History: 1995 a. 428
Department audits, additional assessments and refunds. 71.74(1)(1)
The department of revenue shall, as soon as practicable, office audit such returns as it deems advisable and if it is found from such office audit that a person has been over or under assessed, or found that no assessment has been made when one should have been made, the department of revenue shall correct or assess the income of such person. Any assessment, correction or adjustment made as a result of such office audit shall be presumed to be the result of an audit of the return only, and such office audit shall not be deemed a verification of any item in said return unless the amount of such item and the propriety thereof shall have been determined after hearing and review as provided in s. 71.88 (1) (a)
and (2) (a)
. Such office audit shall not preclude the department of revenue from making field audits of the books and records of the taxpayer and from making further adjustment, correction and assessment of income.
Whenever the department deems it advisable to verify any return directly from the books and records of any person, or from any other sources of information, the department may direct any return to be so verified.
For the purpose of ascertaining the correctness of any return or for the purpose of making a determination of the taxable income of any person, the department may examine or cause to be examined by any agent or representative designated by it, any books, papers, records or memoranda bearing on the income of the person, and may require the production of the books, papers, records or memoranda, and require the attendance of any person having knowledge in the premises, and may take testimony and require proof material for its information. Upon such information as it may be able to discover, the department shall determine the true amount of income received during the year or years under investigation.
If it appears upon such investigation that a person has been over or under assessed, or that no assessment has been made when one should have been made, the department shall make a correct assessment in the manner provided in this chapter.
(3) Default assessment.
Any person required to make an income or franchise tax return, who fails, neglects or refuses to do so in the manner and form and within the time prescribed by this chapter, or makes a return that does not disclose the person's entire net income, shall be assessed by the department according to its best judgment.
(4) Assessment for failure of natural persons and fiduciaries to file information returns.
The department may assess as an addition to taxable income the amount of deductions taken in arriving at federal adjusted gross income or federal taxable income by natural persons and fiduciaries for wages, rent or royalties, upon failure to file information returns concerning such payments where required under s. 71.65 (1)
and (2) (a)
and 71.70 (1)
. Such assessments shall be made and reviewed in the same manner as other income tax assessments.
(5) Assessment when prices affect taxable income.
When any corporation liable to taxation under this chapter conducts its business in such a manner as either directly or indirectly to benefit the members or stockholders thereof or any person interested in such business, by selling its products or the goods or commodities in which it deals at less than the fair price which might be obtained therefor, or where a corporation, a substantial portion of whose capital stock is owned either directly or indirectly by another corporation, acquires and disposes of the products of the corporation so owning a substantial portion of its stock in such a manner as to create a loss or improper net income, the department may determine the amount of taxable income to such corporation for the calendar or fiscal year, having due regard to the reasonable profits which but for such arrangement or understanding might or could have been obtained from dealing in such products, goods or commodities.
(6) Consolidated statements.
For the purpose of this chapter, whenever a corporation which is required to file an income or franchise tax return is affiliated with or related to any other corporation through stock ownership by the same interests or as parent or subsidiary corporations, or whose income is regulated through contract or other arrangement, the department of revenue may require such consolidated statements as in its opinion are necessary in order to determine the taxable income received by any one of the affiliated or related corporations.
(7) Additional assessments against dissolved corporation.
If all or substantially all of the business or property of a corporation is transferred to one or more persons and the corporation is liquidated, dissolved, merged, consolidated or otherwise terminated, any tax imposed by this chapter on such corporation may be assessed and collected as prescribed in this section against the transferee or transferees of such business or property. Notice shall be given to such transferee or transferees under sub. (11)
within the time specified in s. 71.77
irrespective of any other limitations imposed by law. If such corporation has dissolved, such notice may be served on any one of the last officers or members of the board of directors of such corporation.
If an audit of a claim for a credit under s. 71.07
or subch. VIII
indicates that an incorrect claim was filed, the department of revenue shall make a determination of the correct amount and notify the claimant of the determination and the reasons therefor under sub. (11)
within 4 years of the last day prescribed by law for filing the claim. If the claim has been paid, or credited against income or franchise taxes otherwise payable, the credit shall be reduced or canceled, and the proper portion of any amount paid shall be similarly recovered by assessment as income or franchise taxes are assessed.
