SB446: Bill Text

SB446,14,17 (a) Packaging, including containers, boxes, sacks, bags, bottles, and envelopes; and other materials, including wrapping, labels, tags, and instruction guides; that accompany, and are incidental or immaterial to, the retail sale of any product.

SB446,14,21 (b) A product that is provided free of charge to the consumer in conjunction with the purchase of another product, if the sales price of the other product does not vary depending on whether the product provided free of charge is included in the transaction.

SB446,14,22 (c) Any items specified under sub. (12m) (a) or (15b) (a).

SB446, s. 34 Section 34. 77.51 (3pj) of the statutes is created to read:

SB446,15,3 77.51 (3pj) "Drug" means a compound, substance, or preparation, or any component of them, other than food and food ingredients, dietary supplements, or alcoholic beverages, to which any of the following applies:

SB446,15,6 (a) It is listed in the United States Pharmacopoeia, Homeopathic Pharmacopoeia of the United States, or National Formulary, or any supplement to any of them.

SB446,15,8 (b) It is intended for use in diagnosing, curing, mitigating, treating, or preventing a disease.

SB446,15,9 (c) It is intended to affect a function or structure of the body.

SB446, s. 35 Section 35. 77.51 (3pm) of the statutes is created to read:

SB446,15,16 77.51 (3pm) "Durable medical equipment" means equipment, including the repair parts and replacement parts for the equipment that is primarily and customarily used for a medical purpose related to a person; that can withstand repeated use; that is not generally useful to a person who is not ill or injured; and that is not placed in or worn on the body. "Durable medical equipment" does not include mobility-enhancing equipment.

SB446, s. 36 Section 36. 77.51 (3pn) of the statutes is created to read:

SB446,15,21 77.51 (3pn) "Eight hundred service" means a telecommunications service that allows a caller to dial a toll-free number without incurring a charge for the call and is marketed under "800," "855," "866," "877," or "888" toll-free calling, or any other number designated as toll-free by the federal communications commission.

SB446, s. 37 Section 37. 77.51 (3po) of the statutes is created to read:

SB446,15,24 77.51 (3po) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

SB446, s. 38 Section 38. 77.51 (3rm) of the statutes is created to read:

SB446,16,2 77.51 (3rm) "Fixed wireless service" means a telecommunications service that provides radio communication between fixed points.

SB446, s. 39 Section 39. 77.51 (3t) of the statutes is created to read:

SB446,16,7 77.51 (3t) "Food and food ingredient" means a substance in liquid, concentrated, solid, frozen, dried, or dehydrated form, that is sold for ingestion, or for chewing, by humans and that is ingested or chewed for its taste or nutritional value. "Food and food ingredient" does not include alcoholic beverages or tobacco.

SB446, s. 40 Section 40. 77.51 (4) of the statutes, as affected by 2007 Wisconsin Acts 11 and 20, is repealed.

SB446, s. 41 Section 41. 77.51 (5) of the statutes is amended to read:

SB446,16,18 77.51 (5) For purposes of subs. (13) (e) and (f) and (14) (L) (15a) and s. 77.52 (2m), "incidental" means depending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal; something incidental to the main purpose of the service. Tangible personal property or items or property under s. 77.52 (1) (b) or (c) transferred by a service provider is incidental to the service if the purchaser's main purpose or objective is to obtain the service rather than the property or items, even though the property or items may be necessary or essential to providing the service.

SB446, s. 42 Section 42. 77.51 (5d) of the statutes is created to read:

SB446,16,24 77.51 (5d) "International telecommunications services" means telecommunications services that originate or terminate in the United States, including the District of Columbia and any U.S. territory or possession and originate or terminate outside of the United States, including the District of Columbia and any U.S. territory or possession.

SB446, s. 43 Section 43. 77.51 (5n) of the statutes is created to read:

SB446,17,3 77.51 (5n) "Interstate telecommunications services" means telecommunications services that originate in one state or U.S. territory or possession and terminate in a different state or U.S. territory or possession.

SB446, s. 44 Section 44. 77.51 (5r) of the statutes is created to read:

SB446,17,7 77.51 (5r) "Intrastate telecommunications services" means telecommunications services that originate in one state or U.S. territory or possession and terminate in the same state or U.S. territory or possession.

