AB968: Bill Text

AB968,14,10 1. The liability asserted by the department is the result of a condition, activity, attribute, or transaction that was present in a prior audit or assessment of the person.

AB968,14,13 2. A department employee who was involved in the prior audit or assessment knew or should reasonably have known of the condition, activity, attribute, or transaction prior to completing the prior audit or assessment.

AB968,14,15 3. The liability asserted by the department as described under subd. 1. was not asserted in the prior audit or assessment.

AB968,14,20 (b) This subsection does not apply to any assessment or audit that is subsequent to the promulgation of a rule, dissemination of guidance to the general public, or effective date of a statute, if the rule, guidance, or statute clearly and unequivocally imposes the liability as result of the condition, activity, attribute, or transaction described in par. (a) 1.

AB968,14,24 (4) Waiver of taxpayer rights. (a) The time within which the department may act on the issuance of any assessment or audit determination may not be extended, except that this paragraph does not apply to any action by the department on a petition for redetermination.

AB968,15,5 (b) No agreement or waiver of a person's right to appeal a determination or to file a claim for a refund with respect to a particular audit or assessment period shall be valid if the agreement or waiver was executed prior to the department's issuance of an appealable assessment or audit determination with respect to that audit or assessment period.

AB968,15,12 (5) Equitable recoupment. A person against whom the department asserts a liability may offset against the liability a refund of any tax or fee administered by the department that the person may claim regardless of whether the time for claiming the refund has expired and regardless of whether the year and transaction related to the liability is the same as that related to the refund. This subsection does not apply to any refund that is associated with any period that is prior to the initial date of the audit or assessment period that results in the liability.

AB968,15,18 (6) Negligence determinations. The department shall not impose a penalty on a taxpayer for negligence or for otherwise filing an improper return unless the department proves by the preponderance of the evidence that the taxpayer's action was clearly contradicted by statute, rule, or department guidance and the statute, rule, or guidance was enacted, promulgated, or published prior to the period for which the penalty is imposed.

AB968,15,23 (7) Calculation of interest rates. (a) Annually, except as provided in par. (b), the department shall determine and publish an interest rate that is applicable to amounts owed to the department and to taxpayers during that calendar year and equal to the 2-year U.S. department of the treasury rate as of December 1 of the prior year, plus 4 percent.

AB968,16,2 (b) Annually, the department shall determine and publish an interest rate that is applicable to delinquent amounts owed to the department during that calendar year and equal to the 2-year U.S. department of the treasury rate as of December 1 of the prior year, plus 10 percent.

AB968,16,4 (8) Applicability. Notwithstanding any other provision of law, this section applies to all taxes and fees administered by the department.

AB968, s. 23 Section 23. 77.59 (3m) of the statutes is repealed.

AB968, s. 24 Section 24. 77.59 (4) (a) of the statutes is amended to read:

AB968,17,5 77.59 (4) (a) Except as provided in sub. (3m), at At any time within 4 years after the due date, or in the case of buyers the unextended due date, of a person's corresponding Wisconsin income or franchise tax return or, if exempt, within 4 years of the 15th day of the 4th month of the year following the close of the calendar or fiscal year for which that person files a claim, that person may, unless a determination by the department by office or field audit of a seller has been made and unless a determination by office audit of a buyer other than an audit in which the tax that is the subject of the refund claim was not adjusted has been made and unless a determination by field audit of the buyer has been made, file with the department a claim for refund of taxes paid to the department by that person. If the amount of the claim is at least $50 or if either the seller has ceased doing business, the buyer is being field audited or the seller may no longer file a claim, the The buyer may, within the time period under this subsection, file a claim with the department for a refund of the taxes paid to the seller. A claim is timely if it fulfills the requirements under s. 77.61 (14). A buyer may claim a refund under this paragraph only on a form prescribed by the department, only by signing that form and only if the seller signs the form unless the department waives that requirement. If both a buyer and a seller file a valid claim for the same refund, the department may pay either claim. The claim for refund shall be regarded as a request for determination. The determination thus requested shall be made by the department within one year after the claim for refund is received by it unless the taxpayer has consented in writing to an extension of the one-year time period prior to its expiration. All claims for refund shall be filed with the department. The seller shall not be liable to any buyer for amounts that the seller collected and paid to the department.

AB968, s. 25 Section 25. 77.59 (8m) of the statutes is amended to read:

AB968,17,11 77.59 (8m) Within the time period under sub. (4), the department of revenue may refund excess taxes paid to it under this chapter, even if the person applying for the refund has been field audited in respect to those taxes, if the applicant's customers have filed valid claims for refunds with the applicant department, and if the refund is passed along to those customers.

