LRBs0585/1
JK&RPN:kjf&jld:rs
2005 - 2006 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO 2005 SENATE BILL 518
March 9, 2006 - Offered by Senator Kanavas.
SB518-SSA1,1,10 1An Act to amend 71.83 (1) (a) 1., 71.83 (1) (a) 2., 71.83 (1) (a) 3., 71.83 (1) (a) 4.,
273.01 (4) (e) 2., 77.59 (4) (a), 77.59 (8m), 77.60 (3), 77.60 (4), 77.61 (5) (a), 78.68
3(3), 78.68 (4), 139.25 (3), 139.25 (4), 227.12 (3), 227.41 (1), 227.41 (3), 227.41 (4),
4227.485 (2) (a), 227.485 (3), 227.485 (5), 227.485 (7), 227.485 (10) (intro.) and
5803.08; and to create 73.015 (3), 73.14, 227.12 (4), 227.41 (5) and 227.485 (3m)
6of the statutes; relating to: various duties of the Department of Revenue,
7including issuing declaratory judgments, conducting audits and assessments,
8asserting liability, allowing claims for refunds, awarding the costs of litigation
9to a prevailing party, imposing penalties related to a taxpayer's negligence, and
10requiring the exercise of rule-making authority.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB518-SSA1, s. 1 11Section 1. 71.83 (1) (a) 1. of the statutes is amended to read:
SB518-SSA1,2,12
171.83 (1) (a) 1. `Failure to file.' In case of failure to file any return required
2under s. 71.03, 71.24 or 71.44 on the due date prescribed therefor, including any
3extension of time for filing, unless it is shown that the failure is due to reasonable
4cause and not due to willful neglect
and upon a showing by the department under
5s. 73.14 (5)
, there shall be added to the amount required to be shown as tax on the
6return 5% of the amount of the tax if the failure is for not more than one month, with
7an additional 5% for each additional month or fraction thereof during which the
8failure continues, not exceeding 25% in the aggregate. For purposes of this
9subdivision, the amount of tax required to be shown on the return shall be reduced
10by the amount of any part of the tax which is paid on or before the due date prescribed
11for payment and by the amount of any credit against the tax which may be claimed
12upon the return.
SB518-SSA1, s. 2 13Section 2. 71.83 (1) (a) 2. of the statutes is amended to read:
SB518-SSA1,3,214 71.83 (1) (a) 2. `Incomplete or incorrect return.' If any person required under
15this chapter to file an income or franchise tax return files an incomplete or incorrect
16return, unless it is shown that such filing was due to good cause and not due to
17neglect
and upon a showing by the department under s. 73.14 (5), there shall be
18added to such person's tax for the taxable year 25% of the amount otherwise payable
19on any income subsequently discovered or reported. The amount so added shall be
20assessed, levied and collected in the same manner as additional normal income or
21franchise taxes, and shall be in addition to any other penalties imposed by this
22chapter. In this subdivision, "return" includes a separate return filed by a spouse
23with respect to a taxable year for which a joint return is filed under s. 71.03 (2) (g)
24to (L) after the filing of that separate return, and a joint return filed by the spouses

1with respect to a taxable year for which a separate return is filed under s. 71.03 (2)
2(m) after the filing of that joint return.
SB518-SSA1, s. 3 3Section 3. 71.83 (1) (a) 3. of the statutes is amended to read:
SB518-SSA1,3,164 71.83 (1) (a) 3. `Incomplete or incorrect deposit or withholding report.' If any
5person required under subch. X to file a deposit report or withholding report files an
6incomplete or incorrect report, or fails to properly withhold or fails to properly
7deposit or pay over withheld funds, unless it can be shown that the filing or failure
8was due to good cause and not due to neglect
and upon a showing by the department
9under s. 73.14 (5)
, there shall be added to the tax 25% of the amount not reported or
10not withheld, deposited or paid over. The amount so added shall be assessed, levied
11and collected in the same manner as additional income or franchise taxes, and shall
12be in addition to any other penalties imposed in this subchapter. "Person", in this
13subdivision, includes an officer or employee of a corporation or other responsible
14person or a member or employee of a partnership or limited liability company or
15other responsible person who, as such officer, employee, member or other responsible
16person, is under a duty to perform the act in respect to which the violation occurs.
