139.45
139.45
Prosecutions by attorney general. Upon request by the secretary of revenue, the attorney general may represent this state or assist a district attorney in prosecuting any case arising under this subchapter.
139.45 History
History: 1985 a. 302.
TOBACCO PRODUCTS TAX
139.75
139.75
Definitions. In this subchapter:
139.75(1)
(1) "Business" means any trade, occupation, activity or enterprise engaged in for the purpose of selling or distributing tobacco products in this state.
139.75(2)
(2) "Consumer" means any person who has title to or possession of tobacco products in storage for use or other consumption in this state.
139.75(3)
(3) "Department" means the department of revenue.
139.75(4)(a)
(a) Any person engaged in the business of selling tobacco products in this state who brings, or causes to be brought, into this state from outside the state any tobacco products for sale;
139.75(4)(b)
(b) Any person who makes, manufactures or fabricates tobacco products in this state for sale in this state; or
139.75(4)(c)
(c) Any person engaged in the business of selling tobacco products outside this state who ships or transports tobacco products to retailers in this state to be sold by those retailers.
139.75(4m)
(4m) "File" means mail or deliver a document that the department prescribes to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.
139.75(5)
(5) "Manufacturer" means any person who manufactures and sells tobacco products.
139.75(5m)
(5m) "Pay" means mail or deliver funds to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.
139.75(6)
(6) "Place of business" means any place where tobacco products are sold, manufactured, stored or kept for the purpose of sale or consumption, including any vessel, vehicle, airplane, train or vending machine.
139.75(7)
(7) "Retail outlet" means each place of business from which tobacco products are sold to consumers.
139.75(8)
(8) "Retailer" means any person engaged in the business of selling tobacco products to ultimate consumers.
139.75(9)
(9) "Sale" means any transfer, exchange or barter for a consideration. It includes a gift by a person engaged in the business of selling tobacco products for advertising or as a means of evading this subchapter or for any other purpose, and it includes solicitation of orders for, and the sale for, future delivery.
139.75(10)
(10) "Storage" means any keeping or retention of tobacco products for use or consumption in this state.
139.75(11)
(11) "Subjobber" means any person, other than a manufacturer or distributor, who buys tobacco products from a distributor and sells them to persons other than the ultimate consumers.
139.75(12)
(12) "Tobacco products" means cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready-rubbed and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking; but "tobacco products" does not include cigarettes, as defined under
s. 139.30 (1).
139.75(13)
(13) "Use" means the exercise of any right or power incidental to the ownership of tobacco products.
139.76
139.76
Imposition; exceptions. 139.76(1)
(1) An excise tax is imposed upon the sale, offering or exposing for sale, possession with intent to sell or removal for consumption or sale or other disposition for any purpose of tobacco products by any person engaged as a distributor of them at the rate of 20% of the manufacturer's established list price to distributors without diminution by volume or other discounts on domestic products. On products imported from another country the rate of tax is 20% of the amount obtained by adding the manufacturer's list price to the federal tax, duties and transportation costs to the United States. The tax attaches at the time the tobacco products are received by the distributor in this state. The tax shall be passed on to the ultimate consumer of the tobacco products. All tobacco products received in this state for sale or distribution within this state, except tobacco products actually sold as provided in
sub. (2), shall be subject to such tax.
139.76(2)
(2) Tobacco products sold to or by post exchanges of the U.S. armed forces, to or by federally or state-operated veterans hospitals in this state, and tobacco products sold to an interstate carrier of passengers for hire to be resold to bona fide passengers actually being transported and tobacco products sold for shipment outside this state in interstate commerce are not subject to the tax.
139.77
139.77
Distributors, monthly returns. 139.77(1)
(1) On or before the 15th day of each month, every distributor with a place of business in this state shall file a return showing the quantity and taxable price of each tobacco product brought, or caused to be brought, into this state for sale; or made, manufactured or fabricated in this state for sale in this state, during the preceding month. Every distributor outside this state shall file a return showing the quantity and taxable price of each tobacco product shipped or transported to retailers in this state to be sold by those retailers during the preceding month. At the time that the return is filed, the distributor shall pay the tax.
139.77(2)
(2) As soon as practicable after any return is filed, the department shall examine each return and correct it, if necessary, according to its best judgment and information. If the department finds that any amount of tax is due from the taxpayer and unpaid, it shall notify the taxpayer of the deficiency, stating that it proposes to assess the amount due together with interest and penalties. If a deficiency disclosed by the department's examination cannot be allocated to one or more particular months, the department shall notify the taxpayer of the deficiency, stating its intention to assess the amount due for a given period without allocating it to any particular months.
139.77(3)
(3) If, within 60 days after the mailing of notice of the proposed assessment, the taxpayer files a protest to the proposed assessment and requests a hearing on it, the department shall give notice to the taxpayer of the time and place fixed for the hearing, shall hold a hearing on the protest and shall issue a final assessment to the taxpayer for the amount found to be due as a result of the hearing. If a protest is not filed within 60 days, the department shall issue a final assessment to the taxpayer. In any action or proceeding in respect to the proposed assessment the taxpayer shall have the burden of establishing the incorrectness or invalidity of any final assessment made by the department.
139.77(4)
(4) If any taxpayer required to file any return fails to do so within the time prescribed, the taxpayer shall, on the written demand of the department, file the return within 20 days after the mailing of it and at the same time pay the tax due on its basis. If the taxpayer fails within that time to file the return, the department shall prepare the return from its own knowledge and from the information that it obtains and on that basis shall assess a tax, which shall be paid within 10 days after the department has mailed to the taxpayer a written notice of the amount and a demand for its payment. In any action or proceeding in respect to the assessment, the taxpayer shall have the burden of establishing the incorrectness or invalidity of any return or assessment made by the department because of the failure of the taxpayer to make a return.
139.77(5)
(5) All taxes are due not later than the 15th day of the month following the calendar month in which they were incurred.
139.77(7)
(7) The department may recover the amount of any tax due and unpaid, interest and any penalty in a civil action. The collection of the tax, interest or penalty is not a bar to any prosecution under
s. 139.85 (1).
139.78(1)(1) A tax is imposed upon the use or storage by consumers of tobacco products in this state at the rate of 20% of the cost of the tobacco products. The tax does not apply if the tax imposed by
s. 139.76 (1) on the tobacco products has been paid or if the tobacco products are exempt from the tobacco products tax under
s. 139.76 (2).
139.78(2)
(2) On or before the 15th day of each month, every consumer who during the preceding month has acquired title to or possession for use or storage in this state of tobacco products upon which the tax imposed by
s. 139.76 (1) has not been paid shall file a return showing the quantity of tobacco products acquired. At the time when the return is filed, the consumer shall pay the tax.
139.78(3)
(3) If any return is not filed within the time specified in this section, a penalty of 5% of the tax, with an additional 5% for each additional 30 days or fraction thereof up to a maximum of 25% is imposed, but the penalty for failing to file timely shall not be less than $10. The department may for good cause shown extend the time for filing the return without penalty.
139.78(4)
(4) Sections 139.30 to
139.44 relating to enforcement of the excise tax imposed by
s. 139.31 apply to enforcement of the use tax imposed by this section.
139.79
139.79
Permits; distributor; subjobber. 139.79(1)
(1) No person may engage in the business of a distributor or subjobber of tobacco products at any place of business unless that person has filed an application for and obtained a permit from the department to engage in that business at such place.
139.79(3)
(3) Any person holding a cigarette distributor permit under
s. 139.34 may obtain a tobacco products distributor permit at no charge, and any person holding a cigarette jobber permit under
s. 139.34 may obtain a tobacco products subjobber permit at no charge.
139.80
139.80
Refunds, credits. If tobacco products upon which the tax has been reported and paid are shipped or transported by the distributor to consumers to be consumed outside the state or to retailers or subjobbers outside the state to be sold by those retailers or subjobbers outside the state or are returned to the manufacturer by the distributor or destroyed by the distributor, the tax may be refunded or credited to the distributor, as prescribed by the department. Any overpayment of the tax imposed under
s. 139.78 may be refunded or credited to the taxpayer, as prescribed by the department.
139.80 History
History: 1981 c. 20.
139.803
139.803
Refunds to Indian tribes. The department may refund the taxes collected under
s. 139.76 (1) in respect to sales on reservations or trust lands of an Indian tribe to the tribal council of the tribe having jurisdiction over the reservation or trust land on which the sale is made only if all of the following conditions are fulfilled:
139.803(1)
(1) The tribal council has filed a claim for the refund with the department.
139.803(2)
(2) The tribal council has approved the retailer.
139.803(3)
(3) The land on which the sale occurred was designated a reservation or trust land on or before January 1, 1983.
139.803(4)
(4) The tobacco products were not delivered by the retailer to the buyer by means of a common carrier, a contract carrier or the U.S. postal service.
139.803(5)
(5) The retailer has not sold the tobacco products to another retailer or to a subjobber.
139.803 History
History: 1999 a. 9.
139.805
139.805
Agreements with Indian tribes. The department may enter into agreements with Indian tribes to provide for the refunding of the tobacco products tax imposed under
s. 139.76 (1). If the department enters into an agreement with an Indian tribe, the agreement may provide for refunding 100% of that tax on tobacco products sold on the tribal reservation to enrolled members of the tribe residing on the tribal reservation and may provide for refunding 50% of that tax on tobacco products sold on the tribal reservation to persons who are not enrolled members of the tribe residing on the tribal reservation.
139.805 History
History: 1999 a. 9.
139.81(1)(1) No person may sell or take orders for tobacco products for resale in this state for any manufacturer or permittee unless the person has filed an application for and obtained a valid certificate under
s. 73.03 (50) and a salesperson's permit from the department. No manufacturer or permittee shall authorize any person to sell or take orders for tobacco products in this state unless the person has filed an application for and obtained a valid certificate under
s. 73.03 (50) and a salesperson's permit. Each application for a permit shall disclose the name and address of the employer and shall remain effective only while the salesperson represents the named employer. If the salesperson is thereafter employed by another manufacturer or permittee the salesperson shall obtain a new salesperson's permit. Each manufacturer and permittee shall notify the department within 10 days after the resignation or dismissal of any salesperson holding a permit.
139.81(3)
(3) Any person holding a cigarette salesperson's permit under
s. 139.37 may obtain a tobacco products salesperson's permit at no charge.
139.82
139.82
Records, returns. 139.82(1)(1) Every manufacturer located out of the state shall keep records of all sales of tobacco products shipped into this state. Every manufacturer located in this state shall keep records of production, sales and withdrawals of tobacco products. Every distributor shall keep records of purchases and sales of tobacco products. Every subjobber shall keep records of all purchases and disposition of tobacco products. Every warehouse operator shall keep records of receipts and withdrawals of tobacco products. All records shall be accurate and complete and be kept in a manner prescribed by the department. These records shall be preserved on the premises described in the permit in such a manner as to ensure permanency and accessibility for inspection at reasonable hours by authorized personnel of the department.
139.82(2)(a)(a) Except as provided in
par. (b), every permittee shall render a true and correct invoice of every sale of tobacco products at wholesale and shall on or before the 15th day of each calendar month file a verified report of all tobacco products purchased, sold, received, warehoused or withdrawn during the preceding calendar month.
139.82(2)(b)
(b) The department may allow any subjobber permittee who does not sell tobacco products, except for those on which the tax under this subchapter is paid, to file a quarterly report. The quarterly report shall be filed on or before the 15th day of the next month following the close of each calendar quarter. The report shall specify the value of tobacco products purchased and sold during the preceding calendar quarter.
139.82(3)
(3) The department shall prescribe reasonable and uniform methods of keeping records and making reports and shall prescribe and furnish the necessary report forms.
139.82(4)
(4) If the department finds that the records of any permittee are not kept in the prescribed form or are in such condition that an unusual amount of time is required to determine from them the amount of tax due, the department shall give notice of such fact to that permittee and require that the records be revised and kept in the prescribed form. If that permittee fails to comply within 30 days that permittee shall pay the expenses reasonably attributable to a proper examination and tax determination at the rate of $30 per day of each auditor. The department shall send a bill for expenses and the permittee shall pay the amount of the bill within 10 days.
139.82(5)
(5) If any permittee fails to file a report when due the permittee shall be required to pay a late filing fee of $10. A report that is mailed shall be considered filed in time if it is mailed in a properly addressed envelope with first class postage prepaid, if the envelope is officially postmarked on the date due, and if the report is actually received by the department or at the destination that the department prescribes within 5 days of the due date. A report that is not mailed is timely if it is received on or before the due date by the department or at the destination that the department prescribes.
139.82(6)
(6) Sections 71.78 (1) and
(4) to
(9) and
71.83 (2) (a) 3., relating to confidentiality of income, franchise and gift tax returns, apply to any information obtained from any person on a tobacco product tax return, report, schedule, exhibit or other document or from an audit report pertaining to the same.
139.82(7)
(7) The department may inspect the business records of any retailer doing business on a reservation or on an Indian tribe's trust land.
139.82(8)
(8) Each distributor shall collect and remit the excise tax imposed by
s. 139.76 (1) on tobacco products not exempt from the tobacco products tax under
s. 139.76 (2), with the reports required to be filed under this section.
139.83
139.83
Administration and enforcement. Sections 139.355,
139.365,
139.39 and
139.40, as they apply to the tax under
subch. II, apply to the administration and enforcement of this subchapter.
139.832
139.832
Police powers. The duly authorized employees of the department have all necessary police powers to prevent violations of this subchapter.
139.832 History
History: 1989 a. 31.
139.835
139.835
Timely filing. The provisions on timely filing under
s. 71.80 (18) apply to the tax under this subchapter.
139.835 History
History: 1985 a. 302;
1987 a. 312 s.
17.
139.84
139.84
Bonds. Section 78.11, as it applies to suppliers of motor vehicle fuel, applies to persons liable for the tax under this subchapter.
139.84 History
History: 1985 a. 302;
1995 a. 408.
139.85
139.85
Interest and penalties.