AB968, s. 26 Section 26. 77.60 (1) (a) of the statutes is amended to read:

AB968,17,22 77.60 (1) (a) Except as provided in par. (b), unpaid taxes shall bear interest at the rate of 12% determined under s. 73.14 (7) (a) per year from the due date of the return until paid or deposited with the department. Taxes refunded to the seller shall bear interest at 9% the rate determined under s. 73.14 (7) (a) per year from the due date of the return to the date on which the refund is certified on the refund rolls. An extension of time within which to file a return shall not extend the due date of the return for purposes of interest computation. Taxes refunded to the buyer shall bear interest at 9% the rate determined under s. 73.14 (7) (a) per year from the last day of the month following the month during which the buyer paid the tax to the date on which the refund is certified on the refund rolls.

AB968, s. 27 Section 27. 77.60 (1) (b) of the statutes is amended to read:

AB968,18,5 77.60 (1) (b) Any unpaid taxes for a calendar year or a fiscal year resulting from a field audit shall bear interest at the rate of 12% determined under s. 73.14 (7) (a) per year from the due date of the taxpayer's Wisconsin income or franchise tax return for that calendar or fiscal year or, if exempt, from the 15th day of the 4th month of the year after the close of the calendar or fiscal year for which the taxes are due to the date on which the taxes are paid or, if unpaid, become delinquent, whichever is earlier.

AB968, s. 28 Section 28. 77.60 (2) (intro.) of the statutes is amended to read:

AB968,18,17 77.60 (2) (intro.) Delinquent sales and use tax returns shall be subject to a $20 late filing fee unless the return was not timely filed because of the death of the person required to file or unless the return was not timely filed due to good cause and not due to neglect. The fee shall not apply if the department has failed to issue a seller's permit or a use tax registration within 30 days of the receipt of an application for a seller's permit or use tax registration accompanied by the fee established under s. 73.03 (50), if the person does not hold a valid certificate under s. 73.03 (50), and the security required under s. 77.61 (2) has not been placed with the department. Delinquent sales and use taxes shall bear interest at the rate of 1.5% a rate that is equal to one-twelfth of the rate determined under s. 73.14 (7) (b) per month until paid. The taxes imposed by this subchapter shall become delinquent if not paid:

AB968, s. 29 Section 29. 77.60 (3) of the statutes is amended to read:

AB968,18,23 77.60 (3) If Subject to s. 73.14 (6), if due to neglect an incorrect return is filed, the entire tax finally determined shall be subject to a penalty of 25%, or 50% in the case of returns under s. 77.61 (1) (c), of the tax exclusive of interest or other penalty. A person filing an incorrect return shall have the burden of proving that the error or errors were due to good cause and not due to neglect.

AB968, s. 30 Section 30. 77.60 (4) of the statutes is amended to read:

AB968,19,11 77.60 (4) In Subject to s. 73.14 (6), in case of failure to file any return required under authority of s. 77.58 by the due date, determined with regard to any extension of time for filing, unless it is shown that such failure was due to reasonable cause and not due to neglect, there shall be added to the amount required to be shown as tax on such return 5% of the amount of such tax if the failure is not for more than one month, with an additional 5% for each additional month or fraction thereof during which such failure continues, not exceeding 25% in the aggregate. For purposes of this subsection, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the due date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return.

AB968, s. 31 Section 31. 77.60 (5) of the statutes is amended to read:

AB968,19,16 77.60 (5) If Subject to s. 73.14 (6), if a person fails to file a return when due or files a false or fraudulent return with intent in either case to defeat or evade the tax imposed by this subchapter, a penalty of 50% shall be added to the tax required to be paid, exclusive of interest and other penalties.

AB968, s. 32 Section 32. 77.96 (5) of the statutes is amended to read:

AB968,19,23 77.96 (5) Each person subject to a surcharge under s. 77.93 shall, on or before the due date, including extensions, for filing under ch. 71, file an accurate statement of its gross tax liability or net business income. Payments made after the due date under sub. (2) and on or before the due date under this subsection are not delinquent but are subject to interest at the rate of 12% determined under s. 73.14 (7) (a) per year.

AB968, s. 33 Section 33. 78.68 (1) of the statutes is amended to read:

AB968,20,5 78.68 (1) Unpaid taxes shall bear interest at the rate of 12% per year from the due date of the tax until paid or deposited with the department, and all refunded taxes bear interest at the rate of 9% determined under s. 73.14 (7) (a) per year from the due date of the return to the date on which the refund is certified on the refund rolls.

