No person against whom an assessment of income or franchise tax has been made shall be allowed in any action either as plaintiff or defendant or in any other proceeding to question such assessment unless the requirements of ss. 71.88
and 71.90 (1)
shall first have been complied with, and unless such person shall have made full disclosure under oath at the hearing before the tax appeals commission of any and all income that the person received. The requirement of full disclosure under this subsection may be waived by the department of revenue.
As soon as the appellant shall have filed a petition with the tax appeals commission, all collection proceedings, except proceedings under s. 71.74 (14)
, shall be stayed until final determination of the appeal and any review thereof.
Any person who contests an assessment before the tax appeals commission or in court shall state in his or her petition or notice of appeal what portion if any of the tax is admitted to be legally assessable and correct. Within 5 days after notice by the department, the appellant shall pay to the department the whole amount of the admitted tax and such tax shall be appropriated in accordance with s. 25.20
. Any such payment shall be considered an admission of the legality of the tax thus paid, and such tax so paid cannot be recovered in the pending appeal or in any other action or proceeding.
After final decision or other disposition, the record shall be returned to the department of revenue, and the department shall proceed to collect the taxes in the same manner as other income or franchise taxes are collected.
History: 1987 a. 312
; 1991 a. 39
Depositing contested amounts. 71.90(1)(1)
The department shall notify any person who files a petition for redetermination that the person may deposit the amount of an additional assessment, including any interest or penalty, with the department, or with a person that the department prescribes, at any time before the department makes its redetermination. The department shall notify spouses jointly except that, if the spouses have different addresses and if either spouse notifies the department in writing of those addresses, the department shall serve a duplicate of the original notice on the spouse who has the address other than the address to which the original notice was sent. Amounts deposited under this subsection shall be subject to the interest provided by s. 71.82
only to the extent of the interest accrued prior to the first day of the month succeeding the date of deposit. Any deposited amount which is refunded shall bear interest at the rate of 3 percent per year during the time the funds were on deposit. A person may also pay any portion of an assessment which is admitted to be correct and the payment shall be considered an admission of the validity of that portion of the assessment and may not be recovered in an appeal or in any other action or proceeding.
(2) Deposit with the department.
At any time while the petition is pending before the tax appeals commission or an appeal in regard to that petition is pending in a court, the taxpayer may offer to deposit the entire amount of the additional taxes, penalties, and fines, together with interest, with the department. The department shall, upon final determination of the appeal, refund to the appellant any portion of such payment which has been found to have been improperly assessed, including interest.
COLLECTION OF DELINQUENT TAXES AND STATE AGENCY DEBTS
Collection provisions. 71.91(1)(1)
Time taxes become delinquent. 71.91(1)(a)(a)
Income and franchise taxes.
Income and franchise taxes shall become delinquent if not paid when due under s. 71.03 (8) (b)
, 71.24 (9)
or 71.44 (4) (b)
, and the department shall immediately proceed to collect the same. For the purpose of such collection the department or its duly authorized agent shall have the same powers as conferred by law upon the county treasurer, county clerk, sheriff and district attorney.
Any amount not deposited or paid over to the department, or to the person that the department prescribes, within the time required shall be deemed delinquent and deposit reports or withholding reports filed after the due date shall be deemed late. In the case of a timely filed deposit or withholding report, withheld taxes shall become delinquent if not deposited or paid over on or before the due date of the report. In the case of no report filed or a report filed late, withheld taxes shall become delinquent if not deposited or paid over by the due date of the report. In the case of an assessment under s. 71.83 (1) (b) 2.
, the amount assessed shall become delinquent if not paid on or before the due date specified in the notice of deficiency, but if the assessment is contested before the tax appeals commission or in the courts, it shall become delinquent on the 30th day following the date on which the order or judgment representing final determination becomes final.
Contested income and franchise tax assessments.
Any additional income or franchise tax assessment contested before the tax appeals commission or in the courts, which is finally determined to be correct, shall become delinquent if not paid on or before the 30th day following the date on which the order or judgment representing such final determination becomes final and conclusive. Any additional income or franchise tax assessment so contested shall be subject to s. 71.74 (14)
(2) Time tax obligation incurred.
