Brian Dake

‘Wisconsin Will Push Back’: Walker Administration Responds to Threat of Lawsuit

To countersue or not to countersue: That is the question Gov. Scott Walker is asking after Illinois Attorney General Lisa Madigan said she planned on filing a lawsuit challenging the Environmental Protection Agency regarding Foxconn.

Madigan plans to issue the lawsuit in the Court of Appeals for the District of Columbia Circuit, challenging the EPA’s decision to designate Racine County as achieving “attainment,” meaning Foxconn does not need to meet stricter standards for controlling smog and air pollution, “despite indisputable pollution monitoring data showing Racine County exceeds ozone levels beyond the 70 parts per billion (ppb) limit.

In response, the Walker administration has stated it believes Wisconsin should be in attainment.

Amy Hasenberg, press secretary for Walker, said the state has “cut emissions of nitrogen oxides and volatile organic compounds by 50 percent since 2002.”

“Pollutants are largely coming from Chicago, Illinois, and Gary, Indiana,” Hasenberg said. “Our state should not be penalized for issues we are not causing. We will take all necessary steps to protect our state’s interests. The State of Wisconsin will push back.”

Rep. Joan Ballweg: Efforts to Alleviate Burdensome Regulations Continues

What has more than five times as many words as the King James Bible, Harry Potter series, and the Lord of the Rings combined? The Wisconsin Administrative Code, which contains around 12 million words.

Red Tape Review is an initiative that started in 2015 in order to review and update all of Wisconsin’s Administrative Code. The administrative code encompasses all of the various rules implemented by state agencies to allow for the efficient running of the state and is comprised of 159,253 rules that have been put in place by agencies such as the Department of Natural Resources, the Department of Transportation, and the Department of Justice. With the many different agencies implementing these rules, the regulations are very diverse; the code encompasses everything from deer hunting to voter registration.

It is essential that we continue to look at the rules to make sure that they stay current, and repeal or replace those that are no longer needed. Since we started the Red Tape Review, we have combed through 40% of the Administrative Code and eliminated and repealed rules that were outdated or burdened Wisconsin citizens and businesses. So far, 769 of 1,736 chapters have been reviewed.

In order to streamline the process of repealing unauthorized rules, I authored 2017 Wisconsin Act 108, which helps establish a way for state agencies to review their regulations on a regular basis, as well as organize a system to examine the impact of new acts.



Oversight and Fiscal Management of State Highway Program

(2017 Wisconsin Act 247)

The State Highway Program (SHP) funds the construction, repair and maintenance of Wisconsin’s 11,800 miles of interstate and major state highways and bridges. It is the most expensive transportation-related program operated by the Wisconsin Department of Transportation (DOT). In fiscal year 2015-16, funding for the SHP exceeded $2.1 billion.

Three years ago, state lawmakers directed the non-partisan Legislative Audit Bureau (LAB) to conduct a comprehensive evaluation of the management of the SHP by the DOT. Shortly after the start of the 2017-2018 legislative session, the LAB released the results of its evaluation.

According to the LAB, there were material weaknesses in the processes by which the DOT tracks the costs of major highway projects from start to finish and Department staff were not consistently following the performance measures established by the DOT to ensure that road projects are prioritized to account for condition of the road, safety of travel and economic need.

Based on its evaluation, the LAB recommended two dozen administrative changes for the DOT to improve the management, planning, engineering, construction and maintenance of state highways; and five legislative changes to improve oversight and fiscal management of the SHP.

The administrative changes recommended by the LAB were adopted as part of 2017 Wisconsin Act 59 – the 2017-2019 state budget. 2017 Wisconsin Act 247 included four of the five changes in law recommended by the LAB to improve oversight and fiscal management of the SHP. Under this new law:

  • SHP project costs estimates provided to the Governor and the Wisconsin State Legislature on a semi-annual basis must now include all costs associated with the project, including; design engineering and construction engineering costs; the costs of environmental studies; the expected date of completion; an estimate of the effects of construction cost inflation; and unexpected costs on the cost of the project; and
  • DOT is required consider and document the results of the uniform cost-benefit analysis before determining whether to undertake a proposed engagement for engineering, consulting, surveying, or other specialized services

Reduced Transactional Costs Relating to Discovery in Civil Lawsuits

(2017 Wisconsin Act 235)

One of the most pressing civil litigation challenges for Wisconsin employers is the escalating transactional costs relating to discovery.  Discovery is a fact-finding process that takes place after a lawsuit has been filed. Discovery methods include written questions (interrogatories), oral questions (depositions) and requests for documents. Failure to answer or fulfill a discovery request may lead to fines and other sanctions.

