Section 71.75. Claims for refund.

 

(1)  Except as provided in ss. 49.855 , 71.77 (5) and (7) (b) and 71.935 , the provisions for refunds and credits provided in this section shall be the only method for the filing and review of claims for refund of income and surtaxes, and no person may bring any action or proceeding for the recovery of such taxes other than as provided in this section.

(2)  With respect to income taxes and franchise taxes, except as otherwise provided in subs. (5) and (9) and ss. 71.30 (4) and 71.77 (5) and (7) (b) , refunds may be made if the claim therefor is filed within 4 years of the unextended date under this section on which the tax return was due.

(3)  No refund shall be made on the over-withholding or overpayment of estimated income taxes or franchise taxes with respect to any person for any taxable year in an amount less than $1.

(4)  Except as provided in subs. (5) and (5m) , no refund shall be made and no credit shall be allowed for any year that has been the subject of a field audit if the audit resulted in a refund or no change to the tax owed or in an assessment that is final under s. 71.88 (1) (a) or (2) (a) , 71.89 (2) , 73.01 or 73.015 and if the department of revenue notifies the taxpayer that unless the taxpayer appeals the result of the field audit under subch. XIV , the field audit is final. No refund shall be made and no credit shall be allowed on any item of income or deduction, assessed as a result of an office audit, the assessment of which is final under s. 71.88 (1) (a) or (2) (a) , 71.89 (2) , 73.01 or 73.015 .

(5)  A claim for refund may be made within 4 years after the assessment of a tax or an assessment to recover all or part of any tax credit, including penalties and interest, under this chapter, assessed by office audit or field audit and paid if the assessment was not protested by the filing of a petition for redetermination. No claim may be allowed under this subsection for any tax, interest or penalty paid with respect to any item of income, credit or deduction self-assessed or determined by the taxpayer or assessed as the result of any assessment made by the department with respect to which all the conditions specified in this subsection are not met. If a claim is filed under this subsection, the department of revenue may make an additional assessment in respect to any item of income or deduction that was a subject of the prior assessment. No claim for refund may be made in respect to items that were not adjusted in the notice of assessment or of refund. A person whose returns for more than one year have been adjusted may make a claim under this subsection whether or not the net result of the adjustments for those years is an assessment. This subsection does not extend the time to file under s. 71.53 (2) or 71.59 (2) , and it does not extend the time period during which the department of revenue may assess, or the taxpayer may claim a refund, in respect to any item of income or deduction that was not a subject of the prior assessment.

(5m)  In respect to overpayments attributable to a capital loss carry-back, a corporation may claim a refund within 4 years after the due date, including extensions, for filing the return for the taxable year of the capital loss that is carried back.

(6)  Every claim for refund or credit of income taxes, franchise taxes or surtaxes, if any, shall be filed with the department and signed by the person or, in the case of joint returns, by both persons who filed the return on which the claim is based and shall set forth specifically and explain in detail the reasons for and the basis of the claim. After the claim has been filed it shall be considered and acted upon in the same manner as are additional assessments made under s. 71.74 (1) and (2) . No marital property agreement or unilateral statement under ch. 766 affects claims for refund or credit under this section.

(7)  The department shall act on any claim for refund or credit within one year after receipt and failure to act shall have the effect of allowing the claim and the department shall certify the refund or credit unless the taxpayer has consented in writing to an extension of the one-year time period prior to its expiration.

(8)  A refund payable on the basis of a separate return shall be issued to the person who filed the return. A refund payable on the basis of a joint return shall be issued jointly to the persons who filed the return, except that, if a judgment of divorce under ch. 767 apportions any refund that may be due the formerly married persons to one of the former spouses, or between the spouses, and if they include with their income tax return a copy of that portion of the judgment of divorce that relates to the apportionment of their tax refund, the department shall issue the refund to the person to whom the refund is awarded under the terms of the judgment of divorce or the department shall issue one check to each of the former spouses according to the apportionment terms of the judgment.

(9)  All refunds, overpayments, or refundable credits under this chapter are subject to attachment under ss. 49.855 , 71.93 and 71.935 , and no taxpayer has any right to, or interest in, any refund, overpayment, or refundable credit under this chapter until setoff under ss. 49.855 , 71.93 , and 71.935 has been completed.

(10)  If an income tax refund or tax credit check is payable to a person who dies, the department shall pay the refund or credit check to the decedent's personal representative. If there is no personal representative, the department shall pay the refund or credit check either to a surviving relative, giving preference to relatives in the following order: surviving spouse, child, parent, brother or sister, or to a creditor of the decedent, as determined by the department.

Cross-reference: See also s. Tax 2.085 , Wis. adm. code.

1987 a. 312 ; 1987 a. 411 ss. 96 , 187 ; 1989 a. 31 ; 1991 a. 39 ; 1993 a. 205 ; 1995 a. 27 , 404 ; 1997 a. 27 ; 1999 a. 9 ; 2015 a. 55 . Cross-reference: See also s. Tax 2.12 , Wis. adm. code. A party challenging the administration of taxing statutes must exhaust state administrative remedies before commencing an action in state courts under 42 USC 1983. Hogan v. Musolf, 163 Wis. 2d 1 , 471 N.W.2d 216 (1991). Administrative remedies must be timely pursued in connection with all claims, including claims that a state taxing statute is unconstitutional. Gilbert v. Department of Revenue, 2001 WI App 153 , 246 Wis. 2d 734 , 633 N.W.2d 218 , 00-2154 .