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).
Returns and payments. 77.58(1)
The taxes imposed by this subchapter for each calendar quarter are due and payable on the last day of the month next succeeding the calendar quarter for which imposed except that:
If the amount of tax for any calendar quarter exceeds $600, the department may require by written notice to the taxpayer that the taxes imposed on and after the date specified in the notice are due and payable on the last day of the month next succeeding the calendar month for which imposed.
If the amount of tax for any calendar quarter exceeds $3,600, the department may require by written notice to the taxpayer that the taxes imposed on and after the date specified in the notice are due and payable on the 20th day of the month next succeeding the calendar month for which imposed. The payment is timely if it fulfills the requirements under s. 77.61 (14)
A return shall be filed by the last day of the month next succeeding each calendar quarter for taxes imposed for the preceding calendar quarter except that:
If payments are required to be made monthly and are due and payable on the last day of the month next succeeding the calendar month for which imposed under sub. (1) (a)
, a return shall be filed by the last day of the month next succeeding each calendar month for taxes imposed for the preceding calendar month.
If payments are required to be made monthly and are due and payable on the 20th day of the month next succeeding the calendar month for which imposed under sub. (1) (b)
, a return shall be filed by the 20th day of the month next succeeding each calendar month for taxes imposed for the preceding calendar month.
Returns and payments under this section are timely if they meet the requirements under s. 77.61 (14)
For purposes of the sales tax a return shall be filed by every seller. For purposes of the use tax a return shall be filed by every retailer engaged in business in this state and by every person purchasing tangible personal property or services, the storage, use or other consumption of which is subject to the use tax, who has not paid the use tax due to a retailer required to collect the tax. Returns shall be signed by the person required to file the return or by a duly authorized agent but need not be verified by oath.
For purposes of the sales tax the return shall show the gross receipts of the seller during the preceding reporting period. For purposes of the use tax, in case of a return filed by a retailer, the return shall show the total sales price of the property or taxable services sold, the storage, use or consumption of which became subject to the use tax during the preceding reporting period. In case of a sales or use tax return filed by a purchaser, the return shall show the total sales price of the property and taxable services purchased, the storage, use or consumption of which became subject to the use tax during the preceding reporting period. The return shall also show the amount of the taxes for the period covered by the return and such other information as the department deems necessary for the proper administration of this subchapter.
The person required to file the return shall deliver the return together with a remittance of the amount of the tax due to the office of the department or such other place as the department designates.
The department, if it deems it necessary to ensure payment to or facilitate the collection by the state of the amount of taxes, may require returns and payments of the amount of taxes for other than quarterly periods. The department may, if satisfied that the revenues will be adequately safeguarded, permit returns and payments of the amount of taxes for other than quarterly periods. Such returns or payments shall be due or payable by the last day of the month next succeeding the end of the reporting or paying period, except that the department may require by written notice to the taxpayer that the returns or payments shall be due or payable by the 20th day of the month next succeeding the end of the reporting or paying period. Any person who discontinues business or who does not hold a valid permit under s. 77.52 (9)
prior to the end of a reporting period shall, within 30 days after such discontinuance or after the date on which the person ceases to hold a valid permit, file a return and pay the taxes due from the beginning of such reporting period. If a business is discontinued and a final report thereon has been made covering all payments due or refunds claimed as provided in this section, the account shall be closed, the seller's permit terminated and, notwithstanding any other provisions of this section, no further reports may be required.
For the purposes of the sales tax gross receipts from rentals or leases of tangible personal property shall be reported and the tax paid in accordance with such rules as the department prescribes.
The department for good cause may extend for not to exceed one month the time for making any return or paying any amount required to be paid by this subchapter. The extension may be granted at any time provided a request therefor is filed with the department within or prior to the period for which the extension is requested.
In any case in which a retailer who has accepted a resale or exemption certificate is subsequently required to pay a sales or use tax measured by the sale, the retailer may recover the amount of the tax as a debt due from the person who furnished such certificate.
Deficiency and refund determinations. 77.59(1)
The department may, by office audit, determine the tax required to be paid to the state or the refund due to any person pursuant to this subchapter. The determination may be made upon the basis of the facts contained in the return being audited or upon the basis of any other information within the department's possession. The determination shall be presumed to be correct and the burden of proving it to be incorrect shall be upon the person challenging the correctness thereof. One or more such office audit determinations may be made of the amount due for any one or for more than one period.
