ADJUSTMENT
74.33
74.33
Sharing and charging back of taxes due to palpable errors. 74.33(1)(1)
Grounds. After the tax roll has been delivered to the treasurer of the taxation district under s.
74.03, the governing body of the taxation district may refund or rescind in whole or in part any general property tax shown in the tax roll, including agreed-upon interest, if:
74.33(1)(a)
(a) A clerical error has been made in the description of the property or in the computation of the tax.
74.33(1)(b)
(b) The assessment included real property improvements which did not exist on the date under s.
70.10 for making the assessment.
74.33(1)(c)
(c) The property is exempt by law from taxation, except as provided under sub.
(2).
74.33(1)(d)
(d) The property is not located in the taxation district for which the tax roll was prepared.
74.33(1)(f)
(f) An arithmetic, transpositional or similar error has occurred.
74.33(2)
(2)
Exceptions. The governing body of a taxation district may not refund or rescind any tax under this section if the alleged error may be appealed under s.
70.995 (8) (c) or if the alleged error is solely that the assessor placed a valuation on the property that is excessive.
74.33(3)
(3)
Charging back and sharing taxes. If an error under sub.
(1) has been discovered, the governing body of the taxation district shall proceed under s.
74.41.
74.33 Annotation
A potential error in classifying a mobile home as real, not personal, property was not a clerical error under sub. (1) (a), nor could it be considered to be the inclusion of a real property improvement that did not exist under sub. (1) (b), as the property did exist. Ahrens v. Town of Fulton,
2000 WI App 268,
240 Wis. 2d 124,
621 N.W.2d 643,
99-2466.
74.35
74.35
Recovery of unlawful taxes. 74.35(1)(1)
Definitions. In this section “unlawful tax" means a general property tax with respect to which one or more errors specified in s.
74.33 (1) (a) to
(f) were made. “Unlawful tax" does not include a tax in respect to which the alleged defect is solely that the assessor placed a valuation on the property that is excessive.
74.35(2)
(2)
Claim against taxation district. 74.35(2)(a)
(a) A person aggrieved by the levy and collection of an unlawful tax assessed against his or her property may file a claim to recover the unlawful tax against the taxation district which collected the tax.
74.35(2)(b)
(b) A claim filed under this section shall meet all of the following conditions:
74.35(2)(b)2.
2. State the alleged circumstances giving rise to the claim, including the basis for the claim as specified in s.
74.33 (1) (a) to
(e).
74.35(2)(b)3.
3. State as accurately as possible the amount of the claim.
74.35(2m)
(2m)
Exclusive procedure. A claim that property is exempt, other than a claim that property is exempt under s.
70.11 (21) or
(27), may be made only in an action under this section. Such a claim may not be made by means of an action under s.
74.33 or an action for a declaratory judgment under s.
806.04.
74.35(3)(a)(a) In this subsection, to “disallow" a claim means either to deny the claim in whole or in part or to fail to take final action on the claim within 90 days after the claim is filed.
74.35(3)(b)
(b) The taxation district shall notify the claimant by certified or registered mail whether the claim is allowed or disallowed within 90 days after the claim is filed.
74.35(3)(c)
(c) If the governing body of the taxation district determines that an unlawful tax has been paid and that the claim for recovery of the unlawful tax has complied with all legal requirements, the governing body shall allow the claim. The taxation district treasurer shall pay the claim not later than 90 days after the claim is allowed.
74.35(3)(d)
(d) If the taxation district disallows the claim, the claimant may commence an action in circuit court to recover the amount of the claim not allowed. The action shall be commenced within 90 days after the claimant receives notice by certified or registered mail that the claim is disallowed.
74.35(4)
(4)
Interest. The amount of a claim filed under sub.
(2) or an action commenced under sub.
(3) may include interest at the average annual discount rate determined by the last auction of 6-month U.S. treasury bills before the date of filing the claim per day for the period between the time when the tax was due and the date that the claim was paid.
Effective date note
NOTE: Sub. (4) is shown as amended eff. 1-1-23 by
2021 Wis. Act 162. Prior to 1-1-23 it reads:
Effective date text
(4) Interest. The amount of a claim filed under sub. (2) or an action commenced under sub. (3) may include interest computed from the date of filing the claim against the taxation district, at the rate of 0.8 percent per month.
74.35(5)
(5)
Limitations on bringing claims. 74.35(5)(a)
(a) Except as provided under par.
(b), a claim under this section shall be filed by January 31 of the year in which the tax is payable.
74.35(5)(b)
(b) A claim under this section for recovery of taxes paid to the wrong taxation district shall be filed within 2 years after the last date specified for timely payment of the tax under s.
74.11,
74.12 or
74.87.
