The Board concludes that this claim raises questions of fact regarding C&C’s performance under the terms of the contract and to what extent, if any, DOA has been unjustly enriched. These issues are better evaluated by a court of law, and therefore, the Board denies payment of this claim. [Member Hanson not participating.]
3. Budget Dumpster, LLC of Westlake, Ohio claims $88,518.58 for refund of sales/use taxes levied by DOR. Claimant (located in Ohio) contracts with third parties to provide waste removal services for customers in Wisconsin. Claimant alleges that it registered for a Wisconsin seller’s permit in 2011, but later determined a permit was not necessary because taxable services were not being provided. Claimant did not cancel the permit and did not file sales/use tax returns in Wisconsin. DOR eventually sent estimated assessments in 2018, 2019, and 2020. In June 2021, DOR began levying funds to cover the assessments. Claimant started working with MCE Salt Solutions LLP (a sales and use tax consulting firm) in March 2022. MCE confirmed with DOR that Claimant’s services were not taxable. Claimant indicates that the permit was cancelled at that time, and in-process assessments were closed. Claimant sought to recover the funds that had been levied but was advised by DOR those refunds would not be released until income/franchise returns were filed. Claimant filed and paid the tax returns in July and August 2022, totaling $23,293.00. At that time, Claimant was not aware that the funds would not be fully refunded. Claimant received refunds in 2022 for the periods of 12/31/19 to 12/31/21, totaling approximately $12,000, but was notified by DOR that per Wis. Stat. § 77.59(4)(b), the statute of limitations (SOL) had closed for the tax periods ending 3/31/2011 to 9/30/2019. Claimant disagrees and believes the SOL for applying for a refund does not close until June 2023, because the funds were levied (i.e., paid) in June 2021. Claimant holds it had no reason to apply for a refund by September 2020 (the SOL calculated by DOR), because levies did not begin until June 2021. Claimant further believes that the remaining levied AMEX funds should be refunded based on “compromise” authority available to DOR. DOR recommends this claim be denied. DOR has no record of Claimant applying for or receiving a seller’s permit. DOR contends it issued estimated assessments based on survey responses received by Claimant, which led DOR to believe that taxable services were being provided. DOR alleges it sent Claimant approximately 58 letters between June 2018 and March 2022 to obtain additional information. DOR holds that the two-year SOL runs from the date of assessment, rather than the payment (levy) date. The remaining estimated assessments were issued in 2018 and 2019. Claimant had two years from issuance to apply for a refund. Therefore, Claimant had until September 2020 to apply for a refund on most of the assessments. Lastly, DOR notes that the Tax Appeals Commission has held that the phrase “and paid” is included in the statute (Wis. Stat. § 77.59(4)(b)) to clarify that an assessment must be paid before a refund claim can be filed. DOR holds it has done all in its power and does not have the authority to use fair and equitable relief powers to circumvent the SOL. The Board recommends to the legislature payment of this claim in the reduced amount of $79,666.72, which represents a 10% reduction to account for Budget Dumpster’s failure to timely raise and resolve the issue and provide DOR with sufficient information, including the costs borne by the State.
Note that this case summary was updated from what was published out of the September 7, 2023 meeting of the Claims Board to reflect additional information provided by the Department of Revenue.
4. Remington Oil Co., Inc. of Antigo, Wisconsin claims $785.21 for reimbursement of costs incurred due to an error made by a DATCP Bureau of Weights and Measures Inspector. After completing inspection of the premium gasoline dispensers at Summit Lake BP on March 21, 2023, the inspector had 45 gallons of premium gasoline to return to its tank. The inspector mistook the diesel fuel tank for the premium gasoline tank and pumped the premium gas into the diesel fuel tank. Immediately upon noticing the error, the inspector notified Summit Lake BP, which contacted their service company, Remington Oil, to rectify the situation.
