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By Attorney Christopher L. Strohbehn

As the end of the year quickly approaches, for those challenging their property taxes in Wisconsin, it brings about a bevy of deadlines and procedural entanglements.   A recent decision issued by the Wisconsin Supreme Court in Saint John’s Cmtys. v. City of Milwaukee, 2022 WI 69 (Wis. 2022), has done nothing to make that easier for taxpayers or their Wisconsin property tax lawyers.

In the Saint John’s case, the Wisconsin Supreme Court determined that Saint John’s claim for recovery of unlawful taxes pursuant to section 74.35, Stats., was procedurally deficient.   In so doing, it held that the “plain language of this statute requires Saint John’s to first pay the challenged tax or any authorized installment payment prior to filing a claim.”   Id. at ¶ 3.

In this instance, Saint John’s attempted to challenge the determination of its tax-exempt status not once but twice prior to the payment of its taxes.   The second time Saint John’s filed the claim under section 74.35, Stats., it was filed on the same date it received the property tax bill from the City of Milwaukee.   Id. at ¶ 6.   Thereafter, the City of Milwaukee disallowed the claim because Saint John’s had not paid the challenged tax prior to filing the claim.   Id. at ¶ 7.   

In its review of the statutory language, the court observed as follows:  

Wisconsin Stat. § 74.35(2), titled “Claims against taxation district,” states, “A person aggrieved by the levy and collection of an unlawful tax assessed against his or her property may file a claim to recover the unlawful tax against the taxation district which collected the tax.” § 74.35(2)(a) (emphases added). Section 74.35(2)(a) requires that persons who “may file a claim” must have been “aggrieved” by both the “levy” and “collection” of the assessed tax. A person cannot be “aggrieved” by the “collection” of an unlawful tax unless the tax has actually been collected. See Aggrieved, The American Heritage Dictionary of the English Language 34 (3d ed. 1992) (defining “aggrieved” as “[t]reated unjustly, as by denial of or infringement upon one’s legal rights”); Collection, id. at 372 (defining “collection” as “[t]he act . . . of collecting”).

Saint John’s Cmtys. v. City of Milwaukee, 2022 WI 69 at ¶17 (Wis. 2022). 

Ultimately, based on this interpretation of the statutory language the Wisconsin Supreme Court agreed with the City of Milwaukee and affirmed the court of appeals’ decision reversing the matter and ordering the claim dismissed.   Id. at ¶ 30.

Moreover, the implication subsequent to this decision is that an excessive assessment claim pursuant to section 74.37, Stats., would necessarily be governed by a statutory construction consistent with what the court outlined in Saint John’s.    Specifically, that a proper challenge  requires those intending to file an excessive assessment claim to have paid that tax prior to filing and serving a claim. 

Generally, an excessive assessment claim pursuant to section 74.37, Stats., requires that the claim be served properly “by January 31 of the year in which the tax based upon the contested assessment is payable.”   However, if a taxpayer seeks to avoid any argument that it failed a condition precedent pursuant to section 74.37, Stats., that taxpayer should take care that the tax has not only been timely paid, but also that its excessive assessment has been filed and served on the appropriate municipality subsequent to that payment. 

Excessive and Unlawful Assessment Claims Must be Paid Prior to Filing and Serving Claim  

What is the takeaway for a taxpayer looking to bring an excessive assessment or unlawful assessment challenge?   For whatever type of challenge, the taxpayer is intending to bring, that taxpayer needs to make sure those taxes are paid.   Along the way, that taxpayer should communicate with experienced Wisconsin property tax attorneys when you are planning to bring a challenge.  You want to make sure everyone is on the same page when these critical documents are filed.   

If you are considering filing an excessive assessment or unlawful assessment claim against the City of Milwaukee, or any other municipality in the State of Wisconsin, please reach out to our experienced team of Milwaukee property tax attorneys at Mallery s.c. to discuss.     

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