#06 Claim from Sun Vista Properties
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CITY ATTORNEY’S OFFICE MEMORAN
August 14, 2009
TO: Common Council
Wald Klimczyk, City Attorney
FROM:
Claim for Illegal Assessment by Sun Vista Properties, LLC
SUBJECT:
FACTS
On Thursday, July 9, 2009, Robert R. Redmond and his wife, Rosemary Redmond, of
77 Spring Creek Road, Barrington Hills, Illinois 60010, on behalf of Sun Vista
Properties, LLC, owner of two properties within the City of Janesville, filed a signed
written “Claim Against City of Janesville, WI For Unlawful Tax Assessed” (“Claim”). Sun
Vista Properties, LLC is registered with the Wisconsin Department of Financial
Institutions as a Wisconsin domestic limited liability company with a principal business
address the same as for Robert and Rosemary Redmond but with a mailing address of
PO Box 201, Fox River Grove, Illinois, 60021 (“Claimant”). The Claim combines two
claims – one for each property -- concerning the January 1, 2008 assessment and
general property taxes of two separate apartment buildings:
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PIN 0411100298 located at 2010 West Kellogg Avenue; and
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PIN 0411100299 located at 2016 West Kellogg Avenue.
RECOMMENDATION
After considering the Claim in open session, the Common Council should entertain, act
upon, and adopt a motion to deny the Claim of Sun Vista Properties, LLC concerning
the January 1, 2008 assessments and general property taxes for the two properties and
improvements thereon located at 2010 and 2016 West Kellogg for the reasons set forth
in this memo.
If denied by the Common Council, then the City Clerk-Treasurer’s Office, by registered
or certified mail, should send a letter to the Claimant indicating that its combined Claim
concerning the January 1, 2008 assessment and general property taxes paid is denied
and disallowed, together with a photocopy of this Memorandum setting forth the factual
and legal basis for denial.
CITY MANAGER RECOMMENDATION
The City Manager supports the City Attorney’s recommendation.
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SUGGESTED MOTION
I hereby move to deny the Claim of Sun Vista Properties, LLC concerning the January
1, 2008 assessments and general property taxes for the two properties and
improvements thereon located at 2010 and 2016 West Kellogg for the reasons set forth
in the City Attorney’s Memorandum, dated August 14, 2009.
DISCUSSION
The Claimant seeks recovery of what it calls the “excessive” portion of the 2008 general
property taxes that it paid for these two Kellogg Avenue apartment properties. No
matter how the Claimant characterizes or explains it, the nature of its Claim is one
challenging the Assessor’s January 1, 2008 assessed valuation of each property. For
the specific reasons discussed more fully below, it is too late for the Claimant to
challenge the 2008 valuation of, or the taxes it paid for, either property. The combined
Claim is barred by law. No refund of any amount can be made.
The Claimant alleges that the Assessor’s January 1, 2008 assessments and the
property taxes it paid in 2008 for its two properties located at 2010 and 2016 West
Kellogg Avenue were “excessive.”
Since each of the Claimant’s two apartment buildings sit on a separate lot, each
constitutes a separate claim; although, the Claimant combined the two for purposes of
its July 9, 2009 written Claim for tax year 2008. The two properties are owned by Sun
Vista Properties, LLC, which full LLC membership Robert Redmond and/or his wife
allegedly purchased on July 24, 2008 for $1,593,250.00 from previous member(s).
Note that the purchase was for membership in the LLC, not the properties themselves.
The LLC owned – and still owns – the land and apartment buildings. Though of interest,
this LLC membership change has no bearing on the 2008 assessed valuations or their
correctness.
The Claimant alleges that the January 1, 2008 assessments were too high because of
valuation errors by the Assessor. This resulted in taxes for 2008 that the Claimant
contends were excessive. The Claimant demands a refund of the difference between
what the Claimant actually paid in taxes for each property in 2008 and the lower amount
that the Claimant believes it only should have paid had the assessments been lower,
together with 0.8% per months interest thereon from the date of the alleged
overpayments.