DATCP recommends payment of this claim. Diesel fuel mixed with premium gasoline could lower the flashpoint of the diesel fuel, potentially harming diesel engines or posing a safety risk to people using the contaminated fuel. The work done by Remington was appropriate to correct the mistake made by the DATCP inspector.
The Board concludes the claim should be paid in the amount of $785.21 based on equitable principles. The Board further concludes, under authority of Wis. Stat. § 16.007 (6m), payment should be made from the Department of Agriculture, Trade & Consumer Protection appropriation Wis. Stat. § 20.115(1)(t). 5. Jerome Walker of Green Bay, Wisconsin claims $364.95 for value of eyeglasses destroyed as contraband by DOC. On June 27, 2021, DOC staff confiscated several property items during a search of Walker’s cell, including a pair of Versace eyeglasses, which Walker claims were worth $1300. DOC issued Walker a conduct report for possession of contraband in violation of Wis. Admin. Code DOC 303.47. A disciplinary hearing was held, Walker was found guilty, and DOC destroyed the eyeglasses. Walker alleges that DOC’s destruction of the eyeglasses violated Wis. Admin. Code 303.09(2), which gave him the right to mail the eyeglasses to his family. Walker disputes DOC’s assertion that he obtained the eyeglasses through improper means. He claims he has owned the glasses since 2015 and that DOC staff even repaired them at one point, which proves that his eyeglasses were allowed. Walker also believes that DOC lacked sufficient evidence to determine that his eyeglasses exceeded the allowed value limit of $75, but that they simply speculated that they were so based on the brand. Walker alleges that the Administrative Code supersedes DAI policy, and that the Code allowed him to mail out the glasses so they would not be destroyed.
DOC recommends denial of this claim. Walker received a conduct report for possession of contraband in violation of DOC 303.47. Walker was unable to produce a receipt for the glasses, which DOC determined were over the allowed value limit and could not have been purchased through property at the institution. DOC notes that Walker first claimed his glasses were worth $1300 but then submitted a receipt to the Claims Board for $364.95. At the time of this incident, the maximum value limit for a pair of eyeglasses was $75. No institution would have permitted an inmate to possess glasses valued at $364.95, let alone $1300. DOC states that the hearing officer properly disposed of the eyeglasses as a result of the disciplinary process, pursuant to DAI Policy. DOC also notes that there is no conflict between the Administrative Code and DAI Policy, in fact, the Code incorporates the Policy by reference and specifically provides that disposition of contraband property may be made pursuant to DOC policy. DOC believes that Walker is attempting to use the Claims Board process to challenge the outcome of his disciplinary matter, which is not appropriate. DOC argues that it was not negligent and that there is no equitable reason to pay this claim because Walker has not proven that he obtained the glasses through proper channels or that they are of the value that he alleges.
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.
The Board concludes:
That payment of the amounts below to the identified claimant from the following statutory appropriations is justified under § 16.007(6)(b). Inc.
That the following identified claimants are denied:
C&C Services, Inc.
Jerome T. Walker
The Board recommends to the legislature:
Payment of the claim of Budget Dumpster, LLC in the amount of $79,666.72.
Dated at Madison, Wisconsin this 16th day of February, 2024.
R. DUANE HARLOW
Chair, Representative of the Attorney General
ANNE L. HANSON
Secretary, Representative of the Secretary of Administration
ERIC WIMBERGER
Senate Finance Committee
ALEX DALLMAN
Assembly Finance Committee
MEL BARNES
Representative of the Governor
_____________
Referrals and Receipt of Committee Reports Concerning Proposed Administrative Rules
Relating to remote dispensing.
Submitted by the Pharmacy Examining Board.
hist188372Report received from Agency, February 14, 2024. hist192386Referred to the committee on Mental Health, Substance Abuse Prevention, Children and Families, February 26, 2024. Relating to student teaching equivalency.
Submitted by the Department of Public Instruction.
hist189536Report received from Agency, February 16, 2024. hist192387Referred to the committee on Education, February 26, 2024. Relating to implementation of the Psychology Licensure Compact.
