Tax 2.67(2)(b) (b) Electronic filing. All combined returns shall be filed electronically. The secretary of revenue may waive the requirement to file a combined return electronically when the secretary determines that the requirement causes an undue hardship, if the person requests the waiver in writing and clearly indicates why the requirement causes an undue hardship. In determining whether the electronic filing requirement causes an undue hardship, the secretary of revenue may consider the following factors:
Tax 2.67(2)(b)1. 1. Unusual circumstances that may prevent the person from filing electronically.
Tax 2.67 Note Example: The person does not have access to a computer that is connected to the Internet.
Tax 2.67(2)(b)2. 2. Any other factor that the secretary determines is pertinent.
Tax 2.67 Note Note: Written requests should be e-mailed to DORWaiverRequest@revenue.wi.gov, faxed to (608) 267-1030, or addressed to Mandate Waiver Request, Wisconsin Department of Revenue, Mail Stop 5-77, P.O. Box 8949, Madison, WI 53708-8949.
Tax 2.67 Note Note: Forms not filed electronically may be delivered in person to the Department of Revenue at 2135 Rimrock Road, Madison, Wisconsin or mailed to the address specified on the form or in the instructions.
Tax 2.67(2)(c) (c) Components of combined return. A combined return shall include the following items, and shall be considered incomplete if any of these items are excluded:
Tax 2.67(2)(c)1. 1. One Wisconsin Form 6, Income or Franchise Tax Return, for the combined group as a whole.
Tax 2.67(2)(c)4. 4. If the combined group is using apportionment, one Form A-1, Apportionment Data for Single Factor Formulas, or Form A-2, Apportionment Data for Multiple Factor Formulas, per member as applicable.
Tax 2.67(2)(c)5. 5. Any other required supporting forms and schedules listed in s. Tax 2.03, as applicable. Unless stated otherwise in the instructions, supporting forms and schedules shall be prepared separately for each combined group member.
Tax 2.67(2)(c)6. 6. A copy of the complete federal return for each combined group member, including all supporting schedules and any amended returns, for the member's taxable year included in the combined return. For combined group members that also file in a federal consolidated return, any of the following alternatives shall be considered to satisfy this requirement:
Tax 2.67(2)(c)6.a. a. A copy of the federal consolidated return, including all supporting forms, schedules, and statements for each corporation included in the consolidated return, as submitted to the internal revenue service.
Tax 2.67(2)(c)6.b. b. Pro forma federal returns prepared separately for each combined group member, including all supporting forms and schedules prepared separately for each combined group member.
Tax 2.67(2)(c)6.c. c. A spreadsheet showing the line-by-line computation of taxable income of each combined group member included in the federal consolidated return, including consolidating adjustments, plus the supporting forms, schedules, and statements filed with the internal revenue service pertaining to each member. The supporting statements shall include balance sheets as of the beginning and end of the tax year, a reconciliation of income per books with income per return, and a reconciliation of retained earnings, to the extent the member was required to submit these items to the internal revenue service.
Tax 2.67(2)(c)7. 7. For combined groups that also file in a federal consolidated return, a copy of federal Form 851, Affiliations Schedule.
Tax 2.67(2)(d) (d) Separate entity items.
Tax 2.67(2)(d)1.1. Subject to the provisions of s. Tax 2.65 (3) (b), if any combined group member has separate entity items, the designated agent shall include those separate entity items in the combined return. If a corporation that would otherwise be a combined group member has no items that are subject to combination under the water's edge rules of s. Tax 2.61 (4), the designated agent may include that corporation's separate entity items in the combined return, in which case the combined return shall include the items specified in sub. (2) (c) 5. and 6. and subd. 3. for that corporation as if it is a combined group member. Alternatively, the corporation may file a separate Wisconsin return to report those items.
Tax 2.67(2)(d)2. 2. The joint and several liability provisions of s. Tax 2.65 (3) (f) do not apply to any tax, interest, or penalty attributable to separate entity items. Although the department may send correspondence, notices, refunds, assessments, or other documents relating to any combined group member's separate entity items to the designated agent, and the designated agent may choose to pay any tax, interest, or penalty on behalf of a combined group member, the tax, interest, or penalty attributable to separate entity items is ultimately the responsibility of the combined group member or members to which the separate entity items are attributable.