The department may, by field audit, determine the tax required to be paid to the state or the refund due to any person under this subchapter. The determination may be made upon the basis of the facts contained in the return being audited or upon any other information in the department's possession. The determination may be made on the basis of sampling, whether or not the person being audited has complete records of transactions and whether or not the person being audited consents. The department may examine and inspect the books, records, memoranda and property of any person in order to verify the tax liability of that person or of another person. The department may subpoena any person to give testimony under oath before it and to produce whatever books, records or memoranda are necessary in order to enable the department to verify the tax liability of that person or of another person. The determination shall be presumed to be correct and the burden of proving it to be incorrect shall be upon the person challenging its correctness. A determination by the department in a field audit becomes final at the expiration of the appeal periods provided in sub. (6)
, and the tax liability of the taxpayer for the period audited may not be subsequently adjusted except as provided in sub. (4) (b)
. If the taxpayer files or is required to file more than one return for the taxpayer's fiscal year or for a calendar year, the determination made by field audit for that fiscal or calendar year shall be based on the receipts, purchases, deductions and exemptions for the entire fiscal or calendar year.
No determination of the tax liability of a person may be made unless written notice of the determination is given to the taxpayer within 4 years after the due date of the taxpayer's Wisconsin income or franchise tax return or, if exempt, within 4 years of the 15th day of the 4th month of the year following the close of the calendar or fiscal year, within 4 years of the dissolution of a corporation or within 4 years of the date any sales and use tax return required to be filed for any period in that year was filed, whichever is later. The notice required under this paragraph shall specify whether the determination is an office audit determination or a field audit determination, and it shall be in writing. If the department is unable to obtain service by mail, publication of it as a class 3 notice, under ch. 985
, shall be service of notice in any case where notice is required under this subchapter.
If the taxpayer has consented in writing to the giving of notice of determination after the time under sub. (3)
, the notice may be given, and the taxpayer may file a claim for a refund, at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing.
Except as provided in sub. (3m)
, at any time within 4 years after the due date, or in the case of buyers the unextended due date, of a person's corresponding Wisconsin income or franchise tax return or, if exempt, within 4 years of the 15th day of the 4th month of the year following the close of the calendar or fiscal year for which that person files a claim, that person may, unless a determination by the department by office or field audit of a seller has been made and unless a determination by office audit of a buyer other than an audit in which the tax that is the subject of the refund claim was not adjusted has been made and unless a determination by field audit of the buyer has been made, file with the department a claim for refund of taxes paid to the department by that person. If the amount of the claim is at least $50 or if either the seller has ceased doing business, the buyer is being field audited or the seller may no longer file a claim, the buyer may, within the time period under this subsection, file a claim with the department for a refund of the taxes paid to the seller. A claim is timely if it fulfills the requirements under s. 77.61 (14)
. A buyer may claim a refund under this paragraph only on a form prescribed by the department, only by signing that form and only if the seller signs the form unless the department waives that requirement. If both a buyer and a seller file a valid claim for the same refund, the department may pay either claim. The claim for refund shall be regarded as a request for determination. The determination thus requested shall be made by the department within one year after the claim for refund is received by it unless the taxpayer has consented in writing to an extension of the one-year time period prior to its expiration.
A claim for refund that is not to be passed along to customers under sub. (8m)
may be made within 2 years of the determination of a tax assessed by office audit or field audit and paid if the tax was not protested by the filing of a petition for redetermination. A claim is timely if it fulfills the requirements under s. 77.61 (14)
. No claim may be allowed under this paragraph for any tax self-assessed by the taxpayer. If a claim is filed under this paragraph, the department may make an additional assessment in respect to any item that was a subject of the prior assessment.
A seller who receives a refund under par. (a)
of taxes that the seller has collected from buyers shall return the taxes and related interest to the buyers from whom the taxes were collected. The seller shall return to the department any part of a refund that the seller does not return to a buyer along with a penalty of 25% of the amount not returned or a penalty equal to the amount not returned in the case of fraud.
The department may offset the amount of any refund for a period, together with interest on the refund, against deficiencies for another period, and against penalties and interest on the deficiencies, or against any amount of whatever kind, due and owing on the books of the department from the person claiming the refund. If the refund is to be paid to a buyer, the department may also set off amounts in the manner in which it sets off income tax and franchise tax refunds under s. 71.93
and may set off amounts for child support or maintenance or both in the manner in which it sets off income taxes under ss. 49.855
and 71.93 (3)
Except as provided in sub. (4) (b)
, a determination by the department is final unless, within 60 days after receipt of the notice of the determination, the taxpayer, or other person directly interested, petitions the department for a redetermination. A petition is timely if it fulfills the requirements under s. 77.61 (14)
. In the case of notice served by publication, the 60-day period commences with the last day of publication of the notice.