Any tax obligation, including interest, penalties and costs thereon, to the department of revenue is incurred on the date of the department's initial assessment or notice of the amount due of that tax.
(3) Marital obligations.
All tax obligations to this state, including interest, penalties and costs thereon, incurred during marriage by a spouse after December 31, 1985, or after both spouses are domiciled in this state, whichever is later, are incurred in the interest of the marriage or family and may be satisfied only under ss. 766.55 (2) (b)
. However, if one spouse is relieved of liability under s. 71.10 (6) (a)
, the tax obligation to this state of the other spouse may be satisfied only under s. 766.55 (2) (d)
or by set-off under s. 71.55 (1)
, 71.61 (1)
or 71.80 (3)
(4) Unpaid tax is perfected lien on property.
If any person liable to pay any income or franchise tax neglects, fails, or refuses to pay the tax, the amount, including any interest, addition to tax, penalty, or costs, shall be a perfected lien in favor of the department of revenue upon all property and rights to property. The lien is effective at the time taxes are due or at the time an assessment is made and shall continue until the liability for the amount to be paid or for the amount so assessed is satisfied, except that liens related to warrants entered under sub. (5) (b) 1.
after May 5, 2004, shall continue for 20 years beginning on the date on which the warrant is entered under sub. (5) (b) 1.
, subject to renewal under sub. (5) (dm)
, or until the liability for the amount to be paid or for the amount so assessed is satisfied, whichever comes first. The perfected lien does not give the department of revenue priority over lienholders, mortgagees, purchasers for value, judgment creditors, and pledges whose interests have been recorded before the department's lien is recorded.
In this subsection, “file" means mail, deliver, or submit electronically.
If any income or franchise tax is not paid when due, the department of revenue shall file a warrant with the clerk of circuit court and may issue a copy of the warrant to the sheriff of any county of the state commanding the sheriff to levy upon and sell enough of the taxpayer's real and personal property found within the county to pay the tax with the penalties, interest and costs, and to proceed upon the property in the same manner as upon an execution against property issued out of a court of record, and to return the warrant to the department and pay to it the money collected, or the part of it that is necessary to pay the tax, penalties, interest and costs within 60 days after the receipt of the warrant, and deliver the balance, if any, after deduction of lawful charges, to the taxpayer.
The clerk of circuit court shall enter the warrant under par. (ar)
as required by s. 806.11
, and upon entering the amount of the warrant, together with interest required by s. 71.82 (2)
, the warrant shall be considered in all respects as a final judgment. The clerk of circuit court shall accept, file and enter the warrant without prepayment of any fee, but the clerk of circuit court shall submit a statement of the proper fee semiannually to the department covering the periods from January 1 to June 30 and July 1 to December 31. The fees shall then be paid by the state as provided by par. (h)
, but the fees provided by s. 814.61 (5)
for filing and entering the warrants shall be added to the amount of the warrant and collected from the taxpayer when satisfaction or release is presented for entry.
The sheriff shall be entitled to the same fees for executing upon such warrant as upon an execution against property issued out of a court of record, to be collected in the same manner.
Upon the sale of any real estate the sheriff shall execute a deed of the same, and the taxpayer shall have the right to redeem the real estate as from a sale under an execution against property upon a judgment of a court of record.
A like warrant may be issued to any agent of the department authorized to collect income or franchise taxes, and in the execution of the warrant and collection of the taxes the agent shall have the powers of a sheriff, but shall not be entitled to collect from the taxpayer any fee or charge for the execution of the warrant in excess of actual expenses paid in the performance of his or her duty. When a warrant is issued to the agent he or she may act as provided in subd. 2.
or may execute the warrant in any county of the state designated in the warrant, in the same manner as provided in this subchapter with respect to sheriffs of such counties.
In executing a warrant as described in subd. 1.