SB518-SSA1, s. 4 17Section 4. 71.83 (1) (a) 4. of the statutes is amended to read:
SB518-SSA1,3,2518 71.83 (1) (a) 4. `Late filing of withholding report.' In case of failure to file any
19withholding deposit or payment report required under s. 71.65 (3) on the due date
20prescribed therefor, unless it is shown that the failure is due to reasonable cause and
21not due to willful neglect
upon a showing by the department under s. 73.14 (5), there
22shall be added to the amount required to be shown as withheld taxes on the report
235% of the amount if the failure is not for more than one month, with an additional
245% for each additional month or fraction thereof during which the failure continues,
25not exceeding 25% in the aggregate.
SB518-SSA1, s. 5
1Section 5. 73.01 (4) (e) 2. of the statutes is amended to read:
SB518-SSA1,4,112 73.01 (4) (e) 2. Except for hearings on ss. 341.405 and 341.45, the department
3of revenue may choose not to appeal and to nonacquiesce in the decision or order by
4sending a notice of nonacquiescence to the clerk of the commission, to the revisor of
5statutes for publication in the Wisconsin administrative register and to the taxpayer
6or the taxpayer's representative before the time expires for seeking a review of the
7decision or order under s. 73.015. The effect of this action is that, although the
8decision or order is binding on the parties for the instant case and the decision or
9order may be cited by the commission and the courts
, the commission's conclusions
10of law, the rationale and construction of statutes in the instant case are not binding
11upon or required to be followed by the department of revenue in other cases.
SB518-SSA1, s. 6 12Section 6. 73.015 (3) of the statutes is created to read:
SB518-SSA1,4,1713 73.015 (3) Except for decisions and orders in small claims matters, as defined
14in s. 73.01 (1) (b), a conclusion of law or other holding in any decision or order of the
15commission may be cited by the commission or the courts as authority unless that
16conclusion of law or holding has been reversed, modified, overruled, or vacated on the
17merits on appeal or by a subsequent decision or order of the commission.
SB518-SSA1, s. 7 18Section 7. 73.14 of the statutes is created to read:
SB518-SSA1,4,19 1973.14 General provision. (1) Definition. In this section:
SB518-SSA1,4,2020 (a) "Department" means the department of revenue.
SB518-SSA1,4,2221 (b) "Controlled group" has the meaning given under section 267 (f) (1) of the
22Internal Revenue Code.
SB518-SSA1,4,2423 (c) "Stale refund" means a refund of any tax or fee administered by the
24department for which a claim has not been timely filed.
SB518-SSA1,5,8
1(2) Relying on published guidance. (a) Except as provided in pars. (b) and (c),
2in the course of any determination, or in the course of any proceeding appealing any
3determination, the department shall not take a position that is contrary to any rule
4promulgated by the department or any statute that was in effect during the period
5related to the determination or that is contrary to any guidance published by the
6department prior to that period and not subsequently retracted, altered, or amended
7by the department or the legislature or by a final and conclusive decision of the tax
8appeals commission or courts.
SB518-SSA1,5,129 (am) Except as provided in pars. (b) and (c), in the course of any determination,
10or in the course of any proceeding appealing a determination, the department shall
11not take a position that is contrary to any written guidance that was provided to a
12person who is a party to the determination or the appeal of the determination.
SB518-SSA1,5,2013 (b) With regard to any position taken by the department in any matter
14described under par. (a) or (am), if the department amends a rule for any purpose
15other than to implement a legislative act or final and conclusive decision of the tax
16appeals commission or courts, the department shall apply the amendment
17prospectively. A retroactive change in any rule that is related to implementing a
18legislative act or final and conclusive decision of the tax appeals commission or courts
19may take effect no earlier than the act's effective date or the date on which the
20decision became final and conclusive.
SB518-SSA1,6,621 (c) With regard to any position taken by the department in any matter
22described under par. (a) or (am), if the department retracts, alters, or amends
23previously published or previously issued guidance for any purpose other than to
24implement a legislative act or final and conclusive decision of the tax appeals
25commission or courts, the department shall apply the retraction, alteration, or

1amendment prospectively only, unless the change is to a taxpayer's benefit, in which
2case, the department shall apply the retraction, alteration, or amendment
3retroactively. A retroactive change in any previously published or previously issued
4guidance related to implementing a legislative act or final and conclusive decision
5of the tax appeals commission or courts may take effect no earlier than the act's
6effective date or the date on which the decision became final and conclusive.