2017 Wisconsin Act 235 aligns Wisconsin’s civil justice procedures for discovery to the corresponding federal rules. Better uniformity between federal and state civil procedures for discovery should reduce litigation costs for businesses involved in civil justice lawsuits.

Work Permits for Minors

(2017 Wisconsin Act 11)

Under prior state law, a work permit issued by the Wisconsin Division of Equal Rights was required before anyone under the age of 18 could work in any job except for agricultural or domestic service work. To obtain a work permit, the minor must:

  • provide proof of age;
  • get written consent from a parent or legal guardian to work;
  • have a signed letter from the employer describing the job duties, hours of work, and the time of day the minor will be working; and
  • pay a $10 permit fee – payment of the fee is the responsibility of the employer.

2017 Wisconsin Act 11 eliminated the requirement that a 16 and 17-year-old individuals obtain a work permit for the Wisconsin Division of Equal Rights before being allowed to work in any job except for agricultural or domestic service work.

Increased Funding for School Levy Tax Credit

(2017 Wisconsin Act 59)

Reducing Wisconsin’s property tax burden is an elusive goal. Property taxes are levied and collected by local units of government. State-imposed limits on local government spending keep property taxes in check, but to reduce property taxes requires additional state funding of Wisconsin’s property tax credit programs and/or increases in state aid for public education.

One of Wisconsin’s property tax credit programs is the School Levy Credit which is applied to every taxable property in Wisconsin. The amount of the credit is based on the property’s assessed value as a percentage of the municipality’s total assessed value.

2017 Wisconsin Act 59 increased annual state funding of Wisconsin’s School Levy Tax Credit by $87 million beginning with property taxes levied in 2017 and payable in 2018.

Small Employer Access to Statistical Sampling in Sales Tax Audits

(2017 Wisconsin Act 59)

State law authorizes the Wisconsin Department of Revenue (DOR) to use statistical sampling in sales and use tax audits. This auditing practice is generally used in field audits when it is not efficient to review all the records or to use one of the non-statistical methods.

In a statistical sample, the sample is randomly selected and probability theory is used to evaluate the sample results. When sampling is used, both the DOR and the taxpayer can save time and resources. An example cited by DOR is illustrative:

Company A has approximately 10,000 purchase invoices for each year filed alphabetically by vendor name. If the audit scope includes four years, a block sample based on alphabetical vendor name would require the auditor to review 10,000 records (approximately one-fourth for each year). However, a statistical sample covering that same scope might require the auditor to review 1,000 or fewer invoices.

The requirements imposed by the DOR on taxpayers seeking to utilize statistical sampling – detailed charts of accounts in electronic format; trial balances in electronic format; and electronic detail records of sales and/or purchases, including coding information – are such that only very large companies can access this cost-saving auditing process.

2017 Wisconsin Act 59 extends this option to small employers by requiring the DOR to establish criteria for using statistical sampling methods during sales and use tax field audits. The criteria will specify:

  • that any person with less than $10,000,000 in annual sales during any year at issue during a field audit may choose to have the audit conducted using statistical sampling;
  • the number of transactions necessary to qualify for statistical sampling; and
  • the maximum sample size.

Repealed Wisconsin’s Forestry Mill Tax

(2017 Wisconsin Act 59)

Wisconsin’s Constitution authorizes a state forestry tax of up to 0.2 mills for acquiring, preserving, and developing state forests. Since 2007, the forestry mill tax – the only property tax levied by the State of Wisconsin – has been set at 16.97¢ per $1,000 of assessed value.

2017 Wisconsin Act 59 ended Wisconsin’s forestry mill tax beginning with property taxes levied in 2017 and payable in 2018 thereby reducing statewide property tax collections by roughly $90 million annually.

Taxpayer Reliance on Past State Tax Audit Guidance

(2017 Wisconsin Act 231)

If the Wisconsin Department of Revenue (DOR) reviews a taxpayer’s transactions during a tax audit and finds no tax liability, we believe the taxpayer should be able to rely upon this determination in the event of future tax audit. Existing state law on this issue is ambiguous.

Under 2017 Wisconsin Act 231, the DOR in subsequent tax audits would not be able to revisit a topic that has been previously settled, unless the taxpayers provided “false or incomplete” information during the initial tax audit.

Personal Property Tax Reporting

(2017 Wisconsin Act 59)

In 1997, state lawmakers exempted computers, related equipment and software from the personal property tax. Four years later, cash registers and fax machines, except for fax machines that are also copiers, were exempted from Wisconsin’s personal property tax. These tax laws required the owners of exempt computers, cash registers and fax machines to annually report the value of this exempt property on their Statement of Personal Property.

2017 Wisconsin Act 59 repealed the requirement that owners of exempt computers, cash registers, and fax machines report the value of their property tax exempt computers, related equipment and software, cash registers and fax machines on their Statement of Personal Property.