, the agent may conduct, or may engage a 3rd-party entity to conduct, an execution sale of personal property in any county of the state and may sell, or may engage a 3rd-party entity to sell, the personal property in any manner the department believes will bring the highest net bid or price, including Internet-based auctions or sales. The cost of conducting each auction or sale shall be reimbursed to the department out of the proceeds of the auction or sale.
Upon entry of a warrant in the judgment and lien docket, the department of revenue shall have the same remedies to enforce the claim for taxes, penalties, interest and costs as upon a judgment against the taxpayer.
The department of revenue may renew a lien that expires after 20 years, as specified under sub. (4)
, by filing a warrant as provided under par. (ar)
no earlier than 180 days prior to the date that the lien expires and no later than the date that the lien expires. The clerk of circuit court shall enter the warrant as provided under par. (b) 1.
, except that no fee shall be assessed for any warrant filed under this paragraph. A lien that is the subject of a warrant filed under this paragraph retains its priority for payment under the original warrant and remains in effect for a period of 20 years beginning on the expiration date of the immediately preceding lien, subject to renewal under this paragraph, or until the liability for the amount to be paid or for the amount so assessed is satisfied, whichever comes first. The department of revenue may subsequently renew, in the manner described in this paragraph, any lien renewed under this paragraph until the liability for the amount to be paid or for the amount so assessed is satisfied.
The department, if it finds that the interests of the state will not thereby be jeopardized, and upon such conditions as it may exact, may issue a release, of any warrant with respect to any real property upon which said warrant is a lien or cloud upon title, and such release shall be entered of record by the clerk upon presentation to him or her and payment of the fee for filing said release and the same shall be held conclusive that the lien or cloud upon the title of the property covered by the release is extinguished. Any person desiring that such release be issued shall present to the department a written application in affidavit form requesting that the release be issued. Such application shall give the reasons for the request and shall clearly describe the property with respect to which the release is desired. In support of the request, the applicant shall furnish the department with proof sufficient to establish satisfactorily the fair market value of the property, the amounts, character and dates, both of execution and of record, of all encumbrances of record prior to the warrant lien, as well as the amount and character of any unrecorded encumbrances believed to be prior to the warrant lien, including information as to how and when all such encumbrances arose. Appropriate references shall be made to the pages and volumes of the recording books in which any such encumbrances have been recorded. The department may require a certified copy of any record referred to in such application to be furnished by the applicant, at his or her expense, from the officer in whose office such record is kept.
When the taxes set forth in a warrant together with penalties and interest to date of payment and all costs due the department have been paid to it or when such warrant has not been paid or discharged, but the taxes for which such warrant was issued have been canceled or credited, the department shall issue a satisfaction of the warrant and file it with the clerk and said warrant shall be immediately satisfied of record by such clerk. The department shall send a copy of such satisfaction to the taxpayer at the taxpayer's request. If the taxpayer so requests, the department shall indicate the amount that was paid to satisfy the warrant. When such warrant has not been paid or discharged but the enforcement of same would, in the opinion of the department, result in depriving the taxpayer of a substantial right, the department may issue a release of said warrant and file same with the clerk who shall immediately make an entry of same of record, and it shall be held conclusive of the extinguishment of the warrant and all liens and rights created thereby, but shall not constitute a release or satisfaction of the taxes for which such warrant was issued.
If the department of revenue has issued an erroneous warrant, the department shall issue to the clerk of circuit court for the county in which the warrant is filed a notice of withdrawal of the warrant. The clerk shall void the warrant and any liens attached by it.
All fees and compensation of officials or other persons performing any act or functions required in carrying out this subchapter, except such as are by this subchapter to be paid to such officials or persons by the taxpayer, shall, upon presentation to the department of revenue of an itemized and verified statement of the amount due, be paid, upon audit by the department of administration on the certificate of the secretary of revenue, by the secretary of administration and charged to the proper appropriation for the department of revenue. No public official shall be entitled to demand prepayment of any fee for the performance of any official act required in carrying out this subchapter.
The state may be made a party defendant in any action to foreclose a mortgage, land contract, or other lien upon any real property affected by such warrant lien, and the summons may be served by delivering a copy to the attorney general or leaving it at the attorney general's office in the capitol with an assistant or clerk. But no judgment for the recovery of money or personal property or costs shall be rendered against the state in any such action.
