How many acres are enrolled now? How many acres will be withdrawn? There is no evidence presented that landowners can and will remove land already enrolled the federal programs because of a change in the tax rule. Anticipating a reduction in new enrollments is only speculation. There are simply not facts supporting this claim and it fails for that reason.
Claim under Wis. Stat. 227.114
The Plaintiff also raised an argument under Wis. Stat. 227.114 Rule making; considerations for small businesses, in its brief in support of a motion for summary judgment. However, this claim was not pled in the Amended Complaint, nor does it appear to allow the court to grant the proposed relief, declaring the rule invalid.
Order
After reviewing the record and the briefs of the parties, the court finds that Tax 18.05 was promulgated without compliance with statutory rulemaking procedures. After the Department chose to make a significant change, it was required to prepare and obtain approval of a revised Statement of Scope and it did not. It was required to prepare a revised Economic Impact analysis and it did not. It should have held a second public hearing and it did not.
1. Pursuant to Wis.Stat. 227.40(4)(a), administrative rule Tax 18.05 (1)(d) is declared invalid because the Department of Revenue failed to follow proper rulemaking procedures.
2. The court will stay the order for 60 days to allow for a notice of appeal to be filed. If an appeal is filed, a motion may be filed to stay the order pending appeal.
3. Either party may file a motion to delay the effective date of the order if no appeal is filed.
4. No costs or attorney fees are awarded, each party shall pay their own costs and fees.
5. This court will provide notice to the Legislative Reference Bureau pursuant to Wis. Stat. 227. 40(6).
Dated this _________ day of June , 2018.
________________________________________
Thomas J. Vale, Green County
Circuit Court Judge, Branch 2
