incomes as provided in this chapter and in performance of such duty the department shall possess all powers now or hereafter granted by law to the department in the assessment of personal property and also the power to estimate incomes.

27,2327 Section 2327 . 71.80 (1) (c) to (e), (2) and (3) of the statutes are amended to read:

71.80 (1) (c) The department of revenue may make such regulations as it shall deem necessary in order to carry out this chapter.

(d) The department of revenue may employ such clerks and specialists as are necessary to carry into effective operation this chapter. Salaries and compensations of such clerks and specialists shall be charged to the proper appropriation for the department of revenue.

(e) Representatives of the department of revenue directed by it to accept payment of income or franchise taxes shall file bonds with the state treasurer in such amount and with such sureties as the state treasurer shall direct and approve. In collecting income or franchise taxes as provided in this chapter, the department of revenue shall be deemed to act as agents of the state, counties and towns, cities or villages entitled to receive the taxes collected.

(2) Notice to taxpayer by department. The department of revenue shall notify each taxpayer by mail of the amount of income or franchise taxes assessed against the taxpayer and of the date when the taxes become delinquent.

(3) Crediting of overpayments on individual or separate returns. In the case of any overpayment, refundable credit or refund on an individual or separate return, the department of revenue, within the applicable period of limitations, may credit the amount of overpayment, refundable credit or refund including any interest allowed, against any liability in respect to any tax collected by the department, a debt under s. 71.93 or 71.935 or a certification under s. 49.855 on the part of the person who made the overpayment or received the refundable credit or the refund and shall refund any balance to the person. The department shall presume that the overpayment, refundable credit or refund is nonmarital property of the filer. Within 2 years after the crediting, the spouse or former spouse of the person filing the return may file a claim for a refund of amounts credited by the department if the spouse or former spouse shows by clear and convincing evidence that all or part of the state tax overpayment, refundable credit or refund was nonmarital property of the nonobligated spouse.

27,2328 Section 2328 . 71.80 (3m) (intro.) of the statutes is amended to read:

71.80 (3m) Crediting of overpayments on joint returns. (intro.) For married persons, unless within 20 days after the date of the notice under par. (c) the nonobligated spouse shows by clear and convincing evidence that the overpayment, refundable credit or refund is the nonmarital property of the nonobligated spouse, notwithstanding s. 766.55 (2) (d), the department of revenue may credit overpayments, refundable credits and refunds, including any interest allowed, resulting from joint returns under this chapter as follows:

27,2329 Section 2329 . 71.80 (3m) (c) and (d) of the statutes are amended to read:

71.80 (3m) (c) If the department of revenue determines that a spouse is otherwise entitled to a state tax refund or homestead or farmland credit, it shall notify the spouses under s. 71.74 (11) that the state intends to reduce any state tax refund or a refundable credit due the spouses by the amount credited against any liability under par. (a) or (b) or both.

(d) If a spouse does not receive notice under par. (c) and if the department of revenue incorrectly credits the state tax overpayment, refund or a refundable credit of a spouse or spouses against a liability under par. (a) or (b) or both, a claim for refund of the incorrectly credited amount may be filed under s. 71.75 (5) within 2 years after the date of the offset that was the subject of the notice under par. (c)

27,2330 Section 2330 . 71.80 (7) and (8) of the statutes are amended to read:

71.80 (7) Publication of notices in administrative register. The department of revenue shall annually publish notice of the standard deduction amounts and the brackets for the individual income tax in the administrative register.

(8) Receipt for payment of taxes. The department of revenue shall accept payments of income or franchise taxes in accordance with this chapter, and upon request shall give a printed or written receipt therefor.

27,2331 Section 2331 . 71.80 (16) (a) of the statutes is amended to read:

71.80 (16) (a) All nonresident persons, whether incorporated or not, engaging in construction contracting in this state as contractor or subcontractor and not otherwise regularly engaged in business in this state, shall file a surety bond with the department, payable to the department of revenue, to guarantee the payment of income or franchise taxes, required unemployment compensation contributions, sales and use taxes and income taxes withheld from wages of employes, together with any penalties and interest thereon. The department shall approve the form and contents of such bond. The amount of the bond shall be 3% of the contract or subcontract price on all contracts of $50,000 or more or 3% of contractor's or subcontractor's estimated cost-and-profit under a cost-plus contract of $50,000 or more. When the aggregate of 2 or more contracts in one calendar year is $50,000 or more the amount of the bond or bonds shall be 3% of the aggregate amount of such contracts. Such surety bond must be filed within 60 days after construction is begun in this state by any such contractor or subcontractor on any contract the price of which is $50,000 or more (or the estimated cost-and-profit of which is $50,000 or more), or within 60 days after construction is begun in this state on any contract for less than $50,000, when the amount of such contract, when aggregated with any other contracts, construction on which was begun in this state in the same calendar year, equals or exceeds $50,000. If the department concludes that no bond is necessary to protect the tax revenues of the state, including contributions under ch. 108, the requirements under this subsection may be waived by the secretary of revenue or the secretary's designated departmental representative. The bond shall remain in force until the liability thereunder is released by the secretary or the secretary's designated departmental representative.

27,2332 Section 2332 . 71.80 (17) and (18) of the statutes are amended to read:

71.80 (17) Tax receipts transmitted to state treasurer. Within 15 days after receipt of any income or franchise tax payments the department of revenue shall transmit the same to the state treasurer.

(18) Timely filing defined. Documents and payments required or permitted by this chapter that are mailed shall be considered furnished, reported, filed or made on time, if mailed in a properly addressed envelope, with postage duly prepaid, which envelope is postmarked before midnight of the date prescribed for such furnishing, reporting, filing or making, provided such document or payment is actually received by the department or at the destination that the department or the department of administration prescribes within 5 days of such prescribed date. Documents and payments that are not mailed are timely if they are received on or before the due date by the department or at the destination that the department or the department of administration prescribes.

27,2332t Section 2332t. 71.83 (1) (c) of the statutes is repealed and recreated to read:

71.83 (1) (c) Medical savings account withdrawals. Any person who is liable for a penalty for federal income tax purposes under section 220 (f) (4) of the Internal Revenue Code is liable for a penalty equal to 33% of that penalty. The department of revenue shall assess, levy and collect the penalty under this paragraph as it assesses, levies and collects taxes under this chapter.

27,2332v Section 2332v. 71.83 (1) (d) of the statutes is created to read:

71.83 (1) (d) Sale of certain business assets or assets used in farming. 1. If a person who purchases or otherwise receives business assets or assets used in farming, of which the gains realized by the transferor on the sale or disposition of such assets are exempt from taxation under s. 71.05 (6) (b) 25., sells or otherwise disposes of the assets within 2 years after the person purchases or receives the assets, the person shall pay a penalty that is calculated under subd. 2.

2. The penalty described under subd. 1. shall be equal to the sum of all of the following:

a. The amount of the capital gains exclusion received by the transferor under s. 71.05 (6) (b) 25. in the transaction described in subd. 1.

b. The amount calculated under subd. 2. a. multiplied by a fraction, the denominator of which is 24 and the numerator of which is the difference between 24 and the number of months between the date on which the person who is liable for the penalty purchased or otherwise received the assets described in subd. 1. and the month in which the person sells or otherwise disposes of the assets.

3. The department of revenue shall assess, levy and collect the penalty under this paragraph as it assesses, levies and collects taxes under this chapter.

27,2335 Section 2335 . 71.90 (1) of the statutes is amended to read:

71.90 (1) (title) Deposit with the department. The department shall notify any person who files a petition for redetermination that the person may deposit the amount of an additional assessment, including any interest or penalty, with the department, or with a person that the department prescribes, at any time before the department makes its redetermination. The department shall notify spouses jointly except that, if the spouses have different addresses and if either spouse notifies the department in writing of those addresses, the department shall serve a duplicate of the original notice on the spouse who has the address other than the address to which the original notice was sent. Amounts deposited under this subsection shall be subject to the interest provided by s. 71.82 only to the extent of the interest accrued prior to the first day of the month succeeding the date of deposit. Any deposited amount which is refunded shall bear interest at the rate of 9% per year during the time the funds were on deposit. A person may also pay any portion of an assessment which is admitted to be correct and the payment shall be considered an admission of the validity of that portion of the assessment and may not be recovered in an appeal or in any other action or proceeding.