The provisions of this subchapter shall be in addition to all other methods for the collection of income or franchise taxes, and the department of revenue may exercise the powers vested in it by virtue of ss. 73.03 (20)
or any of the powers vested in it by virtue of any other statute for the purpose of enforcing collection of income or franchise taxes.
All payments made on delinquencies shall be applied first in discharging costs, penalties and interest and the balance applied on the principal of the tax. In this paragraph, “principal of the tax" means the tax and interest added to it under ss. 71.03 (7)
, 71.24 (7)
, 71.44 (3)
(5m) Applicability of personal property tax laws. 71.91(5m)(a)(a)
All laws not in conflict with this chapter relating to the assessment, collection and payment of taxes on personal property, the correction of errors in assessment and tax rolls, and the collection of delinquent personal property taxes except the provisions for the compromise or cancellation of illegal taxes and the refunds of moneys paid thereon, as shown by the 1985 statutes, shall be applicable to the income or franchise tax provided in this chapter.
The provisions for the compromise or cancellation of illegal personal property taxes and for refunds of personal property taxes apply to the taxes under this chapter to the extent that those provisions do not conflict with par. (a)
or s. 71.92
(6) Levy upon property for taxes. 71.91(6)(a)1d.
“Continuous levy" means a levy that is in effect from the date on which it is served on a 3rd party until the liability out of which the levy arose is satisfied or until the levy is released, whichever occurs first.
“Levy" means all powers of distraint and seizure.
“Noncontinuous levy" means a levy that is in effect on the date on which it is served on a 3rd party.
“Property" includes real and personal property and tangible and intangible property and rights to property but is limited to property and rights to property existing at the time of levy.
“Taxes" means the principal of the tax as defined in sub. (5) (k)
, interest, penalties and costs.
Powers of levy and distraint.
If any person who is liable for any tax administered by the department neglects or refuses to pay that tax within 10 days after that tax becomes delinquent, the department may collect that tax and the expenses of the levy by levy upon, and sale of, any property belonging to that person or any property on which there is a lien as provided by sub. (4)
in respect to that delinquent tax. Whenever any property that has been levied upon under this section is not sufficient to satisfy the claim of the department, the department may levy upon any other property liable to levy of the person against whom that claim exists until the taxes and expenses of the levy are fully paid. A levy imposed under this paragraph may be continuous or noncontinuous, except that a levy on commissions, wages, or salaries is continuous.
Except as provided in subd. 2.
and par. (d) 4.
, any person in possession of, or obligated with respect to, property subject to levy upon which a levy has been made shall, upon demand of the department, surrender that property unless it is subject to attachment or execution under judicial process, or discharge that obligation, to the department.
Levying upon a life insurance or endowment contract issued by a 3rd person, without necessity for the surrender of the contract document, is a demand by the department for payment of the amount under subd. 3.
and for the exercise of the right of the person against whom the tax is assessed to an advance of that amount. The person who issued the contract shall pay over that amount within 90 days after the service of the notice of the levy. That notice shall include a certification by the department that a copy of that notice has been sent to the person against whom the tax is assessed at that person's last-known address.
The levy under subd. 2.
is satisfied if the person who issued the contract pays to the department, or to the person that the department prescribes, the amount that the person against whom the tax is assessed could have had advanced by the person who issued the contract on the date under subd. 2.
for the satisfaction of the levy, increased by the amount of any advance, including contractual interest, made to the person against whom the tax is assessed on or after the date the person who issued the contract had actual notice or knowledge of the existence of the lien with respect to which that levy is made, other than an advance, including contractual interest on it, made automatically to maintain the contract in force under an agreement entered into before the person who issued the contract had notice or knowledge of that lien. Any person who issued a contract and who satisfies a levy under this paragraph is discharged from all liability to any beneficiary because of that satisfaction.
Except as provided in subd. 4.