SB518-SSA1,6,10 7(3) Relying on past audits. (a) A person who is subject to a determination by
8the department, including all other members of that person's controlled group, shall
9not be liable for any amount that the department asserts that the person owes if all
10of the following conditions are satisfied:
SB518-SSA1,6,1611 1. The liability asserted by the department is the result of a condition, activity,
12attribute, or transaction that was present during the period associated with a prior
13determination for which the person is subject to and the condition, activity, attribute,
14or transaction is materially the same as the condition, activity, attribute, or
15transaction that is present during the period associated with the current
16determination.
SB518-SSA1,6,2017 2. A department employee who was involved in the prior determination
18identified or reviewed the condition, activity, attribute, or transaction before
19completing the prior determination, as shown by any schedules, exhibits, audit
20reports, documents, or other evidence pertaining to the determination.
SB518-SSA1,6,2221 3. The liability asserted by the department as described under subd. 1. was not
22asserted in the prior determination.
SB518-SSA1,7,423 (b) This subsection does not apply to any period associated with a
24determination, if the period begins after the promulgation of a rule, dissemination
25of written guidance to the public or to the person who is subject to the determination,

1the effective date of a statute, or the date on which a tax appeals commission or court
2decision becomes final and conclusive and if the rule, guidance, statute, or decision
3unambiguously imposes the liability as result of the condition, activity, attribute, or
4transaction described in par. (a) 1.
SB518-SSA1,7,11 5(4) Equitable recoupment. A person against whom the department asserts a
6liability may offset against the liability the amount of any stale refund that the
7person may claim regardless of whether the time for claiming the stale refund has
8expired and regardless of whether the year, transaction, tax, or fee related to the
9liability is the same as that related to the stale refund. This subsection does not apply
10to any stale refund that is associated with any period that is prior to the initial date
11of the period associated with the liability.
SB518-SSA1,7,18 12(5) Negligence determinations. The department shall not impose a penalty
13on a taxpayer under ss. 71.83 (1) (a) 1. to 4., 77.60 (3) and (4), 78.68 (3) and (4), and
14139.25 (3) and (4), unless the department shows that the taxpayer's action or inaction
15was caused by the taxpayer's failure to use ordinary care to comply with state tax
16laws as provided under the statutes, administrative rules, published department
17guidance or other written notice provided by the department, or a final and
18conclusive decision of the tax appeals commission or a court.
SB518-SSA1,7,20 19(6) Applicability. Notwithstanding any other provision of law, this section
20applies to all taxes and fees administered by the department.
SB518-SSA1, s. 8 21Section 8. 77.59 (4) (a) of the statutes is amended to read:
SB518-SSA1,8,1822 77.59 (4) (a) Except as provided in sub. (3m), at any time within 4 years after
23the due date, or in the case of buyers the unextended due date, of a person's
24corresponding Wisconsin income or franchise tax return or, if exempt, within 4 years
25of the 15th day of the 4th month of the year following the close of the calendar or fiscal

1year for which that person files a claim, that person may, unless a determination by
2the department by office or field audit of a seller has been made and unless a
3determination by office audit of a buyer other than an audit in which the tax that is
4the subject of the refund claim was not adjusted has been made and unless a
5determination by field audit of the buyer has been made, file with the department
6a claim for refund of taxes paid to the department by that person. If the amount of
7the claim is at least $50 or if either the seller has ceased doing business, the buyer
8is being field audited or the seller may no longer file a claim, the
The buyer may,
9within the time period under this subsection, file a claim with the department for a
10refund of the taxes paid to the seller. A claim is timely if it fulfills the requirements
11under s. 77.61 (14). A buyer may claim a refund under this paragraph only on a form
12prescribed by the department, only by signing that form and only if the seller signs
13the form unless the department waives that requirement. If both a buyer and a seller
14file a valid claim for the same refund, the department may pay either claim. The
15claim for refund shall be regarded as a request for determination. The determination
16thus requested shall be made by the department within one year after the claim for
17refund is received by it unless the taxpayer has consented in writing to an extension
18of the one-year time period prior to its expiration.
SB518-SSA1, s. 9 19Section 9. 77.59 (8m) of the statutes is amended to read:
SB518-SSA1,8,2420 77.59 (8m) Within the time period under sub. (4), the department of revenue
21may refund excess taxes paid to it under this chapter, even if the person applying for
22the refund has been field audited in respect to those taxes, if the applicant's
23customers have filed valid claims for refunds with provided written notice to the
24applicant requesting refunds and if the refund is passed along to those customers.