SB446, s. 45 Section 45. 77.51 (6m) of the statutes is renumbered 77.51 (5m).

SB446, s. 46 Section 46. 77.51 (7) of the statutes is repealed and recreated to read:

SB446,17,12 77.51 (7) (a) "Lease or rental" means any transfer of possession or control of tangible personal property for a fixed or indeterminate term and for consideration and includes:

SB446,17,13 1. A transfer that includes future options to purchase or extend.

SB446,17,17 2. Agreements related to the transfer of possession or control of motor vehicles or trailers, if the amount of any consideration may be increased or decreased by reference to the amount realized on the sale or other disposition of such motor vehicles or trailers, consistent with section 7701 (h) (1) of the Internal Revenue Code.

SB446,17,18 (b) "Lease or rental" does not include any of the following:

SB446,17,22 1. A transfer of possession or control of tangible personal property under a security agreement or deferred payment plan, if such agreement or plan requires transferring title to the tangible personal property after making all required payments.

SB446,18,2 2. A transfer of possession or control of tangible personal property under any agreement that requires transferring title to the tangible personal property after making all required payments and after paying an option price that does not exceed the greater of $100 or 1 percent of the total amount of the required payments.

SB446,18,6 3. Providing tangible personal property along with an operator, if the operator is necessary for the tangible personal property to perform in the manner for which it is designed and if the operator does more than maintain, inspect, or set up the tangible personal property.

SB446,18,10 (c) 1. Transfers described under par. (a) are considered a lease or rental, regardless of whether such transfer is considered a lease or rental under generally accepted accounting principles, or any provision of federal or local law, or any other provision of state law.

SB446,18,14 2. Transfers described under par. (b) are not considered a lease or rental, regardless of whether such transfer is considered a lease or rental under generally accepted accounting principles, or any provision of federal or local law, or any other provision of state law.

SB446, s. 47 Section 47. 77.51 (7g) of the statutes is created to read:

SB446,18,17 77.51 (7g) "Load-and-leave" means delivery to a purchaser by using a tangible storage media that is not physically transferred to the purchaser.

SB446, s. 48 Section 48. 77.51 (7k) of the statutes is created to read:

SB446,18,23 77.51 (7k) "Mobile wireless service" means a telecommunications service for which the origination or termination points of the service's transmission, conveyance, or routing are not fixed, regardless of the technology used to transmit, convey, or route the service. "Mobile wireless service" includes a telecommunications service provided by a commercial mobile radio service provider.

SB446, s. 49 Section 49. 77.51 (7m) of the statutes is created to read:

SB446,19,8 77.51 (7m) "Mobility-enhancing equipment" means equipment, including the repair parts and replacement parts for the equipment, that is primarily and customarily used to provide or increase the ability of a person to move from one place to another; that may be used in a home or motor vehicle; and that is generally not used by a person who has normal mobility. "Mobility-enhancing equipment" does not include a motor vehicle or any equipment on a motor vehicle that is generally provided by a motor vehicle manufacturer. "Mobility-enhancing equipment" does not include durable medical equipment.

SB446, s. 50 Section 50. 77.51 (8m) of the statutes is created to read:

SB446,19,17 77.51 (8m) "Nine hundred service" means an inbound toll telecommunications service purchased by a subscriber that allows the subscriber's customers to call the subscriber's prerecorded announcement or live service. "Nine hundred service" does not include any charge for collection services provided by the seller of the telecommunications services to the subscriber or for any product or service the subscriber sells to the subscriber's customers. A "nine hundred service" is designated with the "900" number or any other number designated by the federal communications commission.

SB446, s. 51 Section 51. 77.51 (9) (a) of the statutes is amended to read:

SB446,20,4 77.51 (9) (a) Isolated and sporadic sales of tangible personal property, items or property under s. 77.52 (1) (b) or (c), or taxable services where the infrequency, in relation to the other circumstances, including the sales price and the gross profit, support the inference that the seller is not pursuing a vocation, occupation or business or a partial vocation or occupation or part-time business as a vendor of personal property, items or property under s. 77.52 (1) (b) or (c), or taxable services. No sale of any tangible personal property, items or property under s. 77.52 (1) (b) or (c), or taxable service may be deemed an occasional sale if at the time of such sale the seller holds or is required to hold a seller's permit, except that this provision does not apply to an organization required to hold a seller's permit solely for the purpose of conducting bingo games and except as provided in par. (am).

