AB75: Bill Text

AB75,1282,2 139.345 (11) (a) Any nonresident or foreign direct marketer that has not registered to do business in this state as a foreign corporation or business entity shall, as a condition precedent to obtaining a permit under s. 139.34 (1), appoint and continually engage the services of an agent in this state to act as agent for the service of process on whom all processes, and any action or proceeding against it concerning or arising out of the enforcement of this chapter, may be served in any manner authorized by law. That service shall constitute legal and valid service of process on the direct marketer. The direct marketer shall provide the name, address, phone number, and proof of the appointment and availability of the agent to the department.

AB75,1282,10 (b) A direct marketer described under par. (a) shall provide notice to the department no later than 30 calendar days before termination of the authority of an agent under par. (a) and shall provide proof to the satisfaction of the department of the appointment of a new agent no later than 5 calendar days before the termination of an existing appointment. In the event an agent terminates an appointment, the direct marketer shall notify the department of that termination no later than 5 calendar days after the termination and shall include proof to the satisfaction of the department of the appointment of a new agent.

AB75,1282,14 (c) The secretary of state is the agent in this state for the service of process of any direct marketer who has not appointed and engaged an agent as provided under par. (a), except that the secretary of state acting as the direct marketer's agent for the service of process does not satisfy the requirements imposed by par. (a).

AB75, s. 2368 Section 2368. 139.345 (12) of the statutes is created to read:

AB75,1282,17 139.345 (12) No penalty shall be imposed under subs. (9) and (10) if any of the following apply:

AB75,1282,20 (a) The secretary of revenue determines that imposing a penalty would be inequitable because of inadvertent acts, mistakes, or unusual circumstances related to the violation.

AB75,1282,22 (b) The person who is subject to a penalty under sub. (9) or (10) had good cause to violate sub. (9) or (10), and such violation did not result from the person's neglect.

AB75, s. 2369 Section 2369. 139.37 (1) (a) of the statutes is amended to read:

AB75,1283,18 139.37 (1) (a) No person shall sell or cigarettes, take orders for cigarettes for resale, or solicit cigarette sales in this state for any manufacturer or permittee without first obtaining a unless the person has filed an application for and obtained a valid certificate under s. 73.03 (50) and a salesperson's permit from the department of revenue. No manufacturer or permittee shall authorize any person to sell or cigarettes, take orders for cigarettes, or solicit cigarette sales in this state without first having such person secure unless the person has filed an application for and obtained a valid certificate under s. 73.03 (50) and a salesperson's permit. No person shall authorize the sale of cigarettes or the solicitation of cigarette sales in this state unless the person has filed an application for and obtained a valid certificate under s. 73.03 (50) and a valid permit under s. 139.34. The department shall issue the required number of permits to manufacturers and permittees who hold a valid certificate issued under s. 73.03 (50). Each application for a salesperson's permit shall disclose the name and address of the employer or the person for whom the salesperson is selling or soliciting and such permit shall remain effective only while the salesperson represents such named employer or person. If such salesperson is thereafter employed by another manufacturer or permittee person, the salesperson shall obtain a new salesperson's permit. Each manufacturer and The permittee of any such salesperson shall notify the department within 10 days after the resignation or dismissal of any such the salesperson holding a permit.

AB75, s. 2370 Section 2370. 139.40 (1) of the statutes is amended to read:

AB75,1283,24 139.40 (1) All cigarettes acquired, owned, imported, possessed, kept, stored, made, sold, distributed or transported in violation of this chapter or s. 134.65, and all personal property used in connection therewith is unlawful property and subject to seizure by the secretary or any peace officer. All cigarettes seized for violating s. 139.31 (4) or (5) shall be destroyed, except as provided in sub. (2).

AB75, s. 2371 Section 2371. 139.40 (2) of the statutes is amended to read:

AB75,1284,10 139.40 (2) If cigarettes which do not bear the proper tax stamps or on which the tax has not been paid Cigarettes that are so seized they as provided under sub. (1) may be given to law enforcement officers to use in criminal investigations or sold to qualified buyers by the secretary, without notice. If the cigarettes are sold, after deducting the costs of the sale and the keeping of storing the property, the proceeds of the sale shall be paid into the state treasury. If the secretary finds that such cigarettes may deteriorate or become unfit for use in criminal investigations or for sale or that those uses would otherwise be impractical, the secretary may order them destroyed or give them to a charitable or penal institution for free distribution to patients or inmates.