SB518-SSA1, s. 10 25Section 10. 77.60 (3) of the statutes is amended to read:
SB518-SSA1,9,6
177.60 (3) If due to neglect an incorrect return is filed, and upon a showing by
2the department under s. 73.14 (5),
the entire tax finally determined shall be subject
3to a penalty of 25%, or 50% in the case of returns under s. 77.61 (1) (c), of the tax
4exclusive of interest or other penalty. A person filing an incorrect return shall have
5the burden of proving that the error or errors were due to good cause and not due to
6neglect.
SB518-SSA1, s. 11 7Section 11. 77.60 (4) of the statutes is amended to read:
SB518-SSA1,9,188 77.60 (4) In case of failure to file any return required under authority of s. 77.58
9by the due date, determined with regard to any extension of time for filing, unless
10it is shown that such failure was due to reasonable cause and not due to neglect
and
11upon a showing by the department under s. 73.14 (5)
, there shall be added to the
12amount required to be shown as tax on such return 5% of the amount of such tax if
13the failure is not for more than one month, with an additional 5% for each additional
14month or fraction thereof during which such failure continues, not exceeding 25% in
15the aggregate. For purposes of this subsection, the amount of tax required to be
16shown on the return shall be reduced by the amount of any part of the tax which is
17paid on or before the due date prescribed for payment of the tax and by the amount
18of any credit against the tax which may be claimed upon the return.
SB518-SSA1, s. 12 19Section 12. 77.61 (5) (a) of the statutes is amended to read:
SB518-SSA1,9,2520 77.61 (5) (a) It is unlawful for the department or any person having an
21administrative duty under this subchapter to make known in any manner whatever
22the business affairs, operations or information obtained by an investigation of
23records and equipment of any retailer or any other person visited or examined in the
24discharge of official duty, or the amount or source of income, profits, losses,
25expenditures, or any particular thereof, set forth or disclosed in any return, or to

1permit any return or copy thereof to be seen or examined by any person. This
2paragraph does not prohibit the department of revenue from publishing statistics
3classified so as not to disclose the identity of particular returns or reports and the
4items thereof. This paragraph does not prohibit employees or agents of the
5department of revenue from offering or submitting information obtained by
6investigation or any return or any schedule, exhibit or writing pertaining to a return
7or any copy of, or information derived from, any of those documents as evidence into
8the record of any contested matter involving the department in proceedings or
9litigation on state tax matters if that evidence has reasonable probative value. This
10paragraph does not prohibit employees or agents of the department of revenue from
11informing a buyer or seller who has filed a claim for a refund that a refund has been
12paid to a seller or buyer with respect to the same transaction.
SB518-SSA1, s. 13 13Section 13. 78.68 (3) of the statutes is amended to read:
SB518-SSA1,10,1814 78.68 (3) If due to neglect an incorrect return is filed, and upon a showing by
15the department under s. 73.14 (5),
the entire tax finally determined is subject to a
16penalty of 25% of the tax exclusive of interest or other penalty. A person filing an
17incorrect return has the burden of proving that the error or errors were due to good
18cause and not due to neglect.
SB518-SSA1, s. 14 19Section 14. 78.68 (4) of the statutes is amended to read:
SB518-SSA1,11,520 78.68 (4) In case of failure to file any return required under ss. 78.12, 78.49,
21and 78.58 by the due date, unless it is shown that that failure was due to reasonable
22cause and not due to neglect
and upon a showing by the department under s. 73.14
23(5)
, there shall be added to the amount required to be shown as tax on that return
245% of the amount of the tax if the failure is for not more than one month, and an
25additional 5% of the tax for each additional month or fraction thereof during which

1the failure continues, not exceeding 25% of the tax in the aggregate. For purposes
2of this subsection, the amount of tax required to be shown on the return shall be
3reduced by the amount of any part of the tax which is paid on or before the due date
4prescribed for payment of the tax and by the amount of any credit against the tax
5which may be claimed upon the return.
SB518-SSA1, s. 15 6Section 15. 139.25 (3) of the statutes is amended to read:
SB518-SSA1,11,117 139.25 (3) Incorrect return. If due to neglect an incorrect return is filed and
8upon a showing by the department under s. 73.14 (5)
, the entire tax finally
9determined is subject to a penalty of 25% of the tax exclusive of interest or other
10penalty. A person filing an incorrect return has the burden of proving that the error
11or errors were due to good cause and not due to neglect.
