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 History History: 1987 a. 378; 1991 a. 39; 1993 a. 307; 1995 a. 408.
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.
74.33 AnnotationAffirmed on other grounds. 2002 WI 29, 251 Wis.2d 135, 641 N.W.2d 423, 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)1. 1. Be in writing.
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(2)(b)4. 4. Be signed by the claimant or his or her agent.
74.35(2)(b)5. 5. Be served on the clerk of the taxation district in the manner prescribed in s. 801.11 (4).
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) (3)Action on claim.
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 computed from the date of filing the claim against the taxation district, at the rate of 0.8% 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.
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.
74.37 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) (2)Claim.
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)1. 1. Be in writing.
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)4. 4. Be signed by the claimant or his or her agent.
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) (3)Action on claim.
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) (4)Conditions.
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.
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 (7) (c), (13), or (16) (c) or 70.85. No assessment may be contested under s. 70.47 (7) (c), (13), or (16) (c) or 70.85 if a claim is brought and maintained under this section based on the same assessment.
74.37 Note NOTE: The supreme court in Metropolitan Associates v. City of Milwaukee, 2011 WI 20, held the amendment of par. (c) by 2007 Wis. Act 86 to be unconstitutional and severed from the remainder of the statute. Prior to the amendment by Act 86, par. (c) read:
Effective date text (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(4)(d) (d) No claim or action for an excessive assessment may be brought or maintained under this section if the taxation district in which the property is located enacts an ordinance under s. 70.47 (7) (c) or if the 1st class city in which the property is located enacts an ordinance under s. 70.47 (16) (c), except that this paragraph does not apply if the taxation district or the 1st class city did not comply with s. 70.365.
74.37 Note NOTE: The supreme court in Metropolitan Associates v. City of Milwaukee, 2011 WI 20, held the creation of par. (d) by 2007 Wis. Act 86 to be unconstitutional and severed from the remainder of the statute.
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(6) (6)Exception. This section does not apply in counties with a population of 500,000 or more.
74.37 Note NOTE: The supreme court in Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141, held sub. (6) to be unconstitutional and severed from the remainder of the statute.
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 Sections 70.47 (13), 70.85, and 74.37 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 Sub. (6) is unconstitutional and severed from the remainder of the section. Nankin v. Village of Shorewood, 2001 WI 92, 245 Wis. 2d 86, 630 N.W.2d 141, 99-1058.
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 Limited 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, 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 Association v. City of Milwaukee, 2003 WI App 220, 267 Wis. 2d 718, 672 N.W.2d 722, 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 where 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 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, ___ N.W.2d ___, 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 district's tax roll which, subject to sub. (2), meet any of the following conditions:
74.41(1)(a) (a) Have been refunded to taxpayers under s. 70.511.
74.41(1)(b) (b) Have been rescinded or refunded to taxpayers under s. 74.33.
74.41(1)(bm) (bm) Have been refunded or collected under s. 70.43.
74.41(1)(bn) (bn) Have been rescinded or refunded to taxpayers under s. 70.74 or 75.25 (2).
74.41(1)(c) (c) Have been refunded to taxpayers under s. 74.35 or 74.37.
74.41(1)(d) (d) Have been corrected under s. 70.73 (1m).
74.41(2) (2)Amount required for submission. A tax may be included on a form submitted under sub. (1) only if one of the following applies:
74.41(2)(a) (a) The tax and all other taxes under sub. (1) which are levied for the same year and which are listed on the same form total at least $5,000.
74.41(2)(b) (b) The tax under sub. (1) for any single description of property in the tax roll for any one year is $500 or more.
74.41(3) (3)Effect on equalized value determined. The department of revenue shall, by the November 15 following submission of the form under sub. (1), determine the amount of the change, if any, in the equalized valuation of the taxation district resulting from a consideration of the valuation represented by the taxes under sub. (1). The determination of the department of revenue under this subsection is reviewable only under s. 227.53.
74.41(4) (4)Amount determined. If the department of revenue determines under sub. (3) that the equalized value of the taxation district is changed as a result of consideration of the valuation represented by the taxes under sub. (1), the department of revenue shall do one of the following:
74.41(4)(a) (a) Adjust the equalized value of the taxation district under s. 70.57.
74.41(4)(b) (b) Determine the amount of rescinded or refunded taxes to be charged back to, and collected from, each taxing jurisdiction for which taxes were collected by the taxation district, and determine the amount of taxes collected under s. 74.33 to be shared with each taxing jurisdiction for which taxes were collected by the taxation district. Except for interest on refunds under s. 70.511 (2) (b) that is paid with respect to property that was assessed under s. 70.995 and that is not paid by the department of administration under s. 70.511 (2) (bm), the amount determined may not include any interest.
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2013-14 Wisconsin Statutes updated through 2015 Wis. Act 54 and all Supreme Court Orders entered before July 7, 2015. Published and certified under s. 35.18. Changes effective after July 7, 2015 are designated by NOTES. (Published 7-7-15)