AB75, s. 2372 Section 2372. 139.44 (1m) of the statutes is amended to read:

AB75,1284,14 139.44 (1m) Any person who falsely or fraudulently tampers with a cigarette meter tax impression machine or tax indicia in order to evade the tax under s. 139.31 is guilty of a Class G felony.

AB75, s. 2373 Section 2373. 139.44 (2) of the statutes is amended to read:

AB75,1284,19 139.44 (2) Any person who makes or signs any false or fraudulent report or who attempts to evade the tax imposed by s. 139.31 or 139.76, or who aids in or abets the evasion or attempted evasion of that tax may be fined not more than $10,000 or imprisoned for not more than 9 months or both, is guilty of a Class H felony.

AB75, s. 2374 Section 2374. 139.44 (3) of the statutes is amended to read:

AB75,1284,25 139.44 (3) Any permittee or licensee who fails to keep the records required by ss. 134.65, 139.30 to 139.42, or 139.77 to 139.82 shall be fined not less than $100 $500 nor more than $500 $1,000 for the first offense and shall be fined not less than $1,000 nor more than $5,000 or imprisoned not more than 6 months 180 days or both for a 2nd or subsequent offense.

AB75, s. 2375 Section 2375. 139.44 (4) of the statutes is amended to read:

AB75,1285,5 139.44 (4) Any person who refuses to permit the examination or inspection authorized in s. 139.39 (2) or 139.83 may be fined not more less than $500 nor more than $1,000 or imprisoned not more than 90 180 days or both. Such refusal shall be cause for immediate suspension or revocation of permit or license by the secretary.

AB75, s. 2376 Section 2376. 139.44 (5) of the statutes is amended to read:

AB75,1285,10 139.44 (5) Any person who violates any of the provisions of ss. 139.30 to 139.41 or 139.75 to 139.83 for which no other penalty is prescribed shall be fined not less than $100 nor more than $1,000 $10,000 or imprisoned not less than 10 days nor more than 90 days 9 months or both.

AB75, s. 2377 Section 2377. 139.44 (6) of the statutes is amended to read:

AB75,1285,14 139.44 (6) Any person who violates any of the rules of the department shall be fined not less than $100 $500 nor more than $500 $1,000 or be imprisoned not more than 6 9 months or both.

AB75, s. 2378 Section 2378. 139.44 (6m) of the statutes is created to read:

AB75,1285,18 139.44 (6m) Any person who manufactures or sells cigarettes in this state without holding the proper permit or license issued under this subchapter is guilty of a Class I felony.

AB75, s. 2379 Section 2379. 139.44 (7) of the statutes is amended to read:

AB75,1285,24 139.44 (7) In addition to the penalties imposed for violation of ss. 139.30 to 139.41 or 139.75 to 139.83 or any of the rules of the department, the permit of any person convicted of a 2nd or subsequent offense shall be automatically revoked and he or she the person shall not be granted another permit for a period of 2 5 years following such revocation.

AB75, s. 2380 Section 2380. 139.44 (13) of the statutes is created to read:

AB75,1286,2 139.44 (13) Notwithstanding subs. (1) to (8), no penalty shall be imposed under subs. (1) to (8) if any of the following apply:

AB75,1286,5 (a) The secretary of revenue determines that imposing a penalty would be inequitable because of inadvertent acts, mistakes, or unusual circumstances related to the violation.

AB75,1286,8 (b) The person who is subject to a penalty under subs. (1) to (8) had good cause to commit the violation to which the penalty applies, and such violation did not result from the person's neglect.

AB75, s. 2381 Section 2381. 139.46 of the statutes is amended to read:

AB75,1286,15 139.46 Lists List . The department shall compile and maintain a list of direct marketers who have complied with the requirements of s. 139.345 and a list of direct marketers who the department knows have not complied with such requirements. The department shall provide copies of the lists described under this section list to the attorney general and to each person who delivers cigarettes to consumers in this state that are sold by direct marketing under s. 139.345.

AB75, s. 2382 Section 2382. 139.75 (2) of the statutes is amended to read:

AB75,1286,20 139.75 (2) "Consumer" means any individual who receives tobacco products for his or her personal use or consumption or any person individual who has title to or possession of tobacco products in storage for use or other consumption in this state any purpose other than for sale or resale.

AB75, s. 2383 Section 2383. 139.75 (3g) of the statutes is created to read:

AB75,1286,23 139.75 (3g) "Direct marketer" means any person who solicits sales of or sells tobacco products to consumers in this state by direct marketing.