Tax 2.67(2)(d)3. 3. The separate entity net income or loss and apportionment factors included in the combined return shall be reported on Wisconsin Form N, Nonapportionable and Separately Apportioned Income. The designated agent shall complete and submit Form N with the combined return for each applicable corporation and carry forward the total Form N amounts to the appropriate line on Form 6. For purposes of the requirement of s. 71.255 (2) (d), Stats., separate entity items reported on Form N shall be considered filed on a separate return. However, for purposes of determining a combined group member's net income, tax, interest, underpayment interest, economic development surcharge, and the statute of limitations, the separate entity amounts shall be added to its amounts, if any, computed in the unitary combination.
Tax 2.67(2)(d)4. 4. If a corporation is a member of more than one combined group at the same time, the corporation shall include its separate entity items, if any, in the combined return of only one group.
Tax 2.67(2)(e) (e) Amended returns. If a corporation erroneously fails to join in the filing of a combined return, the designated agent shall file an amended combined return adding the corporation and, if a separate return was filed by the corporation, the corporation shall file an amended separate return showing no net income, overpayment, or underpayment, and stating that the corporation has joined in the filing of a combined return and identifying the designated agent of the combined group in which the corporation has been included.
Tax 2.67(3) (3) Taxable year of combined return. The taxable year included in a combined return is the combined group's taxable year as determined in s. 71.255 (8), Stats. For purposes of determining the taxable year and the items includable in the combined group's taxable year, the following rules apply:
Tax 2.67(3)(a) (a) Combined group's taxable year. If two or more members of the combined group file in a federal consolidated return, the combined group's taxable year is the taxable year of that federal consolidated return. If no federal consolidated return applies or there is more than one federal consolidated return, the combined group's taxable year is the taxable year of the designated agent. In any case, s. Tax 2.65 (2) (a) requires that the designated agent's taxable year shall be the same as the combined group's taxable year.
Tax 2.67(3)(b) (b) Methods for members with differing taxable years. If the taxable year of a combined group member differs from the taxable year of the combined group, the designated agent shall include that member's net income or loss and apportionment factors in the combined return by using one of the following methods:
Tax 2.67(3)(b)1. 1. Preparing a separate income statement from the member's books and records for the months included in the combined group's taxable year and using that income statement to determine the amounts includable in the combined return.
Tax 2.67(3)(b)2. 2. Using the net income or loss for the member's taxable year that ends during the combined group's taxable year to determine the amounts includable in the combined return.
Tax 2.67(3)(c) (c) Election of method. If the designated agent converts a combined group member's taxable year to the combined group's taxable year as described in par. (b) 1. or 2., it shall use the same method for each combined group member subject to the election. Once the designated agent files the first combined return including a member whose taxable year is properly converted, the designated agent may not file an amended return to change the election, except that if the original return was not filed under extension, the designated agent may file an amended return to change the election on or before the end of the automatic seven-month extension period provided in ss. 71.24 (7) or 71.44 (3), Stats., as applicable. The designated agent shall use the same method in each subsequent taxable year unless it obtains written approval from the department to use the other method.
Tax 2.67 Note Note: Send written requests for approval to change the election to: Audit Bureau, Wisconsin Department of Revenue, P.O. Box 8906, Madison, WI 53708-8906.
Tax 2.67(3)(d) (d) Part-year members. If, during a combined group's taxable year, a corporation ceases to be a member of the combined group or a new corporation becomes a member, the designated agent shall include that corporation's items attributable to the portion of the taxable year that the corporation was a member in the combined return covering the combined group's entire taxable year. For the portion of the taxable year when the corporation was not a member of the combined group, the corporation shall file a separate return or file in the combined return of another combined group, as applicable.
Tax 2.67(4) (4) Interest, penalties, and statutes of limitations.
Tax 2.67(4)(a) (a) Interest. For purposes of computing interest on late payments by or on behalf of combined group members, the following rules apply:
Tax 2.67(4)(a)1. 1. Interest shall be assessed to the designated agent of a combined group based upon the combined tax liability or deficiency shown on the combined return for the combined group's taxable year. However, the joint and several liability provisions of s. Tax 2.65 (3) (f) do not apply to any interest attributable to separate entity items. If a notice of an interest amount due is attributable to separate entity items of a combined group member other than the designated agent, the designated agent may pay the amount due or may submit a written request to the department to reissue the notice or a portion of the amount assessed to the combined group member responsible for the separate entity items. The designated agent shall submit the written request on or before the due date shown on the notice.
Tax 2.67 Note Note: Send written requests to reissue notices relating to separate entity items to: Wisconsin Department of Revenue, Mail Stop 5-257, P.O. Box 8906, Madison, WI 53708-8906.
Tax 2.67(4)(a)2. 2. An extension filed by the designated agent shall be considered an extension filed by all members of the combined group. However, the extension filed by the designated agent does not apply to affiliated corporations that are not combined group members, even if those corporations will be included in the combined return under the provisions of par. (d) 2.