74.35(5)(c)
(c) No claim may be filed or maintained under this section unless the tax for which the claim is filed, or any authorized installment payment of the tax, is timely paid under s.
74.11,
74.12 or
74.87. This paragraph does not apply to taxes due and payable in 2020 if paid by October 1, 2020, or by any installment date for which taxes are due after October 1, 2020, nor to taxes due and payable in 2021 if paid by October 1, 2021, or by any installment date for which taxes are due after October 1, 2021.
74.35(5)(d)
(d) No claim may be made under this section based on the contention that the tax was unlawful because the property is exempt from taxation under s.
70.11 (21) or
(27).
74.35(6)
(6)
Compensation for taxation district. If taxes are refunded under sub.
(3), the governing body of the taxation district may proceed under s.
74.41.
74.35 Annotation
This section only authorizes courts to determine whether a taxpayer is exempt from taxes already paid, not taxes that might be assessed in the future. Tax exempt status, once granted, is not automatic. It is subject to continuing review, a notion inconsistent with a declaration that property is exempt from future property taxes. Northwest Wisconsin Community Services Agency, Inc. v. City of Montreal,
2010 WI App 119,
328 Wis. 2d 760,
789 N.W.2d 392,
09-2568.
74.35 Annotation
An installment payment is timely within the meaning of sub. (5) (c) if it meets the criteria contained in s. 74.87 (7). An installment payment is not considered timely simply because it is not considered delinquent under s. 74.87 (6). Because the taxpayer in this case failed to timely pay its March installment payment, the taxpayer did not meet the statutory requirements to pursue its claim under this section. WGLB Scholarship in Memory of Joel J. Kinlow, Inc. v. City of Milwaukee,
2021 WI App 43,
398 Wis. 2d 760,
963 N.W.2d 110,
19-2352.
74.35 Annotation
Separate installment payments do not give rise to their own separate claims. In other words, a taxpayer is allowed to file and maintain one claim under this section for a given tax assessment. WGLB Scholarship in Memory of Joel J. Kinlow, Inc. v. City of Milwaukee,
2021 WI App 43,
398 Wis. 2d 760,
963 N.W.2d 110,
19-2352.
74.35 Annotation
Although the legislature, in sub. (5) (c), did not write “each and every" or “all" authorized installment payments of the tax, interpreting this section in context with s. 74.87 to avoid absurd or unreasonable results, it is not the case that simply any installment payment must be timely made in order for a taxpayer to maintain a claim. WGLB Scholarship in Memory of Joel J. Kinlow, Inc. v. City of Milwaukee,
2021 WI App 43,
398 Wis. 2d 760,
963 N.W.2d 110,
19-2352.
74.35 Annotation
Under sub. (2) (a), all claims regarding the recovery of taxes on an allegedly exempt property must be filed against the taxation district by the taxpayer who was aggrieved by the “levy and collection" of the challenged tax. The statute clearly anticipates a claim being filed with the taxation district “after" the taxpayer has paid the challenged tax. In this case, there had been no collection of the challenged tax at the time that the taxpayer filed its claims with the city. Thus, the city's motion to dismiss should have been granted. Saint John's Communities, Inc. v. City of Milwaukee,
2021 WI App 77,
399 Wis. 2d 729,
967 N.W.2d 151,
20-1696.
74.35 Annotation
In
Hermann,
215 Wis. 2d 370 (1998), the court held that the uniformity clause claim made by the plaintiffs was inherently a claim of excessive assessment for which there was a statutory scheme that was the exclusive means by which taxpayers could make an excessive tax challenge. The same circumstances apply to a claim under this section. Pursuant to sub. (2) (a), there are necessary requirements involved in filing a claim asserting tax exemption, and further, under sub. (2m), this section is the exclusive means for filing such a claim. Saint John's Communities, Inc. v. City of Milwaukee,
2021 WI App 77,
399 Wis. 2d 729,
967 N.W.2d 151,
20-1696.
74.37
74.37
Claim on excessive assessment. 74.37(1)(1)
Definition. In this section, a “claim for an excessive assessment" or an “action for an excessive assessment" means a claim or action, respectively, by an aggrieved person to recover that amount of general property tax imposed because the assessment of property was excessive.
74.37(2)(a)(a) A claim for an excessive assessment may be filed against the taxation district, or the county that has a county assessor system, which collected the tax.
74.37(2)(b)
(b) A claim filed under this section shall meet all of the following conditions:
74.37(2)(b)2.
2. State the alleged circumstances giving rise to the claim.
74.37(2)(b)3.
3. State as accurately as possible the amount of the claim.
74.37(2)(b)5.
5. Be served on the clerk of the taxation district, or the clerk of the county that has a county assessor system, in the manner prescribed in s.
801.11 (4) by January 31 of the year in which the tax based upon the contested assessment is payable.