If a claim for a credit under s. 71.07
or subch. VIII
is false or excessive and was filed with fraudulent intent, the claim shall be disallowed in full and, if the claim has been paid or a credit has been allowed against income or franchise taxes otherwise payable, the credit shall be canceled and the amount paid may be recovered by assessment as income or franchise taxes are assessed.
If a claim for a credit under s. 71.07
or subch. VIII
is excessive and was negligently prepared, 10% of the corrected claim shall be disallowed and, if the claim has been paid or credited against income or franchise taxes otherwise payable, the credit shall be reduced or canceled and the proper portion of any amount paid shall be similarly recovered by assessment as income or franchise taxes are assessed.
If a claim for a state historic rehabilitation credit under s. 71.07 (9r)
is false or excessive, the department of revenue shall disallow the claim in full. If a credit has been allowed against income taxes otherwise payable, the credit shall be canceled and the amount may be recovered by assessment as income taxes are assessed. Notwithstanding par. (a)
and s. 71.77
, the department shall notify the claimant of the determination and shall give reasons for the disallowance under sub. (11)
within 4 years after the date that the state historical society notifies the department that the preservation or rehabilitation is not in compliance with s. 71.07 (9r) (b) 3. b.
, but that notification must be made within 6 years after the date that the physical work of construction, or destruction in preparation for construction, begins.
(9) Liability may be assessed to more than one person.
If the department of revenue determines that a liability exists under this chapter and that the liability may be owed by more than one person, the department may assess the entire amount to each person, specifying that it is assessing in the alternative.
(10) Notice to taxpayer of adjustment.
The department shall notify the taxpayer, as provided in sub. (11)
, of any adjustment, correction and assessment made under sub. (1)
(11) Notice of additional assessment.
The department shall notify the taxpayer in writing of any additional assessment by office audit or field investigation. That notice shall be served as are circuit court summonses, or by registered mail, or by regular mail if the person assessed admits receipt or there is satisfactory evidence of receipt. In the case of joint returns, notice of additional assessment may be a joint notice and service on one spouse is proper notice to both spouses. If the spouses have different addresses at the time the notice of additional assessment is served and if either spouse notifies the department of revenue in writing of those addresses, the department shall serve a duplicate of the original notice on the spouse who has the address other than the address to which the original notice was sent, if no request for a redetermination or a petition for review has been commenced or finalized. For the spouse who did not receive the original notice, redetermination and appeal rights begin upon the service of a duplicate notice. If the taxpayer is a corporation and the department is unable to serve that taxpayer personally or by mail, the department may serve the notice by publishing a class 3 notice, under ch. 985
, in the official state newspaper.
(12) Taxes delinquent after due date.
Additional income or franchise taxes assessed under subs. (1)
shall become delinquent if not paid on or before the due date stated in the notice to the taxpayer.
(13) Collection of additional tax and issuance of refunds. 71.74(13)(a)(a)
If the tax is increased the department shall proceed to collect the additional tax in the same manner as other income or franchise taxes are collected. If the income or franchise taxes are decreased upon direction of the department the state treasurer shall refund to the taxpayer such part of the overpayment as was actually paid in cash, and the certification of the overpayment by the department shall be sufficient authorization to the treasurer for the refunding of the overpayment. No refund of income or franchise tax shall be made by the treasurer unless the refund is so certified. The part of the overpayment paid to the county and the local taxation district shall be deducted by the state treasurer in the treasurer's next settlement with the county and local treasurer.
No action or proceeding whatsoever shall be brought against the state or the treasurer thereof for the recovery, refund or credit of any income or surtaxes; except in case the state treasurer shall neglect or refuse for a period of 60 days to refund any overpayment of any income or surtaxes certified, the taxpayer may maintain an action to collect the overpayment against the treasurer so neglecting or refusing to refund such overpayment, without filing a claim for refund with such treasurer, provided that such action shall be commenced within one year after the certification of such overpayment.
