Tax 11.88(4m)(c)
(c) The sales or purchase price from the sale of a modular home that is tangible personal property when sold (i.e., the sale to the contractor-consumer), may be reduced by one of the following:
Tax 11.88(4m)(c)2.
2. An amount equal to the sales or purchase price of the home minus the cost of materials that become an ingredient or component part of the home.
Tax 11.88(4m)(d)
(d) Once the retailer chooses one of the options provided in
par. (c) 1. or
2., the retailer may not use the other option without the written approval of the department.
Tax 11.88(4m)(e)
(e) Sales of modular homes to the contractor-consumer for use in real property construction activities outside Wisconsin are exempt from Wisconsin sales and use tax.
Tax 11.88(5)(a)(a) No recreational vehicle may be registered in Wisconsin unless the registrant presents proof that the sales or use tax has been paid or that the registrant's acquisition of the recreational vehicle was exempt from the tax. If the recreational vehicle registrant does not present proof that the tax has been paid, the registrant shall pay the tax at the time the recreational vehicle is registered with the department of transportation even though the recreational vehicle may also be used out-of-state.
Tax 11.88(5)(b)
(b) If a recreational vehicle purchased outside Wisconsin is subject to the Wisconsin use tax, a credit is permitted against the Wisconsin use tax for any sales or use tax paid to the state in which the recreational vehicle was purchased.
Tax 11.88(6)
(6) Consignment sales. When a recreational vehicle dealer has possession of a recreational vehicle owned by another person, the principal, the dealer is the retailer responsible for reporting tax on the transaction if the dealer makes the sale without disclosing the identity of the principal to the purchaser. If the principal is disclosed to the purchaser on the invoice or in the sales contract, the principal is the seller of the recreational vehicle and the tax on the transaction shall be paid under
sub. (4) (a), provided the recreational vehicle dealer does not take title to the recreational vehicle. If the dealer does take title, the dealer is the seller.
Tax 11.88 Note
Note: For information regarding principals, see s.
Tax 11.55.
Tax 11.88 Note
Note: Section
Tax 11.88 interprets ss.
77.51 (2),
(12m) (b) 7.,
(13) (am), and
(15b) (b) 7.,
77.52 (2) (a) 1.,
77.53 (17) and
(18),
77.54 (7),
(31), and
(36),
77.61 (1) (a) and
(c),
101.91 (2),
(10),
(11), and
(12),
218.10 (1g),
(7), and
(9), and
340.01 (29) and
(48r), Stats.
Tax 11.88 Note
Note: The interpretations in s.
Tax 11.88 are effective under the general sales and use tax law on and after September 1, 1969, except: (a) Nonretailer sales of mobile homes became taxable effective August 1, 1977, pursuant to
Chapter 29, Laws of 1977; (b) Nonretailer sales of mobile homes exceeding 45 feet in length became exempt effective July 1, 1978, pursuant to
Chapter 418, Laws of 1977; (c) Rental of a mobile home that is personal property for lodging for a continuous period of one month or more became exempt effective July 1, 1984, pursuant to
1983 Wis. Act 341, clarified effective April 1, 1986, pursuant to
1985 Wis. Act 149; (d) Gross receipts from a used mobile home became exempt effective January 1, 1987, pursuant to
1985 Wis. Act 29; (e) Thirty-five percent of the gross receipts from the sale of new mobile homes became exempt January 1, 1987, pursuant to
1985 Wis. Act 29; (f) The exemption from use tax of mobile homes purchased 90 or more days before moving to Wisconsin became effective August 1, 1987, pursuant to
1987 Wis. Act 27; (g) The exemption for transfers to in-laws became effective August 15, 1991, pursuant to
1991 Wis. Act 39; (h) The exemption for certain new mobile homes transported in two unattached sections became effective October 1, 1991, pursuant to
1991 Wis. Act 39; (i) The changes in terminology related to "mobile homes," "manufactured homes," and "recreational vehicles," became effective January 1, 2008, pursuant to
2007 Wis. Act 11; and (j) The change of the term "gross receipts" to "sales price" became effective October 1, 2009, pursuant to
2009 Wis. Act 2.
Tax 11.88 History
History: Cr.
