Provisions of the UCC as to the time title passes are inapplicable to sales tax law. Application of s. 77.51 is discussed. Harold W. Fuchs Agency, Inc. v. DOR, 91 Wis. 2d 283
, 282 N.W.2d 625
(Ct. App. 1979).
The sale of business assets of a taxpayer who held a seller's permit was not exempted as an “occasional sale" under sub. (10) (a) [now sub. (9) (a)]. Constitutionality is discussed. Midcontinent Broadcasting Co. v. DOR, 98 Wis. 2d 379
, 297 N.W.2d 191
A manhole fabricator was not engaged in real property construction activities under sub. (2). Advance Pipe & Supply v. DOR, 128 Wis. 2d 431
, 383 N.W.2d 502
(Ct. App. 1986).
Photocopying expenses billed to a law firm's clients are not subject to sales tax. Frisch, Dudek & Slattery v. DOR, 133 Wis. 2d 444
, 396 N.W.2d 355
(Ct. App. 1986).
Whether articles of personal property are fixtures and thus real estate, is determined by the following tests: 1) actual physical annexation to the real estate; 2) application or adaptation to the use or purpose to which the realty is devoted; and 3) an intention on the part of the person making the annexation to make a permanent accession to the freehold. All City Communication Company, Inc. v. DOR, 2003 WI App 77
, 263 Wis. 2d 394
, 661 N.W.2d 845
For the use tax to apply to intercompany transfers with wholly-owned subsidiaries, the subsidiaries that transferred the fixed assets must be considered “retailers" under s. 77.51 (13). It is not the case that Wisconsin has a statutory scheme that taxes all transfers of tangible personal property, unless an explicit exemption applies. When the person transferring tangible personal property lacks mercantile intent, he or she will not be subject to tax, even though no explicit exemption applies. Wisconsin Department of Revenue v. River City Refuse Removal, Inc. 2007 WI 27
, 299 Wis. 2d 561
, 729 N.W.2d 396
Imposition of retail sales tax. 77.52(1)(a)(a)
For the privilege of selling, licensing, leasing or renting tangible personal property at retail a tax is imposed upon all retailers at the rate of 5 percent of the sales price from the sale, license, lease or rental of tangible personal property sold, licensed, leased or rented at retail in this state, as determined under s. 77.522
For the privilege of selling, licensing, leasing, or renting at retail coins and stamps of the United States that are sold, licensed, leased, rented, or traded as collectors' items above their face value, a tax is imposed on all retailers at the rate of 5 percent of the sales price from the sale, license, lease, or rental of such coins and stamps.
For the privilege of leasing property that is affixed to real property, a tax is imposed on all retailers at the rate of 5 percent of the sales price from the lease of such property, if the lessor has the right to remove the leased property upon breach or termination of the lease agreement, unless the lessor of the leased property is also the lessor of the real property to which the leased property is affixed.
A tax is imposed on all retailers at the rate of 5 percent of the sales price from the sale, lease, license, or rental of specified digital goods and additional digital goods at retail for the right to use the specified digital goods or additional digital goods on a permanent or less than permanent basis and regardless of whether the purchaser is required to make continued payments for such right.
All sales, licenses, leases, or rentals of tangible personal property or items, property, or goods under sub. (1) (b)
, or (d)
at retail in this state are subject to the tax imposed under sub. (1)
unless an exemption in this subchapter applies.
The sales tax applies to the receipts of operators of vending machines located on army, navy or air force installations in this state and dispensing tangible personal property. This subsection shall not be deemed to require payment of sales tax measured by receipts of such operators who lease the machines to exchanges of the army, air force, navy or marine corps which acquire title to and sell the merchandise through the machines to authorized purchasers from such exchanges. The term “operator" as used in this subsection, means any person who owns or possesses vending machines and who controls the operations of the machines as by placing the merchandise therein or removing the coins therefrom, and who has access thereto for any purpose connected with the sale of merchandise through the machines, and whose compensation is based, in whole or in part, upon receipts from sales made through such machines.
For the privilege of selling, licensing, performing or furnishing the services described under par. (a)
at retail in this state, as determined under s. 77.522
, to consumers or users, regardless of whether the consumer or user has the right of permanent use or less than the right of permanent use and regardless of whether the service is conditioned on continued payment from the purchaser, a tax is imposed upon all persons selling, licensing, performing or furnishing the services at the rate of 5 percent of the sales price from the sale, license, performance or furnishing of the services.
The tax imposed herein applies to the following types of services:
The furnishing of rooms or lodging to transients by hotelkeepers, motel operators and other persons furnishing accommodations that are available to the public, irrespective of whether membership is required for use of the accommodations. In this subdivision, “transient" means any person residing for a continuous period of less than one month in a hotel, motel or other furnished accommodations available to the public. In this subdivision, “hotel" or “motel" means a building or group of buildings in which the public may obtain accommodations for a consideration, including, without limitation, such establishments as inns, motels, tourist homes, tourist houses or courts, lodging houses, rooming houses, summer camps, apartment hotels, resort lodges and cabins and any other building or group of buildings in which accommodations are available to the public, except accommodations, including mobile homes as defined in s. 101.91 (10)
, manufactured homes as defined in s. 101.91 (2)
, and recreational vehicles as defined in s. 340.01 (48r)
, rented for a continuous period of more than one month and accommodations furnished by any hospitals, sanatoriums, or nursing homes, or by corporations or associations organized and operated exclusively for religious, charitable or educational purposes provided that no part of the net earnings of such corporations and associations inures to the benefit of any private shareholder or individual. In this subdivision, “one month" means a calendar month or 30 days, whichever is less, counting the first day of the rental and not counting the last day of the rental.
Except as provided in subd. 2. b.
, the sale of admissions to amusement, athletic, entertainment or recreational events or places except county fairs, the sale, rental or use of regular bingo cards, extra regular cards, special bingo cards and the sale of bingo supplies to players and the furnishing, for dues, fees or other considerations, the privilege of access to clubs or the privilege of having access to or the use of amusement, entertainment, athletic or recreational devices or facilities, including the sale or furnishing of use of recreational facilities on a periodic basis or other recreational rights, including but not limited to membership rights, vacation services and club memberships.
Taxable sales do not include the sale of admissions by a gun club, including the sale of a gun club membership, if the gun club is a nonprofit organization and if the gun club provides safety classes to at least 25 individuals in the calendar year.
Taxable sales do not include the sale of admissions by a nonprofit organization to participate in any sports activity in which more than 50 percent of the participants are 19 years old or younger.
The sale of prepaid calling services and intrastate, interstate, and international telecommunications services, except interstate 800 services.
The sale of ancillary services, except detailed telecommunications billing services.
The sale of services that consist of recording telecommunications messages and transmitting them to the purchaser of the service or at that purchaser's direction, but not including services that are taxable under subd. 5.
or services that are incidental, as defined in s. 77.51 (5)
, to another service that is not taxable under this subchapter and sold to the purchaser of the incidental service.
Laundry, dry cleaning, pressing, and dyeing services, except when performed on raw materials or goods in process destined for sale, except when performed on cloth diapers by a diaper service, and except when the service is performed by the customer through the use of self-service machines.
Photographic services including the processing, printing and enlarging of film as well as the service of photographers for the taking, reproducing and sale of photographs.
The towing and hauling of motor vehicles by a tow truck, as defined in s. 340.01 (67n)
, unless at the time of towing or hauling a sale sourced to this state under s. 77.522
of the motor vehicle to the purchaser would be exempt from the taxes imposed under this subchapter, not including the exempt sale of a motor vehicle to a nonresident under s. 77.54 (5) (a)
and nontaxable sales described under s. 77.585 (8)
Parking or providing parking space for motor vehicles and aircraft for a consideration and docking or providing storage space for boats for a consideration.
Except for the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, and maintenance of any aircraft or aircraft parts; except for services provided by veterinarians; and except for installing or applying tangible personal property, or items or goods under sub. (1) (b)
, that, subject to par. (ag)
, when installed or applied, will constitute an addition or capital improvement of real property; the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, and maintenance of all items of tangible personal property or items, property, or goods under sub. (1) (b)
, or (d)
, unless, at the time of that repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance, a sale in this state of the type of property, item, or good repaired, serviced, altered, fitted, cleaned, painted, coated, towed, inspected, or maintained would have been exempt to the customer from sales taxation under this subchapter, other than the exempt sale of a motor vehicle or truck body to a nonresident under s. 77.54 (5) (a)
and other than nontaxable sales under s. 77.522
or unless the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance is provided under a contract that is subject to tax under subd. 13m.
The tax imposed under this subsection applies to the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance of items listed in par. (ag)
, regardless of whether the installation or application of tangible personal property or items, property, or goods under sub. (1) (b)
, or (d)
related to the items is an addition to or a capital improvement of real property, except that the tax imposed under this subsection does not apply to the original installation or the complete replacement of an item listed in par. (ag)
, if that installation or replacement is a real property construction activity under s. 77.51 (2)
The producing, fabricating, processing, printing, or imprinting of tangible personal property or items, property, or goods under sub. (1) (b)
, or (d)
for a consideration for consumers who furnish directly or indirectly the materials used in the producing, fabricating, processing, printing, or imprinting. This subdivision does not apply to the printing or imprinting of tangible personal property or items, property, or goods under sub. (1) (b)
, or (d)
that results in printed material, catalogs, or envelopes that are exempt under s. 77.54 (25)
, or (59)
The sale of cable television system services, or video services, as defined in s. 66.0420 (2) (y)
, including installation charges.
The sale of contracts, including service contracts, maintenance agreements, computer software maintenance contracts for prewritten computer software, and warranties, that provide, in whole or in part, for the future performance of or payment for the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance of tangible personal property or items, property, or goods under s. 77.52 (1) (b)
, or (d)
, unless the sale, license, lease, or rental in this state of the property, items, or goods to which the contract relates is or was exempt, to the purchaser of the contract, from taxation under this subchapter.
The sale of landscaping and lawn maintenance services including landscape planning and counseling, lawn and garden services such as planting, mowing, spraying and fertilizing and shrub and tree services.
For purposes of par. (a) 10.
, the following items shall be considered to have retained their character as tangible personal property, regardless of the extent to which the item is fastened to, connected with, or built into real property:
Ovens, including associated hoods and exhaust systems.
Recreational, sporting, gymnasium, and athletic goods and equipment including, by way of illustration but not of limitation, all of the following:
Equipment in offices, business facilities, schools, and hospitals but not in residential facilities including personal residences, apartments, long-term care facilities, as defined under s. 16.009 (1) (em)
, prisons, mental health institutes, as defined in s. 51.01 (12)
, centers for the developmentally disabled, as defined in s. 51.01 (3)
, Type 1 juvenile correctional facilities, as defined in s. 938.02 (19)
, or similar facilities including, by way of illustration but not of limitation, all of the following: