(concurring). We have held that the Hogans and their fellow plaintiffs have failed in their effort to pursue the class action route. We have reached the correct but perhaps an unjust result. Our decision means that federal retirees whose federal pensions have been unconstitutionally taxed by Wisconsin must individually seek refunds under § 71.75, STATS. Section 71.75(2) provides in pertinent part, "With respect to income taxes ..., 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."
The Hogans tell us that when this proceeding commenced in April 1989 over 20,000 retired civilian employees of the federal government and survival annuitants of such deceased retirees, and 5,000 military retirees were subjected to Wisconsin's unlawful tax. The Hogans assert members of the class also made additional filings with the department of justice, the legislature, the department of revenue and the claims board to supplement, amend and perfect the class members' entitlement to full relief.
Moreover, we are told that many class members are elderly citizens who live on fixed incomes and have limited financial resources, several have been legally incompetent since this case began and others are physically incapable of indicating their rights. We are told that many class members died during the first year of this proceeding and the rate of death is increasing dra*819matically. We are told that many class members, due to their age and circumstances, require assistance to perfect their claims but cannot afford to pay the cost of preparing an amended return. In other cases, the cost of preparing an amended return equals or exceeds the refund due.
Our decision may thus result in persons otherwise entitled to refunds losing their rights because they have relied on this class action and it is too late, expensive or inconvenient for them to file individual claims for a refund. That result is unjust. Persons whose property has effectively been taken by an unlawful tax should not be penalized because they relied on what seemed a reasonable attempt to obtain their refunds through a class action. If they will be penalized, then the legislature should consider protecting those persons by extending the time to file their claims for refunds and perhaps directing the department of revenue to assist them in processing their claims.
I am authorized to state that Judges Eich and Vergeront join this concurring opinion.