AB968, s. 34 Section 34. 78.68 (2) (intro.) of the statutes is amended to read:

AB968,20,11 78.68 (2) (intro.) Delinquent tax returns are subject to a $10 late filing fee. Delinquent motor vehicle fuel, alternate fuels and general aviation fuel taxes bear interest at the rate of 1.5% a rate that is equal to one-twelfth of the rate determined under s. 73.14 (7) (b) per month until paid. The taxes imposed by this chapter are delinquent if not paid as follows:

AB968, s. 35 Section 35. 78.68 (3) of the statutes is amended to read:

AB968,20,16 78.68 (3) If Subject to s. 73.14 (6), 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.

AB968, s. 36 Section 36. 227.12 (3) of the statutes is amended to read:

AB968,20,23 227.12 (3) Within Except as provided in sub. (4), within a reasonable period of time after the receipt of a petition under this section, an agency shall either deny the petition in writing or proceed with the requested rule making. If the agency denies the petition, it shall promptly notify the petitioner of the denial, including a brief statement of the reason for the denial. If the agency proceeds with the requested rule making, it shall follow the procedures prescribed in this subchapter.

AB968, s. 37 Section 37. 227.12 (4) of the statutes is created to read:

AB968,21,14 227.12 (4) If a petition to the department of revenue alleges that the department has established a standard by which it is construing a state tax statute, but has not promulgated a rule to adopt the standard or published the standard in a manner that is available to the public, the department shall initiate rule making within 90 days from the date that the petition is received and submit a rule to the legislature pursuant to s. 227.19 (2) no later than 180 days from the date that the petition is received. The rule need not adhere to the standard established by the department, but shall address the same circumstances as the standard addresses. If the department fails to comply with this subsection, any of the petitioners may commence an action in circuit court to compel the department's compliance. If an action is commenced under this subsection, the court may compel the department to provide information to the court related to the degree to which the department is enforcing the standard, except that the information provided by the department shall not disclose the identity of any person who is not a party to the action.

AB968, s. 38 Section 38. 227.41 (1) of the statutes is amended to read:

AB968,21,22 227.41 (1) Any Except as provided in sub. (5), any agency may, on petition by any interested person, issue a declaratory ruling with respect to the applicability to any person, property or state of facts of any rule or statute enforced by it. Full opportunity for hearing shall be afforded to interested parties. A declaratory ruling shall bind the agency and all parties to the proceedings on the statement of facts alleged, unless it is altered or set aside by a court. A ruling shall be subject to review in the circuit court in the manner provided for the review of administrative decisions.

AB968, s. 39 Section 39. 227.41 (3) of the statutes is amended to read:

AB968,21,25 227.41 (3) The Except as provided in sub. (5) (b), the petition shall be filed with the administrative head of the agency or with a member of the agency's policy board.

AB968, s. 40 Section 40. 227.41 (4) of the statutes is amended to read:

AB968,22,6 227.41 (4) Within Except as provided in sub. (5) (c), within a reasonable time after receipt of a petition pursuant to this section, an agency shall either deny the petition in writing or schedule the matter for hearing. If the agency denies the petition, it shall promptly notify the person who filed the petition of its decision, including a brief statement of the reasons therefor.

AB968, s. 41 Section 41. 227.41 (5) of the statutes is created to read:

AB968,22,15 227.41 (5) (a) The department of revenue shall, on petition by any interested person, or any group or association of interested persons, issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforced by it. Full opportunity for hearing shall be afforded to interested parties. A declaratory ruling shall bind the department and all parties to the proceedings on the statement of facts alleged, unless it is altered or set aside by the tax appeals commission or a court. A ruling, including the denial of the petition, shall be subject to review by the tax appeals commission as provided in ch. 73.

AB968,22,17 (b) A petition under par. (a) shall conform to the requirements under sub. (2) and be filed with the secretary of revenue.

AB968,22,24 (c) No later than 30 days after the day that the secretary of revenue receives a petition under this subsection, the department of revenue shall either deny the petition in writing or schedule the matter for hearing. The department may deny the petition only if the petition fails to comply with the requirements under sub. (2). If the department denies the petition, it shall promptly notify the person who filed the petition of its decision and include with the notice a brief statement of the reasons for denying the petition.