74.37(3)(a)(a) In this subsection, to “disallow" a claim means either to deny the claim in whole or in part or to fail to take final action on the claim within 90 days after the claim is filed.
74.37(3)(b)
(b) The taxation district or county that has a county assessor system shall notify the claimant by certified or registered mail whether the claim is allowed or disallowed within 90 days after the claim is filed.
74.37(3)(c)
(c) If the governing body of the taxation district or county that has a county assessor system determines that a tax has been paid which was based on an excessive assessment, and that the claim for an excessive assessment has complied with all legal requirements, the governing body shall allow the claim. The taxation district or county treasurer shall pay the claim not later than 90 days after the claim is allowed.
74.37(3)(d)
(d) If the taxation district or county disallows the claim, the claimant may commence an action in circuit court to recover the amount of the claim not allowed. The action shall be commenced within 90 days after the claimant receives notice by registered or certified mail that the claim is disallowed.
74.37(4)(a)(a) No claim or action for an excessive assessment may be brought under this section unless the procedures for objecting to assessments under s.
70.47, except under s.
70.47 (13), have been complied with. This paragraph does not apply if notice under s.
70.365 was not given.
74.37(4)(b)
(b) No claim or action for an excessive assessment may be brought or maintained under this section unless the tax for which the claim is filed, or any authorized installment of the tax, is timely paid under s.
74.11 or
74.12. This paragraph does not apply to taxes due and payable in 2020 if paid by October 1, 2020, or by any installment date for which taxes are due after October 1, 2020, nor to taxes due and payable in 2021 if paid by October 1, 2021, or by any installment date for which taxes are due after October 1, 2021.
74.37(4)(c)
(c) No claim or action for an excessive assessment may be brought or maintained under this section if the assessment of the property for the same year is contested under s.
70.47 (13) or
70.85. No assessment may be contested under s.
70.47 (13) or
70.85 if a claim is brought and maintained under this section based on the same assessment.
74.37(5)
(5)
Interest. The amount of a claim filed under sub.
(2) or an action commenced under sub.
(3) may include interest at the average annual discount rate determined by the last auction of 6-month U.S. treasury bills before the objection per day for the period of time between the time when the tax was due and the date that the claim was paid.
74.37(7)
(7)
Compensation. If taxes are refunded under sub.
(3), the governing body of the taxation district or county that has a county assessor system may proceed under s.
74.41.
74.37 Annotation
This section and ss. 70.47 (13) and 70.85 provide the exclusive method to challenge a municipality's bases for assessment of individual parcels. All require appeal to the board of review prior to court action. There is no alternative procedure to challenge an assessment's compliance with the uniformity clause. Hermann v. Town of Delavan,
215 Wis. 2d 370,
572 N.W.2d 855 (1998),
96-0171.
74.37 Annotation
Claimants who never received notice of a changed assessment under s. 70.365 were exempt from the obligation to proceed before the board of review. However, they were required to meet the January 31 filing date in sub. (2), regardless of the fact that they never received the notice. Reese v. City of Pewaukee,
2002 WI App 67,
252 Wis. 2d 361,
642 N.W.2d 596,
01-0850.
74.37 Annotation
While certiorari review of an assessment is limited to the review of the board of assessment's record, sub. (3) (d) allows the court to proceed without regard to any determination made at an earlier proceeding. The assessor's assessment is presumed correct only if the challenging party does not present significant contrary evidence. The court may hear new evidence and can enter a judgment if it is in the best interest of the parties. Bloomer Housing Ltd. Partnership v. City of Bloomer,
2002 WI App 252,
257 Wis. 2d 883,
653 N.W.2d 309,
01-3495.
74.37 Annotation
After
Nankin,
2001 WI 92, the state-wide application of this section must prevail over any statutes that would defeat its implementation. Special rules help harmonize provisions that were once fully compatible with this section but, as a result of
Nankin, conflict with this section. U.S. Bank National Ass'n v. City of Milwaukee,
2003 WI App 220,
267 Wis. 2d 718,
672 N.W.2d 492,
03-0724.
74.37 Annotation
When a taxpayer brings an action to recover excessive taxes under this section, the least favorable outcome for the taxpayer, and the best possible outcome for the taxation authority, is for the court to conclude there were no excessive taxes. The court cannot impose a greater tax burden than the one the taxation authority already agreed to when it accepted the taxpayer's payment. Although the court need not defer to the board of review's determination, and there is a statutory presumption that the assessor's determination is correct, when the board of review reduces the original assessment the court cannot reinstate the assessor's original assessment. Trailwood Ventures, LLC v. Village of Kronenwetter,
2009 WI App 18,
315 Wis. 2d 791,
762 N.W.2d 841,
08-1221.