(14) Additional remedy to collect tax.
The department of revenue may also proceed under s. 71.91 (5)
for the collection of any additional assessment of income or franchise taxes or surtaxes, after notice thereof has been given under sub. (11)
and before the same shall have become delinquent, when it has reasonable grounds to believe that the collection of such additional assessment will be jeopardized by delay. In such cases notice of the intention to so proceed shall be given by registered mail to the taxpayer, and the warrant of the department of revenue shall not issue if the taxpayer within 10 days after such notice furnishes a bond in such amount, not exceeding double the amount of the tax, and with such sureties as the department of revenue shall approve, conditioned upon the payment of so much of the additional taxes as shall finally be determined to be due, together with interest thereon as provided by s. 71.82 (1) (a)
. Nothing in this subsection shall affect the review of additional assessments provided by ss. 71.88 (1) (a)
and (2) (a)
, 71.89 (2)
, and any amounts collected under this subsection shall be deposited with the state treasurer and disbursed after final determination of the taxes as are amounts deposited under s. 71.90 (2)
All nondelinquent payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.
Investigative power of department under s. 71.11 (20) (b), 1985 stats. [now 71.74 (2)] is similar to power of internal revenue service under 26 USC 7602. Taxpayer subpoenaed by department has limited discovery rights under United States v. Genser, 595 F (2d) 146, 152 (3rd Cir.), cert. denied 444 U.S. 928
(1979). State v. Beno, 99 W (2d) 77, 298 NW (2d) 405 (Ct. App. 1980).
Claims for refund. 71.75(1)(1)
Except as provided in ss. 49.855
, 71.77 (5)
and (7) (b)
, the provisions for refunds and credits provided in this section shall be the only method for the filing and review of claims for refund of income and surtaxes, and no person may bring any action or proceeding for the recovery of such taxes other than as provided in this section.
With respect to income taxes and franchise taxes, except as otherwise provided in subs. (5)
and ss. 71.30 (4)
and 71.77 (5)
and (7) (b)
, refunds may be made if the claim therefor is filed within 4 years of the unextended date under this section on which the tax return was due.
No refund shall be made on the over-withholding or overpayment of estimated income taxes or franchise taxes with respect to any person for any taxable year in an amount less than $1.
Except as provided in subs. (5)
, no refund shall be made and no credit shall be allowed for any year that has been the subject of a field audit if the audit resulted in a refund or no change to the tax owed or in an assessment that is final under s. 71.88 (1) (a)
or (2) (a)
, 71.89 (2)
and if the department of revenue notifies the taxpayer that unless the taxpayer appeals the result of the field audit under subch. XIV
, the field audit is final. No refund shall be made and no credit shall be allowed on any item of income or deduction, assessed as a result of an office audit, the assessment of which is final under s. 71.88 (1) (a)
or (2) (a)
, 71.89 (2)
A claim for refund may be made within 2 years after the assessment of a tax or an assessment to recover all or part of any tax credit, including penalties and interest, under this chapter, assessed by office audit or field audit and paid if the assessment was not protested by the filing of a petition for redetermination. No claim may be allowed under this subsection for any tax, interest or penalty paid with respect to any item of income, credit or deduction self-assessed or determined by the taxpayer or assessed as the result of any assessment made by the department with respect to which all the conditions specified in this subsection are not met. If a claim is filed under this subsection, the department of revenue may make an additional assessment in respect to any item of income or deduction that was a subject of the prior assessment. This subsection does not extend the time to file under s. 71.53 (2)
or 71.59 (2)
, and it does not extend the time period during which the department of revenue may assess, or the taxpayer may claim a refund, in respect to any item of income or deduction that was not a subject of the prior assessment.
In respect to overpayments attributable to a capital loss carry-back, a corporation may claim a refund within 4 years after the due date, including extensions, for filing the return for the taxable year of the capital loss that is carried back.
Every claim for refund or credit of income taxes, franchise taxes or surtaxes, if any, shall be filed with the department of revenue in the manner, and on a form, prescribed or approved by the department and signed by the person or, in the case of joint returns, by both persons who filed the return on which the claim is based and shall set forth specifically and explain in detail the reasons for and the basis of the claim. After the claim has been filed it shall be considered and acted upon in the same manner as are additional assessments made under s. 71.74 (1)
. No marital property agreement or unilateral statement under ch. 766
affects claims for refund or credit under this section.
The department of revenue is directed to act on any claim for refund or credit within one year after receipt and failure to act shall have the effect of allowing the claim and the department shall certify the refund or credit unless the taxpayer has consented in writing to an extension of the one-year time period prior to its expiration.
A refund payable on the basis of a separate return shall be issued to the person who filed the return. A refund payable on the basis of a joint return shall be issued jointly to the persons who filed the return.
If an income tax refund or tax credit check is payable to a person who dies, the department shall pay the refund or credit check to the decedent's personal representative. If there is no personal representative, the department shall pay the refund or credit check either to a surviving relative, giving preference to relatives in the following order: surviving spouse, child, parent, brother or sister, or to a creditor of the decedent, as determined by the department.
Party challenging administration of taxing statutes must exhaust state administrative remedies before commencing action in state courts under 42 USC 1983. Hogan v. Musolf, 163 W (2d) 1, 471 NW (2d) 216 (1991).
Internal revenue service and other state adjustments.
If for any year the amount of federal net income tax payable, of a credit claimed or carried forward, of a net operating loss carried forward or of a capital loss carried forward of any taxpayer as reported to the internal revenue service is changed or corrected by the internal revenue service or other officer of the United States, such taxpayer shall report such changes or corrections to the department within 90 days after its final determination and shall concede the accuracy of such determination or state how the determination is erroneous. Such changes or corrections need not be reported unless they affect the amount of net tax payable under this chapter, of a credit calculated under this chapter, of a Wisconsin net operating loss carried forward, of a Wisconsin net business loss carried forward or of a capital loss carried forward under this chapter. Any taxpayer filing an amended return with the internal revenue service, or with another state if there has been allowed a credit against Wisconsin taxes for taxes paid to that state, shall also file, within 90 days of such filing date, an amended return with the department if any information contained on the amended return affects the amount of net tax payable under this chapter of a credit calculated under this chapter, of a Wisconsin net operating loss carried forward, of a Wisconsin net business loss carried forward or of a capital loss carried forward under this chapter.
History: 1987 a. 312
; 1991 a. 39
Statutes of limitations, assessments and refunds; when permitted. 71.77(1)
Additional assessments and corrections of assessments by office audit or field investigation may be made of income of any taxpayer if notice under s. 71.74 (11)
is given within the time specified in this section.
With respect to assessments of a tax or an assessment to recover all or part of any tax credit under this chapter in any calendar year or corresponding fiscal year, notice shall be given within 4 years of the date the income tax or franchise tax return was filed.
Irrespective of sub. (2)
, if any person has made an incorrect income tax or franchise tax return for any of the years since January 1, 1911, with intent to defeat or evade the income tax or franchise tax assessment provided by law, or has failed to file any income tax or franchise tax return for any of such years, income of any such year may be assessed when discovered by the proper assessing authority.
Irrespective of sub. (3)
, if additional assessments are made for any period more than 6 years before the year in which the assessment is made, the burden of proof shall rest with the state to prove its case by a preponderance of the evidence.
The limitation periods provided in this section may be extended by written agreement between the taxpayer and the department of revenue entered into prior to the expiration of such limitation periods or any extension of such limitation periods. During any such extension period, the department may issue an assessment or a refund, and the taxpayer may file a claim for a refund, relating to the year which the extension covers. Subsection (4)
shall not apply to any assessment made in any such extended period.
(6) Section 990.06
shall have no application to the provisions of this section.
Notwithstanding any other limitations expressed in this chapter, an assessment or refund may be made:
If notice of assessment is given within 6 years after a return was filed and if the taxpayer reported for taxation on his or her return, or the taxpayers jointly reported, less than 75% of the net income properly assessable, except that no assessment of additional income may be made under this subsection for any year beyond the period specified in sub. (2)
unless the aggregate of the taxes on the additional income of such year is in excess of $100 in the case of an individual or a separate return or $200 in the case of a joint return.
If notice of assessment or refund is given to the taxpayer within 90 days of the date on which the department receives a report from the taxpayer under s. 71.76
or within such other period specified in a written agreement entered into prior to the expiration of such 90 days by the taxpayer and the department. If the taxpayer does not report to the department as required under s. 71.76
, the department may make an assessment against the taxpayer or refund to the taxpayer within 4 years after discovery by the department.
For purposes of this section, a return filed on or before the last day prescribed by law for the filing of the return shall be considered as filed on such last day, and a return filed after the last day prescribed by law shall be considered as filed on the date that the return is received by the department of revenue.
Confidentiality provisions. 71.78(1)
Except as provided in subs. (4)
, no person may divulge or circulate or offer to obtain, divulge or circulate any information derived from an income, franchise, withholding, fiduciary, partnership, limited liability company or gift tax return or tax credit claim, including information which may be furnished by the department of revenue as provided in this section. This subsection does not prohibit publication by any newspaper of information lawfully derived from such returns or claims for purposes of argument or prohibit any public speaker from referring to such information in any address. This subsection does not prohibit the department of revenue from publishing statistics classified so as not to disclose the identity of particular returns, or claims or reports and the items thereof. This subsection does not prohibit employes or agents of the department of revenue from offering or submitting any return, including joint returns of a spouse or former spouse, separate returns of a spouse, individual returns of a spouse or former spouse and combined individual income tax returns, or from offering or submitting any claim, schedule, exhibit, writing or audit report or a copy of, and any information derived from, any of those documents as evidence into the record of any contested matter involving the department in proceedings or litigation on state tax matters if, in the department's judgment, that evidence has reasonable probative value.
(2) Disclosure of net tax.
The department shall make available upon suitable forms prepared by the department information setting forth the net Wisconsin income tax, Wisconsin franchise tax or Wisconsin gift tax reported as paid or payable in the returns filed by any individual or corporation for any individual year upon request. Before the request is granted, the person desiring to obtain the information shall prove his or her identity and shall be required to sign a statement setting forth the person's address and reason for making the request and indicating that the person understands the provisions of this section with respect to the divulgement, publication or dissemination of information obtained from returns as provided in sub. (1)
. The use of a fictitious name is a violation of this section. Within 24 hours after any information from any such tax return has been so obtained, the department shall mail to the person from whose return the information has been obtained a notification which shall give the name and address of the person obtaining the information and the reason assigned for requesting the information. The department shall collect from the person requesting the information a fee of $4 for each return.
(3) Disclosure limitation.
The information described in sub. (2)
shall not be made available to any nonresident or to any resident who is making the request for such information for the use or benefit, directly or indirectly, of a nonresident person or firm or a foreign corporation except to the extent that similar information in the state of residence of such person or firm or the state of incorporation of such foreign corporation is made available to residents of Wisconsin or Wisconsin corporations. As part of the statement required by sub. (2)
, the department shall require any person desiring to obtain such information to declare whether the person is a nonresident of the state and whether the information is desired for the use or benefit of a nonresident person or firm or a foreign corporation. No copy of any return shall be supplied to any person except as permitted by sub. (4)
(4) Persons qualified to examine returns for specified purposes.
Subject to subs. (5)
and to rules of the department, any returns or claims specified under sub. (1)
or any schedules, exhibits, writings or audit reports pertaining to the returns or claims on file with the department shall be open to examination by only the following persons and the contents thereof may be divulged or used only as follows:
The secretary of revenue or any officer, agent or employe of the department.
The attorney general and department of justice employes.
Members of any legislative committee on organization or its authorized agents provided the examination is approved by a majority vote of a quorum of its members and the tax return or claim information is disclosed only in a meeting closed to the public. The committee may disclose tax return or claim information to the senate or assembly or to other legislative committees if the information does not disclose the identity of particular returns, claims or reports and the items thereof. The department of revenue shall provide assistance to the committees or their authorized agents in order to identify returns and claims deemed necessary by them to accomplish the review and analysis of tax policy.
Public officers of the federal government or other state governments or the authorized agents of such officers, where necessary in the administration of the tax laws of such governments, to the extent that such government accords similar rights of examination or information to officials of this state.
The person who filed or submitted the return or claim, or to whom the return or claim relates or by the person's authorized agent or attorney.
Any person examining a return or claim pursuant to a court order duly obtained upon a showing to the court that the information contained in the return or claim is relevant to a pending court action or pursuant to a subpoena signed by a judge of a court of record ordering the department's custodian of returns or claims to produce a return or claim in open court in a court action pending before the judge.
Employes of this state, to the extent that the department of revenue deems the examination necessary for the employes to perform their duties under contracts or agreements between the department and any other department, division, bureau, board or commission of this state relating to the administration of tax laws or child and spousal support enforcement under s. 49.22
A member of the board of arbitration established under s. 71.10 (7)
or a consultant under joint contract with the states of Minnesota and Wisconsin for the purpose of determining the reciprocity loss to which either state is entitled.
The office of the commissioner of insurance with respect to information compiled under s. 71.80 (13)
Employes of the legislative fiscal bureau to the extent that the department of revenue deems the examination necessary for those employes to perform their duties under contracts or agreements between the department and the bureau relating to the review and analysis of tax policy and the analysis of state revenue collections.
The spouse or former spouse of the person who filed the return or claim if the spouse or former spouse may be liable, or the property of the spouse or former spouse is subject to collection, for the delinquency, or the department has issued an assessment or denial of a claim to the spouse or former spouse regarding the return or claim.
The administrator of the lottery division in the department for the purpose of withholding lottery winnings under s. 565.30 (5)
The secretary of commerce and employes of that department to the extent necessary to administer the development zone program under subch. VI of ch. 560
The department of regulation and licensing for the purpose of certifying under s. 440.08
whether an applicant for renewal of a credential is liable for delinquent taxes.
(4m) Disclosure of certain dates to spouses and former spouses.
The department may disclose to the spouse or former spouse of the person who filed a return or claim specified under sub. (1)
whether an extension for filing the return or claim was obtained, the extended due date for filing the return or claim and the date on which the return or claim was filed with the department.
(5) Agreement with department.
Copies of returns and claims specified in sub. (1)
and related schedules, exhibits, writings or audit reports shall not be furnished to the persons listed under sub. (4)
, except persons under sub. (4) (e)
or under an agreement between the department of revenue and another agency of government.
(6) Restriction on use of information.
The use of information obtained under sub. (4)
is restricted to the discharge of duties imposed upon the persons by law or by the duties of their office or by order of a court as provided under sub. (4) (f)
(7) Charge for costs.
The department of revenue may charge for the reasonable cost of divulging information under this section.
(8) District attorneys.
District attorneys may examine tax and claim information of persons on file with the department of revenue as follows:
Such information may be examined for use in preparation for any judicial proceeding or any investigation which may result in a judicial proceeding involving any of the taxes or tax credits specified in sub. (1)
The taxpayer is or may be a party to such proceeding;
The treatment of an item reflected in such information is or may be related to the resolution of an issue in the proceeding or investigation; or
The information relates or may relate to a transactional relationship between the taxpayer or credit claimant and a person who is or may be a party to the proceeding which affects or may affect the resolution of an issue in such proceeding or investigation.
When the department of revenue allows examination of information under par. (a)
If the department has referred the case to a district attorney, the department may make disclosure on its own motion.
If a district attorney requests examination of tax or tax credit information relating to a person, the request must be in writing, clearly identify the requester and the person to whom the information relates and explain the need for the information. The department may then allow the examination of information so requested and the information may be examined and used solely for the proceeding or investigation for which it was requested.
Such information may be examined for use in preparation for any administrative or judicial proceeding or an investigation which may result in such proceeding pertaining to the enforcement of a specifically designated state criminal statute not involving tax administration to which this state or a governmental subdivision thereof is a party. Such information may be used solely for the proceeding or investigation for which it is requested.