SB446, s. 52 Section 52. 77.51 (9) (am) of the statutes is amended to read:

SB446,20,11 77.51 (9) (am) The sale of personal property, other than inventory held for sale, previously used by a seller to conduct its trade or business at a location after that person has ceased actively operating in the regular course of business as a seller of tangible personal property, items or property under s. 77.52 (1) (b) or (c), or taxable services at that location, even though the seller holds a seller's permit for one or more other locations.

SB446, s. 53 Section 53. 77.51 (9p) of the statutes is created to read:

SB446,20,17 77.51 (9p) "One nonitemized price" does not include a price that is separately identified by product on a binding sales document, or other sales-related document, that is made available to the customer in paper or electronic form, including an invoice, a bill of sale, a receipt, a contract, a service agreement, a lease agreement, a periodic notice of rates and services, a rate card, or a price list.

SB446, s. 54 Section 54. 77.51 (9s) of the statutes is created to read:

SB446,20,20 77.51 (9s) "Paging service" means a telecommunications service that transmits coded radio signals to activate specific pagers and may include messages or sounds.

SB446, s. 55 Section 55. 77.51 (10) of the statutes is amended to read:

SB446,21,5 77.51 (10) "Person" includes any natural person, firm, partnership, limited liability company, joint venture, joint stock company, association, public or private corporation, the United States, the state, including any unit or division of the state, any county, city, village, town, municipal utility, municipal power district or other governmental unit, cooperative, unincorporated cooperative association, estate, trust, receiver, personal representative, any other fiduciary, any other legal entity, and any representative appointed by order of any court or otherwise acting on behalf of others. "Person" also includes the owner of a single-owner entity that is disregarded as a separate entity under ch. 71.

SB446, s. 56 Section 56. 77.51 (10d) of the statutes is created to read:

SB446,21,11 77.51 (10d) "Prepaid calling service" means the right to exclusively access telecommunications services, if that right is paid for in advance of providing such services, requires using an access number or authorization code to originate calls, and is sold in predetermined units or dollars that decrease with use in a known amount.

SB446, s. 57 Section 57. 77.51 (10f) of the statutes is created to read:

SB446,21,18 77.51 (10f) "Prepaid wireless calling service" means a telecommunications service that provides the right to utilize mobile wireless service as well as other nontelecommunications services, including the download of digital products delivered electronically, content, and ancillary services, and that is paid for prior to use and sold in predetermined dollar units whereby the number of units declines with use in a known amount.

SB446, s. 58 Section 58. 77.51 (10m) of the statutes is created to read:

SB446,21,20 77.51 (10m) (a) "Prepared food" means:

SB446,21,21 1. Food and food ingredients sold in a heated state.

SB446,21,23 2. Food and food ingredients heated by the retailer, except as provided in par. (b).

SB446,22,3 3. Food and food ingredients sold with eating utensils that are provided by the retailer of the food and food ingredients, including plates, knives, forks, spoons, glasses, cups, napkins, or straws. In this subdivision, "plate" does not include a container or packaging used to transport food and food ingredients. For purposes of this subdivision, a retailer provides utensils if any of the following applies:

SB446,22,7 a. The utensils are available to purchasers and the retailer's sales of prepared food under subds. 1. and 2., soft drinks, and alcoholic beverages at an establishment are more than 75 percent of the retailer's total sales at that establishment, as determined under par. (c).

SB446,22,11 b. For retailers not described under subd. 3. a., the retailer's customary practice is to physically give or hand the utensils to the purchaser, not including plates, glasses, or cups that are necessary for the purchaser to receive the food and food ingredients and that the retailer makes available to the purchaser.

SB446,22,13 4. Except as provided in par. (b), 2 or more food ingredients mixed or combined by a retailer for sale as a single item.

SB446,22,14 (b) "Prepared food" does not include:

SB446,22,19 1. For purposes of par. (a) 2. and 4., 2 or more food ingredients mixed or combined by a retailer for sale as a single item, if the retailer's primary classification in the 2002 North American Industry Classification System, published by the federal office of management and budget, is manufacturing under subsector 311, not including bakeries and tortilla manufacturing under industry group number 3118.

SB446,22,22 2. For purposes of par. (a) 2. and 4., 2 or more food ingredients mixed or combined by a retailer for sale as a single item, sold unheated, and sold by volume or weight.

SB446,22,25 3. For purposes of par. (a) 2. and 4., 2 bakery items made by a retailer, including breads, rolls, pastries, buns, biscuits, bagels, croissants, donuts, danish, cakes, tortes, pies, tarts, muffins, bars, cookies, and tortillas.

SB446,23,2 4. For purposes of par. (a) 4., food and food ingredients that are only sliced, repackaged, or pasteurized by a retailer.

SB446,23,6 5. For purposes of par. (a) 4., eggs, fish, meat, and poultry, and foods containing any of them in raw form, that require cooking by the consumer, as recommended by the food and drug administration in chapter 3, part 401.11 of its food code to prevent food-borne illnesses.

SB446,23,8 (c) 1. The percentage specified under par. (a) 3. a. shall be determined using the following:

SB446,23,11 a. A numerator that includes sales of prepared food, as defined in par. (a) 1. and 2. and food for which plates, bowls, glasses, or cups are necessary to receive the food, but not including alcoholic beverages.

SB446,23,14 b. A denominator that includes all food and food ingredients, including prepared food, candy, dietary supplements, and soft drinks, but not including alcoholic beverages.

SB446,23,19 2. a. If the percentage determined under subd. 1. is 75 percent or less, utensils are considered to be provided by the retailer if the retailer's customary practice is to physically give or hand the utensils to the purchaser or, in the case of plates, bowls, glasses, or cups that are necessary to receive the food, to make such items available to the purchaser.

SB446,23,22 b. If the percentage determined under subd. 1. is greater than 75 percent, utensils are considered to be provided by the retailer if the utensils are made available to the purchaser.

SB446,24,5 3. For a retailer whose percentage determined under subd. 1. is greater than 75 percent, an item sold by the retailer that contains 4 or more servings packaged as 1 item and sold for a single price does not become prepared food simply because the retailer makes utensils available to the purchaser of the item, but does become prepared food if the retailer physically gives or hands utensils to the purchaser of the item. For purposes of this subdivision 3. a., serving sizes are based on the information contained on the label of each item sold, except that, if the item has no label, the serving size is based on the retailer's reasonable determination.

SB446,24,8 4. a. Except as provided in subd. 4. b., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer, the utensils are considered to be provided by the retailer.

SB446,24,13 b. Except as provided in subds. 2. and 3., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer and the person's primary classification in the 2002 North American Industry Classification System, published by the federal office of management and budget, is manufacturing under subsector 311, the utensils are not considered to be provided by the retailer.

SB446,25,2 5. For purposes of par. (a) 3., a retailer shall determine the percentage for the retailer's tax year or business fiscal year, based on the retailer's data from the retailer's prior tax year or business fiscal year, as soon as practical after the retailer's accounting records are available, but not later than 90 days after the day on which the retailer's tax year or business fiscal year begins. For retailer's with more than one establishment in this state, a single determination under subd. 1. that combines the information for all of the retailer's establishments in this state shall be made annually, as provided in this subdivision, and apply to each of the retailer's establishments in this state. A retailer that has no prior tax year or business fiscal year shall make a good faith estimate of its percentage for purposes of par. (a) 3. for the retailer's first tax year or business fiscal year and shall adjust the estimate prospectively after the first 3 months of the retailer's operations if the actual percentage is materially different from the estimated percentage.

SB446, s. 59 Section 59. 77.51 (10n) of the statutes is created to read:

SB446,25,6 77.51 (10n) "Prescription" means an order, formula, or recipe that is issued by any oral, written, electronic, or other means of transmission and by a person who is authorized by the laws of this state to issue such an order, formula, or recipe.

SB446, s. 60 Section 60. 77.51 (10r) of the statutes is created to read:

SB446,25,8 77.51 (10r) "Prewritten computer software" means any of the following:

SB446,25,10 (a) Computer software that is not designed and developed by the author or creator of the software according to a specific purchaser's specifications.

SB446,25,12 (b) Computer software upgrades that are not designed and developed by the author or creator of the software according to a specific purchaser's specifications.