Register, December, 1980, No. 300, eff. 1-1-81; r. and recr. (3) and (6),
Register, July, 1987, No. 379, eff. 8-1-87; am. (2) (b), (3) (d), (4) (b) and (5), cr. (3) (e),
Register, June, 1991, No. 426, eff. 7-1-91; am. (3) (b) and (d),
Register, April, 1993, No. 448, eff. 5-1-93; corrections in (3) (c) and (6) (a) made under s. 13.93 (2m) (b) 7., Stats.,
Register July 2002 No. 559;
EmR0924: emerg. r. and recr. eff. 10-1-09;
CR 09-090: r. and recr.
Register May 2010 No. 653, eff. 6-1-10;
CR 12-014: am. (title), cr. (1) (bm), am. (3) (b), cr. (3) (c), (4m)
Register August 2012 No. 680, eff. 9-1-12.
Tax 11.90
Tax 11.90
Penalty for failure to produce records under s. 77.61 (19), Stats. Tax 11.90(1)
(1)
General. A person who fails to produce records or documents, as provided under ss.
73.03 (9) and
77.59 (2), Stats., that were requested by the department may be subject to any of the following penalties under s.
77.61 (19), Stats.:
Tax 11.90(1)(a)
(a) The disallowance of deductions, credits, exemptions or inclusions of additional taxable sales or additional taxable purchases to which the requested records relate.
Tax 11.90(1)(b)
(b) In addition to any other penalties that the department may impose, a penalty for each violation that is equal to the greater of $500 or 25% of the amount of the additional tax on any adjustment made by the department that results from the person's failure to produce the records.
Tax 11.90(2)(a)
(a) "Disallowance," "inclusion," or "adjustment" means that an item is disallowed, included or adjusted through action taken by the department when a proposed assessment or refund or notice of assessment or refund is issued to a taxpayer.
Tax 11.90(2)(b)
(b) "Records" include both paper and electronic formats. Examples include bills, receipts, invoices, contracts, letters, memos, accounting statements or schedules, general ledgers, journal entries, and board of director's minutes. "Records" do not include items protected by attorney-client privilege, if the taxpayer provides a brief description or summary of the contents of each record, the date each record was prepared, the person or persons who prepared each record, the person to whom each record was directed, or for whom each record was prepared, the purpose in preparing each record, and how each element of the privilege is met as to each record.
Tax 11.90(2)(c)
(c) "Records requested were not provided" means that all records requested were not provided to the department within the time specified by the department.
Tax 11.90(2)(d)
(d) "Written request for records" includes requests made by letter, e-mail, fax or any other written form.
Tax 11.90(2)(e)
(e) "Provided" means the records are provided by electronic means or in paper format to the address specified by the department in its written request for records. If the address specified by the department is the person's location, the records are considered provided on the date the person notifies the department they are available for review at that location.
Tax 11.90(3)
(3) Procedures. The penalties in this section may be imposed if the records requested were not provided and the department provided the notifications in
pars. (a) and
(b) regarding the records requested. The number of days established by the department for the person to respond to the record requests should be reasonable based on the facts of each situation.
Tax 11.90(3)(a)
(a) A first written request for records where the department allowed the person a minimum of 30 days from the date of request for the records to be provided.
Tax 11.90(3)(b)
(b) After the time period to respond to the first written request has expired as provided in
par. (a), a second written request for records where the department allowed the person a minimum of 30 days from the date of request for the records to be provided. This second written request for records shall include a statement explaining that if the requested records are not provided by the date specified, the penalties provided by s.
77.61 (19), Stats., may be imposed.
