Wisconsin Legislature: 2,366

77.52 (1b) All sales, licenses, leases, or rentals of tangible personal property or items, property, or goods under sub. (1) (b), (c), or (d) at retail in this state are subject to the tax imposed under sub. (1) unless an exemption in this subchapter applies.

2,351 Section 351. 77.52 (2) (intro.) of the statutes is amended to read:

77.52 (2) (intro.) For the privilege of selling, licensing, performing or furnishing the services described under par. (a) at retail in this state, as determined under s. 77.522, to consumers or users, regardless of whether the consumer or user has the right of permanent use or less than the right of permanent use and regardless of whether the service is conditioned on continued payment from the purchaser, a tax is imposed upon all persons selling, licensing, performing or furnishing the services at the rate of 5% of the gross receipts sales price from the sale, license, performance or furnishing of the services.

2,352 Section 352 . 77.52 (2) (a) 5. a. of the statutes is amended to read:

77.52 (2) (a) 5. a. The sale of telecommunications and Internet access services, except services subject to 4 USC 116 to 126, as amended by P.L. 106-252, that either originate or terminate in this state; except services that are obtained by means of a toll-free number, that originate outside this state and that terminate in this state; and are charged to a service address in this state, regardless of the location where that charge is billed or paid; and the sale of the rights to purchase telecommunications services, including purchasing reauthorization numbers, by paying in advance and by using an access number and authorization code, except sales that are subject to subd. 5. b.

2,353 Section 353 . 77.52 (2) (a) 5. a. of the statutes, as affected by 2009 Wisconsin Act .... (this act), is amended to read:

2,354 Section 354. 77.52 (2) (a) 5. am. of the statutes is created to read:

77.52 (2) (a) 5. am. The sale of intrastate, interstate, and international telecommunications services, except interstate 800 services.

2,355 Section 355. 77.52 (2) (a) 5. b. of the statutes is repealed.

2,356 Section 356. 77.52 (2) (a) 5. c. of the statutes is created to read:

77.52 (2) (a) 5. c. The sale of ancillary services, except detailed telecommunications billing services.

2,357 Section 357. 77.52 (2) (a) 5m. of the statutes is amended to read:

77.52 (2) (a) 5m. The sale of services that consist of recording telecommunications messages and transmitting them to the purchaser of the service or at that purchaser's direction, but not including those services if they are merely an that are taxable under subd. 5. or services that are incidental, as defined in s. 77.51 (5), element of to another service that is not taxable under this subchapter and sold to that the purchaser of the incidental service and is not taxable under this subchapter.

2,358 Section 358. 77.52 (2) (a) 10. of the statutes is amended to read:

77.52 (2) (a) 10. Except for services provided by veterinarians and except for installing or applying tangible personal property that, subject to par. (ag), when installed or applied, will constitute an addition or capital improvement of real property, the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, and maintenance of all items of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), unless, at the time of that repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance, a sale in this state of the type of property, item, or good repaired, serviced, altered, fitted, cleaned, painted, coated, towed, inspected, or maintained would have been exempt to the customer from sales taxation under this subchapter, other than the exempt sale of a motor vehicle or truck body to a nonresident under s. 77.54 (5) (a) and other than nontaxable sales under s. 77.51 (14r) 77.522 or unless the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance is provided under a contract that is subject to tax under subd. 13m. The tax imposed under this subsection applies to the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance of items listed in par. (ag), regardless of whether the installation or application of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) related to the items is an addition to or a capital improvement of real property, except that the tax imposed under this subsection does not apply to the original installation or the complete replacement of an item listed in par. (ag), if that installation or replacement is a real property construction activity under s. 77.51 (2).

2,359 Section 359. 77.52 (2) (a) 11. of the statutes, as affected by 2007 Wisconsin Act 20, is amended to read:

77.52 (2) (a) 11. The producing, fabricating, processing, printing, or imprinting of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) for a consideration for consumers who furnish directly or indirectly the materials used in the producing, fabricating, processing, printing, or imprinting. This subdivision does not apply to the printing or imprinting of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) that results in printed material, catalogs, or envelopes that are exempt under s. 77.54 (25) or (25m).

2,360 Section 360. 77.52 (2) (a) 13m. of the statutes is created to read:

77.52 (2) (a) 13m. The sale of contracts, including service contracts, maintenance agreements, computer software maintenance contracts for prewritten computer software, and warranties, that provide, in whole or in part, for the future performance of or payment for the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), unless the sale, license, lease, or rental in this state of the property, items, or goods to which the contract relates is or was exempt, to the purchaser of the contract, from taxation under this subchapter.

2,361 Section 361. 77.52 (2m) (a) of the statutes is amended to read:

77.52 (2m) (a) With respect to the services subject to tax under sub. (2), no part of the charge for the service may be deemed a sale or rental of tangible personal property or items, property, or goods under sub. (1) (b), (c), or (d) if the property, items, or goods transferred by the service provider is are incidental to the selling, performing or furnishing of the service, except as provided in par. (b).

2,362 Section 362. 77.52 (2m) (b) of the statutes is amended to read:

77.52 (2m) (b) With respect to the services subject to tax under sub. (2) (a) 7., 10., 11. and 20., all property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) physically transferred, or transferred electronically, to the customer in conjunction with the selling, performing or furnishing of the service is a sale of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) separate from the selling, performing or furnishing of the service.

2,363 Section 363. 77.52 (2n) of the statutes is repealed and recreated to read:

77.52 (2n) The selling, licensing, performing, or furnishing of the services described under sub. (2) (a) at retail in this state, as determined under s. 77.522, is subject to the tax imposed under sub. (2) unless an exemption in this subchapter applies.

2,364 Section 364. 77.52 (3m) of the statutes is repealed.

2,365 Section 365. 77.52 (3n) of the statutes is repealed.

2,366 Section 366. 77.52 (4) of the statutes is amended to read:

77.52 (4) It is unlawful for any retailer to advertise or hold out or state to the public or to any customer, directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the retailer or that it will not be added to the selling price of the property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) sold or that if added it, or any part thereof, will be refunded. Any person who violates this subsection is guilty of a misdemeanor.

2,367 Section 367. 77.52 (6) of the statutes is repealed.

2,368 Section 368. 77.52 (7) of the statutes is amended to read:

77.52 (7) Every person desiring to operate as a seller within this state who holds a valid certificate under s. 73.03 (50) shall file with the department an application for a permit for each place of operations. Every application for a permit shall be made upon a form prescribed by the department and shall set forth the name under which the applicant intends to operate, the location of the applicant's place of operations, and the other information that the department requires. The Except as provided in sub. (7b), the application shall be signed by the owner if a sole proprietor; in the case of sellers other than sole proprietors, the application shall be signed by the person authorized to act on behalf of such sellers. A nonprofit organization that has gross receipts a sales price taxable under s. 77.54 (7m) shall obtain a seller's permit and pay taxes under this subchapter on all taxable gross receipts sales prices received after it is required to obtain that permit. If that organization becomes eligible later for the exemption under s. 77.54 (7m) except for its possession of a seller's permit, it may surrender that permit.

2,369 Section 369. 77.52 (7b) of the statutes is created to read:

77.52 (7b) Any person who may register under sub. (7) may designate an agent, as defined in s. 77.524 (1) (ag), to register with the department under sub. (7), in the manner prescribed by the department.

2,370 Section 370. 77.52 (12) of the statutes is amended to read:

77.52 (12) A person who operates as a seller in this state without a permit or after a permit has been suspended or revoked or has expired, unless the person has a temporary permit under sub. (11), and each officer of any corporation, partnership member, limited liability company member, or other person authorized to act on behalf of a seller who so operates, is guilty of a misdemeanor. Permits shall be held only by persons actively operating as sellers of tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or taxable services. Any person not so operating shall forthwith surrender that person's permit to the department for cancellation. The department may revoke the permit of a person found not to be actively operating as a seller of tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or taxable services.

2,371 Section 371. 77.52 (13) of the statutes is amended to read:

77.52 (13) For the purpose of the proper administration of this section and to prevent evasion of the sales tax it shall be presumed that all receipts are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or services is not a taxable sale at retail is upon the person who makes the sale unless that person takes from the purchaser a an electronic or a paper certificate, in a manner prescribed by the department, to the effect that the property, item, good, or service is purchased for resale or is otherwise exempt;, except that no certificate is required for sales of cattle, sheep, goats, and pigs that are sold at an animal market, as defined in s. 95.68 (1) (ag), and no certificate is required for sales of commodities, as defined in 7 USC 2, that are consigned for sale in a warehouse in or from which the commodity is deliverable on a contract for future delivery subject to the rules of a commodity market regulated by the U.S. commodity futures trading commission if upon the sale the commodity is not removed from the warehouse the sale of tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or services that are exempt under s. 77.54 (7), (7m), (8), (10), (11), (14), (15), (17), (20n), (21), (22b), (31), (32), (35), (36), (37), (42), (44), (45), (46), (51), and (52).

2,372 Section 372. 77.52 (14) (a) (intro.) and 1. and (b) of the statutes are consolidated, renumbered 77.52 (14) (a) and amended to read:

77.52 (14) (a) The certificate referred to in sub. (13) relieves the seller from the burden of proof of the tax otherwise applicable only if any of the following is true: 1. The certificate is taken in good faith the seller obtains a fully completed exemption certificate, or the information required to prove the exemption, from a person who is engaged as a seller of tangible personal property or taxable services and who holds the permit provided for in sub. (9) and who, at the time of purchasing purchaser no later than 90 days after the date of the sale of the tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or services, intends to sell it in the regular course of operations or is unable to ascertain at the time of purchase whether the property or service will be sold or will be used for some other purpose. (b) except as provided in par. (am). The certificate under sub. (13) shall not relieve the seller of the tax otherwise applicable if the seller fraudulently fails to collect sales tax, solicits the purchaser to claim an unlawful exemption, or accepts an exemption certificate from a purchaser who claims to be an entity that is not subject to the taxes imposed under this subchapter, if the subject of the transaction sought to be covered by the exemption certificate is received by the purchaser at a location operated by the seller in this state and the exemption certificate clearly and affirmatively indicates that the claimed exemption is not available in this state. The certificate referred to in sub. (13) shall be signed by and bear the name and address of provide information that identifies the purchaser, and shall indicate the general character of the tangible personal property or service sold by the purchaser and the basis for the claimed exemption and a paper certificate shall be signed by the purchaser. The certificate shall be in such form as the department prescribes by rule.

2,373 Section 373. 77.52 (14) (a) 2. of the statutes is repealed.

2,374 Section 374. 77.52 (14) (am) of the statutes is created to read:

77.52 (14) (am) If the seller has not obtained a fully completed exemption certificate or the information required to prove the exemption, as provided in par. (a), the seller may, no later than 120 days after the department requests that the seller substantiate the exemption, either provide proof of the exemption to the department by other means or obtain, in good faith, a fully completed exemption certificate from the purchaser.

2,375 Section 375. 77.52 (14) (bm) of the statutes is created to read:

77.52 (14) (bm) A certified service provider is relieved from liability for the tax otherwise applicable to the same extent as the seller, who is the certified service provider's client, is relieved from liability for the tax otherwise applicable under par. (a) or (am).

2,376 Section 376. 77.52 (15) of the statutes is amended to read:

77.52 (15) If a purchaser who gives a resale certificate purchases tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services without paying a sales tax or use tax on such purchase because such property, items, goods, or services were for resale makes any use of the property, items, goods, or services other than retention, demonstration or display while holding it the property, items, goods, or services for sale, lease or rental in the regular course of the purchaser's operations, the use shall be taxable to the purchaser under s. 77.53 as of the time that the property is, items, goods, or services are first used by the purchaser, and the sales purchase price of the property, items, goods, or services to the purchaser shall be the measure of the tax. Only when there is an unsatisfied use tax liability on this basis because the seller has provided incorrect information about that transaction to the department shall the seller be liable for sales tax with respect to the sale of the property to the purchaser.

2,377 Section 377. 77.52 (16) of the statutes is amended to read:

77.52 (16) Any person who gives a resale certificate for property, or items, property, or goods under sub. (1) (b), (c), or (d), or services which that person knows at the time of purchase is not to be resold by that person in the regular course of that person's operations as a seller for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction is guilty of a misdemeanor. Any person certifying to the seller that the sale of property, or items, property, or goods under sub. (1) (b), (c), or (d), or taxable service is exempt, knowing at the time of purchase that it is not exempt, for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction, is guilty of a misdemeanor.

2,378 Section 378. 77.52 (17m) (b) 6. of the statutes is amended to read:

77.52 (17m) (b) 6. The applicant purchases enough tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) under circumstances that make it difficult to determine whether the property, items, or goods will be subject to a tax under this subchapter.

2,379 Section 379. 77.52 (19) of the statutes is amended to read:

77.52 (19) The department shall by rule provide for the efficient collection of the taxes imposed by this subchapter on sales of tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or services by persons not regularly engaged in selling at retail in this state or not having a permanent place of business, but who are temporarily engaged in selling from trucks, portable roadside stands, concessions at fairs and carnivals, and the like. The department may authorize such persons to sell property or items, property or goods under sub. (1) (b), (c), or (d) or sell, perform, or furnish services on a permit or nonpermit basis as the department by rule prescribes and failure of any person to comply with such rules constitutes a misdemeanor.

2,380 Section 380. 77.52 (20) of the statutes is created to read:

77.52 (20) (a) Except as provided in par. (b), the entire sales price of a bundled transaction is subject to the tax imposed under this subchapter.

(b) At the retailer's option, if the retailer can identify, by reasonable and verifiable standards from the retailer's books and records that are kept in the ordinary course of its business for other purposes, including purposes unrelated to taxes, the portion of the price that is attributable to products that are not subject to the tax imposed under this subchapter, that portion of the sales price is not taxable under this subchapter. This paragraph does not apply to a bundled transaction that contains food and food ingredients, drugs, durable medical equipment, mobility enhancing equipment, prosthetic devices, or medical supplies.

2,381 Section 381. 77.52 (21) of the statutes is created to read:

77.52 (21) A person who provides a product that is not a distinct and identifiable product because it is provided free of charge, as provided in s. 77.51 (3pf) (b), is the consumer of that product and shall pay the tax imposed under this subchapter on the purchase price of that product.

2,382 Section 382. 77.52 (22) of the statutes is created to read:

77.52 (22) With regard to transactions described in s. 77.51 (1f) (b), the service provider is the consumer of the tangible personal property or items, property, or goods under sub. (1) (b), (c), or (d) and shall pay the tax imposed under this subchapter on the purchase price of the property, items, or goods.

2,383 Section 383. 77.52 (23) of the statutes is created to read:

77.52 (23) With regard to transactions described in s. 77.51 (1f) (c), the service provider is the consumer of the service that is essential to the use or receipt of the other service and shall pay the tax imposed under this subchapter on the purchase price of the service that is essential to the use or receipt of the other service.

2,384 Section 384. 77.522 of the statutes is created to read:

77.522 Sourcing. (1) General. (a) In this section:

1. "Receive" means taking possession of tangible personal property or items or property under s. 77.52 (1) (b) or (c); making first use of services; or taking possession or making first use of digital goods under s. 77.52 (1) (d), whichever comes first. "Receive" does not include a shipping company taking possession of tangible personal property or items or property under s. 77.52 (1) (b) or (c) on a purchaser's behalf.

2. "Transportation equipment" means any of the following:

a. Locomotives and railcars that are used to carry persons or property in interstate commerce.

b. Trucks and truck tractors that have a gross vehicle weight rating of 10,001 pounds or greater, trailers, semitrailers, and passenger buses, if such vehicles are registered under the international registration plan under s. 341.405 and operated under the authority of a carrier that is authorized by the federal government to carry persons or property in interstate commerce.

c. Aircraft that is operated by air carriers that are authorized by the federal government or a foreign authority to carry persons or property in interstate or foreign commerce.

d. Containers that are designed for use on the vehicles described in subd. 2. a. to c. and component parts attached to or secured on such vehicles.

(b) Except as provided in par. (c) and subs. (2), (3), (4), and (5), the location of a sale is determined as follows:

1. If a purchaser receives the product at a seller's business location, the sale is sourced to that business location.

2. If a purchaser does not receive the product at a seller's business location, the sale is sourced to the location where the purchaser, or the purchaser's designated donee, receives the product, including the location indicated by the instructions known to the seller for delivery to the purchaser or the purchaser's designated donee.

3. If the location of a sale of a product cannot be determined under subds. 1. and 2., the sale is sourced to the purchaser's address as indicated by the seller's business records, if the records are maintained in the ordinary course of the seller's business and if using that address to establish the location of a sale is not in bad faith.

4. If the location of a sale of a product cannot be determined under subds. 1. to 3., the sale is sourced to the purchaser's address as obtained during the consummation of the sale, including the address indicated on the purchaser's payment instrument, if no other address is available and if using that address is not in bad faith.

5. If the location of a sale of a product cannot be determined under subds. 1. to 4., including the circumstance in which the seller has insufficient information to determine the locations under subds. 1. to 4., the location of the sale is determined as follows:

a. If the item sold is tangible personal property or an item or property under s. 77.52 (1) (b) or (c), the sale is sourced to the location from which the tangible personal property or item or property under s. 77.52 (1) (b) or (c) is shipped.

b. If the item sold is a digital good or computer software delivered electronically, the sale is sourced to the location from which the computer software was first available for transmission by the seller, not including any location that merely provided the digital transfer of the product sold.

c. If a service is sold, the sale is sourced to the location from which the service was provided.

(c) The sale of direct mail is sourced to the location from which the direct mail is shipped, if the purchaser does not provide to the seller a direct pay permit, an exemption certificate claiming direct mail, or other information that indicates the appropriate taxing jurisdiction to which the direct mail is delivered to the ultimate recipients. If the purchaser provides an exemption certificate claiming direct mail or direct pay permit to the seller, the purchaser shall pay or remit, as appropriate, to the department the tax imposed under s. 77.53 on all purchases for which the tax is due and the seller is relieved from liability for collecting such tax. If the purchaser provides delivery information indicating the jurisdictions to which the direct mail is delivered to the recipients, the seller shall collect the tax according to the delivery information provided by the purchaser and, in the absence of bad faith, the seller shall be relieved of any further obligation to collect tax on any transaction for which the seller has collected tax pursuant to the delivery information provided by the purchaser. An exemption certificate claiming direct mail provided to a seller under this paragraph shall remain effective for all sales by the seller who received the exemption certificate to the purchaser who provided the exemption certificate, unless the purchaser revokes the exemption certificate in writing and provides such revocation to the seller.

(2) Digital goods. (a) If the location of a sale of the digital good under s. 77.52 (1) (d) cannot be determined under sub. (1) (b), including the circumstance in which the seller has insufficient information to determine the location under sub. (1) (b), the sale is sourced to the location from which the digital good was first available for transmission by the seller, not including any location from which the digital good was merely transferred electronically.

(b) The location of a license of a digital good under s. 77.52 (1) (d) is determined as follows:

1. With regard to the first or only payment on the license of the digital good, the license is sourced to the location determined under par. (a).

2. If the digital good is moved from the place where the digital good was initially delivered, the subsequent periodic payments on the license are sourced to the digital good's primary location as indicated by an address for the digital good that is provided by the licensee and that is available to the licensor in records that the licensor maintains in the ordinary course of the licensor's business, if the use of such an address does not constitute bad faith. The location of a license as determined under this paragraph shall not be altered by any intermittent use of the digital good at different locations.

(3) Lease or rental. (a) Except as provided in pars. (b) and (c), with regard to the first or only payment on the lease or rental, the lease or rental of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) is sourced to the location determined under sub. (1) (b). If the property, item, or good is moved from the place where the property, item, or good was initially delivered, the subsequent periodic payments on the lease or rental are sourced to the property's, item's, or good's primary location as indicated by an address for the property, item, or good that is provided by the lessee and that is available to the lessor in records that the lessor maintains in the ordinary course of the lessor's business, if the use of such an address does not constitute bad faith. The location of a lease or rental as determined under this paragraph shall not be altered by any intermittent use of the property, item, or good at different locations.

(b) The lease or rental of motor vehicles, trailers, semitrailers, and aircraft, that are not transportation equipment, is sourced to the primary location of such motor vehicles, trailers, semitrailers, or aircraft as indicated by an address for the property that is provided by the lessee and that is available to the lessor in records that the lessor maintains in the ordinary course of the lessor's business, if the use of such an address does not constitute bad faith, except that a lease or rental under this paragraph that requires only one payment is sourced to the location determined under sub. (1) (b). The location of a lease or rental as determined under this paragraph shall not be altered by any intermittent use of the property at different locations.

(d) A license of tangible personal property or items or property under s. 77.52 (1) (b), or (c) shall be treated as a lease or rental of tangible personal property under this subsection.