The Claimant calculates Sun Vista Properties’ combined Claim as follows:
Total Amount of Claim: $12,791.30
Parcel Number & Address 2008 taxes 2007 taxes Difference
paid paid
0411100298 – 2010 W. Kellogg $12,999.77 $6,604.51 $6,395.26
0411100299 – 2016 W. Kellogg 13,054.02 6,657.98 6,396.04
Totals $26,053.79 $13,262.49 $12,791.30
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The Claimant alleges that the 2008 Assessor valuations and assessments were too
high because they were calculated erroneously. The Claimant calls these “arithmetic
and computational errors” by the Assessor. The Claimant contends that the
assessments contained “palpable errors” made by the Assessor under Wis. Stats.
§74.33.
Although the Claimant attempts to portray errors in the manner and methods used by
the Assessor, what the Claimant actually argues is that the Assessor must have been in
error since he didn’t agree with the much lower amount at which Sun Vista would have
liked the Assessor to value the properties.
There was no error in the Assessor’s methods or procedures. There were no
arithmetical, computational, or other errors. There were no “palpable errors.” There is
nothing to correct. The Assessor followed the law and correctly valued and assessed
the properties for 2008 and 2009. The Claimant alleges Assessor error simply because
his assessments were higher than what Sun Vista would have preferred.
The Assessor correctly valued each property and apartment building. The Board of
Review upheld the Assessor’s 2009 assessments of each property, finding each correct
and proper.
The Claimant, however, never challenged the 2008 assessments and never appeared
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before the 2008 Board of Review. Instead, the Claimant attempts to challenge and
reverse the 2008 assessments and obtain a refund of some of the taxes it paid in 2008
through this “back door” approach – one that is barred for several reasons.
Claimant cites Wis. Stats. §74.33 as the legal procedure and basis for recovery. That
statute does not apply for various reasons addressed below.
Wis. Stats. §74.37 and perhaps §75.35 are the statutes that apply. They set forth the
procedures for recovery of allegedly excessive or unlawful taxes, respectively. But each
statute sets forth requirements and conditions for recovery that the Claimant has failed
to satisfy. The Claim, therefore, is barred under the applicable statutes.
Methodology For Computing Claimed Amount(s)
First, the Claimant’s methodology for computing the amount of the claim is not
recognized by state statute or case law. Second, what the Claimant contends is the
“correct” 2008 assessment has no basis in fact or law. Third, the statute of limitations
for bringing a Claim has expired. The Claim for either property is forever barred. Fourth,
the Claimant failed to comply with other conditions required before a claim can be
considered or allowed.
74.33 Palpable Error Claim
In its July 9, 2009 Claim, the Claimant combines both properties and asserts that Wis.
Stats. §74.33 allows recovery. This is the statute that allows recovery of the amount of
taxes paid due to a “palpable error” by an Assessor. There was no error, let alone a
palpable error, by the Assessor concerning either property for 2008. This statute
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The 2008 Board of Review met on July 10, 2008. Neither the Claimant or anyone on its behalf challenged the
2008 assessments in any manner and never appeared before the 2008 Board of Review.
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enumerates the errors for which a correction and refund can be lawfully made. None of
the errors listed occurred. None apply:
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“74.33(1)(a) A clerical error has been made in the description of the property or
in the computation of the tax.” There was no error by the Assessor in the
description of the property or in the computation of the tax. A taxpayer
disagreeing with a valuation does not render the computed tax a clerical in error.
The tax computed was correct. It’s the assessed value with which the Claimant
takes issue.
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“74.33(1)(b) The assessment included real property improvements which did not
exist on the date under s. 70.10 for making the assessment.” The Claimant does
not allege any error here.
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“74.33(1)(c) The property is exempt by law from taxation, except as provided
under sub. (2).” The Claimant does not contend that the properties were exempt
from taxation.
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“74.33(1)(d) The property is not located in the taxation district for which the tax
roll was prepared. “ This section does not apply. No error here.
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“74.33(1)(e) A double assessment has been made.” No double assessment
occurred. The Claimant doesn’t allege that it did.