Tax 11.90 Note
Examples: 1) The department issues a first written request for records to Corporation A on September 1, 2009, allowing Corporation A until October 6, 2009, to provide the records requested. Corporation A does not provide the requested records to the department by October 6, 2009. The department issues a second written request for records to Corporation A on October 21, 2009, allowing Corporation A until November 30, 2009, to provide the records requested. Included in this second written request for records is a notification regarding the penalties provided by s.
77.61(19), Stats. Corporation A does not provide the requested records by November 30, 2009. Therefore, the department may disallow the deductions, credits, or exemptions or include the additional taxable sales or additional taxable purchases to which the requested records relate and impose a penalty equal to the greater of $500 or 25% of the additional tax on the adjustments made resulting from Corporation A not providing the records requested.
Tax 11.90 Note
2) The department issues a first written request for records to Corporation B on December 21, 2009, allowing Corporation B until January 20, 2010, to provide the records requested. Corporation B does not provide the requested records to the department by January 20, 2010. The department issues a second written request for records to Corporation B on February 8, 2010, allowing Corporation B until March 10, 2010, to provide the records requested. Included in this second written request for records is a notification regarding the penalties provided by s.
77.61 (19), Stats. Corporation B provides records to the department by March 10, 2010, but the department determines that the taxpayer did not provide some of the records requested by March 10, 2010. Therefore, since the taxpayer did not provide all of the records requested by March 10, 2010, the department may disallow the deductions, credits, or exemptions or include the additional taxable sales or additional taxable purchases to which the requested records that were not provided relate and impose a penalty equal to the greater of $500 or 25% of the additional tax on the adjustments made resulting from the requested records that were not provided.
Tax 11.90(4)(a)(a) The penalties in this section may be waived if the person whose records were requested can show that, under all the facts and circumstances, its response to the written request for records or its failure to respond to the written request for records was reasonable or justified by factors beyond the person's control. In determining whether the penalties will be waived, the department may consider any of the following factors:
Tax 11.90(4)(a)1.
1. Death of the taxpayer, tax preparer, accountant or other responsible party.
Tax 11.90(4)(a)2.
2. Onset of debilitating illness or injury of the taxpayer, tax preparer, accountant or other responsible party.
Tax 11.90(4)(a)4.
4. Records that were destroyed due to events beyond control of the taxpayer or other responsible party and not due to neglect.
Tax 11.90(4)(a)5.
5. Any other facts and circumstances that the department believes pertinent.
Tax 11.90(4)(b)
(b) Providing requested records after the time period required for providing the records has expired, as provided in
sub. (3), shall result in a reduction of the penalties provided in
sub. (1) (a) and
(b) if the department determines that these records support a reduction in the disallowance or inclusion previously made by the department.
Tax 11.90 Note
Examples: 1) Since Corporation C does not provide the records requested by the date specified in a second written request for records to support deductions for exempt sales, the department issues a proposed audit report to Corporation C disallowing all the deductions for exempt sales previously claimed, which represents the penalty provided in s.
77.61 (19) (a), Stats. Additional tax of $100,000 and the penalty as provided in s.
77.61 (19) (b), Stats., of $25,000 results in the proposed audit report from disallowing the deductions for exempt sales. Corporation C provides the records requested 26 days after the department issues the proposed audit report but before the notice of assessment is issued and explains, without any further detail, that they were too busy with other aspects of their business to respond to the two written requests for records by the dates specified. In this situation, the failure to provide the records requested is not reasonable or justified by factors beyond the person's control. In addition, the records provided do not support a reduction of the exempt sales deductions disallowed in the proposed audit report. Therefore, the deductions for exempt sales adjustment is not modified so the proposed additional tax of $100,000 and the original proposed penalty as provided in s.
77.61 (19) (b), Stats., of $25,000 remain.
Tax 11.90 Note
2) Since Mr. Smith does not provide the records requested regarding his business, which primarily receives payments in cash, to support the reported gross receipts by the date specified in a second written request for records, the department issues a notice of assessment to Mr. Smith including an estimated amount into taxable sales for unreported receipts, which represents the penalty provided in s.
