City of Kaukauna v. Wis. Dep't of Tax.

• Decision Date: 08 April 1947
• Citation: 250 Wis. 196,26 N.W.2d 637
• Parties: CITY OF KAUKAUNA v. WISCONSIN DEPARTMENT OF TAXATION.
• Court: Wisconsin Supreme Court

250 Wis. 196

26 N.W.2d 637

CITY OF KAUKAUNA

v.WISCONSIN DEPARTMENT OF TAXATION.

Supreme Court of Wisconsin.

April 8, 1947.

Appeal from a judgment of the Circuit Court for Dane County; Herman Sachtjen, Judge.

Affirmed.

The City of Kaukauna, petitioner and appellant, filed a petition with the Wisconsin Board to Tax Appeals on the 6th day of November, 1944, requesting review of a certification by the Wisconsin Department of Taxation, respondent, pursuant to secs. 7l.27and76.28, Stats., relating to the distribution of utility taxes.The Wisconsin Board of Tax Appeals dismissed the petition for the reason that it was without jurisdiction to hear the cause, and on appeal the order of the Wisconsin Board of Tax Appeals was affirmed, July 26, 1946.The city of Kaukauna appeals from this judgment.

H. F. McAndrews, of Kaukauna, for appellant.

John E. Martin, Atty. Gen., Harold H. Persons, Asst. Atty. Gen., and Stanley A. Staidl, of Appleton, for respondent.

BARLOW, Justice.

The question presented on this appeal is whether a certification by the Wisconsin Department of Taxation, pursuant to secs. 76.27and76.28, Stats., relating to distribution of utility taxes to towns, cities, villages and counties, is reviewable by the Wisconsin Board of Tax Appeals.

The city of Kaukauna, Outagamie county, Wisconsin, owns and operates a distribution system for distributing electric current at retail.Green Bay and Mississippi Canal Company owns property in Outagamie county, assessed by the Wisconsin Department of Taxation as a public utility under ch. 76, Stats.The Canal company owns an hydro-electric plant for the generation of electric current in the city of Kaukauna, and also a like plant in the town of Buchanan, known as the ‘Rapide Croche’ plant.The Rapide Croche plant in the town of Buchanan is leased by the Canal company to the city of Kaukauna, which operates the same and distributes the electric energy there produced over its own distribution system.The Wisconsin Department of Taxation assessed the utility property of the Canal Company and certified the distribution of the utility taxes pursuant to secs. 76.27and76.28, Stats.

Appellant contends that the amounts paid by the city of Kaukauna to the Canal company for the use of the hydro-electric plant in the town of Buchanan are receipts derived from current delivered at wholesale to the municipally-owned utility, as provided in sec. 76.28(1) and the Wisconsin Department of Taxation, in making the certification for the distribution of the utility taxes, failed to give proper recognition to the amount so paid as provided in sec. 76.28(1), Stats.

The Wisconsin Department of Taxation objected to the jurisdiction of the Wisconsin Board of Tax Appeals.Petitioner relies on sec. 73.01(5)(a), Stats. which reads as follows:

‘Subject to the provisions for judicial review contained in the statutes, the Board shall be the final authority for the hearing and determination of all questions of law and fact arising under the tax laws of the state, except such as may be otherwise expressly designated.’

It argues that the certification of the taxes in question is a matter arising under the tax laws of this state, and that sec. 73.015, Stats. prohibits any person from beginning any action or proceeding on a matter reviewable by the Board unless such person shall first have availed himself of a hearing by the Board.Following the sections quoted by appellants, sec. 73.01(6), Stats. provides the procedure and requirements for review by the Wisconsin Board of Tax Appeals, specifically authorizing and limiting such review to application for abatement or claim for refund of income taxes by a taxpayer.Secs. 71.12and71.17 of the income tax law provide the initial procedure for such review, and sec. 71.61(10) authorizes a review of the privilege dividend taxes, and sec. 72.75(7)(e) authorizes review of gift taxes, with the same initial procedure as in the income tax law.

Sec. 73.01(6) confers no authority on the Board except in respect to specific types of taxes, and then only by and when the procedure there specified is followed.In addition to the foregoing, authority to review is granted to the Board by sec. 76.08, Stats., where it is provided that a railroad company, telegraph company, sleeping car company, street railway company, light, heat and power company, or conservation and regulation company which is assessed under sec. 76.07, Stats. shall have the right to...