"Storage" includes any keeping or retention in this state of tangible personal property purchased from a retailer for any purpose except the following:
Keeping, retaining or exercising any right or power over raw materials by a publisher or printer of printed materials for processing or fabricating or for manufacturing into, attachment to or incorporation into printed materials to be transported, and thereafter used solely, outside this state.
"Tangible personal property" means all tangible personal property of every kind and description and includes electricity, natural gas, steam and water and also leased property affixed to realty if the lessor has the right to remove the property upon breach or termination of the lease agreement, unless the lessor of the property is also the lessor of the realty to which the property is affixed. "Tangible personal property" also includes coins and stamps of the United States sold or traded as collectors' items above their face value and computer programs except custom computer programs.
"Taxpayer" means the person required to pay, collect, account for or who is otherwise directly interested in the taxes imposed by this subchapter.
"Telecommunications services" means sending messages and information transmitted through the use of local, toll and wide-area telephone service; channel services; telegraph services; teletypewriter; computer exchange services; cellular mobile telecommunications service; specialized mobile radio; stationary two-way radio; paging service; or any other form of mobile and portable one-way or two-way communications; or any other transmission of messages or information by electronic or similar means between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities. "Telecommunications services" does not include sending collect telecommunications that are received outside of the state.
"Use" includes the exercise of any right or power over tangible personal property or taxable services incident to the ownership, possession or enjoyment of the property or services, or the results produced by the services, including installation or affixation to real property and including the possession of, or the exercise of any right or power over tangible personal property by a lessee under a lease, except that "use" does not include the activities under sub. (18) (a)
In this subsection "enjoyment" includes a purchaser's right to direct the disposition of property, whether or not the purchaser has possession of the property. "Enjoyment" also includes, but is not limited to, having shipped into this state by an out-of-state supplier printed material which is designed to promote the sale of property or services, or which is otherwise related to the business activities, of the purchaser of the printed material or printing service.
History: 1973 c. 333
; 1975 c. 39
; 1975 c. 413
; 1977 c. 29
; 1979 c. 1
; 1979 c. 174
; 1981 c. 20
; 1981 c. 79
; 1983 a. 23
; 1983 a. 189
, 329 (12)
; 1983 a. 510
; 1983 a. 544
, 47 (1) (b)
; 1985 a. 29
; 1987 a. 27
; 1989 a. 31
; 1991 a. 39
; 1993 a. 16
Tax on personal property assets upheld since seller had permit under sub. (10) (a), 1983 stats. [now sub. (9) (a)]. Ramrod, Inc. v. Dept. of Revenue, 64 W (2d) 499, 219 NW (2d) 604.
Under sub. (18), 1983 stats. [now sub. (2)], building materials includes sale of assembly kit to dealers for construction of Harvestore silo and such dealers are contractors. Where Harvestore was erected on owned land, it is real property for purposes of this section. Dept. of Revenue v. Smith Harvestore Products, 72 W (2d) 60, 240 NW (2d) 357.
Retail sale within meaning of sub. (4), 1983 stats. [now sub. (14)] is the final and ultimate employment of the property which results in its withdrawal from the marketplace. See note to s. 77.52, citing Dept. of Revenue v. Milw. Refining Corp. 80 W (2d) 44, 257 NW (2d) 855.
Provisions of UCC as to time title passes are inapplicable to sales tax law. Application of 77.51 subsections discussed. Harold W. Fuchs Agency, Inc. v. Dept. of Revenue, 91 W (2d) 283, 282 NW (2d) 625 (Ct. App. 1979).
Sale of business assets of taxpayer which held seller's permit was not exempted as "occasional sale" under sub. (10) (a), 1983 stats. [now sub. (9) (a)]. Constitutionality discussed. Midcontinent Broadcasting Co. v. Dept. of Revenue, 98 W (2d) 379, 297 NW (2d) 191 (1980).
Manhole fabricator was not engaged in real property construction activities under (2). Advance Pipe & Supply v. Revenue Dept. 128 W (2d) 431, 383 NW (2d) 502 (Ct. App. 1986).
Photocopying expenses billed to law firm's clients are not subject to sales tax. Frisch, Dudek & Slattery v. Rev. Dept., 133 W (2d) 444, 396 NW (2d) 355 (Ct. App. 1986).
Imposition of retail sales tax. 77.52(1)
For the privilege of selling, leasing or renting tangible personal property, including accessories, components, attachments, parts, supplies and materials, at retail a tax is imposed upon all retailers at the rate of 5% of the gross receipts from the sale, lease or rental of tangible personal property, including accessories, components, attachments, parts, supplies and materials, sold, leased or rented at retail in this state.
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, performing or furnishing the services described under par. (a)
at retail in this state to consumers or users, a tax is imposed upon all persons selling, performing or furnishing the services at the rate of 5% of the gross receipts from the sale, 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, including the furnishing of rooms or lodging through the sale of a time-share property, as defined in s. 707.02 (32)
, if the use of the rooms or lodging is not fixed at the time of sale as to the starting day or the lodging unit. 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. 66.058 (1) (d)
, 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.
The sale of admissions to amusement, athletic, entertainment or recreational events or places, 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, in connection with the sale or use of time-share property, as defined in s. 707.02 (32)
, 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.
The sale of telecommunications services that originate in this state and are charged to a service address in this state, regardless of the location where that charge is billed or paid.
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 coin-operated, 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.
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 installing or applying tangible personal property which, 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 unless, at the time of such repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection or maintenance, a sale in this state of the type of property 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. 77.51 (14r)
. For purposes of this paragraph, the following items shall be deemed to have retained their character as tangible personal property, regardless of the extent to which any such item is fastened to, connected with or built into real property: furnaces, boilers, stoves, ovens, including associated hoods and exhaust systems, heaters, air conditioners, humidifiers, dehumidifiers, refrigerators, coolers, freezers, water pumps, water heaters, water conditioners and softeners, clothes washers, clothes dryers, dishwashers, garbage disposal units, radios and radio antennas, incinerators, television receivers and antennas, record players, tape players, jukeboxes, vacuum cleaners, furniture and furnishings, carpeting and rugs, bathroom fixtures, sinks, awnings, blinds, gas and electric logs, heat lamps, electronic dust collectors, grills and rotisseries, bar equipment, intercoms, recreational, sporting, gymnasium and athletic goods and equipment including by way of illustration but not of limitation bowling alleys, golf practice equipment, pool tables, punching bags, ski tows and swimming pools; office, restaurant and tavern type equipment including by way of illustration but not of limitation lamps, chandeliers, and fans, venetian blinds, canvas awnings, office and business machines, ice and milk dispensers, beverage-making equipment, vending machines, soda fountains, steam warmers and tables, compressors, condensing units and evaporative condensers, pneumatic conveying systems; laundry, dry cleaning, and pressing machines, power tools, burglar alarm and fire alarm fixtures, electric clocks and electric signs. "Service" does not include services performed by veterinarians.
The producing, fabricating, processing, printing or imprinting of tangible personal property 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 which will be subsequently transported outside the state for use outside the state by the consumer for advertising purposes.
The sale of cable television system services including installation charges.
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) 12.
"cable television system" means any facility which, for a fee, regularly amplifies and transmits by wire, coaxial cable, lightwave or microwave, simultaneously to 50 or more subscribers, programs broadcast by television or radio stations or originated by themselves or any other party. "Cable television system" does not include a master antenna system which serves one residential, commercial or government building or complex of buildings under common ownership or control if that facility does not provide any broadcast signals other than those which may be viewed in that facility.
With respect to the services subject to tax under sub. (2)
, no part of the charge for the service may be deemed a sale or rental of tangible personal property if the property transferred by the service provider is incidental to the selling, performing or furnishing of the service, except as provided in par. (b)
With respect to the services subject to tax under sub. (2) (a) 7.
, all property physically transferred to the customer in conjunction with the selling, performing or furnishing of the service is a sale of tangible personal property separate from the selling, performing or furnishing of the service.
The taxes imposed by this section may be collected from the consumer or user.
It is unlawful for any retailer to advertise or hold out or state to the public or to any customer, directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the retailer or that it will not be added to the selling price of the property sold or that if added it, or any part thereof, will be refunded. Any person who violates this subsection is guilty of a misdemeanor.
The department may by rule provide that the amount collected by the retailer from the consumer or user in reimbursement of the retailer's tax be displayed separately from the list price, the price advertised in the premises, the marked price, or other price on the sales check or other proof of sale.
A retailer is relieved from liability for sales tax insofar as the measure of the tax is represented by accounts which have been found to be worthless and charged off for income or franchise tax purposes. If the retailer has previously paid the tax, the retailer may, under rules prescribed by the department, take as a deduction from the measure of the tax the amount found worthless and charged off for income or franchise tax purposes. If any such accounts are thereafter collected in whole or in part by the retailer, the amount as collected shall be included in the first return filed after such collection and the tax paid with the return.
The department shall issue a permit for each place of operation in this state to any person who requests one and who holds a valid certificate under s. 73.03 (50)
. Permits under this subsection are not assignable and are valid only for the person who originally obtains them and only at the place of operation designated on them. Holders of permits shall display them prominently at the place for which they are valid.
If any person fails to comply with any provision of this subchapter relating to the sales tax or any rule of the department relating to the sales tax adopted under this subchapter, is delinquent in respect to any tax imposed by the department or fails timely to file any return or report in respect to any tax under ch. 71
after having been requested to file that return or report, the department upon hearing, after giving the person 10 days' notice in writing specifying the time and place of hearing and requiring the person to show cause why the permit should not be revoked or suspended, may revoke or suspend any one or more of the permits held by the person. The department shall give to the person written notice of the suspension or revocation of any of the permits. The notices required in this subsection may be served personally or by mail in the manner prescribed for service of notice of a deficiency determination. If the department suspends or revokes a permanent permit under this subsection, it may grant a temporary permit that is valid for one month and may then grant additional temporary permits if the person pays all amounts owed under this chapter for the month for which the previous temporary permit was issued. Persons who receive a temporary permit waive the notice requirement under s. 77.61 (2)
. The department shall not issue a new permanent permit after the revocation of a permit unless it is satisfied that the former holder of the permit will comply with the provisions of this subchapter, the rules of the department relating to the sales tax and the provisions relating to other taxes administered by the department.
A person who operates as a seller in this state without a permit or after a permit has been suspended, revoked or has expired and each officer of any corporation, partnership member, limited liability company member or other person authorized to act on behalf of a seller who so operates, is guilty of a misdemeanor. Permits shall be held only by persons actively operating as sellers of tangible personal property or taxable services. Any person not so operating shall forthwith surrender that person's permit to the department for cancellation. The department may revoke the permit of a person found not to be actively operating as a seller of tangible personal property or taxable services.
For the purpose of the proper administration of this section and to prevent evasion of the sales tax it shall be presumed that all receipts are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property or services is not a taxable sale at retail is upon the person who makes the sale unless that person takes from the purchaser a certificate to the effect that the property or service is purchased for resale or is otherwise exempt.
The certificate referred to in sub. (13)
relieves the seller from the burden of proof only if any of the following is true:
The certificate is taken in good faith from a person who is engaged as a seller of tangible personal property or taxable services and who holds the permit provided for in sub. (9)
and who, at the time of purchasing the tangible personal property or services, intends to sell it in the regular course of operations or is unable to ascertain at the time of purchase whether the property or service will be sold or will be used for some other purpose.
The certificate is taken in good faith from a person claiming exemption.
The certificate referred to in sub. (13)
shall be signed by and bear the name and address of the purchaser, and shall indicate the general character of the tangible personal property or service sold by the purchaser and the basis for the claimed exemption. The certificate shall be in such form as the department prescribes.
If a purchaser who gives a resale certificate makes any use of the property other than retention, demonstration or display while holding it for sale, lease or rental in the regular course of the purchaser's operations, the use shall be taxable to the purchaser under s. 77.53
as of the time the property is first used by the purchaser, and the sales price of the property to the purchaser shall be the measure of the tax. Only when there is an unsatisfied use tax liability on this basis because the seller has provided incorrect information about that transaction to the department shall the seller be liable for sales tax with respect to the sale of the property to the purchaser.
Any person who gives a resale certificate for property or services which that person knows at the time of purchase is not to be resold by that person in the regular course of that person's operations as a seller for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction is guilty of a misdemeanor. Any person certifying to the seller that the sale of property or taxable service is exempt, knowing at the time of purchase that it is not exempt, for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction, is guilty of a misdemeanor.
If a purchaser gives a certificate with respect to the purchase of fungible goods and thereafter commingles these goods with other fungible goods not so purchased but of such similarity that the identity of the constituent goods in the commingled mass cannot be determined, sales from the mass of commingled goods shall be deemed to be sales of the goods so purchased until a quantity of commingled goods equal to the quantity of purchased goods so commingled has been sold.
A person who holds a valid certificate issued under s. 73.03 (50)
may apply for a direct pay permit by submitting to the department a completed form that the department prescribes.
The department shall issue a direct pay permit, at the beginning of a taxpayer's taxable year, if the following requirements are fulfilled:
Because of the nature of the applicant's business, issuing the permit will significantly reduce the work of administering the taxes under this subchapter.
The applicant's accounting system will clearly indicate the amount of tax that the applicant owes under this subchapter.
The applicant makes enough purchases that are taxable under this subchapter to justify the expense of regular audits by the department.
The applicant is not liable for delinquent taxes; including costs, penalties, surcharges and interest; under ch. 71
or this chapter of $400 or more if any part of the tax is delinquent for at least 5 months.
It is in this state's best interests to issue the permit.
The applicant purchases enough tangible personal property under circumstances that make it difficult to determine whether the property will be subject to a tax under this subchapter.
A holder of a permit that is issued under par. (b)
may not transfer or assign it.
The department may revoke a permit that is issued under par. (b)
if the holder misuses it or the department determines that revocation is in this state's best interests.
A retailer may not collect a tax under this subchapter, and is not liable for a tax under this subchapter, on any sale, except those of a type specified as ineligible for an exemption under this paragraph by a rule promulgated by the department, for which the buyer furnishes to the retailer a copy of the permit that is issued under par. (b)
or a statement that the buyer holds such a permit, a statement of that permit's number and a statement of the date that the permit was issued.
A person who holds a permit that is issued under par. (b)
shall keep a record of all retailers from whom the person made a purchase for which the person used a permit that is issued under par. (b)
and shall do one of the following:
Fulfill the requirements for an exempt sale under par. (e)
for every purchase that the person makes that may be exempt under that paragraph and pay the tax under s. 77.53 (1)
to the department on all of those purchases for which the tax is due.
Maintain accounting records that show the tax under ss. 77.52 (1)
and 77.53 (3)
paid on each purchase during each reporting period under s. 77.58
and the total tax paid during each reporting period, pay the tax under ss. 77.52 (1)
and 77.53 (3)
on either all or none of the purchases made from each retailer during each reporting period and pay the tax under s. 77.53 (1)
to the department on all of the purchases for which the tax is due.
If any retailer liable for any amount of tax under this subchapter sells out the retailer's business or stock of goods or quits the business, the retailer's successors or assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the department that it has been paid or a certificate stating that no amount is due.
If the purchaser of a stock of goods fails to withhold from the purchase price as required, the purchaser becomes personally liable for the payment of the amount required to be withheld by the purchaser to the extent of the purchase price valued in money. Within 60 days after receiving a written request from the purchaser for a certificate, or within 60 days from the date the former owner's records are made available for audit, whichever period expires later, but in any event not later than 90 days after receiving the request, the department shall either issue the certificate or mail notice to the purchaser at the purchaser's address as it appears on the records of the department of the amount that must be paid as a condition of issuing the certificate. Failure of the department to mail the notice will release the purchaser from any further obligation to withhold the purchase price as above provided. The obligation of the successor may be enforced within 4 years of the time the retailer sells out the retailer's business or stock of goods or at the time that the determination against the retailer becomes final, whichever event occurs later.
The department shall by rule provide for the efficient collection of the taxes imposed by this subchapter on sales of property or services by persons not regularly engaged in selling at retail in this state or not having a permanent place of business, but who are temporarily engaged in selling from trucks, portable roadside stands, concessions at fairs and carnivals, and the like. The department may authorize such persons to sell property or sell, perform or furnish services on a permit or nonpermit basis as the department by rule prescribes and failure of any person to comply with such rules constitutes a misdemeanor.
History: 1973 c. 156
; 1975 c. 39
; 1977 c. 29
; 1979 c. 174
; 1981 c. 20
; 1983 a. 2
; 1983 a. 189
, 329 (12)
; 1983 a. 341
; 1985 a. 29
; 1987 a. 27
; 1989 a. 31
; 1991 a. 39
; 1993 a. 112
; 1995 a. 27
Where gold sold to dentists was used in dental work, sale was not taxable under (1). Dept. of Revenue v. Milw. Refining Corp. 80 W (2d) 44, 257 NW (2d) 855.
Data processing service which transfers tangible property such as cards, tapes and printouts, but whose essential service is the sale of intangible coded or processed data, is not taxable under this section. Janesville Data Center v. Dept. of Revenue, 84 W (2d) 341, 267 NW (2d) 656 (1978).
See note to Art. I, sec. 18, citing Kollasch v. Adamany, 104 W (2d) 552, 313 NW (2d) 47 (1981).
Phrase "in this state" as used in (1) and defined in 77.51 (6) does not include airspace. Republic Airlines, Inc. 159 W (2d) 247, 464 NW (2d) 62 (Ct. App. 1990).
Payments under lease of taxicab from owner to driver are sales at retail, subject to tax. Sanfelippo v. Department of Revenue, 170 W (2d) 381, 490 NW 530 (2d) (Ct. App. 1992).
Sub. (18) provides no relief from successor liability where the entire purchase price is paid to a secured creditor. Kastengren v. Dept. of Revenue, 179 W (2d) 587, 508 NW (2d) 431 (Ct. App. 1993).
Imposition of use tax. 77.53(1)
Except as provided in sub. (1m)
, an excise tax is levied and imposed on the use or consumption in this state of taxable services under s. 77.52
purchased from any retailer, at the rate of 5% of the sales price of those services; on the storage, use or other consumption in this state of tangible personal property purchased from any retailer, at the rate of 5% of the sales price of that property; and on the storage, use or other consumption of tangible personal property manufactured, processed or otherwise altered, in or outside this state, by the person who stores, uses or consumes it, from material purchased from any retailer, at the rate of 5% of the sales price of that material.
For motor vehicles that are used for a purpose in addition to retention, demonstration or display while held for sale in the regular course of business by a dealer who is licensed under s. 218.01
, the base for the tax imposed under sub. (1)
is the following:
If the motor vehicle is assigned to and used by an employe of the dealer for whom the dealer is required to withhold amounts for federal income tax purposes, $96 per month for each motor vehicle registration plate held by the dealer, except that beginning in 1997 the department shall annually, as of January 1, adjust the dollar amount under this paragraph, rounded to the nearest whole dollar, to reflect the annual percentage change in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the 12 months ending on June 30 of the year before the change.
If the motor vehicle is used by the dealer or any person other than an employe of the dealer, the lease value as shown in the lease value tables that the internal revenue service prepares to interpret section 61
of the internal revenue code.
Every person storing, using or otherwise consuming in this state tangible personal property or taxable services purchased from a retailer is liable for the tax imposed by this section. The person's liability is not extinguished until the tax has been paid to this state, but a receipt with the tax separately stated from a retailer engaged in business in this state or from a retailer who is authorized by the department, under such rules as it prescribes, to collect the tax and who is regarded as a retailer engaged in business in this state for purposes of the tax imposed by this section given to the purchaser under sub. (3)
relieves the purchaser from further liability for the tax to which the receipt refers.
Every retailer engaged in business in this state and making sales of tangible personal property or taxable services for delivery into this state or with knowledge directly or indirectly that the property or service is intended for storage, use or other consumption in this state, shall, at the time of making the sales or, if the storage, use or other consumption of the tangible personal property or taxable service is not then taxable under this section, at the time the storage, use or other consumption becomes taxable, collect the tax from the purchaser and give to the purchaser a receipt in the manner and form prescribed by the department.
A retailer is relieved from liability to collect use tax insofar as the measure of the tax is represented by accounts which have been found to be worthless and charged off for income or franchise tax purposes. If the retailer has previously paid the amount of the tax, the retailer may, under rules prescribed by the department, take as a deduction from the measure of the tax the amount found worthless and charged off for income or franchise tax purposes. If any such accounts are thereafter in whole or in part collected by the retailer, the amount so collected shall be included in the first return filed after such collection and the amount of the tax thereon paid with the return.
The tax required to be collected by the retailer constitutes a debt owed by the retailer to the state.
The tax required to be collected by the retailer from the purchaser shall be displayed separately from the list price, the price advertised in the premises, the marked price, or other price on the sales check, invoice or other proof of sale.