77.61 (19) (a), Stats. Additional tax of $60,000, a negligence penalty of $15,000 and the penalty as provided in s.
77.61 (19) (b), Stats., of $15,000 results in the assessment from including these estimated receipts. Mr. Smith appeals the assessment, provides the records that were requested during the audit, and explains that he forgot to provide the records that were previously requested. In this situation, the failure to provide the records requested is not reasonable or justified by factors beyond the person's control. However, the records provided show that unreported receipts were only 20% of the amount previously included by the department as estimated unreported receipts. Therefore, the unreported receipts adjustment is modified to reduce the additional tax from $60,000 to $12,000, the negligence penalty is reduced from $15,000 to $3,000 and the original penalty as provided in s.
77.61 (19) (b), Stats., is reduced from $15,000 to $3,000.
Tax 11.90 Note
3) Assume the same facts as example 2, except that Mr. Smith explains that he did not previously provide the requested records because his accountant had possession of them and was in the hospital when the records were requested during the audit. In this situation the failure to provide the records requested is reasonable or justified by factors beyond the person's control. Therefore, the unreported receipts adjustment is modified to reduce the additional tax from $60,000 to $12,000, the negligence penalty is reduced from $15,000 to $3,000 and the original penalty as provided in s.
77.61 (19) (b), Stats., of $15,000 is waived.
Tax 11.90 History
History: EmR0929: emerg. cr. eff. 10-19-09;
CR 09-087: cr.
Register June 2010 No. 654, eff. 7-1-10; correction in (3) (intro.) made under s.
13.92 (4) (b) 7., Stats.,
Register June 2010 No. 654.
Tax 11.91(1)(a)(a) A purchaser or assignee of the business or stock of goods, including furniture, fixtures, equipment, and inventory, of any retailer liable for sales or use tax shall be personally liable for the payment of the sales or use tax if the purchaser or assignee fails to withhold a sufficient amount of the purchase price to cover the taxes due.
Tax 11.91(1)(b)
(b) If a corporation is created and acquires the assets of a sole proprietor in consideration for the corporation's capital stock, the corporation is liable for any sales or use tax liability of the sole proprietorship.
Tax 11.91(1)(c)
(c) A surviving joint tenant shall not have successor's liability for delinquent sales or use tax where the business or inventory passes by law to the remaining joint tenant.
Tax 11.91(1)(d)
(d) A financial institution or mortgagee who forecloses on a loan to a retailer owing delinquent sales or use tax shall not incur successor's liability.
Tax 11.91(1)(e)
(e) If a retail business or stocks of goods shall pass from A to B to C, and B's successor's liability shall be unpaid, such liability shall not pass to C. The new successor, C, shall be liable only for B's unpaid sales and use tax.
Tax 11.91(1)(f)
(f) Successor's liability is not incurred in a sale by a trustee in bankruptcy, in a transfer by gift or inheritance, in a sheriff's sale, or in a sale by a personal representative or special administrator.
Tax 11.91(1)(g)
(g) If a creditor, including a financial institution, actually operates a business which has been voluntarily surrendered by a delinquent debtor in full or partial liquidation of a debt, the creditor is a successor. The creditor is not a successor if it acquires possession of a business voluntarily surrendered, if it never operates the business and if its sole purpose is to sell the business in its entirety, as a whole or piecemeal, at whatever price it can obtain to recover its investment.
Tax 11.91(2)(a)(a) If there is no purchase price, there shall be no successor's liability.
Tax 11.91(2)(b)
(b) A successor shall be liable to the extent of the purchase price. The purchase price shall include:
Tax 11.91(2)(b)1.
1. Consideration paid for tangible property and items, property, and goods, under s.
77.52 (1) (b),
(c), and
(d), Stats., and for intangibles such as leases, licenses, and good will.
Tax 11.91(2)(c)
(c) A successor shall be liable only for the amount of the tax liability, not for penalties and interest. Although based on the predecessor's tax, the successor's liability shall not bear interest.