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“74.33(1)(f) An arithmetic, transpositional or similar error has occurred.” The
Claimant relies upon this sub-section as the legal basis for its Claim. But the
Claimant has not shown any typographical error by the Assessor nor any error in
his math. Disagreeing with or challenging an Assessor’s valuation does not
render the assessment arithmetically in error or otherwise within the scope or
intent of this subsection. There was no typographical error by the Assessor nor
did he transpose or mix-up the numbers when setting them down on paper. It
does not apply as a matter of law.
More importantly, Wis. Stats. §74.33(2) prohibits claims and the refund of taxes paid if
the alleged error is solely that the assessor placed a valuation on the property that is
“excessive.” The Claimant’s sole contention in its July 9, 2009 written claim is that the
Assessor’s January 1, 2008 assessed valuation of both properties was allegedly
excessive. This was also the Claimant’s contention at the 2009 Board of Review
concerning the 2009 valuation.
Because the Claimant has provided no facts and made no allegations concerning Wis.
Stats. §§ 74.33(1)(a), (b), (c), (d), or (e), and since no arithmetical or transpositional
error occurred under (f), and because recovery is strictly prohibited by s. 74.33(2) if the
basis claimed by the taxpayer is solely because the valuation was excessive – which is
the case here -- the Claim cannot be allowed and must be denied.
Furthermore, no matter under which statute for recovery the Claimant proceeds, the
Claimant must have appeared before the Board of Review in the year for which
Claimant demands a refund. The Claimant never appeared before the Board of Review
in 2008 concerning the January 1, 2008 assessments. No recovery or refund,
therefore, can be allowed under this or any other statute.
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74.37 Claim on Excessive Assessment -- Procedure and Analysis
Wis. Stats.§74.37 is the Wisconsin Statute that allows recovery of general property
taxes that pertain to allegedly excessive taxes due to alleged excessive assessments.
“74.37(a) In this section, a "claim for an excessive assessment" or an "action for an
excessive assessment" means a claim or action, respectively, by an aggrieved person
to recover that amount of general property tax imposed because the assessment of
property was excessive.”
This statute sets forth certain requirements that must be strictly followed by a taxpayer
before any Claim for an unlawful tax filed by a property owner can be considered or
allowed. The Claimant failed to comply with certain of these requirements set forth in
this statute. The Claim, therefore, is barred and cannot be considered or allowed. It
must be denied and disallowed.
First, Wis. Stats. §74.37(4)(a) requires that the property owner must timely challenge
the assessment and appear before the Board of Review in the year in which the tax was
assessed and levied. At issue is the January 1, 2008 assessments. The Claimant did
not challenge the 2008 assessments in 2008 under §70.47 and did not appear before
the Board of Review in 2008, let alone challenge the assessments on a timely basis, as
required by the statute. The Claimant did not follow the challenge or Board of Review
appearance procedures for objecting to assessments under §70.47 as required by
§74.37(4)(a). The Claim, therefore, fails to comply with this condition precedent
mandate and must be denied. It is barred by law.
Second, Wis. Stats. §74.37(2)(b)(5) requires that the Claim must be filed with the City
Clerk-Treasurer’s Office by January 31 of the year in which the tax is payable. Claimant
failed to do so. The Claimant’s claim for 2008 was due no later than January 31, 2009.
Claimant filed its Claim with the City Clerk-Treasurer’s Office on July 9, 2009. That is
almost 5 months after it was due. The Claim fails to satisfy this requirement of state law
and must be disallowed. It is barred by law.
74.35 Claim for Unlawful Tax -- Procedure and Analysis
Wis. Stats. §74.35 is the Wisconsin Statute that allows recovery of unlawfully paid
taxes, i.e. real property taxes that were paid but levied contrary to law. This statute,
however, also sets forth certain requirements that must be strictly followed before any
Claim filed by a property owner can be considered or allowed. The Claimant failed to
comply with certain requirements set forth in this statute. The Claim, therefore, is
barred and cannot be considered or allowed.