, any person, including an officer or employee, who fails to surrender property that is subject to levy upon demand of the department is liable to the department for a sum equal to the value of the property not surrendered, but not exceeding the amount of taxes for the collection of which that levy was made, together with costs and interest at the rate of 18 percent per year from the date of that levy. Any amount, other than costs, recovered under this paragraph shall be credited against the tax liability for the collection of which that levy was made. The liability under this paragraph may be assessed, levied and collected as are additional income or franchise taxes or may be recovered by the department in a civil action.
In addition to the liability imposed under subd. 1.
, if any person required to surrender property fails or refuses to surrender that property without reasonable cause, that person is liable for a penalty equal to 50 percent of the amount recoverable under subd. 1.
No part of the penalty under this subdivision may be credited against the tax liability for the collection of which that levy was made. The penalty under this subdivision may be assessed, levied and collected as are additional income or franchise taxes or may be recovered by the department in a civil action.
Any person in possession of, or obligated with respect to, property upon which a levy has been made who, upon demand by the department, surrenders that property, or discharges that obligation, to the department or who pays a liability under subd. 1.
is discharged from any liability to the delinquent taxpayer or, in the case of payments under par. (c) 2.
, to a beneficiary, with respect to that property arising from that surrender or payment.
If a financial institution is in possession of, or obligated with respect to, property subject to levy upon which a levy has been made, the financial institution is liable under this paragraph for failure to surrender that property or discharge that obligation only upon expiration of a reasonable time to comply with the department's demand for the property.
If the department has levied upon or sold property, any person, other than the person who is assessed the tax out of which the levy arose, who claims an interest in or lien on that property and claims that that property was wrongfully levied upon may bring a civil action against the state in the circuit court for Dane County. That action may be brought whether or not that property has been surrendered to or sold by the department. The court may grant only the relief under subd. 2.
No other action to question the validity of or restrain or enjoin a levy by the department may be maintained.
In actions under subd. 1.
, if a levy or sale would irreparably injure rights to property, the court may enjoin the enforcement of that levy or prohibit that sale. If the court determines that the property has been wrongfully levied upon, it may order the return of specific property that the department possesses or grant a judgment for the amount of money obtained by levy. If the property was sold, the court may grant a judgment for an amount not exceeding the amount received by the department from the sale. If the property was purchased by the state at a sale under par. (f)
, the state shall be treated as having received an amount equal to the minimum price determined under that paragraph or the amount received by the state from the resale of that property, whichever is larger.
For purposes of an adjudication under this paragraph, the assessment of the tax upon which the interest or lien of the department is based is conclusively presumed to be valid. Interest shall be allowed for judgments under this paragraph at the rate of 12 percent per year from the date the department receives the money wrongfully levied upon to the date of payment of the judgment or from the date of sale to the date of payment.
As soon as practicable after obtaining property, the department shall notify, in the manner prescribed by the department, the owner of any real or personal property, and, at the possessor's request, the possessor of any personal property, obtained by the department under this subsection. The department may leave that notice at the person's usual place of residence or business. If the owner cannot be located or has no dwelling or place of business in this state, or if the property is obtained as a result of a continuous levy on commissions, wages, or salaries, the department may send a notice to the owner's last-known address. That notice shall specify the sum demanded and shall contain, in the case of personal property, an account of the property obtained and, in the case of real property, a description with reasonable certainty of the property seized.
As soon as practicable after obtaining property, the department shall cause a notice of the sale to be published in a newspaper published or generally circulated within the county where the property was obtained. If there is no newspaper published or generally circulated in that county, the department shall post that notice at the city, town or village hall nearest the place where the property was obtained and in at least 2 other public places. That notice shall specify the property to be sold and the time, place, manner and conditions of the sale.
If any property liable to levy is not divisible so as to enable the department, by sale of a part, to raise the whole amount of the tax and expenses, the whole of the property shall be sold.
The sale shall occur not less than 10 days and not more than 40 days after the notice under subd. 2.
The department may interrupt the sale, but not for a period longer than 90 days. The sale shall be in the county in which the property is levied upon or in Dane County.