Tax 11.91(2)(d)
(d) A successor's liability shall be limited to amounts owed by the predecessor which were incurred at the location purchased. If the seller operated at more than one location while incurring a total liability for all locations, its liability incurred at the location sold shall be determined and shall represent the amount for which the successor may be held liable.
Tax 11.91(2)(e)
(e) Successor's liability is determined by law and shall not be altered by agreements or contracts between a buyer and seller.
Tax 11.91(3)(a)(a) A purchaser shall withhold a sufficient amount from the purchase price to cover any possible sales or use tax liability.
Tax 11.91(3)(b)
(b) The purchaser shall submit a written request to the department for a clearance certificate. An oral request for a clearance certificate shall not be accepted. The letter requesting the certificate shall include the real name, business name, and seller's permit number, if known, of the prior operator. All sales tax returns for all periods during which the predecessor operated shall be filed with the department before it may issue the certificate.
Tax 11.91(3)(c)
(c) Under s.
77.52 (18) (bm), Stats., the department has 60 days from the date it receives the request for a clearance certificate or from the date the former owner makes its records available, whichever is later, but no later than 90 days after it receives the request, to ascertain the amount of sales tax liability, if any. The department shall within these periods, issue either:
Tax 11.91(3)(c)2.
2. A notice of sales tax liability to purchaser and successor in business, which shall state the amount of tax due before a clearance certificate can be issued and which shall be served and handled as a deficiency determination under s.
77.59, Stats.
Tax 11.91(3)(d)
(d) The department's failure to mail the notice of liability within the 90 day period shall release the purchaser from any further obligation.
Tax 11.91(4)(a)(a) The department shall first direct collection against the predecessor.
Tax 11.91(4)(b)
(b) Action against the successor shall not be commenced prior to an action against a predecessor unless it appears that a delay would jeopardize collection of the amount due.
Tax 11.91(4)(c)
(c) A demand for a successor to pay a predecessor's tax liability shall be subject to the right of appeal.
Tax 11.91 Note
Note: The interpretations in s.
Tax 11.91 are effective under the general sales and use tax law on and after September 1, 1969, except that the separate impositions of tax on coins and stamps sold above face value under s.
77.52 (1) (b), Stats., certain leased property affixed to real property under s.
77.52 (1) (c), Stats., and digital goods under s.
77.52 (1) (d), Stats., became effective October 1, 2009, pursuant to
2009 Wis. Act 2.
Tax 11.91 History
History: Cr.
Register, October, 1976, No. 250, eff. 11-1-76; am. (1) (d) and (2) (b) 2., cr. (1) (f) and (g),
Register, December, 1978, No. 276, eff. 1-1-79; am. (1) (a), (b) and (g), (2) (a) and (3) (b) and (c) (intro.),
Register, June, 1991, No. 426, eff. 7-1-91; correction in (3) (c) (intro.) made under s. 13.93 (2m) (b) 7., Stats.,
Register July 2002 No. 559;
EmR0924: emerg. am. (1) (a), (2) (b) 1. and (3) (b), eff. 10-1-09;
CR 09-090: am. (1) (a), (2) (b) 1. and (3) (b)
Register May 2010 No. 653, eff. 6-1-10.
Tax 11.92
Tax 11.92 Records and record keeping. Tax 11.92(1)
(1)
General. All persons selling, licensing, leasing, or renting tangible personal property or items, property, or goods under s.
77.52 (1) (b),
(c), or
(d), Stats., or taxable services and every person storing, using, or otherwise consuming in Wisconsin tangible personal property, items, property, or goods under s.