74.37 Annotation
When a city assessor correctly applies the Property Assessment Manual and statutes, and there is no significant evidence to the contrary, courts will reject a party's challenge to the assessment. Allright Properties, Inc. v. City of Milwaukee,
2009 WI App 46,
317 Wis. 2d 228,
767 N.W.2d 567,
08-0510.
74.37 Annotation
Under s. 70.49 (2), each assessment shall, in all actions and proceedings involving such values, be presumptive evidence that all such properties have been justly and equitably assessed. For a taxpayer to challenge the assessment, the taxpayer is required to present sufficient evidence to persuade the circuit court that the assessed value is probably not the fair market value of the property. A failure to provide that persuasive evidence would entitle the city to judgment based on the statutory presumption. Bonstores Realty One, LLC v. City of Wauwatosa,
2013 WI App 131,
351 Wis. 2d 439,
839 N.W.2d 893,
12-1754.
74.37 Annotation
Under sub. (4), a taxpayer must challenge an assessment in front of the board of review before filing an excessive assessment claim, unless the taxing authority failed to provide a notice of assessment under circumstances under which notice was required. Under s. 70.365, a notice of assessment is required only when the property's assessed value has changed. After reading these statutes, it should have been clear to the taxpayer that: 1) because it did not receive a notice of assessment, its property's assessed value for 2011 would be unchanged from 2010; and 2) if the taxpayer wanted to challenge the 2011 assessment, it needed to object before the board of review. These requirements did not violate the taxpayer's rights to due process. Northbrook Wisconsin, LLC v. City of Niagara,
2014 WI App 22,
352 Wis. 2d 657,
843 N.W.2d 851,
13-1322.
74.37 Annotation
Under sub. (3) (b), a taxing district has 90 days after a claim for excessive assessment has been filed to either allow it or disallow it. If the taxing authority fails to act on the claim within 90 days, the claim is deemed disallowed under sub. (3) (a). A statutory limitation period does not commence once a claim is deemed disallowed under a statute that requires receipt of notice of the disallowance to trigger the limitation period. As the claimant in this case never received notice of the disallowance of its claim by certified or registered mail, the 90-day limitation period was not triggered and the action was timely commenced. Walgreen Co. v. City of Oshkosh,
2014 WI App 54,
354 Wis. 2d 17,
848 N.W.2d 314,
13-1610.
74.37 Annotation
The plaintiffs were entitled to a hearing to contest their tax assessment even though they did not permit a tax assessor to enter the interior of their home. Milewski v. Town of Dover,
2017 WI 79,
377 Wis. 2d 38,
899 N.W.2d 303,
15-1523.
74.37 Annotation
Over Assessed? Appealing Home Tax Assessments. McAdams. Wis. Law. July 2011.
74.39
74.39
Court-ordered reassessment. 74.39(1)(1)
Court may order. Except as provided in sub.
(3), in any action under s.
74.35 (3) or
74.37 (3), if the court determines that a reassessment of the property upon which the taxes were paid is necessary, the court, before entering judgment, shall continue the action to permit reassessment of the property. If, based on the reassessment, the court determines that the amount of taxes paid by the plaintiff is not excessive, judgment shall be entered for the defendant. If, based on the reassessment, the court determines that the amount of taxes paid by the plaintiff is excessive, judgment shall be entered for the plaintiff for the amount of the excessive taxes paid.
74.39(2)
(2)
Challenge of reassessment. The validity of a reassessment under sub.
(1) may be challenged under s.
75.54. A reassessment under s.
75.54 shall be made by the assessor of the assessment district in which the property to be reassessed is located.
74.39(3)
(3)
Exception. The court may proceed to judgment without ordering a reassessment under sub.
(1), if the court finds that to do so is in the best interests of all parties to the action and if the court is able to determine the amount of unlawful taxes with reasonable certainty.
74.39 History
History: 1987 a. 378.
74.39 Annotation
When a court finds an assessment excessive, under sub. (3) it must order a reassessment unless it finds that: 1) proceeding to judgment is in the parties' best interests; and 2) the court is able to determine the amount of unlawful taxes with reasonable certainty. In this case, the circuit court made both of these findings but failed to explain the reasoning behind its decision. When a circuit court fails to explain its reasoning, the appellate court may search the record to determine whether it supports the court's discretionary decision. West Capitol, Inc. v. Village of Sister Bay,
2014 WI App 52,
354 Wis. 2d 130,
848 N.W.2d 875,
13-1458.
74.41
74.41
Charging back refunded or rescinded taxes; sharing certain collected taxes. 74.41(1)(1)
Submission of refunded or rescinded taxes to department. By October 1 of each year, the clerk of a taxation district may submit to the department of revenue, on a form prescribed by the department of revenue, a listing of all general property taxes on the taxation district's tax roll that, subject to subs.
(1m) and
(2), meet any of the following conditions:
