Amendment SSA3-SB197

SB197-SSA3, s. 7 Section 7. 71.04 (4) (f) of the statutes is created to read:

SB197-SSA3,4,10 71.04 (4) (f) If a taxpayer who is subject to apportionment under this subsection has a net gain of 100 employees in this state in any taxable year beginning after the effective date of this paragraph .... [revisor inserts date], and before January 1, 2008, the taxpayer's remaining net income may, at the taxpayer's option, be apportioned to this state by an apportionment fraction composed of the sales factor under sub. (7) or, for a financial organization, under par. (e) beginning with the taxable year in which the employees are hired, except that if the taxpayer does not retain such employees in this state for at least 3 consecutive taxable years, the taxpayer shall apportion the taxpayer's remaining net income as provided under pars. (a) to (e), as appropriate.

SB197-SSA3, s. 8 Section 8. 71.04 (4m) of the statutes is created to read:

SB197-SSA3,4,16 71.04 (4m) Apportionment formula computation. (a) 1. For taxable years beginning before January 1, 2008, if both the numerator and the denominator of the sales factor under sub. (7) related to a taxpayer's remaining net income are zero, the sales factor under sub. (7) is eliminated from the apportionment formula to determine the taxpayer's remaining net income under sub. (4).

SB197-SSA3,4,20 2. For taxable years beginning after December 31, 2007, if both the numerator and the denominator of the sales factor under sub. (7) related to a taxpayer's remaining net income are zero, none of the taxpayer's remaining net income is apportioned to this state.

SB197-SSA3,4,25 (b) 1. For taxable years beginning before January 1, 2008, if the numerator of the sales factor under sub. (7) related to a taxpayer's remaining net income is a negative number and the denominator of the sales factor under sub. (7) related to a taxpayer's remaining net income is a positive number, a negative number, or zero, the sales factor under sub. (7) is zero.

SB197-SSA3,5,5 2. For taxable years beginning after December 31, 2007, if the numerator of the sales factor under sub. (7) related to a taxpayer's remaining net income is a negative number and the denominator of the sales factor under sub. (7) related to a taxpayer's remaining net income is a positive number, a negative number, or zero, none of the taxpayer's remaining net income is apportioned to this state.

SB197-SSA3,5,10 (c) 1. For taxable years beginning before January 1, 2008, if the numerator of the sales factor under sub. (7) related to a taxpayer's remaining net income is a positive number and the denominator of the sales factor under sub. (7) related to a taxpayer's remaining net income is zero or a negative number, the sales factor under sub. (7) is one.

SB197-SSA3,5,15 2. For taxable years beginning after December 31, 2007, if the numerator of the sales factor under sub. (7) related to a taxpayer's remaining net income is a positive number and the denominator of the sales factor under sub. (7) related to a taxpayer's remaining net income is zero or a negative number, all of the taxpayer's remaining net income is apportioned to this state.

SB197-SSA3, s. 9 Section 9. 71.04 (5) (intro.) of the statutes is amended to read:

SB197-SSA3,5,18 71.04 (5) Property factor. (intro.) For purposes of sub. (4) and for taxable years beginning before January 1, 2008:

SB197-SSA3, s. 10 Section 10. 71.04 (6) (intro.) of the statutes is amended to read:

SB197-SSA3,5,21 71.04 (6) Payroll factor. (intro.) For purposes of sub. (4) and for taxable years beginning before January 1, 2008:

SB197-SSA3, s. 11 Section 11. 71.04 (7) (d) of the statutes is amended to read:

SB197-SSA3,6,5 71.04 (7) (d) Sales, other than sales of tangible personal property, are in this state if the income-producing activity is performed in this state. If the income-producing activity is performed both in and outside this state the sales shall be divided between those states having jurisdiction to tax such business in proportion to the direct costs of performance incurred in each such state in rendering this service. Services performed in states which do not have jurisdiction to tax the business shall be deemed to have been performed in the state to which compensation is allocated by sub. s. 71.04 (6) , 2001 stats.

SB197-SSA3, s. 12 Section 12. 71.04 (8) (b) of the statutes is renumbered 71.04 (8) (b) 1. and amended to read:

SB197-SSA3,6,14 71.04 (8) (b) 1. "Public For taxable years beginning before January 1, 2006, "public utility", as used in this section, means any business entity described under subd. 2. and any business entity which owns or operates any plant, equipment, property, franchise, or license for the transmission of communications or the production, transmission, sale, delivery, or furnishing of electricity, water or steam, the rates of charges for goods or services of which have been established or approved by a federal, state or local government or governmental agency. " Public

SB197-SSA3,6,20 2. In this section, for taxable years beginning after December 31, 2005, "public utility" also means any business entity providing service to the public and engaged in the transportation of goods and persons for hire, as defined in s. 194.01 (4), regardless of whether or not the entity's rates or charges for services have been established or approved by a federal, state or local government or governmental agency.

SB197-SSA3, s. 13 Section 13. 71.04 (8) (c) of the statutes is amended to read:

SB197-SSA3,7,2 71.04 (8) (c) The net business income of railroads, sleeping car companies, car line companies, pipeline companies, financial organizations, air carriers, and public utilities requiring apportionment shall be apportioned pursuant to rules of the department of revenue, but the income taxed is limited to the income derived from business transacted and property located within the state.

SB197-SSA3, s. 14 Section 14. 71.04 (10) of the statutes is amended to read:

SB197-SSA3,7,14 71.04 (10) Department may waive factor. Where, in the case of any nonresident individual or nonresident estate or trust engaged in business within in and without the outside this state of Wisconsin and required to apportion its income as provided in this section, it shall be shown to the satisfaction of the department of revenue that the use of any one of the 3 factors provided under sub. (4) gives an unreasonable or inequitable final average ratio because of the fact that such nonresident individual or nonresident estate or trust does not employ, to any appreciable extent in its trade or business in producing the income taxed, the factors made use of in obtaining such ratio, this factor may, with the approval of the department of revenue, be omitted in obtaining the final average ratio which is to be applied to the remaining net income. This subsection does not apply to taxable years beginning after December 31, 2007.

SB197-SSA3, s. 15 Section 15. 71.25 (6) of the statutes is renumbered 71.25 (6) (intro.) and amended to read:

SB197-SSA3,8,11 71.25 (6) Allocation and separate accounting and apportionment formula. (intro.) Corporations engaged in business within and without the state shall be taxed only on such income as is derived from business transacted and property located within the state. The amount of such income attributable to Wisconsin may be determined by an allocation and separate accounting thereof, when the business of such corporation within the state is not an integral part of a unitary business, but the department of revenue may permit an allocation and separate accounting in any case in which it is satisfied that the use of such method will properly reflect the income taxable by this state. In all cases in which allocation and separate accounting is not permissible, the determination shall be made in the following manner: for all businesses except air carriers, financial organizations, pipeline companies, public utilities, railroads, sleeping car companies, car line companies and corporations or associations that are subject to a tax on unrelated business income under s. 71.26 (1) (a) there shall first be deducted from the total net income of the taxpayer the part thereof (less related expenses, if any) that follows the situs of the property or the residence of the recipient. The remaining net income shall be apportioned to Wisconsin this state by use of an apportionment fraction composed of a sales factor under sub. (9) representing 50% of the fraction, a property factor under sub. (7) representing 25% of the fraction and a payroll factor under sub. (8) representing 25% of the fraction. the following:

SB197-SSA3, s. 16 Section 16. 71.25 (6) (a) of the statutes is created to read:

SB197-SSA3,8,16 71.25 (6) (a) Except as provided in par. (f), for taxable years beginning before January 1, 2006, an apportionment fraction composed of a sales factor under sub. (9) representing 50% of the fraction, a property factor under sub. (7) representing 25% of the fraction, and a payroll factor under sub. (8) representing 25% of the fraction.

SB197-SSA3, s. 17 Section 17. 71.25 (6) (b) of the statutes is created to read:

SB197-SSA3,8,22 71.25 (6) (b) Except as provided in par. (f), for taxable years beginning after December 31, 2005, and before January 1, 2007, an apportionment fraction composed of a sales factor under sub. (9) representing 60% of the fraction, a property factor under sub. (7) representing 20% of the fraction, and a payroll factor under sub. (8) representing 20% of the fraction.

SB197-SSA3, s. 18 Section 18. 71.25 (6) (c) of the statutes is created to read:

SB197-SSA3,9,3 71.25 (6) (c) Except as provided in par. (f), for taxable years beginning after December 31, 2006, and before January 1, 2008, an apportionment fraction composed of a sales factor under sub. (9) representing 80% of the fraction, a property factor under sub. (7) representing 10% of the fraction, and a payroll factor under sub. (8) representing 10% of the fraction.

SB197-SSA3, s. 19 Section 19. 71.25 (6) (d) of the statutes is created to read:

SB197-SSA3,9,7 71.25 (6) (d) Except as provided in par. (f), for taxable years beginning after December 31, 2007, an apportionment fraction composed of the sales factor under sub. (9).

SB197-SSA3, s. 20 Section 20. 71.25 (6) (e) of the statutes is created to read:

SB197-SSA3,9,15 71.25 (6) (e) Except as provided in par. (f), for taxable years beginning after December 31, 2005, and before January 1, 2008, the apportionment fraction for the remaining net income of a financial organization shall include a sales factor that represents more than 50% of the apportionment fraction, as determined by rule by the department. For taxable years beginning after December 31, 2007, the apportionment fraction for the remaining net income of a financial organization is composed of a sales factor, as determined by rule by the department.

SB197-SSA3, s. 21 Section 21. 71.25 (6) (f) of the statutes is created to read:

SB197-SSA3,9,24 71.25 (6) (f) If a taxpayer who is subject to apportionment under this subsection has a net gain of 100 employees in this state in any taxable year beginning after the effective date of this paragraph .... [revisor inserts date], and before January 1, 2008, the taxpayer's remaining net income may, at the taxpayer's option, be apportioned to this state by an apportionment fraction composed of the sales factor under sub. (9) or, for a financial organization, under par. (e) beginning with the taxable year in which the employees are hired, except that if the taxpayer does not retain such employees in this state for at least 3 consecutive taxable years, the taxpayer shall apportion the taxpayer's remaining net income as provided under pars. (a) to (e), as appropriate.

SB197-SSA3, s. 22 Section 22. 71.25 (6m) of the statutes is created to read:

SB197-SSA3,10,8 71.25 (6m) Apportionment formula computation. (a) 1. For taxable years beginning before January 1, 2008, if both the numerator and the denominator of the sales factor under sub. (9) related to a taxpayer's remaining net income are zero, the sales factor under sub. (9) is eliminated from the apportionment formula to determine the taxpayer's remaining net income under sub. (6).

SB197-SSA3,10,12 2. For taxable years beginning after December 31, 2007, if both the numerator and the denominator of the sales factor under sub. (9) related to a taxpayer's remaining net income are zero, none of the taxpayer's remaining net income is apportioned to this state.

SB197-SSA3,10,17 (b) 1. For taxable years beginning before January 1, 2008, if the numerator of the sales factor under sub. (9) related to a taxpayer's remaining net income is a negative number and the denominator of the sales factor under sub. (9) related to a taxpayer's remaining net income is a positive number, a negative number, or zero, the sales factor under sub. (9) is zero.

SB197-SSA3,10,22 2. For taxable years beginning after December 31, 2007, if the numerator of the sales factor under sub. (9) related to a taxpayer's remaining net income is a negative number and the denominator of the sales factor under sub. (9) related to a taxpayer's remaining net income is a positive number, a negative number, or zero, none of the taxpayer's remaining net income is apportioned to this state.

SB197-SSA3,11,2 (c) 1. For taxable years beginning before January 1, 2008, if the numerator of the sales factor under sub. (9) related to a taxpayer's remaining net income is a positive number and the denominator of the sales factor under sub. (9) related to a taxpayer's remaining net income is zero or a negative number, the sales factor under sub. (9) is one.

SB197-SSA3,11,7 2. For taxable years beginning after December 31, 2007, if the numerator of the sales factor under sub. (9) related to a taxpayer's remaining net income is a positive number and the denominator of the sales factor under sub. (9) related to a taxpayer's remaining net income is zero or a negative number, all of the taxpayer's remaining net income is apportioned to this state.

SB197-SSA3, s. 23 Section 23. 71.25 (7) (intro.) of the statutes is amended to read:

SB197-SSA3,11,10 71.25 (7) Property factor. (intro.) For purposes of sub. (5) (6) and for taxable years beginning before January 1, 2008:

SB197-SSA3, s. 24 Section 24. 71.25 (8) (intro.) of the statutes is amended to read:

SB197-SSA3,11,13 71.25 (8) Payroll factor. (intro.) For purposes of sub. (5) (6) and for taxable years beginning before January 1, 2008:

SB197-SSA3, s. 25 Section 25. 71.25 (9) (a) of the statutes is amended to read:

SB197-SSA3,11,25 71.25 (9) (a) The sales factor is a fraction, the numerator of which is the total sales of the taxpayer in this state during the tax period, and the denominator of which is the total sales of the taxpayer everywhere during the tax period. For sales of tangible personal property, the numerator of the sales factor is the sales of the taxpayer during the tax period under par. (b) 1. and 2. plus 50% of the sales of the taxpayer during the tax period under pars. (b) 2m. and 3. and (c). For purposes of determining the numerator of the sales factor for a member of a combined reporting group under s. 71.255 (7), "taxpayer" means the member of a combined reporting group, as defined in s. 71.255 (1) (c), that transferred title to tangible personal property or, for sales other than sales of tangible personal property, that made the sale.

SB197-SSA3, s. 26 Section 26. 71.25 (9) (d) of the statutes is amended to read:

SB197-SSA3,12,9 71.25 (9) (d) Sales, other than sales of tangible personal property, are in this state if the income-producing activity is performed in this state. If the income-producing activity is performed both in and outside this state the sales shall be divided between those states having jurisdiction to tax such business in proportion to the direct costs of performance incurred in each such state in rendering this service. Services performed in states which do not have jurisdiction to tax the business shall be deemed to have been performed in the state to which compensation is allocated by sub. s. 71.25 (8) , 2001 stats.

SB197-SSA3, s. 27 Section 27. 71.25 (10) (b) of the statutes is renumbered 71.25 (10) (b) 1. and amended to read:

SB197-SSA3,12,18 71.25 (10) (b) 1. In this section, for taxable years beginning before January 1, 2006, "public utility" means any business entity described under subd. 2. and any business entity which owns or operates any plant, equipment, property, franchise, or license for the transmission of communications or the production, transmission, sale, delivery, or furnishing of electricity, water or steam the rates of charges for goods or services of which have been established or approved by a federal, state or local government or governmental agency. "Public

SB197-SSA3,12,24 2. In this section, for taxable years beginning after December 31, 2005, "public utility" also means any business entity providing service to the public and engaged in the transportation of goods and persons for hire, as defined in s. 194.01 (4), regardless of whether or not the entity's rates or charges for services have been established or approved by a federal, state or local government or governmental agency.

SB197-SSA3, s. 28 Section 28. 71.25 (10) (c) of the statutes is amended to read:

SB197-SSA3,13,5 71.25 (10) (c) The net business income of railroads, sleeping car companies, car line companies, pipeline companies, financial organizations, air carriers, and public utilities requiring apportionment shall be apportioned pursuant to rules of the department of revenue, but the income taxed is limited to the income derived from business transacted and property located within the state.

SB197-SSA3, s. 29 Section 29. 71.25 (11) of the statutes is amended to read:

SB197-SSA3,13,17 71.25 (11) Department may waive factor. Where, in the case of any corporation engaged in business within in and without the outside this state of Wisconsin and required to apportion its income as provided in sub. (6), it shall be shown to the satisfaction of the department of revenue that the use of any one of the 3 factors provided in sub. (6) gives an unreasonable or inequitable final average ratio because of the fact that such corporation does not employ, to any appreciable extent in its trade or business in producing the income taxed, the factors made use of in obtaining such ratio, this factor may, with the approval of the department of revenue, be omitted in obtaining the final average ratio which is to be applied to the remaining net income. This subsection does not apply to taxable years beginning after December 31, 2007.

SB197-SSA3, s. 30 Section 30. 71.255 of the statutes is created to read:

SB197-SSA3,13,19 71.255 Combined reporting. (1) Definitions. In this section:

SB197-SSA3,13,23 (a) "Brother-sister parent corporation" means a parent corporation that is a member of a commonly controlled group, if any members of the commonly controlled group are not connected to the parent corporation by stock ownership or interest ownership as described in par. (d).

SB197-SSA3,14,3 (b) "Combined report" means a form prescribed by the department that specifies the income of each taxpayer member of a commonly controlled group operating as a unitary business.

SB197-SSA3,14,5 (c) "Combined reporting group" means the members of a commonly controlled group that are included in a combined report under sub. (2).

SB197-SSA3,14,7 (d) "Commonly controlled group" means any of the following, but does not include an insurer that is exempt from taxation under s. 71.45 (1):

SB197-SSA3,14,13 1. A parent corporation and any corporation or chain of corporations that are connected to the parent corporation by direct or indirect ownership by the parent corporation if the parent corporation owns stock representing more than 50% of the voting power of at least one of the connected corporations or if the parent corporation or any of the connected corporations owns stock that cumulatively represents more than 50% of the voting power of each of the connected corporations.

SB197-SSA3,14,16 2. Any 2 or more corporations if a common owner directly or indirectly owns stock representing more than 50% of the voting power of the corporations or the connected corporations.

SB197-SSA3,14,20 3. A partnership or limited liability company if a parent corporation or any corporation connected to the parent corporation by common ownership directly or indirectly owns more than a 50% interest in the capital and profits of the partnership or limited liability company.

SB197-SSA3,14,22 4. Any 2 or more corporations if stock representing more than 50% of the voting power in each corporation are interests that cannot be separately transferred.

SB197-SSA3,15,2 5. Any 2 or more corporations if stock representing more than 50% of the voting power in each corporation is directly owned by, or for the benefit of, family members. In this subdivision, "family members" means an individual related by blood, marriage, or adoption within the 2nd degree of kinship as computed under s. 852.03 (2), 1995 stats., or the spouse of such an individual.

SB197-SSA3,15,7 6. A corporation, partnership, or limited liability company if a parent corporation or any corporation connected to the parent corporation by common ownership does not hold more than a 50% ownership interest in the corporation, partnership, or limited liability company but effectively controls the corporation, partnership, or limited liability company.

SB197-SSA3,15,8 (e) "Corporation" has the meaning given in s. 71.22 (1) or 71.42 (1).

SB197-SSA3,15,9 (f) "Department" means the department of revenue.

SB197-SSA3,15,12 (g) "Designated agent" means the taxpayer member of a commonly controlled group who files a group return on behalf of the taxpayer members of a combined reporting group.

SB197-SSA3,15,14 (h) "Group return" means a tax return filed on behalf of the taxpayer members of a combined reporting group.

SB197-SSA3,15,17 (i) "Intercompany transaction" means a transaction between corporations, partnerships, or limited liability companies that become members of the same combined reporting group immediately after the transaction.

SB197-SSA3,15,19 (im) "Partnership" means any entity considered a partnership under section 7701 of the Internal Revenue Code.

SB197-SSA3,15,22 (j) "Separate return" means a return filed by a corporation, regardless of whether the corporation is a member of a combined reporting group or is required to file a tax return under s. 71.24 or 71.44.

SB197-SSA3,15,25 (k) "Taxpayer member" means a corporation that is subject to tax under s. 71.23 (1) or (2) or 71.43, that is a member of a combined reporting group, and that files a combined report under this section.

SB197-SSA3,16,6 (L) "Top tier corporation" means a member of a commonly controlled group that is not connected with a parent corporation by stock ownership or interest ownership as described in par. (d), is a parent corporation, or is a brother-sister parent corporation, regardless of whether it is doing business in this state or deriving income from sources in this state, and regardless of whether its income and apportionment factors are excluded from a combined report filed under this section.

SB197-SSA3,16,15 (m) "Unitary business" includes the business activities or operations of an entity that are of mutual benefit to, integrated with, or dependent upon or that contribute to activities of at least one other entity, including transactions that serve an operational function, as determined by the department. Two or more businesses are presumed to be a unitary business if the businesses have unity of ownership, operation, and use as indicated by centralized management or a centralized executive force; centralized purchasing, advertising, or accounting; intercorporate sales or leases; intercorporate services; intercorporate debts; intercorporate use of proprietary materials; interlocking directorates; or interlocking corporate officers.

SB197-SSA3,16,24 (2) Corporations required to use combined reporting. (a) Except as provided in par. (b), and subject to sub. (6), a corporation that is subject to the tax imposed under s. 71.23 (1) or (2) or 71.43, that is a member of a commonly controlled group, and that is engaged, in whole or in part, in a unitary business with one or more members of the commonly controlled group shall compute the corporation's income attributable to this state by using the income computation under s. 71.26 or 71.45, the apportionment formula under s. 71.25 (6) or 71.45, and the tax credits under s. 71.28 or 71.47 of all of the following that are members of the commonly controlled group:

SB197-SSA3,17,5 1. Any corporation organized or incorporated under the laws of the United States, any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any possession of the United States, or any political subdivision of the United States, including corporations under sections 931 to 936 of the Internal Revenue Code.

SB197-SSA3,17,7 2. Any domestic international sales corporation under sections 991 to 994 of the Internal Revenue Code.

SB197-SSA3,17,9 3. Any foreign sales corporation under sections 921 to 927 of the Internal Revenue Code.

SB197-SSA3,17,11 4. Any export trade corporation under sections 970 and 971 of the Internal Revenue Code.

SB197-SSA3,17,16 5. Any corporation regardless of its place of incorporation if the average of its property factor under s. 71.25 (7) and its payroll factor under s. 71.25 (8), for property and payroll within the United States and computed on an annual basis, is at least 20% during any part of the taxable year that a corporation is a member of the commonly controlled group.

SB197-SSA3,17,20 6. Any corporation not described in subds. 1. to 5. to the extent of the corporation's income within the United States and the corporation's property factor under s. 71.25 (7) and payroll factor under s. 71.25 (8) assignable to a location within the United States.

SB197-SSA3,18,6 (b) A corporation that is subject to the tax imposed under s. 71.23 (1) or (2) or 71.43, that is a member of a commonly controlled group, and that is engaged, in whole or in part, in a unitary business with one or more members of the commonly controlled group may, subject to sub. (6), compute the corporation's income attributable to this state by using the income computation under s. 71.26 or 71.45, the apportionment formula under s. 71.25 (6) or 71.45, and the tax credits under s. 71.28 or 71.47 of all the members of the commonly controlled group, regardless of the country in which any member of the commonly controlled group is organized or incorporated or conducts business, if all top tier corporations that are members of the commonly controlled group elect under sub. (3) to compute the corporation's income as provided under this paragraph.

SB197-SSA3,18,14 (3) Computation election. (a) A top tier corporation that is a member of a commonly controlled group may elect on the commonly controlled group's behalf, and in the manner prescribed by the department, to compute the income of each corporation that is a member of the commonly controlled group under sub. (2) (b). If more than one member of the commonly controlled group is a top tier corporation, an election under this subsection is not effective unless all top tier corporations elect on the commonly controlled group's behalf, and in the manner prescribed by the department, to compute income under sub. (2) (b).