27,2336 Section 2336 . 71.91 (1) (b) of the statutes is amended to read:

71.91 (1) (b) Withholding. Any amount not deposited or paid over to the department, or to the person that the department prescribes, within the time required shall be deemed delinquent and deposit reports or withholding reports filed after the due date shall be deemed late. In the case of a timely filed deposit or withholding report, withheld taxes shall become delinquent if not deposited or paid over on or before the due date of the report. In the case of no report filed or a report filed late, withheld taxes shall become delinquent if not deposited or paid over by the due date of the report. In the case of an assessment under s. 71.83 (1) (b) 2., the amount assessed shall become delinquent if not paid on or before the due date specified in the notice of deficiency, but if the assessment is contested before the tax appeals commission or in the courts, it shall become delinquent on the 30th day following the date on which the order or judgment representing final determination becomes final.

27,2337 Section 2337 . 71.91 (6) (c) 3. of the statutes is amended to read:

71.91 (6) (c) 3. The levy under subd. 2. is satisfied if the person who issued the contract pays to the department, or to the person that the department prescribes, the amount that the person against whom the tax is assessed could have had advanced by the person who issued the contract on the date under subd. 2. for the satisfaction of the levy, increased by the amount of any advance, including contractual interest, made to the person against whom the tax is assessed on or after the date the person who issued the contract had actual notice or knowledge of the existence of the lien with respect to which that levy is made, other than an advance, including contractual interest on it, made automatically to maintain the contract in force under an agreement entered into before the person who issued the contract had notice or knowledge of that lien. Any person who issued a contract and who satisfies a levy under this paragraph is discharged from all liability to any beneficiary because of that satisfaction.

27,2338 Section 2338 . 71.91 (6) (g) 1. of the statutes is amended to read:

71.91 (6) (g) 1. Any person whose property has been levied upon may pay the amount due and the expenses of the proceeding to the department, or to the person that the department prescribes, at any time before the sale. Upon that payment, the department shall restore the property to that the person whose property has been levied upon and stop all proceedings related to the levy.

27,2339 Section 2339 . 71.91 (7) (d) of the statutes is amended to read:

71.91 (7) (d) The employer shall, on or before the last day of the month after the month during which an amount was withheld, remit to the department or to the person that the department prescribes that amount. Any amount withheld from an employe by an employer shall immediately be a trust fund for this state. Should any employer, after notice, wilfully fail to withhold in accordance with the notice and this subsection, or wilfully fail to remit any amount withheld, as required by this subsection, such employer shall be liable for the total amount set forth in the notice together with delinquent interest as though the amount shown by the notice was due by such employer as a direct obligation to the state for delinquent taxes, and may be collected by any means provided by law including the means provided for the collection of delinquent income or franchise taxes. However, no amount required to be paid by an employer by reason of his or her failure to remit under this paragraph may be deducted from the gross income of such employer. Any amount collected from the employer for failure to withhold or for failure to remit under this subsection shall be credited as tax, costs, penalties and interest paid by the employe.

27,2342 Section 2342 . 71.93 (1) (a) 5. of the statutes is created to read:

71.93 (1) (a) 5. An amount owed to the department of corrections under s. 304.073 (2) or 304.074 (2).

27,2342g Section 2342g. 71.935 (1) (a) of the statutes is amended to read:

71.935 (1) (a) “Debt" means a parking citation of at least $20 that is unpaid and for which there has been no court appearance by the date specified in the citation or, if no date is specified, that is unpaid for at least 28 days and an unpaid fine, fee, restitution or forfeiture of at least $20.

27,2342m Section 2342m. 71.935 (2) of the statutes is amended to read:

71.935 (2) A municipality or county may certify to the department any debt owed to it. Not later than 5 days after certification, the municipality or county shall notify the debtor in writing of its certification of the debt to the department, of the basis of the certification and of the debtor's right to appeal and, in the case of parking citations, of the debtor's right to contest the citation. At the time of certification, the municipality or county shall furnish to the department the name and social security number of each individual debtor and the name and federal employer identification number of each other debtor.

27,2342r Section 2342r. 71.935 (3) of the statutes is amended to read:

71.935 (3) If the debt remains uncollected and, in the case of a parking citation, if the debtor has not contested the citation within 20 days after the notice under sub. (2), the department shall set off the debt against any refund that is owed to the debtor after the setoff under s. 71.93. Any legal action contesting a setoff shall be brought against the municipality or county.