First, Wis. Stats. §74.35(5)(a) requires that the Claim must be filed with the City Clerk-
Treasurer’s Office by January 31 of the year in which the tax is payable. Claimant failed
to do so. The tax year in question is 2008. The Claim was due no later than January
31, 2009. The Claimant filed its Claim with the City Clerk-Treasurer’s Office on July 9,
2009. That is almost five months after it was due. The Claim fails to satisfy this
requirement of state law and must be disallowed since it is barred.
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Second, this statute defines an “unlawful tax” as one levied with one or more errors
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enumerated in Wis. Stats. §74.33(1)(a) to (f). This was discussed above. No such
errors were made.
Third, Wis. Stats. §74.35(1) expressly states that no recovery can be made or refund
allowed solely because the property owner contends that the assessor placed a
valuation on the properties that the Claimant claims is excessive.
“74.35(1)… "Unlawful tax" does not include a tax in respect to which the alleged defect
is solely that the assessor placed a valuation on the property that is excessive.”
That’s exactly what Claimant attempts here. Its entire Claim is based upon the
contention that the valuation was too high -- excessive. No recovery or refund,
therefore, can be allowed.
No recovery or refund, therefore, can be allowed under this statute. The Claim is
barred.
Failure to Appear Before 2008 Board of Review
Wis. Stats. Secs. 70.47(13), 70.85, and 74.37 provide the exclusive method to
challenge a municipality's basis for assessment of individual parcels. All require appeal
to the Board of Review prior to subsequent appeals including court action. There is no
alternative procedure to challenge an assessment's compliance with the uniformity
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clause. Hermann v. Town of Delavan, 215 Wis.2d 370, 572 N.W.2d 855 (1998),
0171
.
Conclusion
For any or all of the above reasons, Claimant’s Claims are barred, fail, are not
supported in fact or law, and must be denied and disallowed in their entirety.
State law does not allow Claimant’s recovery of any taxes paid in 2009 for tax year
2008. The statute the Claimant cites does not apply. The Claimant fails to comply with
certain of the conditions and requirements set forth in the applicable statutes. Under
State Law, the Claims are fatally defective and barred. The Common Council must
deny and disallow the combined Claim.
In the event that the combined Claims are denied by the Common Council, then the City
Clerk-Treasurer’s Office, by registered or certified mail, should send a letter to the
Claimant at its address (1) in Barrington Hills, Illinois, (2) to Sun Vista Properties, LLC in
Fox River Grove, Illinois, and (3) to its Wisconsin Registered Agent, one Mary Roemer,
1947 Nates Court, Neenah, WI 54956., indicating that the combined Claims for 2008
are denied and disallowed in full, together with a photocopy of this Memorandum setting
forth the factual and legal basis and reasons for denial.
SUMMARY
:
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74.35(1) Definitions. In this section "unlawful tax" means a general property tax with respect to which one or
more errors specified in s. 74.33 (1) (a) to (f) were made. "Unlawful tax" does not include a tax in respect to which
the alleged defect is solely that the assessor placed a valuation on the property that is excessive.
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The Claim is not timely and otherwise barred by law, and should be denied by the
Common Council in open session with the Council’s denial motion citing by reference
the facts, law, and reasons set forth in this Memorandum.
cc: Eric J. Levitt, City Manager
Jacob J. Winzenz, Assistant City Manager/Director of Administrative Services
Richard Haviza, Assessor
Jean Wulf, Clerk/Treasurer
Shared/Redmond Robert Sun Vista LLC Assessment Claim 070909 City Memorandum
of Denial to CC 081409.doc
State Statute Excerpts
74.33Sharing and charging back of taxes due to palpable errors.
74.33(1)
(1)Grounds.
After the tax roll has been delivered to the treasurer of the taxation district
under s. 74.03, the governing body of the taxation district may refund or rescind in
whole or in part any general property tax shown in the tax roll, including agreed-upon
interest, if:
74.33(1)(a)
(a) A clerical error has been made in the description of the property or in the
computation of the tax.
74.33(1)(b)
(b) The assessment included real property improvements which did not exist on the
date under s. 70.10 for making the assessment.
