Ryan v. Wisconsin Dept. of Revenue

• Decision Date: 06 May 1975
• Docket Number: No. 404,404
• Parties: Peter D. RYAN et al., Appellants, v. WISCONSIN DEPARTMENT OF REVENUE, Respondent.
• Court: Wisconsin Supreme Court

Page 357

228 N.W.2d 357

68 Wis.2d 467

Peter D. RYAN et al., Appellants, v. WISCONSIN DEPARTMENT OF REVENUE, Respondent.

No. 404.

Supreme Court of Wisconsin.

May 6, 1975.

In an order dated March 14, 1972, the Wisconsin Tax Appeals Commission (hereinafter Commission) affirmed respondent Wisconsin Department of Revenue's (hereinafter Department) denial of certain income tax relief to appellants Peter D. and Carol S. Ryan.

Sec. 227.16(1), Stats., provides that in order to have judicial review of the Commission's determination, a petition therefor must be served upon the clerk of court '. . . within 30 days after the service of the decision of the agency upon all parties . . ..' See also: sec. 73.015. The decision was served upon the respondent on March 14, 1972, and upon the appellants, by registered mail, on March 15, 1972.

On April 11, 1972, appellants, by their attorney, sent the original and a copy of their petition for review to the Wisconsin Tax Appeals Commission. The attorney expected that the original would be sent back to him by return mail.

On April 12th the attorney called the Commission in Madison from his office in Milwaukee and spoke to a secretary or clerk who described herself as the person who accepts service of papers and forwards files for appeals. She informed him that she was forwarding the case file to the clerk of courts in Milwaukee and would send the original petition along with it. A day or two later, after learning that the petition had not yet been filed with the clerk of courts in Milwaukee, he again telephoned the Commission and spoke to the same woman, who informed him that she had not yet 'gotten around' to forwarding the file or petition.

The attorney filed a copy of the petition with the clerk of courts on April 20, 1972. The original was finally filed on April 21st, after being sent from Madison by the Commission.

The attorney testified that he was at all times aware of the statutory time period for filing. He further testified that he could not remember the name of the woman at the Commission to whom he spoke, that he could not remember if he ever asked for it, and that he doubted if he ever wrote the name down.

No attempt was ever made to travel to Madison to retrieve the original petition in order to accomplish a timely filing.

Since 36 days elapsed between service of the Commission's decision and the filing of the petition with the clerk of court, the trial court held that even if the statutory period was extended five days pursuant to sec. 269.36, Stats., ¹ the petition was not timely filed and dismissed it for lack of jurisdiction.

Samson, Friebert, Sutton, Finerty & Burns by Robert E. Sutton, Milwaukee, for appellants.

Robert W. Warren, Atty. Gen., Sverre O. Tinglum, Asst. Atty. Gen., Madison, for respondent.

BEILFUSS, Justice.

The appellants contend, due to the representation of the woman at the Commission to the effect that she would file the petition, and due to the appellants' allegedly justifiable reliance to their detriment upon such representation, that the Department is estopped from asserting the untimeliness of the filing of the petition.

We hold that estoppel is inappropriate here because: 1) it is being asserted against the government, and 2) the appellants have failed to establish justifiable relance on the representation.

With respect to the fact that estoppel is being asserted against the government, it should be noted that it was not an agent of the respondent who made the representation. The respondent is the Wisconsin Department of Revenue. The woman who allegedly made the representation was an employee of the Tax Appeals Commission, which is attached to the Department of Administration, an executive administrative department entirely separate from the Wisconsin Department of Revenue. Thus the appellants are attempting to assert the acts of an employee of one governmental agency as a basis for estoppel against a different governmental agency.

As a general proposition, a government or one of its agencies is not subject to estoppel to the same extent as an individual. Libby, McNeill & Libby v. Department of Taxation (1952), 260 Wis. 551, 555, 51 N.W.2d 796; Jefferson v. Eiffler (1962), 16 Wis.2d 123, 133, 113 N.W.2d 834; Surety Savings & Loan Asso. v. State (1972), 54 Wis.2d 438, 445, 195 N.W.2d 464. In order to establish estoppel, the acts of the state agency 'must amount to a fraud or a manifest abuse of discretion.' Surety Savings & Loan Asso., supra, page 445, 195 N.W.2d page 468; Jefferson, supra, 16 Wis.2d page 133, 113 N.W.2d 834. As stated in Monahan v. Department of Taxation (1963), 22 Wis.2d 164, 169, 125 N.W.2d 331, 333:

'. . . there is no estoppel in pais if the party seeking to invoke it was aware of facts which made it its duty to inquire into the matter. There may be situations where the party, against whom an estoppel in pais is asserted, has been guilty of an intentional wrongful act which has misled the injured party. In such a situation it might well be inequitable to permit the wrongdoer to escape the consequences of the doctrine of estoppel in pais on the ground that the injured party did not exercise diligence to discover the true...