Tax 2.67(4)(a)3. 3. Interest due to underpayment of estimated taxes shall be computed based on the estimated tax requirements and other provisions described in s. Tax 2.66.
Tax 2.67(4)(a)4. 4. If a corporation erroneously fails to join in the filing of the combined return, all payments, credits, and other amounts collected from the corporation which are properly attributable to the combined group's taxable year and attributable to a period of time that the corporation was a member of the combined group shall be treated as having been paid by the combined group.
Tax 2.67(4)(b) (b) Late filing fees. If a combined group fails to timely file a combined return and the late filing fee under s. 71.83 (3), Stats., applies, the amount of the late filing fee shall be the amount provided in s. 71.83 (3), Stats., regardless of the number of combined group members.
Tax 2.67(4)(c) (c) Failure to file. For purposes of the penalty provided in s. 71.83 (1) (a) 1., Stats., the following rules apply:
Tax 2.67(4)(c)1. 1. A corporation which erroneously fails to join in the filing of a combined return, but which timely files a separate Wisconsin return or joins in the timely filing of a combined return for another combined group, may not be subject to a penalty for failure to file. In determining whether the return is timely filed, the taxable year of the erroneously filed return shall be used, rather than the taxable year of the combined group with which the corporation should have filed.
Tax 2.67(4)(c)2. 2. A corporation which erroneously fails to join in the filing of a combined return and which fails, without reasonable cause, to timely file a separate Wisconsin return or join in the timely filing of a combined return for another combined group, shall be subject to the penalty computed based on its share of tax required to be reported on the combined return for its proper combined group, including its tax attributable to separate entity items. Except as provided in sub. (2) (d) 2., the members of the combined group shall be jointly and severally liable for the penalty because under s. 71.255 (1) (n), Stats., joint and several liability may apply to penalties and it is the duty of the designated agent to include the corporation in the combined return. The department may send a notice of assessment of the penalty to the designated agent instead of the corporation which was erroneously omitted from the combined return.
Tax 2.67(4)(d) (d) Statutes of limitations.
Tax 2.67(4)(d)1.1. The designated agent's filing of a combined return shall be considered to be a return filed by each combined group member whose items are included in the combined unitary income reported on that return.
Tax 2.67(4)(d)2. 2. If a combined return includes separate entity items of a corporation that would otherwise be a combined group member but for the water's edge rules of s. Tax 2.61 (4), the designated agent's filing of the combined return shall be considered to be a return filed by that corporation.
Tax 2.67(4)(d)3. 3. For purposes of the statute of limitations in s. 71.77 (7) (a), Stats., allowing the department to make an assessment within six years after the filing of a return, the statute of limitations shall be determined for each combined group member separately based on its total net income reported on its return, which is its net income or loss from the unitary combination as included in the combined return, plus its net income or loss from separate entity items. The six-year statute of limitations applies if a combined group member's total net income reported on its return is less than 75 percent of the net income properly assessable and the tax attributable to the additional income is in excess of $100. The designated agent shall be responsible for any combined group member's return that is open under the 6-year statute of limitations, subject to the provisions of s. Tax 2.65 (3) (f), even if the designated agent's return, as included in the combined return, is not open under the six-year statute of limitations.
Tax 2.67 Note Note: Section Tax 2.67 interprets ss. 71.24 (1), (1m), and (7), 71.255 (1) (b), (7) (b), (8), and (9), 71.44 (1), (1m), and (3), 71.77, 71.82, and 71.83, Stats.
Tax 2.67 History History: EmR1001: emerg. cr. eff. 1-15-10; CR 09-064: cr. Register April 2010 No. 652, eff. 5-1-10; CR 12-011: am. (2) (d) 3. Register July 2012 No. 679, eff. 8-1-12; CR 16-046: am. (2) (c) 1., r. (2) (c) 2., 3., am. (2) (c) 4., (d) 1., 3. Register January 2018 No. 745, eff. 2-1-18.
Tax 2.67 Annotation Cross References: See s. Tax 2.60 for definitions that relate to this section. See s. Tax 2.65 for more information on the duties of the designated agent. See s. Tax 2.66 for more information on combined estimated tax requirements.
Tax 2.82 Tax 2.82 Nexus.
Tax 2.82(1)(1)Background and scope.
Tax 2.82(1)(a) (a) Every domestic corporation, one incorporated under Wisconsin's laws, except those exempt under ss. 71.26 (1) and 71.45 (1), Stats., and every licensed foreign corporation, one not incorporated in Wisconsin, is required to file a complete corporation franchise or income tax return, Form 4, 5S, or 6, regardless of whether or not business was transacted.