SB518-SSA1, s. 16 12Section 16. 139.25 (4) of the statutes is amended to read:
SB518-SSA1,11,2313 139.25 (4) Failure to file return. In case of failure to file any return required
14under s. 139.05, 139.06 or 139.11 by the due date, unless it is shown that that failure
15was due to reasonable cause and not due to neglect
and upon a showing by the
16department under s. 73.14 (5)
, there shall be added to the amount required to be
17shown as tax on that return 5% of the amount of that tax if the failure is for not more
18than one month, and an additional 5% of the tax for each additional month or fraction
19thereof during which that failure continues, not exceeding 25% of the tax in the
20aggregate. For purposes of this subsection, the amount of tax required to be shown
21on the return shall be reduced by the amount of any part of the tax which is paid on
22or before the due date prescribed for payment of the tax and by the amount of any
23credit against the tax which may be claimed upon the return.
SB518-SSA1, s. 17 24Section 17. 227.12 (3) of the statutes is amended to read:
SB518-SSA1,12,6
1227.12 (3) Within Except as provided in sub. (4), within a reasonable period of
2time after the receipt of a petition under this section, an agency shall either deny the
3petition in writing or proceed with the requested rule making. If the agency denies
4the petition, it shall promptly notify the petitioner of the denial, including a brief
5statement of the reason for the denial. If the agency proceeds with the requested rule
6making, it shall follow the procedures prescribed in this subchapter.
SB518-SSA1, s. 18 7Section 18. 227.12 (4) of the statutes is created to read:
SB518-SSA1,12,218 227.12 (4) If a petition to the department of revenue alleges that the
9department has established a standard by which it is construing a state tax statute,
10but has not promulgated a rule to adopt the standard or published the standard in
11a manner that is available to the public, the department shall initiate rule making
12within 180 days from the date that the petition is received and submit a rule to the
13legislature pursuant to s. 227.19 (2) no later than 12 months from the date that the
14petition is received. The rule need not adhere to the standard established by the
15department, but shall address the same circumstances as the standard addresses.
16If the department fails to comply with this subsection, any of the petitioners may
17commence an action in circuit court to compel the department's compliance. If an
18action is commenced under this subsection, the court may compel the department to
19provide information to the court related to the degree to which the department is
20enforcing the standard, except that the information provided by the department
21shall not disclose the identity of any person who is not a party to the action.
SB518-SSA1, s. 19 22Section 19. 227.41 (1) of the statutes is amended to read:
SB518-SSA1,13,423 227.41 (1) Any Except as provided in sub. (5), any agency may, on petition by
24any interested person, issue a declaratory ruling with respect to the applicability to
25any person, property or state of facts of any rule or statute enforced by it. Full

1opportunity for hearing shall be afforded to interested parties. A declaratory ruling
2shall bind the agency and all parties to the proceedings on the statement of facts
3alleged, unless it is altered or set aside by a court. A ruling shall be subject to review
4in the circuit court in the manner provided for the review of administrative decisions.
SB518-SSA1, s. 20 5Section 20. 227.41 (3) of the statutes is amended to read:
SB518-SSA1,13,76 227.41 (3) The Except as provided in sub. (5) (b), the petition shall be filed with
7the administrative head of the agency or with a member of the agency's policy board.
SB518-SSA1, s. 21 8Section 21. 227.41 (4) of the statutes is amended to read:
SB518-SSA1,13,139 227.41 (4) Within Except as provided in sub. (5) (c), within a reasonable time
10after receipt of a petition pursuant to this section, an agency shall either deny the
11petition in writing or schedule the matter for hearing. If the agency denies the
12petition, it shall promptly notify the person who filed the petition of its decision,
13including a brief statement of the reasons therefor.
SB518-SSA1, s. 22 14Section 22. 227.41 (5) of the statutes is created to read:
SB518-SSA1,14,215 227.41 (5) (a) The department of revenue shall, on petition by any interested
16person, or any group or association of interested persons, issue a declaratory ruling
17with respect to the applicability to any person, property, or state of facts of any rule
18or statute enforced by it. The department of revenue may issue a declaratory ruling
19on the facts contained in the petition. If the department of revenue does not deny the
20petition or issue a declaratory ruling on the facts contained in the petition, the
21department of revenue shall hold a hearing, as provided under s. 227.44, and shall
22afford all interested parties an opportunity to participate in the hearing. A
23declaratory ruling shall bind the department and all parties to the proceedings on
24the statement of facts alleged or offered, unless it is altered or set aside by the tax

1appeals commission or a court. A ruling, including the denial of the petition, shall
2be subject to review by the tax appeals commission as provided in ch. 73.