AB968,23,5 (d) If the department of revenue does not deny the petition, the department shall hold a hearing and issue a ruling on the petition no later than 90 days after the day that the secretary of revenue receives the petition, unless the deadline is extended by written agreement of all parties. Upon agreement of the parties, the department may rule on the petition based on facts stipulated by the parties.

AB968, s. 42 Section 42. 227.485 (2) (a) of the statutes is amended to read:

AB968,23,8 227.485 (2) (a) "Hearing examiner" means the agency , tax appeals commission, or hearing examiner conducting the hearing.

AB968, s. 43 Section 43. 227.485 (3) of the statutes is amended to read:

AB968,23,16 227.485 (3) In Except as provided under sub. (3m), in any contested case in which an individual, a small nonprofit corporation or a small business is the prevailing party and submits a motion for costs under this section, the hearing examiner shall award the prevailing party the costs incurred in connection with the contested case, unless the hearing examiner finds that the state agency which is the losing party was substantially justified in taking its position or that special circumstances exist that would make the award unjust.

AB968, s. 44 Section 44. 227.485 (3m) of the statutes is created to read:

AB968,23,24 227.485 (3m) In any proceeding before the tax appeals commission in which the department of revenue is not the prevailing party and the prevailing party submits a motion for costs under this section, the tax appeals commission shall award the prevailing party the costs incurred in connection with the proceeding unless the tax appeals commission determines that the department of revenue was substantially justified in taking its position or that special circumstances exist that would make the award unjust.

AB968, s. 45 Section 45. 227.485 (5) of the statutes is amended to read:

AB968,24,13 227.485 (5) If the hearing examiner awards costs under sub. (3) or (3m), he or she shall determine the costs under this subsection, except as modified under sub. (4). The decision on the merits of the case shall be placed in a proposed decision and submitted under ss. 227.47 and 227.48. The prevailing party shall submit, within 30 days after service of the proposed decision, to the hearing examiner and to the state agency which is the losing party an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The state agency which is the losing party has 15 working days from the date of receipt of the application to respond in writing to the hearing examiner. The hearing examiner shall determine the amount of costs using the criteria specified in s. 814.245 (5) and include an order for payment of costs in the final decision.

AB968, s. 46 Section 46. 227.485 (7) of the statutes is amended to read:

AB968,24,20 227.485 (7) An individual is not eligible to recover costs under this section if the person's properly reported federal adjusted gross income was $150,000 or more in each of the 3 calendar years or corresponding fiscal years immediately prior to the commencement of the case. This subsection applies whether the person files the tax return individually or in combination with a spouse. This subsection does not apply to costs awarded under sub. (3m).

AB968, s. 47 Section 47. 227.485 (10) (intro.) of the statutes is amended to read:

AB968,24,25 227.485 (10) (intro.) If the examiner finds that the motion under sub. (3) or (3m) is frivolous, the examiner may award the state agency all reasonable costs in responding to the motion. In order to find a motion to be frivolous, the examiner must find one or more of the following:

AB968, s. 48 Section 48. 803.08 of the statutes is amended to read:

AB968,25,7 803.08 Class actions. When the question before the court is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole, except that no claim may be maintained against the state or any other party under this section if the relief sought includes the refund of or damages associated with a tax administered by the state.

AB968, s. 49 Section 49. Initial applicability.

AB968,25,10 (1) The treatment of section 803.08 of the statutes first applies to lawsuits that are pending on the effective date of this subsection.

AB968,25,15 (2) The treatment of sections 71.83 (1) (a) 2. and 3., 73.01 (4) (e) 2., 73.03 (25), 73.14 (1) to (6) and (8), 77.59 (3m), (4) (a), and (8m), 77.60 (3), (4), and (5), 78.68 (3), and 227.485 (3), (3m), and (7) of the statutes first applies to audits, assessments, claims for refunds, and actions concerning any appeal that are pending on the effective date of this subsection.

AB968,25,20 (3) The treatment of sections 71.82 (1) (a), (b), and (c) and (2) (a), (b), (c), and (d), 71.84 (1) and (2) (a) and (c), 71.90 (1) and (2), 71.91 (6) (d) 1., (e) 3., (f) 5., and (g) 2., 73.14 (7), 77.60 (1) (a) and (b) and (2) (intro.), 77.96 (5), and 78.68 (1) and (2) (intro.) of the statutes first applies to audits and assessments that are issued, and claims for refunds that are filed, on January 1, 2007.

AB968, s. 50 Section 50. Effective date.

AB968,25,23 (1) This act takes effect on the first day of the 2nd month beginning after publication.

AB968,25,24 (End)