74.33(1)(c)
(c) The property is exempt by law from taxation, except as provided under sub. (2).
74.33(1)(d)
(d) The property is not located in the taxation district for which the tax roll was prepared.
74.33(1)(e)
(e) A double assessment has been made.
74.33(1)(f)
(f) An arithmetic, transpositional or similar error has occurred.
74.33(2)
(2)Exceptions.
The governing body of a taxation district may not refund or rescind any
tax under this section if the alleged error may be appealed under s. 70.995 (8) (c) or if
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the alleged error is solely that the assessor placed a valuation on the property that is
excessive.
74.35 Recovery of unlawful taxes.
74.35(1)
(1) Definitions.
In this section "unlawful tax" means a general property tax with respect
to which one or more errors specified in s. 74.33 (1) (a) to (f) were made. "Unlawful tax"
does not include a tax in respect to which the alleged defect is solely that the assessor
placed a valuation on the property that is excessive.
74.35(2)
(2) Claim against taxation district.
74.35(2)(a)
(a) 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)(b)
(b) A claim filed under this section shall meet all of the following conditions:
74.35(2)(b)1.
1. Be in writing.
74.35(2)(b)2.
2. State the alleged circumstances giving rise to the claim, including the basis for the
claim as specified in s. 74.33 (1) (a) to (e) .
74.35(2)(b)3.
3. State as accurately as possible the amount of the claim.
74.35(2)(b)4.
4. Be signed by the claimant or his or her agent.
74.35(2)(b)5.
5. Be served on the clerk of the taxation district in the manner prescribed in s. 801.11
(4)
74.35(2m)
(2m) Exclusive procedure.
A claim that property is exempt, other than a claim that
property is exempt under s. 70.11 (21) (a) or (27) , may be made only in an action under
this section. Such a claim may not be made by means of an action under s. 74.33 or an
action for a declaratory judgment under s. 806.04 .
74.35(3)
(3) Action on claim.
74.35(3)(a)
(a) In this subsection, to "disallow" a claim means either to deny the claim in whole or in
part or to fail to take final action on the claim within 90 days after the claim is filed.
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74.35(3)(b)
(b) The taxation district shall notify the claimant by certified or registered mail whether
the claim is allowed or disallowed within 90 days after the claim is filed.
74.35(3)(c)
(c) If the governing body of the taxation district determines that an unlawful tax has
been paid and that the claim for recovery of the unlawful tax has complied with all legal
requirements, the governing body shall allow the claim. The taxation district treasurer
shall pay the claim not later than 90 days after the claim is allowed.
74.35(3)(d)
(d) If the taxation district disallows the claim, the claimant may commence an action in
circuit court to recover the amount of the claim not allowed. The action shall be
commenced within 90 days after the claimant receives notice by certified or registered
mail that the claim is disallowed.
74.35(4)
(4) Interest.
The amount of a claim filed under sub. (2) or an action commenced under
sub. (3) may include interest computed from the date of filing the claim against the
taxation district, at the rate of 0.8% per month.
74.35(5)
(5) Limitations on bringing claims.
74.35(5)(a)
(a) Except as provided under par. (b) , a claim under this section shall be filed by
January 31 of the year in which the tax is payable.
74.35(5)(b)
(b) A claim under this section for recovery of taxes paid to the wrong taxation district
shall be filed within 2 years after the last date specified for timely payment of the tax
under s. 74.11 , 74.12 or 74.87 .
74.35(5)(c)
(c) No claim may be filed or maintained under this section unless the tax for which the
claim is filed, or any authorized installment payment of the tax, is timely paid under s.
74.11 , 74.12 or 74.87 .
74.35(5)(d)
(d) No claim may be made under this section based on the contention that the tax was
unlawful because the property is exempt from taxation under s. 70.11 (21) (a) or (27) .
74.35(6)
(6) Compensation for taxation district.
If taxes are refunded under sub. (3) , the
governing body of the taxation district may proceed under s. 74.41 .
74.37Claim on excessive assessment.