Within 6 months of the receipt by the department of the petition for redetermination, the department shall notify the petitioner of its redetermination. The redetermination shall become final 60 days after receipt by the petitioner of notice of the redetermination unless, within that 60-day period, the petitioner appeals the redetermination under par. (b)
Appeals from the department's redeterminations shall be governed by the statutes applicable to income or franchise tax appeals but all appeals from decisions of the tax appeals commission with respect to the taxes imposed by this subchapter shall be appealed to the circuit court for Dane county.
The department shall notify any person who files a petition for redetermination that the person may deposit the entire deficiency determination, including any penalty or interest, with the department when the petition is filed or at any time before the department makes its redetermination. Any deposited amount which is refunded shall bear interest at the rate of 9% per year during the time the funds were on deposit. A person may also pay any portion of a deficiency determination admitted to be correct and the payment shall be considered an admission of the validity of that portion of the deficiency determination and may not be recovered in an appeal or in any other action or proceeding.
If the department believes that the collection of any tax imposed by this subchapter will be jeopardized by delay, it shall notify the person determined to owe the tax of its intention to proceed under s. 71.91 (5)
for collection of the amount determined to be owing, including penalties and interest. Such notice shall be by certified or registered mail or by personal service and the warrant of the department shall not issue if the person, within 10 days after such notice furnishes a bond in such amount not exceeding double the amount determined to be owing and with such sureties as the department approves, conditioned upon the payment of so much of the taxes, interest and penalties as shall finally be determined to be due. Nothing in this subsection shall affect the review of determinations of tax as provided in this subchapter 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 ss. 71.89 (1)
and 71.90 (2)
Notwithstanding any other provision of this subchapter, if a person fails to file a report or return required by this subchapter or files a false or fraudulent report or return with the intent in either case to defeat or evade tax required to be paid, the department may determine the proper tax due at any time and without regard to when such failure or filing occurred and without regard to whether a field audit determination was previously made. The department may, at any time, examine and inspect any of the books, records, memoranda, or property of any person and make whatever inquiry, including the subpoena of persons, necessary to the determination of whether a failure to file or a filing was with the intent to defeat or evade the tax.
Within the time period under sub. (4)
, the department of revenue may refund excess taxes paid to it under this chapter, even if the person applying for the refund has been field audited in respect to those taxes, if the applicant's customers have filed valid claims for refunds with the applicant and if the refund is passed along to those customers.
If any person fails to file a return, the department shall make an estimate of the amount of the gross receipts of the person, or, as the case may be, of the amount of the total sales price of tangible personal property or taxable service sold or purchased by the person, the sale by or the storage, use or other consumption of which in this state is subject to sales or use tax. The estimate shall be made for the period in respect to which the person failed to make a return and shall be based upon any information which is in the department's possession or may come into its possession. Upon the basis of this estimate the department shall compute and determine the amount required to be paid to the state, adding to the sum thus arrived at a penalty equal to 25% thereof. One or more such determinations may be made for one or for more than one period. When a business is discontinued a determination may be made at any time thereafter, within the periods specified in sub. (3)
, as to liability arising out of that business.
If the department determines that a liability exists under this subchapter 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. If the department determines that a liability exists under this subchapter and that the liability may be for either sales taxes or use taxes, the department may make an assessment for both taxes, specifying that it is assessing in the alternative.
As used in this section, "tax" or "taxes" include penalties and interest.
"Spot check" by department of taxpayer's records for single month was "field audit" under (2) covering that period only. Department of Revenue v. Moebius Printing Co. 89 W (2d) 610, 279 NW (2d) 213 (1979).
All persons who have paid excess sales tax are entitled to file claim for refund under (4) regardless of whether taxes were paid to retailer or to department. Dairyland Harvestore v. DOR, 151 W (2d) 799, 447 NW (2d) 56 (Ct. App. 1989).
Interest and penalties. 77.60(1)(a)(a)
Except as provided in par. (b)
, unpaid taxes shall bear interest at the rate of 12% per year from the due date of the return until paid or deposited with the department. Taxes refunded to the seller shall bear interest at 9% per year from the due date of the return to the date on which the refund is certified on the refund rolls. An extension of time within which to file a return shall not extend the due date of the return for purposes of interest computation. Taxes refunded to the buyer shall bear interest at 9% per year from the last day of the month following the month during which the buyer paid the tax to the date on which the refund is certified on the refund rolls.
Any unpaid taxes for a calendar year or a fiscal year resulting from a field audit shall bear interest at the rate of 12% per year from the due date of the taxpayer's Wisconsin income or franchise tax return for that calendar or fiscal year or, if exempt, from the 15th day of the 4th month of the year after the close of the calendar or fiscal year for which the taxes are due to the date on which the taxes are paid or, if unpaid, become delinquent, whichever is earlier.
All nondelinquent payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.