Submitted by the Psychology Examining Board.
hist188371Report received from Agency, February 14, 2024. hist192388Referred to the committee on Licensing, Constitution and Federalism, February 26, 2024. Relating to scheduling Amineptine.
Submitted by the Controlled Substances Board.
hist188370Report received from Agency, February 14, 2024. hist192385Referred to the committee on Mental Health, Substance Abuse Prevention, Children and Families, February 26, 2024. Relating to scheduling Zipeprol.
Submitted by the Controlled Substances Board.
hist188369Report received from Agency, February 14, 2024. hist192384Referred to the committee on Mental Health, Substance Abuse Prevention, Children and Families, February 26, 2024. _____________
Messages from the Assembly Considered
Assembly Bill 19
Relating to: spinal cord injury research grants and symposia and making an appropriation.
By Representatives Tittl, Wittke, J. Anderson, Bare, Baldeh, Cabrera, Clancy, Conley, Duchow, Gundrum, Haywood, Madison, Magnafici, Mursau, O'Connor, Ortiz-Velez, Riemer, Rozar, Sinicki, Spiros, Subeck, Summerfield, Tusler and Vining; cosponsored by Senators Wanggaard, Carpenter, Cabral-Guevara, Hesselbein, James, Spreitzer, Taylor and Tomczyk.
hist192411Read first time and referred to the joint committee on Finance. Assembly Bill 29
Relating to: a sales and use tax exemption for precious metal bullion.
By Representatives Sortwell, Schraa, Allen, Armstrong, Behnke, Bodden, Brooks, Gustafson, Moses, Murphy, Mursau, Penterman, Petersen, Rettinger, Tittl and Tusler; cosponsored by Senators Stroebel, Cabral-Guevara, Felzkowski, Feyen, Nass, Quinn and Spreitzer.
hist192447Read first time and referred to the committee on Senate Organization. Assembly Bill 91
Relating to: exempting veterans and members of the armed forces from admissions application fees at University of Wisconsin System schools and technical colleges.
By Representatives Edming, Novak, Armstrong, Brandtjen, Green, Mursau, Myers, Ortiz-Velez, Rozar, Shankland, Subeck and Sinicki; cosponsored by Senators Jacque and Carpenter.
hist192450Read first time and referred to the committee on Universities and Revenue. Assembly Bill 102
Relating to: reducing the eligibility threshold to claim the veterans and surviving spouses property tax credit.
By Representatives Edming, Macco, Allen, Andraca, Armstrong, Baldeh, Brandtjen, Conley, Dittrich, Goeben, Green, Michalski, Mursau, Ohnstad, Ortiz-Velez, Penterman, Petryk, Plumer, Rozar, Shankland, Sinicki, Summerfield, Tusler and Wichgers; cosponsored by Senators Jacque, Testin, James, Quinn, Spreitzer, Taylor and Wirch.
hist192462Read first time and referred to the committee on Universities and Revenue. Assembly Bill 155
Relating to: the sale or rental of soda water beverage equipment and coin-operated vending machines.
By Representatives Magnafici, Callahan, Considine, Armstrong, Baldeh, Clancy, Duchow, Edming, Emerson, Kitchens, Krug, Novak, O'Connor, Penterman, Rozar, Schmidt, Schraa, VanderMeer, Wittke and Drake; cosponsored by Senators Ballweg, Carpenter, Nass, Stroebel and Wanggaard.
hist192463Read first time and referred to the committee on Senate Organization. Assembly Bill 181
Relating to: earned release for inmates upon the completion of an employment readiness training program and granting rule-making authority.
By the Joint Legislative Council
hist192464Read first time and referred to the committee on Senate Organization. Assembly Bill 182
Relating to: a certification of rental readiness and funding to cover damages caused by certification of rental readiness holders.
By the Joint Legislative Council
hist192465Read first time and referred to the committee on Housing, Rural Issues and Forestry.