77.52 (1) (b),
(c), or
(d), Stats., or taxable services shall keep adequate and complete records so that they may prepare complete and accurate tax returns. These records shall include the normal books of account ordinarily maintained by a prudent business person, together with all supporting information such as beginning and ending inventories, records of purchases and sales, cancelled checks, bills, receipts, invoices which shall contain a posting reference, cash register tapes, credit memoranda which shall carry a reference to the document evidencing the original transaction or other documents of original entry which are the basis for the entries in the books of account, and schedules used in connection with the preparation of tax returns. These records shall show:
Tax 11.92(1)(a)
(a) The sales price from sales of tangible personal property, items, property, and goods under s.
77.52 (1) (b),
(c), and
(d), Stats., and taxable services, or licenses, rentals, or leases of tangible personal property and items, property, and goods under s.
77.52 (1) (b),
(c), and
(d), Stats., including any services that are a part of the sale, license, lease, or rental sourced to Wisconsin under s.
77.522, Stats., even if the seller, licensor, or lessor regards the receipts as taxable or nontaxable. Taxable receipts shall be reported on the accrual basis, except when the department is satisfied that an undue hardship would exist and authorizes reporting on some other basis.
Tax 11.92(1)(b)
(b) The basis for all deductions claimed in filing returns, including exemption certificates obtained from customers. Exempt sales to governmental units and public schools need not be supported by exemption certificates, if the supplier retains a copy of the exempt entity's purchase order and the supplier's invoice or billing document. Sales to organizations holding a certificate of exempt status, CES, including religious or charitable organizations, can be shown to be exempt by recording the CES number on the seller's copy of the bill of sale. Except as provided in this paragraph and ss.
77.52 (13) and
77.53 (10), Stats., exempt sales shall be supported by an exemption certificate retained by the seller and paper certificates shall also be signed by the purchaser. Documents necessary to support claimed exemptions from tax liability, such as bills of lading and purchase orders, shall be maintained in a manner in which they readily can be related to the transaction for which exemption is sought.
Tax 11.92(1)(c)
(c) Total purchase price of all tangible personal property, items, property, and goods under s.
77.52 (1) (b),
(c), and
(d), Stats., and taxable services purchased for sale, license, lease, rental, storage, use, or other consumption in Wisconsin.
Tax 11.92(1)(d)
(d) Every person subject to the county or stadium sales and use tax shall keep a record of sales that the person makes that are sourced under s.
77.522, Stats., to each:
Tax 11.92(1)(e)
(e) Every person shall keep a record of the purchase price of property, items, and goods on which the person is subject to county and stadium use or excise tax in each enacting county or stadium district's jurisdiction.
Tax 11.92(2)
(2) Microfilm records. Microfilm, including microfiche, reproductions of general books of account, such as cash books, journals, voucher registers and ledgers, and supporting records of detail shall be acceptable if the following conditions are met:
Tax 11.92(2)(a)
(a) Appropriate facilities are provided for preservation of the films for periods required.
Tax 11.92(2)(b)
(b) Microfilm rolls are indexed, cross referenced, labeled to show beginning and ending numbers or beginning and ending alphabetical listing of documents included, and are systematically filed.
Tax 11.92(2)(c)
(c) Transcriptions are provided for any information contained on microfilm which may be required for purposes of verification of tax liability.
Tax 11.92(2)(d)
(d) Proper facilities are provided for the ready inspection and location of the particular records, including adequate projectors for viewing and copying the records.
Tax 11.92(3)
(3) Records prepared by automated data processing (adp) systems. An automatic data processing, ADP, tax accounting system shall have the capability of producing visible and legible records which will provide the following necessary information for verification of the taxpayer's tax liability:
Tax 11.92(3)(a)
(a) Recorded or reconstructible data. ADP records shall provide an opportunity to trace any transaction back to the original source or forward to a final total. If detailed printouts are not made of transactions at the time they are processed, then the system must have the ability to readily reconstruct these transactions.
Tax 11.92(3)(b)
(b) General and subsidiary books of account. A general ledger, with source references, shall be written out to coincide with financial reports for tax reporting periods. Where subsidiary ledgers are used to support the general ledger accounts, the subsidiary ledgers shall also be written out periodically.