Delinquent sales and use tax returns shall be subject to a $10 late filing fee unless the return was not timely filed because of the death of the person required to file. The fee shall not apply if the department has failed to issue a seller's permit or a use tax registration within 30 days of the receipt of an application for a seller's permit or use tax registration accompanied by the fee established under s. 73.03 (50)
, if the person does not hold a valid certificate under s. 73.03 (50)
, and the security required under s. 77.61 (2)
. Delinquent sales and use taxes shall bear interest at the rate of 1.5% per month until paid. The taxes imposed by this subchapter shall become delinquent if not paid:
In the case of a timely filed return, on or before the due date of the return, or on or before the expiration of an extension period if one has been granted.
In the case of no return filed or a return filed late, by the due date of the return.
In the case of deficiency determinations, on or before the due date specified in the notice of deficiency, except that if the determination is contested before the tax appeals commission or in the courts, on or before the 30th day following the date on which the order or judgment representing the final determination becomes final.
If due to neglect an incorrect return is filed, the entire tax finally determined shall be subject to a penalty of 25%, or 50% in the case of returns under s. 77.61 (1) (c)
, of the tax exclusive of interest or other penalty. A person filing an incorrect return shall have the burden of proving that the error or errors were due to good cause and not due to neglect.
In case of failure to file any return required under authority of s. 77.58
by the due date, determined with regard to any extension of time for filing, unless it is shown that such failure was due to reasonable cause and not due to neglect, there shall be added to the amount required to be shown as tax on such return 5% of the amount of such tax if the failure is not for more than one month, with an additional 5% for each additional month or fraction thereof during which such failure continues, not exceeding 25% in the aggregate. For purposes of this subsection, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the due date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return.
If a person fails to file a return when due or files a false or fraudulent return with intent in either case to defeat or evade the tax imposed by this subchapter, a penalty of 50% shall be added to the tax required to be paid, exclusive of interest and other penalties.
Any person who fails to furnish any return required to be made or who fails to furnish any data required by the department is guilty of a misdemeanor.
Any person, including an officer of a corporation, required to make, render, sign or verify any report or return required by this subchapter who makes a false or fraudulent report or return or who fails to furnish a report or return when due with the intent, in either case, to defeat or evade the tax imposed by this subchapter, is guilty of a misdemeanor.
Any person engaged in the business of making sales at retail who is at the same time engaged in some other kind of business, occupation or profession not taxable under this subchapter, shall keep books to show separately the transactions used in determining the tax herein levied. In the event of such person failing to keep such separate books, there shall be levied upon the person a tax at the rate provided in s. 77.52
on the receipts of both or all of the person's businesses, occupations or professions.
Any person who is required to make a payment of the amount of tax imposed under this subchapter and who wilfully fails to make such payment to the department shall be personally liable for such amounts, including interest and penalties thereon, if that person's principal is unable to pay such amounts to the department. The personal liability of such person as provided in this subsection shall survive the dissolution of the corporation or other form of business association. Personal liability may be assessed by the department against such person under this subchapter for the making of sales tax determinations against retailers and shall be subject to the provisions for review of sales tax determinations against retailers, but the time for making such determinations shall not be limited by s. 77.59 (3)
. "Person", in this subsection, includes an officer, employe or other responsible person of a corporation or other form of business association or a member, employe or other responsible person of a partnership, limited liability company or sole proprietorship who, as such officer, employe, member or other responsible person, is under a duty to perform the act in respect to which the violation occurs.
It is unlawful for any person to aid, abet or assist another in making any false or fraudulent return or false statement in any return required by this subchapter, with intent to defraud the state or evade payment of the tax, or any part thereof, imposed by this subchapter. Anyone in violation hereof shall be guilty of a misdemeanor.
Whenever a person collects tax moneys imposed under s. 77.52
from a consumer, user or purchaser, the person receives those tax moneys as trust funds and state property. Any person who intentionally fails or refuses to pay over those tax moneys to the state at the time required by this subchapter or who fraudulently withholds, appropriates or uses any of those tax moneys is guilty of theft under s. 943.20
, punishable as specified in s. 943.20 (3)
according to the amount of tax moneys involved. This subsection applies regardless of the person's interest in those tax moneys. Payment to creditors in preference to the payment of those tax moneys to the state by any person is prima facie evidence of an intent to fraudulently use those tax moneys.
A person who negligently files an incorrect and excessive claim for a refund under s. 77.59
is subject to a penalty of 25% of the difference between the amount claimed and the amount that should have been claimed. A person who fraudulently files an incorrect claim for a refund under s. 77.59
is subject to a penalty of 100% of the difference between the amount claimed and the amount that should have been claimed.