The duly authorized employees of the department have all necessary police powers to prevent violations of this subchapter.
Authorized personnel of the department of justice and the department of revenue, and any sheriff, police officer, marshal or constable, within their respective jurisdictions, may at all reasonable hours enter the premises of any permittee or retailer and examine the books and records to determine whether the tax imposed by s. 139.31
has been fully paid and may enter and inspect any premises where cigarettes are made, sold or stored to determine whether ss. 139.30
are being complied with.
The secretary may suspend or revoke the permit of any permittee who violates ss. 100.30
or any rules adopted under sub. (1)
. The secretary shall revoke the permit of any permittee who violates s. 100.30
3 or more times within a 5-year period.
No suit shall be maintained in any court to restrain or delay the collection or payment of the tax levied in s. 139.31
. The aggrieved taxpayer shall pay the tax when due and, if paid under protest, may at any time within 90 days from the date of payment, sue the state to recover the tax paid. If it is finally determined that any part of the tax was wrongfully collected, the secretary of administration shall pay the amount wrongfully collected out of the general fund. A separate suit need not be filed for each separate payment made by any taxpayer, but a recovery may be had in one suit for as many payments as may have been made.
Any person who sells, distributes, or manufactures cigarettes and who sustains direct economic or commercial injury as the result of a violation of this chapter may bring an action for injunctive relief.
Any person may be compelled to testify in regard to any violation of ss. 134.65
of which the person may have knowledge, even though such testimony may tend to incriminate the person, upon being granted immunity from prosecution in connection therewith, and upon the giving of such testimony, the person shall not be prosecuted because of the violation relative to which the person has testified.
(6) Sections 71.74 (1)
, 71.80 (12)
, 71.91 (1) (a)
as they apply to the taxes under ch. 71
apply to the taxes under this subchapter. Section 71.74 (13)
as it applies to the collection of the taxes under ch. 71
applies to the collection of the taxes under this subchapter, except that the period during which notice of an additional assessment shall be given begins on the due date of the report under this subchapter.
See also s. Tax 9.36
, Wis. adm. code.
Theft of tax moneys.
All cigarette tax moneys received by a distributor, bonded direct marketer, or manufacturer for the sale of cigarettes on which the tax under this subchapter has become due and has not been paid are trust funds in the hands of the distributor, bonded direct marketer, or manufacturer and are the property of this state. Any distributor, bonded direct marketer, or manufacturer who fraudulently withholds, appropriates or otherwise uses cigarette tax moneys that are the property of this state is guilty of theft under s. 943.20 (1)
, whether or not the distributor, bonded direct marketer, or manufacturer has or claims to have an interest in those moneys.
History: 1993 a. 16
; 2005 a. 25
Seizure and confiscation. 139.40(1)
All cigarettes acquired, owned, imported, possessed, kept, stored, made, sold, distributed or transported in violation of this chapter, and all personal property used in connection therewith is unlawful property and subject to seizure by the secretary or any peace officer. All cigarettes seized for violating s. 139.31 (4)
shall be destroyed.
If cigarettes which do not bear the proper tax stamps or on which the tax has not been paid are so seized they may be given to law enforcement officers to use in criminal investigations or sold to qualified buyers by the secretary, without notice. If the cigarettes are sold, after deducting the costs of the sale and the keeping of the property, the proceeds of the sale shall be paid into the state treasury. If the secretary finds that such cigarettes may deteriorate or become unfit for use in criminal investigations or for sale or that those uses would otherwise be impractical, the secretary may order them destroyed or give them to a charitable or penal institution for free distribution to patients or inmates.
If cigarettes on which the tax has been paid and which bear the proper tax stamps are seized they shall be returned to the true owner if ownership can be ascertained and such owner or the owner's agent is not involved in the violation resulting in such seizure. If such ownership cannot be ascertained or if the owner or the owner's agent was guilty of a violation of any of the provisions of ss. 139.30
, which resulted in the seizure of such cigarettes, they may be sold or otherwise disposed of as provided in sub. (2)
If personal property other than cigarettes is so seized the secretary shall advertise the same for sale by publication of a class 2 notice under ch. 985
. If no claimant, either of lien or ownership, has notified the secretary within 10 days after last insertion of such notice, the property shall be sold. If such sale is not practical the property may be destroyed. If a claimant of a lien or ownership notifies the secretary within the prescribed time, the secretary may apply to a court of record in the county where the property was seized for an order directing disposition of said property or the proceeds thereof. If a sale of such seized property is ordered, all liens, if any, may be transferred from the property to the proceeds of such sale. Neither the property seized nor the proceeds from the sale thereof shall be turned over to any claimant of lien or ownership unless such claimant first establishes that the property was not used in connection with any violation of ss. 139.30
or that, if so used, it was done without the claimant's knowledge or consent and without the claimant's knowledge of such facts as should have given the claimant reason to believe it would be put to such use. If no claim of lien or ownership is so established the property may be ordered destroyed. In case of sale, the net proceeds after deducting costs, expenses and established claims shall be paid into the state treasury.
Place to place delivery.
No person shall peddle any cigarettes from house to house, where the sale is consummated and delivery made concurrently.
Any building or place of any kind where cigarettes are sold, possessed, stored or manufactured without a lawful permit in violation of ss. 139.30
is declared a public nuisance and may be closed and abated as such.
Statewide concern. Sections 139.30
shall be construed as an enactment of statewide concern for the purpose of providing a uniform regulation of the sale of cigarettes.
History: 1993 a. 213
; 1995 a. 225
The state regulatory scheme for tobacco sales preempts municipalities from adopting regulations that are not in strict conformity with those of the state. U.S. Oil, Inc. v. City of Fond du Lac, 199 Wis. 2d 333
, 544 N.W.2d 589
(Ct. App. 1995), 95-0213
Interest and penalties. 139.44(1)
Any person who falsely or fraudulently makes, alters or counterfeits any stamp or procures or causes the same to be done, or who knowingly utters, publishes, passes or tenders as true any false, altered or counterfeit stamp, or who affixes the same to any package or container of cigarettes, or who possesses with the intent to sell any cigarettes in containers to which false, altered or counterfeit stamps have been affixed is guilty of a Class G felony.
Any person who falsely or fraudulently tampers with a cigarette meter in order to evade the tax under s. 139.31
is guilty of a Class G felony.
Any person who makes or signs any false or fraudulent report or who attempts to evade the tax imposed by s. 139.31
, or who aids in or abets the evasion or attempted evasion of that tax may be fined not more than $10,000 or imprisoned for not more than 9 months or both.
Any permittee who fails to keep the records required by ss. 139.30
shall be fined not less than $100 nor more than $500 or imprisoned not more than 6 months or both.
Any person who refuses to permit the examination or inspection authorized in s. 139.39 (2)
may be fined not more than $500 or imprisoned not more than 90 days or both. Such refusal shall be cause for immediate suspension or revocation of permit by the secretary.
Any person who violates any of the provisions of ss. 139.30
for which no other penalty is prescribed shall be fined not less than $100 nor more than $1,000 or imprisoned not less than 10 days nor more than 90 days or both.
Any person who violates any of the rules of the department shall be fined not less than $100 nor more than $500 or be imprisoned not more than 6 months or both.
In addition to the penalties imposed for violation of ss. 139.30
or any of the rules of the department, the permit of any person convicted shall be automatically revoked and he or she shall not be granted another permit for a period of 2 years following such revocation.
If the number of cigarettes does not exceed 6,000, a fine of not more than $200 or imprisonment for not more than 6 months or both.
If the number of cigarettes exceeds 6,000 but does not exceed 36,000, a fine of not more than $1,000 or imprisonment for not more than one year in the county jail or both.
If the number of cigarettes exceeds 36,000, the person is guilty of a Class I felony.
Unpaid taxes bear interest at the rate of 12% per year from the due date of the return until paid or deposited with the department, and all refunded taxes bear interest at the rate of 9% per year from the due date of the return to the date on which the refund is certified on the refund rolls.
All nondelinquent payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.
Delinquent cigarette taxes bear interest at the rate of 1.5% per month until paid. The taxes imposed by this subchapter shall become delinquent if not paid:
In the case of a timely filed return, no return filed or a late return, on or before the due date of the return; or
In the case of a deficiency determination of taxes, within 2 months after the date of demand.
If due to neglect an incorrect return is filed, the entire tax finally determined is subject to a penalty of 25% of the tax exclusive of interest or other penalty. A person filing an incorrect return has the burden of proving that the error or errors were due to good cause and not due to neglect.
Prosecutions by attorney general.
Upon request by the secretary of revenue, the attorney general may represent this state or assist a district attorney in prosecuting any case arising under this subchapter or under ss. 134.65
. The attorney general may take any action necessary to enforce s. 139.345
History: 1985 a. 302
; 2005 a. 25
The department shall compile and maintain a list of direct marketers who have complied with the requirements of s. 139.345
and a list of direct marketers who the department knows have not complied with such requirements. The department shall provide copies of the lists described under this section to the attorney general and to each person who delivers cigarettes to consumers in this state that are sold by direct marketing under s. 139.345
History: 2005 a. 25
TOBACCO PRODUCTS TAX
Subch. III of ch. 139 Cross-reference
See also s. Tax 9.69
, Wis. adm. code.
In this subchapter:
"Business" means any trade, occupation, activity or enterprise engaged in for the purpose of selling or distributing tobacco products in this state.
"Consumer" means any person who has title to or possession of tobacco products in storage for use or other consumption in this state.
"Department" means the department of revenue.
Any person engaged in the business of selling tobacco products in this state who brings, or causes to be brought, into this state from outside the state any tobacco products for sale;
Any person who makes, manufactures or fabricates tobacco products in this state for sale in this state; or
Any person engaged in the business of selling tobacco products outside this state who ships or transports tobacco products to retailers in this state to be sold by those retailers.
"File" means mail or deliver a document that the department prescribes to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.
"Manufacturer" means any person who manufactures and sells tobacco products.
"Moist snuff" means any finely cut, ground, or powdered smokeless tobacco that is intended to be placed or dipped in the mouth.
"Pay" means mail or deliver funds to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.
"Place of business" means any place where tobacco products are sold, manufactured, stored or kept for the purpose of sale or consumption, including any vessel, vehicle, airplane, train or vending machine.
"Retail outlet" means each place of business from which tobacco products are sold to consumers.
"Retailer" means any person engaged in the business of selling tobacco products to ultimate consumers.
"Sale" means any transfer, exchange or barter for a consideration. It includes a gift by a person engaged in the business of selling tobacco products for advertising or as a means of evading this subchapter or for any other purpose, and it includes solicitation of orders for, and the sale for, future delivery.
"Storage" means any keeping or retention of tobacco products for use or consumption in this state.
"Subjobber" means any person, other than a manufacturer or distributor, who buys tobacco products from a distributor and sells them to persons other than the ultimate consumers.
"Tobacco products" means cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready-rubbed and other smoking tobacco; snuff, including moist snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking; but "tobacco products" does not include cigarettes, as defined under s. 139.30 (1m)
"Use" means the exercise of any right or power incidental to the ownership of tobacco products.
Imposition; exceptions. 139.76(1)
An excise tax is imposed upon the sale, offering or exposing for sale, possession with intent to sell or removal for consumption or sale or other disposition for any purpose of tobacco products by any person engaged as a distributor of them at the rate, for tobacco products, not including moist snuff, of 71 percent of the manufacturer's established list price to distributors without diminution by volume or other discounts on domestic products and, for moist snuff, at the rate of 100 percent of the manufacturer's established list price to distributors without diminution by volume or other discounts on domestic products. The tax imposed under this subsection on cigars shall not exceed an amount equal to 50 cents for each cigar. On products imported from another country, not including moist snuff, the rate of tax is 71 percent of the amount obtained by adding the manufacturer's list price to the federal tax, duties and transportation costs to the United States. On moist snuff imported from another country, the rate of the tax is 100 percent of the amount obtained by adding the manufacturer's list price to the federal tax, duties, and transportation costs to the United States. The tax attaches at the time the tobacco products are received by the distributor in this state. The tax shall be passed on to the ultimate consumer of the tobacco products. All tobacco products received in this state for sale or distribution within this state, except tobacco products actually sold as provided in sub. (2)
, shall be subject to such tax.
Tobacco products sold to or by post exchanges of the U.S. armed forces, to or by federally operated veterans hospitals in this state, and tobacco products sold to an interstate carrier of passengers for hire to be resold to bona fide passengers actually being transported and tobacco products sold for shipment outside this state in interstate commerce are not subject to the tax.
See also ch. Tax 9
, Wis. adm. code.
Distributors, monthly returns. 139.77(1)
On or before the 15th day of each month, every distributor with a place of business in this state shall file a return showing the quantity and taxable price of each tobacco product brought, or caused to be brought, into this state for sale; or made, manufactured or fabricated in this state for sale in this state, during the preceding month. Every distributor outside this state shall file a return showing the quantity and taxable price of each tobacco product shipped or transported to retailers in this state to be sold by those retailers during the preceding month. At the time that the return is filed, the distributor shall pay the tax.
As soon as practicable after any return is filed, the department shall examine each return and correct it, if necessary, according to its best judgment and information. If the department finds that any amount of tax is due from the taxpayer and unpaid, it shall notify the taxpayer of the deficiency, stating that it proposes to assess the amount due together with interest and penalties. If a deficiency disclosed by the department's examination cannot be allocated to one or more particular months, the department shall notify the taxpayer of the deficiency, stating its intention to assess the amount due for a given period without allocating it to any particular months.
If, within 60 days after the mailing of notice of the proposed assessment, the taxpayer files a protest to the proposed assessment and requests a hearing on it, the department shall give notice to the taxpayer of the time and place fixed for the hearing, shall hold a hearing on the protest and shall issue a final assessment to the taxpayer for the amount found to be due as a result of the hearing. If a protest is not filed within 60 days, the department shall issue a final assessment to the taxpayer. In any action or proceeding in respect to the proposed assessment the taxpayer shall have the burden of establishing the incorrectness or invalidity of any final assessment made by the department.
If any taxpayer required to file any return fails to do so within the time prescribed, the taxpayer shall, on the written demand of the department, file the return within 20 days after the mailing of it and at the same time pay the tax due on its basis. If the taxpayer fails within that time to file the return, the department shall prepare the return from its own knowledge and from the information that it obtains and on that basis shall assess a tax, which shall be paid within 10 days after the department has mailed to the taxpayer a written notice of the amount and a demand for its payment. In any action or proceeding in respect to the assessment, the taxpayer shall have the burden of establishing the incorrectness or invalidity of any return or assessment made by the department because of the failure of the taxpayer to make a return.
All taxes are due not later than the 15th day of the month following the calendar month in which they were incurred.
The department may recover the amount of any tax due and unpaid, interest and any penalty in a civil action. The collection of the tax, interest or penalty is not a bar to any prosecution under s. 139.85 (1)