SB518-SSA1,14,73 (b) A petition under par. (a) shall conform to the requirements under sub. (2)
4and be filed with the secretary of revenue. A petition under par. (a) shall also allege
5facts that show that a justiciable controversy exists, or that a justiciable controversy
6will likely exist, for purposes of this subsection, but no petition under par. (a) shall
7allege facts that are not likely to occur.
SB518-SSA1,14,178 (c) No later than 30 days after the day that the secretary of revenue receives
9a petition under this subsection, the department of revenue shall deny the petition
10in writing, issue a notice that it will issue a declaratory ruling on the facts contained
11in the petition, in which case the department of revenue shall issue the ruling no
12later than 90 days after issuing the notice, or schedule the matter for hearing. The
13department may deny the petition only if the petition fails to comply with the
14requirements under sub. (2) and par. (b) or if the department determines that the
15petition is frivolous or lacks merit. If the department denies the petition, it shall
16promptly notify the person who filed the petition of its decision and include with the
17notice a brief statement of the reasons for denying the petition.
SB518-SSA1,14,2418 (d) If the department of revenue does not deny the petition, or issue a notice
19that it will issue a declaratory ruling based on the facts contained in the petition, the
20department shall hold a hearing and issue a ruling on the petition no later than 180
21days after the day that the secretary of revenue receives the petition, unless the
22deadline is extended by written agreement of all parties. Upon agreement of the
23parties, the department may rule on the petition based on facts stipulated by the
24parties.
SB518-SSA1, s. 23 25Section 23. 227.485 (2) (a) of the statutes is amended to read:
SB518-SSA1,15,2
1227.485 (2) (a) "Hearing examiner" means the agency, tax appeals commission,
2or hearing examiner conducting the hearing.
SB518-SSA1, s. 24 3Section 24. 227.485 (3) of the statutes is amended to read:
SB518-SSA1,15,104 227.485 (3) In Except as provided under sub. (3m), in any contested case in
5which an individual, a small nonprofit corporation or a small business is the
6prevailing party and submits a motion for costs under this section, the hearing
7examiner shall award the prevailing party the costs incurred in connection with the
8contested case, unless the hearing examiner finds that the state agency which is the
9losing party was substantially justified in taking its position or that special
10circumstances exist that would make the award unjust.
SB518-SSA1, s. 25 11Section 25. 227.485 (3m) of the statutes is created to read:
SB518-SSA1,15,1812 227.485 (3m) In any proceeding before the tax appeals commission in which
13the department of revenue is not the prevailing party and the prevailing party
14submits a motion for costs under this section, the tax appeals commission shall
15award the prevailing party the costs incurred in connection with the proceeding
16unless the tax appeals commission determines that the department of revenue was
17substantially justified in taking its position or that special circumstances exist that
18would make the award unjust.
SB518-SSA1, s. 26 19Section 26. 227.485 (5) of the statutes is amended to read:
SB518-SSA1,16,720 227.485 (5) If the hearing examiner awards costs under sub. (3) or (3m), he or
21she shall determine the costs under this subsection, except as modified under sub.
22(4). The decision on the merits of the case shall be placed in a proposed decision and
23submitted under ss. 227.47 and 227.48. The prevailing party shall submit, within
2430 days after service of the proposed decision, to the hearing examiner and to the
25state agency which is the losing party an itemized application for fees and other

1expenses, including an itemized statement from any attorney or expert witness
2representing or appearing on behalf of the party stating the actual time expended
3and the rate at which fees and other expenses were computed. The state agency
4which is the losing party has 15 working days from the date of receipt of the
5application to respond in writing to the hearing examiner. The hearing examiner
6shall determine the amount of costs using the criteria specified in s. 814.245 (5) and
7include an order for payment of costs in the final decision.
SB518-SSA1, s. 27 8Section 27. 227.485 (7) of the statutes is amended to read:
SB518-SSA1,16,149 227.485 (7) An individual is not eligible to recover costs under this section if
10the person's properly reported federal adjusted gross income was $150,000 or more
11in each of the 3 calendar years or corresponding fiscal years immediately prior to the
12commencement of the case. This subsection applies whether the person files the tax
13return individually or in combination with a spouse. This subsection does not apply
14to costs awarded under sub. (3m).
SB518-SSA1, s. 28 15Section 28. 227.485 (10) (intro.) of the statutes is amended to read:
SB518-SSA1,16,1916 227.485 (10) (intro.) If the examiner finds that the motion under sub. (3) or (3m)
17is frivolous, the examiner may award the state agency all reasonable costs in
18responding to the motion. In order to find a motion to be frivolous, the examiner must
19find one or more of the following:
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