NOTE: Par. (a) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
"Food", "food products" and "beverages" do not include:
Medicines, tonics, vitamins and medicinal preparations in any form.
Soda water beverages as defined in s. 97.29 (1) (i)
, bases, concentrates and powders intended to be reconstituted by consumers to produce soft drinks, and fruit drinks and ades not defined as fruit juices in s. 97.02 (27)
, 1967 stats.
The gross receipts from sales of meals, food, food products and beverages sold by any person, organization or establishment for direct consumption on the premises are taxable, except as provided in subd. 4.
The gross receipts from sales by any person, organization or establishment of the following items for off-premises consumption are taxable:
Soda fountain items such as sundaes, milk shakes, malts, ice cream cones and sodas.
Taxable gross receipts shall include cover, minimum, entertainment, service or other charges made to patrons or customers.
Taxable sales do not include meals, food, food products or beverages sold by hospitals, sanatoriums, nursing homes, retirement homes, community-based residential facilities as defined in s. 50.01 (1g)
or day care centers registered under ch. 48
and served at a hospital, sanatorium, nursing home, retirement home, community-based residential facility or day care center. In this subdivision "retirement home" means a nonprofit residential facility where 3 or more unrelated adults or their spouses have their principal residence and where support services, including meals from a common kitchen, are available to residents. Taxable sales do not include meals, food, food products or beverages sold to the elderly or handicapped by persons providing "mobile meals on wheels".
Taxable sales shall not include meals, food, food products or beverages furnished in accordance with any contract or agreement by a public or private institution of higher education.
For purposes of subd. 1.
, "premises" shall be construed broadly, and, by way of illustration but not limitation, shall include the lobby, aisles and auditorium of a theater or the seating, aisles and parking area of an arena, rink or stadium or the parking area of a drive-in or outdoor theater. The premises of a caterer with respect to catered meals or beverages shall be the place where served. Vending machine premises shall include the room or area in which located.
The gross receipts from the sales of and the storage, use or other consumption of caskets and burial vaults for human remains.
The gross receipts from the sales of or the storage, use or other consumption of the following property and of parts and accessories for the following property:
Artificial devices individually designed, constructed or altered solely for the use of a particular physically disabled person so as to become a brace, support, supplement, correction or substitute for the bodily structure including the extremities of the individual.
Artificial limbs, artificial eyes, hearing aids and other equipment worn as a correction or substitute for any functioning portion of the body.
Eye glasses when especially designed or prescribed by an ophthalmologist, physician, oculist or optometrist for the personal use of the owner or purchaser.
Crutches and wheelchairs including motorized wheelchairs and scooters for the use of persons who are ill or disabled.
Antiembolism elastic hose and stockings that are prescribed by a physician and sold to the ultimate consumer.
Adaptive equipment that makes it possible for handicapped persons to enter, operate or leave a vehicle, as defined in s. 27.01 (7) (a) 2.
, if that equipment is purchased by the individual who will use it, a person acting directly on behalf of that individual or a nonprofit organization.
The gross receipts from the sale, lease or rental of or the storage, use or other consumption of motion picture film or tape, and advertising materials related thereto, sold, leased or rented to a motion picture theater or radio or television station.
The gross receipts from the sale of and the storage of printed material which is designed to advertise and promote the sale of merchandise, or to advertise the services of individual business firms, which printed material is purchased and stored for the purpose of subsequently transporting it outside the state by the purchaser for use thereafter solely outside the state.
The gross receipts from the sales of and the storage, use, or other consumption of tangible personal property which becomes a component part of an industrial waste treatment facility that is exempt under s. 70.11 (21) (a)
or that would be exempt under s. 70.11 (21) (a)
if the property were taxable under ch. 70
, or tangible personal property which becomes a component part of a waste treatment facility of this state or any agency thereof, or any political subdivision of the state or agency thereof as provided in s. 40.02 (28)
. The exemption includes replacement parts therefor, and also applies to chemicals and supplies used or consumed in operating a waste treatment facility and to purchases of tangible personal property made by construction contractors who transfer such property to their customers in fulfillment of a real property construction activity. This exemption does not apply to tangible personal property installed in fulfillment of a written construction contract entered into, or a formal written bid made, prior to July 31, 1975.
The gross receipts from the sale of and the storage, use or other consumption of waste reduction or recycling machinery and equipment, including parts therefor, exclusively and directly used for waste reduction or recycling activities which reduce the amount of solid waste generated, reuse solid waste, recycle solid waste, compost solid waste or recover energy from solid waste. The exemption applies even though an economically useful end product results from the use of the machinery and equipment. For the purposes of this subsection, "solid waste" means garbage, refuse, sludge or other materials or articles, whether these materials or articles are discarded or purchased, including solid, semisolid, liquid or contained gaseous materials or articles resulting from industrial, commercial, mining or agricultural operations or from domestic use or from public service activities.
The gross receipts from the sale of semen used for artificial insemination of livestock.
The gross receipts from the sale of and the storage, use or other consumption to or by the ultimate consumer of apparatus or equipment for the injection of insulin or the treatment of diabetes and supplies used to determine blood sugar level.
The gross receipts from the sales of and the storage, use or other consumption of equipment used in the production of maple syrup.
Coal, fuel oil, propane, steam, peat, fuel cubes produced from solid waste and wood used for fuel sold for residential use.
Electricity and natural gas sold during the months of November, December, January, February, March and April for residential use.
Electricity sold during the months of November, December, January, February, March and April for use in farming, including but not limited to agriculture, dairy farming, floriculture and horticulture.
Any residue that is used as fuel in a business activity and that results from the harvesting of timber or the production of wood products, including slash, sawdust, shavings, edgings, slabs, leaves, wood chips, bark and wood pellets manufactured primarily from wood or primarily from wood residue.
Fuel sold for use in farming, including but not limited to agriculture, dairy farming, floriculture and horticulture.
For purposes of this subsection, electricity or natural gas is considered sold at the time of billing. If the billing is by mail, the time of billing is the day on which the billing is mailed.
If fuel or electricity is sold partly for a use exempt under this subsection and partly for a use which is not exempt under this subsection, no tax shall be collected on that percentage of the gross receipts equal to the percentage of the fuel or electricity which is used for an exempt use, as specified in an exemption certificate provided by the purchaser to the seller.
In this subsection "residential use" means use in a structure or portion of a structure which is a person's permanent residence, but does not include use in transient accommodations, as specified in s. 77.52 (2) (a) 1.
, motor homes, travel trailers or other recreational vehicles.
For purposes of this subsection, a seller of electricity or natural gas is not required to comply with the requirement of obtaining exemption certificates under s. 77.52 (13)
for sales of electricity or natural gas to accounts not covered by par. (c)
which are properly classified as residential or farms pursuant to schedules which are filed for rate tariff purposes with the public service commission under s. 196.19
and which are in force at the time of the sales or are properly so classified for classification purposes as directed by the federal rural electrification administration. Nothing in this paragraph shall be construed to broaden the exemption specified in par. (a)
Sellers of coal, fuel oil, propane, steam, peat, fuel cubes produced from solid waste and wood used for fuel shall not be required to obtain an exemption certificate under s. 77.52 (13)
from a purchaser if all the fuel sold is for residential use and the seller maintains adequate records to identify which sales are exempt.
The gross receipts from the sale of and the storage, use or other consumption in this state, but not the lease or rental, of used mobile homes that are primary housing units under s. 340.01 (29)
The gross receipts from charges, including charges for a search, imposed by an authority, as defined in s. 19.32 (1)
, for copies of a public record that a person may examine and use under s. 16.61 (12)
or for copies of a record under s. 19.35 (1)
The gross receipts from sales of and the storage, use or other consumption of medicines used on farm livestock, not including workstock.
The gross receipts from the sale of and the storage, use or other consumption of milk house supplies used exclusively in producing and handling milk on dairy farms.
The gross receipts from the sales of tangible personal property, tickets or admissions by any baseball team affiliated with the Wisconsin Department of American Legion baseball.
The gross receipts from the rental for a continuous period of one month or more of a mobile home, as defined in s. 66.058 (1) (d)
, that is used as a residence.
The gross receipts from the sale of and the storage, use or other consumption of snowmobile trail groomers and attachments for them that are purchased, stored, used or consumed by a snowmobile club that meets at least 3 times a year, that has at least 10 members, that promotes snowmobiling and that participates in the department of natural resources' snowmobile program under s. 350.12 (4) (b)
The gross receipts from the sale of and the storage, use or other consumption of off-highway, heavy mechanical equipment such as feller bunchers, slashers, delimbers, chippers, hydraulic loaders, loaders, skidder-forwarders, skidders, timber wagons and tractors used exclusively and directly in the harvesting or processing of raw timber products in the field by a person in the logging business. In this subsection, "heavy mechanical equipment" does not include hand tools such as axes, chains, chain saws and wedges.
The gross receipts from the sale, lease or rental of and the storage, use or other consumption of cloth diapers.
The gross receipts from the sale of building materials, supplies and equipment to; and the storage, use or other consumption of those kinds of property by; owners, contractors, subcontractors or builders if that property is acquired solely for or used solely in, the construction, renovation or development of property that would be exempt under s. 70.11 (36)
The gross receipts from the sale of and the storage, use or other consumption of animal identification tags provided under s. 93.06 (1h)
and standard samples provided under s. 93.06 (1s)
History: 1971 c. 64
; 1973 c. 90
; 1975 c. 39
; 1977 c. 29
; 1977 c. 83
; 1977 c. 250
; 1979 c. 1
; 1981 c. 20
; 1981 c. 79
; 1981 c. 96
; 1981 c. 264
; 1981 c. 282
; 1981 c. 317
; 1983 a. 27
, 2202 (38)
; 1983 a. 189
, 329 (5)
, (12), (13); 1983 a. 192
; 1985 a. 29
; 1987 a. 27
; 1987 a. 312
; 1987 a. 399
; 1989 a. 31
; 1991 a. 37
; 1993 a. 16
; 1995 a. 27
; s. 13.93 (2) (c).
A taxpayer in the business of processing scrap metal is engaged in manufacturing as defined by s. 77.51 (27), 1983 stats. [now s. 77.54 (6m)]. H. Samuels Co. v. Dept. of Revenue, 70 W (2d) 1076, 236 NW (2d) 250.
A carrier's contract status is established under the "primary business test" if his primary occupation is the supplying of transportation for compensation even though the operator owns the goods at time of transport and carries them for the purpose of sale; if, however, the operator's primary business is manufacturing or another noncarrier commercial enterprise, a determination must be made as to whether the motor operations are in furtherance of the primary business or are conducted as a related enterprise with the purpose of profiting from the transportation. Gensler v. Dept. of Revenue, 70 W (2d) 1108, 236 NW (2d) 648.
Sale of furnishings and equipment of supper club was an "occasional sale" under s. 77.54 (7) as defined under s. 77.51 (10), 1983 stats. [now s. 77.51 (9)]. Three Lions Supper Club v. Dept. of Revenue, 72 W (2d) 546, 241 NW (2d) 190.
Consumption of gas at interstate pipeline compressor stations in Wisconsin is protected from state use tax by commerce clause. Midwestern Gas Transmission Co. v. Revenue Dept. 84 W (2d) 261, 267 NW (2d) 253 (1978).
To satisfy s. 77.51 (27), 1983 stats. [now s. 77.54 (6m)], change in name must be attributable to change in nature, purpose, and function of article. Dept. of Revenue v. Bailey-Bohrman Steel Corp. 93 W (2d) 602, 287 NW (2d) 715 (1980).
Semitrailers are "truck bodies" under (5) (a). Dept. of Revenue v. Trudell Trailer Sales, 104 W (2d) 39, 310 NW (2d) 612 (1981).
Vending machine company, which placed machines in schools and hospitals, was "seller" of products dispensed by machine. Servomation Corp. v. Dept. of Revenue, 106 W (2d) 616, 317 NW (2d) 464 (1982).
Under "use or function" test, greenhouse was "machine" used in floriculture under (3). Revenue Dept. v. Greiling, 112 W (2d) 602, 334 NW (2d) 118 (1983).
Exemption under (9a) (f) is limited to services used by tax-exempt organizations and doesn't extend to services by such foundations. Rev. Dept. v. EAA Aviation Foundation, 143 W (2d) 681, 422 NW (2d) 458 (Ct. App. 1988).
Calf hutches are not "machines" exempt from sales taxes under (3). L.T. Hampel Corp. v. DOR, 157 W (2d) 422, 459 NW (2d) 598 (Ct. App. 1990).
Motor vehicles and machinery used with motor vehicles are not used "directly" in recycling activities and are not exempt under sub. (26m). Dept. of Revenue v. Parks-Pioneer, 170 W (2d) 44, 487 NW (2d) 63 (Ct. App. 1992).
The exemption for occasional sales under sub. (7) cannot apply to a seller who continues to make sales in a business after the business was sold and surrender of the sales tax permit attempted. Carrion Corp. v. DOR, 179 W (2d) 254, 507 NW (2d) 356 (Ct. App. 1993).
"Merchandise" as used in sub. (6) (b) denotes commodities that are bought and sold. Luetzow Industries v. DOR, 197 W (2d) 917, 541 NW (2d) 810 (Ct. App. 1995).
A Mississippi River excursion boat which embarked and disembarked from a Wisconsin port crossing into out-of-state water, but not landing in that state, was engaged in "interstate commerce" under sub. (13). LaCrosse Queen, Inc. v. DOR, 201 W (2d) 537, 549 NW (2d) 273 (Ct. App. 1996).
Exemptions from sales tax. 77.55(1)
There are exempted from the computation of the amount of the sales tax the gross receipts from the sale of any tangible personal property or services to:
The United States, its unincorporated agencies and instrumentalities;
Any incorporated agency or instrumentality of the United States wholly owned by the United States or by a corporation wholly owned by the United States.
There are exempted from the computation of the amount of the sales tax the gross receipts from sales of tangible personal property to a common or contract carrier, shipped by the seller via the purchasing carrier under a bill of lading whether the freight is paid in advance, or the shipment is made freight charges collect, to a point outside this state and the property is actually transported to the out-of-state destination for use by the carrier in the conduct of its business as a carrier.
There are exempted from the computation of the amount of sales tax the gross receipts from sales of railroad crossties to a common or contract carrier, shipped wholly or in part by way of the purchasing carrier under a bill of lading, whether the freight is paid in advance or the shipment is made freight charges collect, to a point outside this state if the property is transported to the out-of-state destination for use by the carrier in the conduct of its business as a carrier. Interruption of the shipment for storage, drying, processing or creosoting of the railroad crossties in this state does not invalidate the exemption under this subsection.
There are exempted from the computation of the amount of the sales tax the gross receipts from sales of tangible personal property purchased for use solely outside this state and delivered to a forwarding agent, export packer, or other person engaged in the business of preparing goods for export or arranging for their exportation, and actually delivered to a port outside the continental limits of the United States prior to making any use thereof.
History: 1985 a. 29
Exemptions from use tax. 77.56(1)
The storage, use or other consumption in this state of property, the gross receipts from the sale of which are reported to the department in the measure of the sales tax, is exempted from the use tax.
The loan by an automobile dealer of a motor vehicle to any school or school district for a driver training educational program conducted by the school or school district is exempt from the use tax.
The donation to an entity specified under s. 77.54 (9a)
of property that has been purchased tax-free for resale or upon the presentation of a valid exemption certificate is exempt from the use tax.
History: 1989 a. 31
; 1995 a. 27
Liability of purchaser.
If a purchaser certifies in writing to a seller that the property purchased will be used in a manner or for a purpose entitling the seller to regard the gross receipts from the sale as exempted by this subchapter from the computation of the amount of the sales tax and uses the property in some other manner or for some other purpose, the purchaser is liable for payment of the sales tax. The tax shall be measured by the sales price of the property to the purchaser, but if the taxable use first occurs more than 6 months after the sale to the purchaser, the purchaser may use as the measure of the tax either that sales price or the fair market value of the property at the time the taxable use first occurs.
History: 1983 a. 405
Seller is not relieved of liability if purchaser's certificate on its face fails to state a legal basis for exempting the sale. Department of Revenue v. Moebius Printing Co. 89 W (2d) 610, 279 NW (2d) 213 (1979).