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.
Administrative provisions. 77.61(1)(a)(a)
No motor vehicle, boat, snowmobile, mobile home not exceeding 45 feet in length, trailer, semitrailer, all-terrain vehicle or aircraft shall be registered or titled in this state unless the registrant presents proof that the sales or use taxes imposed by this subchapter have been paid.
In the case of a motor vehicle purchased from a licensed Wisconsin motor vehicle dealer, the registrant shall present proof that the tax has been paid to such dealer.
In the case of motor vehicles, boats, snowmobiles, mobile homes not exceeding 45 feet in length, trailers, semitrailers, all-terrain vehicles or aircraft registered or titled, or required to be registered or titled, in this state purchased from persons who are not Wisconsin boat, trailer or semitrailer dealers, licensed Wisconsin aircraft, motor vehicle or mobile home dealers or registered Wisconsin snowmobile or all-terrain vehicle dealers, the purchaser shall file a sales tax return and pay the tax prior to registering or titling the motor vehicle, boat, snowmobile, mobile home not exceeding 45 feet in length, trailer, semitrailer, all-terrain vehicle or aircraft in this state.
In order to protect the revenue of the state, the department may require any person who is or will be liable to it for the tax imposed by this subchapter to place with it, before or after a permit is issued, the security, not in excess of $15,000, that the department determines. In determining the amount of security to require under this subsection, the department may consider the person's payment of other taxes administered by the department and any other relevant facts. If any taxpayer fails or refuses to place that security, the department may refuse or revoke the permit. If any taxpayer is delinquent in the payment of the taxes imposed by this subchapter, the department may, upon 10 days' notice, recover the taxes, interest, costs and penalties from the security placed with the department by the taxpayer in the following order: costs, penalties, delinquent interest, delinquent tax. No interest may be paid or allowed by the state to any person for the deposit of security. Any security deposited under this subsection shall be returned to the taxpayer if the taxpayer has, for 24 consecutive months, complied with all the requirements of this subchapter.
The department shall provide a bracket system to be used by retailers in collecting the amount of the tax from their customers, but the use of such brackets shall not relieve the retailer from liability for payment of the full amount of the tax levied by ss. 77.51
Every seller and retailer and every person storing, using or otherwise consuming in this state tangible personal property or taxable services purchased from a retailer shall keep such records, receipts, invoices and other pertinent papers and records, including machine-readable records, in such form as the department requires. The department may, after giving notice, require any person to keep whatever records are needed for the department to compute the sales or use taxes the person should pay. Thereafter, the department shall add to any taxes assessed on the basis of information not contained in the records required a penalty of 25% of the amount of the tax so assessed in addition to all other penalties under this chapter.
For reporting the sales tax and collecting and reporting the use tax imposed on the retailer under s. 77.53 (3)
and the accounting connected with it, retailers may deduct 0.5% of those taxes payable or $10 for that reporting period required under s. 77.58 (1)
, whichever is greater, but not more than the amount of the sales taxes or use taxes that is payable under ss. 77.52 (1)
and 77.53 (3)
for that reporting period required under s. 77.58 (1)
, as administration expenses if the payment of the taxes is not delinquent. For purposes of calculating the retailer's discount under this paragraph, the taxes on retail sales reported by retailers under subch. V
, including taxes collected and remitted as required under s. 77.785
, shall be included if the payment of those taxes is not delinquent.
It is unlawful for the department or any person having an administrative duty under this subchapter to make known in any manner whatever the business affairs, operations or information obtained by an investigation of records and equipment of any retailer or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any return, or to permit any return or copy thereof to be seen or examined by any person. This paragraph does not prohibit the department of revenue from publishing statistics classified so as not to disclose the identity of particular returns or reports and the items thereof. This paragraph does not prohibit employes or agents of the department of revenue from offering or submitting information obtained by investigation or any return or any schedule, exhibit or writing pertaining to a return or any copy of, or 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 that evidence has reasonable probative value.
Subject to pars. (c)
and to rules of the department, any sales tax or use tax returns or any schedules, exhibits, writings or audit reports pertaining to the same, on file with the department, shall be open to examination by any of the following persons or the contents thereof divulged or used as provided in the following cases and only to the extent therein authorized.
The secretary of revenue, or any officer, agent or employe of the department of revenue;
The attorney general, department of justice employes;
Members of the senate committee on organization or its authorized agents or the assembly 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 information is disclosed only in a meeting closed to the public. The committee may disclose tax return information to the senate or assembly or to other legislative committees if the information does not disclose the identity of particular returns 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 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 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 such return, or to whom the same relates or by that person's authorized agent or attorney;
The person required to file reports on collection or taxes withheld from another;
Any person examining a return pursuant to a court order duly obtained upon a showing to the court that the information contained in the return 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 to produce a return in open court in a court action pending before the judge.
Any person against whom the department asserts liability under this subchapter, including a successor, guarantor or surety.
Employes of this state, to the extent that the department 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.
The administrator of the lottery division in the department for the purpose of withholding of lottery winnings under s. 565.30 (5)
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.
Copies of sales tax or use tax returns, schedules, exhibits, writings or audit reports shall not be furnished to the persons listed under par. (b)
, except persons under par. (b) 5.
or under an agreement between the department and another agency of government.
The use of information obtained under par. (b)
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 specified under par. (b) 6.
The department may charge for the reasonable cost of divulging information under this subsection.
District attorneys may examine tax information of persons on file with the department of revenue as follows:
Such tax information may be examined for use in preparation for any judicial proceeding or any investigation which may result in a judicial proceeding involving sales or use tax if:
The treatment of an item reflected in such tax information is or may be related to the resolution of an issue in the proceeding or investigation; or
The tax information relates or may relate to a transactional relationship between the taxpayer 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 tax information under subd. 1.
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 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 tax information so requested and the information may be examined and used solely for the proceeding or investigation for which it was requested.
Such tax 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 tax information may be used solely for the proceeding or investigation for which it is requested.
The department of revenue may allow an examination of tax information under subd. 3.
only if a district attorney petitions a court of record in this state for an order allowing the examination and the court issues an order after finding:
There is a reasonable cause to believe, based on information believed to be reliable, that a specific criminal act has been committed;
There is reason to believe that such tax information is probative evidence of a matter in issue related to the commission of such criminal act; and
The information sought to be examined cannot reasonably be obtained from any other source, unless it is determined that, notwithstanding the reasonable availability of the information from another source, the tax information constitutes the most probative evidence of a matter in issue relating to the commission of such criminal act.
If the department determines that examination of tax information ordered under subd. 4.
would identify a confidential informant or seriously impair a civil or criminal tax investigation, the department may deny access and shall certify the reason therefor to the court.