Wednesday, December 12, 2007
Ninety-Eighth Regular Session
The Chief Clerk makes the following entries under the above date.
__________________
The committee on Small Business, Emergency Preparedness, Workforce Development, Technical Colleges and Consumer Protection reports and recommends:
Senate Bill 211
Relating to: soliciting purchases of goods or services using unsolicited checks or money orders and providing a penalty.
Adoption of Senate Amendment 1.
Ayes, 5 - Senators
Wirch, Carpenter, Plale, Kedzie and Roessler.
Noes, 0 - None.
Passage as amended.
Ayes, 5 - Senators
Wirch, Carpenter, Plale, Kedzie and Roessler.
Noes, 0 - None.
Robert Wirch
Chairperson
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State of Wisconsin
Claims Board
December 5, 2007
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on November 15 and 29, 2007.
The claims in this report approved for payment pursuant to the provisions of ss.
16.007 and
775.05, Stats., have been paid directly by the Board.
The Board is preparing the bill(s) on any claim(s) recommended to the Legislature 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 publication of it in the Journal to inform the members of the Legislature.
Sincerely,
Cari Anne Renlund
Secretary
The State of Wisconsin Claims Board conducted hearings at the State Capitol Building in Madison, Wisconsin, on November 15, 2007 upon the following claims:
Claimant Agency Amount
The following claims were considered and decided without hearings:
Claimant Agency Amount
2. Plant & Flanged
Equipment Co. Revenue $3,151.44
3. The Engineer Company Revenue $76,952.00
4. Boyd Richter Natural Resources $100.00
5. William J. Wachowiak Ag, Trade & Consumer
Protection $3,153.00
6. Timothy Oestreich Health &
Family Services $307.46
7. Dale L. Rovik Transportation $131.88
8. Carl Savonne Veterans Affairs $3,675.76
9. Mark Brown Corrections $89.99
10. Mark Brown Corrections $30.57
11. Mark Brown Corrections $25.75
12. Jerry Frazier Corrections $65.00
13. Johnny Sullivan, Jr. Corrections $159.75
14. Johnny Sullivan, Jr. Corrections $62.55
15. Tomas Barajas Corrections $13.50
The Board Finds:
1. Russ Darrow Toyota of West Bend, Wisconsin claims $5,000.00 for damages related to the DOT's failure to carry forward a “Flood Damaged" brand from an Illinois vehicle title. In November 2005, the claimant accepted a 2000 Volvo as a trade-in from Dana Baldukas. The Volvo's title was free of any brands and the claimant appraised the vehicle at $7500. The claimant had the opportunity to sell the Volvo approximately one week later for $8200. Prior to finalizing the purchase, the buyer ran a Car Fax Report and discovered a flood damage brand on the vehicle and backed out of the deal. The claimant investigated the vehicle history and discovered an error in processing when the vehicle was titled in Wisconsin. The claimant states that the vehicle eventually sold for $2500 at auction. The claimant requests reimbursement of $5000, the difference between the appraised value of the vehicle and the reduced value of the vehicle after discovery of the flood damage brand.
S467
The Department of Transportation does find negligence by a DOT employee and therefore recommends payment of this claim. DOT records indicate that Dana Baldukas purchased the vehicle from a salvage dealership in April 2002. The dealership submitted the title application along with an Illinois title branded “Flood Rebuilt." When issuing Ms. Baldukas' Wisconsin title, the DOT erred in not carrying forward the brand. The claimant contacted the DOT about this issue in March 2006, and was given information about filing a claim with Risk Management. However, the claimant did not contact DOT Risk Management to request a Notice of Claim form until January 2007. The claimant's Notice of Claim was rejected by the Department of Justice for failing to meet the requirements of §
893.82, Stats., and the claimant was referred to the Claims Board.
The Board concludes the claim should be paid in the amount of $ 5,000.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Transportation appropriation §
20.395(5)(cq), Stats.
2. Plant & Flanged Equipment Co. of Blaine, Minnesota claims $3,151.44 for sales tax refund. The claimant is a Minnesota company that sells to customers in Wisconsin and therefore has a Wisconsin sales tax permit and files WI sales tax returns every month. The claimant states that its customers sometimes do not submit tax-exemption certificates until after the claimant has submitted its sales tax return for the month. The claimant then has to submit an amended return. The claimant states that it was notified by a customer that there were additional tax-exempt invoices for the claimant's amended February 2006 return. While reviewing the earlier amended return, the claimant discovered a number of errors. The claimant states that it contacted the DOR helpline to obtain information about how to prepare the new amended return and then instructed its tax preparer to start over and make sure the corrected return was completely accurate. The claimant states that it received the DOR's July 26, 2006, notice about appealing the denial of the refund, but the claimant believed that the notice was invalid because the return being denied was incorrect. The claimant thought that by correcting and re-filing the return, the refund problem would be rectified. The claimant now realizes that it should have contacted the DOR to keep them better informed. The claimant has also taken steps to ensure the accuracy of its returns in the future, including replacing its tax preparer. Finally, the claimant notes that upon receipt of an exemption certificate from its customers, it issues credits to the customers, therefore, if the claimant does not receive this refund it will be a loss for the company.
The Department of Revenue recommends denial of this claim. The DOR states that it asked the claimant to submit additional information to verify its February 2006 claim for refund. The claimant did not submit the requested information and the DOR denied the claim for refund. The claimant received the denial letter, which included a notice that the claimant had 60 days to appeal the determination or it would become final. The claimant filed its corrected, amended February 2006, return on November 30, 2006, well beyond the 60 day appeal deadline. The DOR believes the claimant's request for refund is untimely and should be denied. Finaly, the DOR points to the fact that a possible remedy available to the claimant would be for its affected customers to file claims for refund directly with the DOR for any tax paid to the claimant in error.
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.
3. The Engineer Company of New York, New York claims $76,952.00 for income taxes withheld but neither allowed as a credit for two partners of the claimant partnership, nor refunded to the claimant. The claimant was a touring musical production that performed in Milwaukee in July and August 1999. Pursuant to Wisconsin tax law, the theater operator withheld and remitted Wisconsin income taxes for the performance. The claimant timely filed its 1999 Wisconsin Partnership Return. The claimant partnership consisted of 16 partners, 3 of which were corporate entities. The 1999 Partnership Return allocated to each partner its share of the withheld income taxes related to the 1999 performance. The clamant states that it was its long-standing practice to pass tax withheld at the partnership level through to its partners. The claimant states that this also has long been the practice of numerous other theatre production companies. The claimant states that two of its corporate partners filed Wisconsin corporation income tax returns, claiming credit for the income tax passed through from the partnership. Both partners were denied the requested refunds by the DOR, which told them that Wisconsin did not allow pass-through of income taxes from a partnership to a corporation. The claimant points to the fact that the DOR never notified the claimant—only the two corporate partners were notified that the income tax credit must be made by the partnership and no procedures were given explaining how the partnership should do so. The claimant states that because it was never notified by the DOR, it never had an opportunity to make a claim for refund until after the statutorily proscribed period had expired. The claimant believes this is a matter of equity, as the tax withheld has never been credited or refunded to any taxpayer—neither the partnership, nor its partners. The claimant points to the fact that, had the DOR been a commercial entity, it would have been required to remit the withheld but not credited tax to the Abandoned Property Program under the state's escheat laws. As a matter of equity, the claimant requests reimbursement for the tax refunds disallowed for its two corporate partners.