Tax 2.82(1)(b) (b) A foreign corporation is “licensed" if it has obtained a Certificate of Authority from the department of financial institutions to transact business in this state pursuant to s. 180.1501, Stats. A licensed foreign corporation is presumed to be subject to Wisconsin franchise or income taxes.
Tax 2.82(1)(c) (c) An unlicensed foreign corporation is subject to Wisconsin franchise or income taxes if it has nexus with Wisconsin. The purpose of this rule is to provide guidelines for determining what constitutes nexus, that is, what business activities are needed for a foreign corporation to be subject to Wisconsin franchise or income taxes. The rule also explains how nexus applies to a foreign corporation in the context of s. 71.255, Stats., relating to combined reporting, and s. 77.93, Stats., relating to the economic development surcharge.
Tax 2.82(2) (2) Definitions. In this section:
Tax 2.82(2)(a) (a) “Business location" includes a repair shop, parts department, purchasing office, employment office, warehouse, meeting place for directors, sales office, permanent sample or display room, research facility or a recreational facility for use of employees or customers. A residence of an employee or representative is not ordinarily considered a business location of the employer unless the facts indicate otherwise. Facts that may indicate a residence of an employee or representative is a business location include the following: a portion of the residence is used exclusively for the business of the employer, the employee is reimbursed or paid a flat fee for the use of this space by the employer; the employee's phone number is listed in the yellow pages or on the Internet under the name of the employer; the employee uses supplies, equipment or samples furnished by the employer; or the space is used by the employee to interview prospective employees, hold sales meetings, or discuss business with customers.
Tax 2.82(2)(b) (b) “Loans" include any extension of credit resulting from direct negotiations between the taxpayer and its customer, or the purchase, in whole or in part, of an extension of credit from another. “Loans" include participations, syndications, and leases treated as loans for federal income tax purposes. “Loans" do not include properties treated as loans under section 595 of the Internal Revenue Code prior to its repeal by P.L. 104-188; futures or forward contracts; options; notional principal contracts such as swaps; credit card receivables, including purchased credit card relationships; non-interest bearing balances due from depository institutions; cash items in the process of collection; federal funds sold; securities purchased under agreements to resell; assets held in a trading account; securities; or interests in a real estate mortgage investment conduit or other mortgage-backed or asset-backed security.
Tax 2.82(2)(bm) (bm) “Regular" and “regularly" mean 15 or more days of activity. Fifteen days of activity means one person for 15 days or 15 persons for one day, or any combination of persons and days that results in at least 15 person-days of activity . “Days of activity” include any day, or portion thereof, upon which business activity took place. “Days of activity” do not include travel days, holidays, or weekends, unless business activities were conducted on those days.
Tax 2.82(2)(c) (c) “Representative" includes an employee, independent contractor, or any other person or entity engaged in substantial activities that helped the taxpayer to establish or maintain a market in this state.
Tax 2.82 Note Note: Under Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 US. 232 (1987), the U.S. Supreme Court held that it made no difference whether the taxpayer's representatives were classified as independent contractors or employees. Also see Scripto, Inc. v. Carson, 362 U.S. 207 (1960).
Tax 2.82(3) (3) Federal limitations on taxation of foreign corporations.
Tax 2.82(3)(a)(a) Federal constitutional provisions.
Tax 2.82(3)(a)1.1. Article I, Section 8 of the U.S. Constitution grants congress the power to regulate commerce with foreign nations and among the several states. States are prohibited from levying a tax which imposes a burden on interstate or foreign commerce. However, this does not mean states may not impose any tax on interstate commerce. A state tax on net income from interstate commerce which is fairly attributable to the state is constitutional. (Northwestern States Portland Cement Co.
Tax 2.82(3)(a)1.v.v. Minnesota; Williams v. Stockham Valves & Fittings, Inc., 358 U.S. 450, 79 S. Ct. 357.)
Tax 2.82(3)(a)2. 2. Section I of the 14th Amendment protects taxpayers within any class against discrimination and guarantees a remedy against illegal taxation.
Tax 2.82(3)(b) (b) Federal Public Law 86-272.
Tax 2.82(3)(b)1.1. Under Public Law 86-272, a state may not impose its franchise or income tax on a business selling tangible personal property, if the only activity of that business is the solicitation of orders by its salesperson or representative which orders are sent outside the state for approval or rejection, and are filled by delivery from a point outside the state. The activity must be limited to solicitation. If there is any activity which exceeds solicitation, the immunity from taxation under P.L. 86-272 is lost.
Tax 2.82(3)(b)2. 2. This law, enacted by congress in 1959, does not extend to:
Tax 2.82(3)(b)2.a. a. Those businesses which sell services, real estate or intangibles in more than one state;
Tax 2.82(3)(b)2.b. b. Domestic corporations; or
Tax 2.82(3)(b)2.c. c. Foreign nation corporations, that is, those not incorporated in the United States.
Tax 2.82(3)(b)3. 3. If the following activities are the only activities in Wisconsin of a foreign corporation selling tangible personal property, the corporation is not subject to Wisconsin franchise or income taxes under P.L. 86-272:
Tax 2.82(3)(b)3.a. a. Activity in Wisconsin by employees or representatives soliciting orders for tangible personal property which orders are sent outside this state for approval or rejection.
Tax 2.82(3)(b)3.b. b. Solicitation activity by non-employee independent contractors, conducted through their own office or business location in Wisconsin.
Tax 2.82(4) (4) What constitutes nexus. If a foreign corporation undertakes one or more of the following activities, it is considered to have nexus and shall be subject to Wisconsin franchise or income taxes:
Tax 2.82(4)(a) (a) General. Any of the following activities constitute nexus:
Tax 2.82(4)(a)1. 1. Maintenance of any business location in Wisconsin, including any kind of office.
Tax 2.82(4)(a)2. 2. Ownership of real estate in Wisconsin.
Tax 2.82(4)(a)3. 3. Ownership of tangible personal property in Wisconsin, including inventory held by a distributor, consignee, or other non-employee representative, whether or not used to fill orders for the owner's account, but not including personal property for use in an employee's or representative's home, residential office or automobile that is solely limited to conducting the activities protected by P.L. 86-272.
Tax 2.82(4)(a)5. 5. Regular activity in Wisconsin by employees or representatives soliciting orders with authority to approve them.
Tax 2.82(4)(a)5m. 5m. Regular activity in Wisconsin by employees or representatives performing services related to the sale of tangible personal property. Services related to the sale of tangible personal property may include consulting, design, engineering, construction, installation, and assembly of equipment.
Tax 2.82(4)(a)7. 7. Regular activity in Wisconsin by employees or representatives engaged in purchasing activities, credit investigations, collection of delinquent accounts, or conducting training or seminars for customer personnel in the operation, repair, or maintenance of the taxpayer's products.
Tax 2.82 Note Example: Training Company is a calendar year-end corporation headquartered outside Wisconsin. Training Company does not maintain a business location or have resident employees in Wisconsin. During the year, Training Company sends five employees to Wisconsin for three days to conduct a training seminar related to the operation of machinery that Training Company sold to the taxpayer. Training Company has nexus since its employees conducted activity in Wisconsin for 15 days.
Tax 2.82(4)(a)8. 8. Operation of mobile stores in Wisconsin, such as trucks with driver-salespersons, regardless of frequency, or whether the driver-salesperson is an employee.
Tax 2.82(4)(a)9. 9. Leasing of tangible property in Wisconsin, but not including personal property for use in an employee's or representative's home, residential office or automobile that is solely limited to conducting the activities protected by P.L. 86-272.
Tax 2.82(4)(a)9m. 9m. Licensing of intangible rights for use in Wisconsin.
Tax 2.82(4)(a)10. 10. The sale of other than tangible personal property such as real estate, services and intangibles in Wisconsin.
Tax 2.82(4)(a)11. 11. The performance of services in Wisconsin by employees or representatives, the services of which are unrelated to the sale of tangible personal property.
Tax 2.82 Note Example: Repair Company is a calendar year-end corporation headquartered outside Wisconsin. Repair Company does not maintain a business location or have resident employees in Wisconsin. During the year, Repair Company sends four technicians to repair customer equipment located in Wisconsin. Each of the technicians perform repairs in Wisconsin for three days during the year. Repair Company has nexus in Wisconsin since its employees or representatives perform services in Wisconsin. Public Law 86-272 does not apply because services such as repair activities are not a protected activity.
Tax 2.82(4)(a)12. 12. Engaging in substantial activities that help to establish and maintain a market in Wisconsin.
Tax 2.82(4)(b) (b) “Doing business in this state". Additionally, if a corporation has any of the activities that are specifically included in the statutory definition of “doing business in this state" (s. 71.22 (1r), Stats.), the corporation has nexus except where prohibited by P.L. 86-272. Therefore, the following activities constitute nexus in Wisconsin to the extent sub. (3) (b) 3. does not apply:
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Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.