74.37(1)
(1)Definition.
In this section, a "claim for an excessive assessment" or an "action for
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an excessive assessment" means a claim or action, respectively, by an aggrieved
person to recover that amount of general property tax imposed because the
assessment of property was excessive.
74.37(2)
(2)Claim.
74.37(2)(a)
(a) A claim for an excessive assessment may be filed against the taxation district, or the
county that has a county assessor system, which collected the tax.
74.37(2)(b)
(b) A claim filed under this section shall meet all of the following conditions:
74.37(2)(b)1.
1. Be in writing.
74.37(2)(b)2.
2. State the alleged circumstances giving rise to the claim.
74.37(2)(b)3.
3. State as accurately as possible the amount of the claim.
74.37(2)(b)4.
4. Be signed by the claimant or his or her agent.
74.37(2)(b)5.
5. Be served on the clerk of the taxation district, or the clerk of the county that has a
county assessor system, in the manner prescribed in s. 801.11 (4) by January 31 of the
year in which the tax based upon the contested assessment is payable.
74.37(3)
(3)Action on claim.
74.37(3)(a)
(a) In this subsection, to "disallow" a claim means either to deny the claim in whole or in
part or to fail to take final action on the claim within 90 days after the claim is filed.
74.37(3)(b)
(b) The taxation district or county that has a county assessor system shall notify the
claimant by certified or registered mail whether the claim is allowed or disallowed within
90 days after the claim is filed.
74.37(3)(c)
(c) If the governing body of the taxation district or county that has a county assessor
system determines that a tax has been paid which was based on an excessive
assessment, and that the claim for an excessive assessment has complied with all legal
requirements, the governing body shall allow the claim. The taxation district or county
treasurer shall pay the claim not later than 90 days after the claim is allowed.
74.37(3)(d)
(d) If the taxation district or county disallows the claim, the claimant may commence an
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action in circuit court to recover the amount of the claim not allowed. The action shall be
commenced within 90 days after the claimant receives notice by registered or certified
mail that the claim is disallowed.
74.37(4)
(4)Conditions.
74.37(4)(a)
(a) No claim or action for an excessive assessment may be brought under this section
unless the procedures for objecting to assessments under s. 70.47, except under s.
70.47 (13), have been complied with. This paragraph does not apply if notice under s.
70.365 was not given.
74.37(4)(b)
(b) No claim or action for an excessive assessment may be brought or maintained
under this section unless the tax for which the claim is filed, or any authorized
installment of the tax, is timely paid under s. 74.11 or 74.12.
74.37(4)(c)
(c) No claim or action for an excessive assessment may be brought or maintained under
this section if the assessment of the property for the same year is contested under s.
70.47 (7) (c), (13), or (16) (c) or 70.85. No assessment may be contested under s. 70.47
(7) (c), (13), or (16) (c) or 70.85 if a claim is brought and maintained under this section
based on the same assessment.
74.37(4)(d)
(d) No claim or action for an excessive assessment may be brought or maintained
under this section if the taxation district in which the property is located enacts an
ordinance under s. 70.47 (7) (c) or if the 1st class city in which the property is located
enacts an ordinance under s. 70.47 (16) (c), except that this paragraph does not apply if
the taxation district or the 1st class city did not comply with s. 70.365.
74.37(5)
(5)Interest.
The amount of a claim filed under sub. (2) or an action commenced under
sub. (3) may include interest at the average annual discount rate determined by the last
auction of 6-month U.S. treasury bills before the objection per day for the period of time
between the time when the tax was due and the date that the claim was paid.
74.37(6)
(6)Exception.
This section does not apply in counties with a population of 500,000 or
more.
74.37 - ANNOT.
NOTE: The supreme court in Nankin v. Village of Shorewood, 2001 WI 92, 245
Wis. 2d 86, 630 N.W.2d 141, held sub. (6) to be unconstitutional and severed from
the remainder of the statute.
74.37(7)
(7)Compensation.
If taxes are refunded under sub. (3), the governing body of the
taxation district or county that has a county assessor system may proceed under s.
74.41.
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