Ho-Chunk Nation v. Wisconsin Dept. of Revenue

Badly Split Wisconsin Supreme Court Refuses to Refund Taxes Paid by Ho-Chunk Nation

Matthew L.M. Fletcher

Here is the opinion in Ho-Chunk Nation v. Wisconsin Dept. of Revenue. An excerpt from the majority:

For the reasons set forth below, we affirm. “[R]eservations or trust lands” are also referred to in the sentence preceding the provision in question; a sensible reading of the statute (Wis.Stat. § 139.323) requires that the two references be read as identifying the same land. The grammatical construction of the sentence itself lends further support to our holding because “was designated” precedes both “a reservation” and “trust land” and means the same thing about each. Given that there is no basis in the federal regulations for recognizing a preliminary, unofficial status for reservations or trust lands, there is likewise no basis for reading this statute as intending to apply to land that has received only preliminary informal approval.

And an excerpt from the dissent:

Unlike this dissent, the majority opinion does not justify its holding on any historical or policy basis. It relies instead on unpersuasive interpretive tools. In my view, the only way we would be justified in denying the Ho-Chunk Nation the requested refund on its DeJope tax collections would be to cite documentary evidence showing that this property was considered and intentionally excluded.

Wisconsin SCT Reviews Ho-Chunk Nation Tax Case

Matthew L.M. Fletcher

The lower court opinion in Ho-Chunk Nation v. Wisc. Dept. of Revenue is here. Oral argument was last month.

Here are the questions presented:

Is the petitioner entitled to a refund of cigarette tax revenue for the sale of cigarettes on DeJope property pursuant to Wis. Stat. §§ 139.31 and 139.323 (3)?

What is the reasonable interpretation of Wis. Stat. § 139.323 (3)’s “designated . . .trust land” within the context of the sale of cigarettes on the DeJope property?

Wisconsin Court of Appeals on Trust Land and Tax Question

Matthew L.M. Fletcher1 Comment

The case is Ho-Chunk Nation v. Wisconsin Dept. of Revenue (wisconsin-coa-opinion). An excerpt from the opinion:

This appeal concerns the Ho-Chunk Nation’s claim for a refund of cigarette taxes under Wis. Stat. § 139.323 (2005-06) in respect to sales on the DeJope property. The Tax Appeals Commission denied the claim because it concluded the DeJope property was not “designated … trust land on or before January 1, 1983” as required by the statute. See § 139.323(3). The circuit court affirmed and the Ho-Chunk Nation appeals.

We agree with the commission and the circuit court that the statutory phrase means that the United States government must hold the land in trust on or before January 1, 1983. We conclude that the United States government does not hold the land in trust until formal acceptance under 25 C.F.R. § 151.14 (2007) occurs. Because this did not occur with respect to the DeJope property until after January 1, 1983, the Ho-Chunk-Nation is not entitled to a refund. Accordingly, we affirm on this issue.