Before the sale, the department shall determine a minimum price for which the property shall be sold. If no person offers for that property at the sale at least the amount of the minimum price, the state shall purchase the property for the minimum price; otherwise, the property shall be sold to the highest bidder. In determining the minimum price, the department shall take into account the expense of making the levy and sale in addition to the value of the property. If payment in full is required at the time of acceptance of a bid and is not paid then, the department shall sell the property in the manner provided under this paragraph. If the conditions of the sale permit part of the payment to be deferred and if that part is not paid within the prescribed period, the department may sue the purchaser in the circuit court for Dane County for the unpaid part of the purchase price and interest at the rate of 12 percent per year from the date of the sale or the department may declare the sale void and may sell the property again under this paragraph. If the property is sold again, the 2nd purchaser shall receive it free of any claim of the defaulting purchaser and the amount paid upon the bid price by the defaulting purchaser is forfeited.
No property of any person is exempt from levy and sale under this subsection.
Any person whose property has been levied upon may pay the amount due and the expenses of the proceeding to the department, or to the person that the department prescribes, at any time before the sale. Upon that payment, the department shall restore the property to the person whose property has been levied upon and stop all proceedings related to the levy.
The owners of any real property sold under par. (f)
, their heirs or personal representatives, or any person having an interest in or a lien on that property, or any person on behalf of a person specified in this subdivision may redeem the property sold, or any part of that property, within 120 days after the sale by payment to the purchaser or, if the purchaser cannot be found in the county in which the property to be redeemed is situated, then to the department, for the use of the purchaser or the purchaser's heirs or assigns, the amount paid by the purchaser and interest at the rate of 18 percent per year.
The department shall give the purchaser under par. (f)
a certificate of sale upon payment in full of the purchase price. In the case of real property, that certificate shall specify the property purchased, the name of the purchaser and the price.
In the case of any real property sold under par. (f)
and not redeemed under par. (g)
, the department shall execute to the purchaser, upon surrender of the certificate of sale, a deed reciting the facts set forth in the certificate.
If real property is purchased by the state under par. (f)
, the department shall execute and record a deed.
The certificate of sale for personal property sold under par. (f)
is prima facie evidence of the right of the department to make the sale and conclusive evidence of the regularity of the proceedings of the sale. That certificate transfers to the purchaser all right, title and interest of the delinquent party to the property sold. If that property is stocks, that certificate is notice, when received, to any person of that transfer and authority to record the transfer on books and records as if the stocks were transferred or assigned by the party holding them, and all prior certificates are void. If the subject of sale is securities or other evidence of debt, the certificate is valid against any person possessing or claiming to possess the securities or other evidence of debt. If the property is a motor vehicle, the certificate is notice, when received, to the department of transportation as if the certificate of title were transferred or assigned by the party holding that certificate of title, and any prior certificate is void.
The deed of sale of real property is prima facie evidence of the facts stated in it and conveys all of the right, title and interest the delinquent party had to the property.
A certificate of sale of personal property given or a deed to real property executed under this paragraph discharges that property from all liens, encumbrances and titles subordinate to the department's lien.
Determination of expenses.
The department shall determine the expenses to be allowed in all cases of levy and sale.
The department shall keep a record of all sales of real property under par. (f)
and of all redemptions of that property. The record shall set forth the tax for which any sale was made, the dates of levy and sale, the name of the party assessed and all proceedings related to the sale, the amount of expenses, the names of the purchasers and the date of the deed.
The department shall apply all money realized under this subsection first against the expenses of the proceedings and then against the liability in respect to which the levy was made or the sale was conducted and any other liability owed to the department by the delinquent person.
The department may refund or credit any amount left after the applications under subd. 1.
, upon claim for and satisfactory proof of, to the person entitled to that amount.
Release of levy.
The department may release the levy upon all or part of property levied upon to facilitate the collection of the liability, but that release does not prevent any later levy.
If the department determines that property has been wrongfully levied upon, the department may return the property, an amount of money equal to the amount of money levied upon or an amount of money equal to the amount of money received by the state from the sale of that property.