AB75, s. 2384 Section 2384. 139.75 (3r) of the statutes is created to read:

AB75,1287,4 139.75 (3r) "Direct marketing" means publishing or making accessible an offer for the sale of tobacco products to consumers in this state, or selling tobacco products to consumers in this state, using any means by which the consumer is not physically present on a premise that sells tobacco products.

AB75, s. 2385 Section 2385. 139.75 (4) (a) of the statutes is amended to read:

AB75,1287,8 139.75 (4) (a) Any person in this state engaged in the business of selling tobacco products in this state who brings, or causes to be brought, into this state from outside the state any tobacco products for sale or resale;

AB75, s. 2386 Section 2386. 139.75 (4) (c) of the statutes is amended to read:

AB75,1287,12 139.75 (4) (c) Any person outside this state engaged in the business of selling tobacco products outside this state who ships or transports tobacco products to retailers in this state to be sold by those retailers.

AB75, s. 2387 Section 2387. 139.75 (4) (cm) of the statutes is created to read:

AB75,1287,15 139.75 (4) (cm) Any person outside this state engaged in the business of selling tobacco products who ships or transports tobacco products to consumers in this state.

AB75, s. 2388 Section 2388. 139.75 (4n) of the statutes is created to read:

AB75,1287,17 139.75 (4n) "Identification card" has the meaning given in s. 134.66 (1) (c).

AB75, s. 2389 Section 2389. 139.75 (5s) of the statutes is created to read:

AB75,1287,21 139.75 (5s) "Person" means any individual, sole proprietorship, partnership, limited liability company, corporation, or association, or any owner of a single-owner entity that is disregarded as a separate entity under ch. 71.

AB75, s. 2390 Section 2390. 139.75 (7) of the statutes is amended to read:

AB75,1287,24 139.75 (7) "Retail outlet" means each place of business from which tobacco products are sold to consumers by a retailer.

AB75, s. 2391 Section 2391. 139.75 (8) of the statutes is amended to read:

AB75,1288,2 139.75 (8) "Retailer" means any person engaged in the business of selling tobacco products to ultimate consumers has the meaning given in s. 134.66 (1) (g).

AB75, s. 2392 Section 2392. 139.76 (1) of the statutes is amended to read:

AB75,1288,22 139.76 (1) An excise tax is imposed upon the sale, offering or exposing for sale, possession with intent to sell or removal for consumption or sale or other disposition for any purpose of tobacco products by any person engaged as a distributor of them at the rate, for tobacco products, not including moist snuff, of 50 71 percent of the manufacturer's established list price to distributors without diminution by volume or other discounts on domestic products and, for moist snuff, at the rate of $1.31 $1.87 per ounce, and at a proportionate rate for any other quantity or fractional part thereof, of the moist snuff's net weight, as listed by the manufacturer. The tax imposed under this subsection on cigars shall not exceed an amount equal to 50 71 cents for each cigar. On products imported from another country, not including moist snuff, the rate of tax is 50 71 percent of the amount obtained by adding the manufacturer's list price to the federal tax, duties and transportation costs to the United States. The tax attaches at the time the tobacco products are received by the distributor in this state. The tax shall be passed on to the ultimate consumer of the tobacco products. All tobacco products received in this state for sale or distribution within this state, except tobacco products actually sold as provided in sub. (2), shall be subject to such tax. The weight-based tax imposed under this subsection on moist snuff does apply to moist snuff that is the inventory of a distributor on January 1, 2008, and for which the tax levied under this subsection, 2005, stats., has been paid.

AB75, s. 2393 Section 2393. 139.76 (3) of the statutes is created to read:

AB75,1289,3 139.76 (3) Except as provided in sub. (2), no person may possess tobacco products in this state unless the tax imposed under sub. (1) is paid on such tobacco products.

AB75, s. 2394 Section 2394. 139.765 of the statutes is created to read:

AB75,1289,11 139.765 Moist snuff inventory tax imposed. (1) On the effective date of any increase in the sum of the rate under s. 139.76 (1), an inventory tax is imposed upon moist snuff held in inventory for sale or resale on which the moist snuff tax has been paid at the prior rate and in the possession of distributors. Any person liable for this tax shall determine the ounces of moist snuff in the person's possession on the effective date of the increase, and by the 30th day after the effective date of the increase the person shall file a return and shall by that date pay the tax due.

AB75,1289,14 (2) The moist snuff inventory tax under this section is computed by multiplying the ounces of moist snuff held in inventory for sale by the difference between the prior tax rate and the new tax rate.

AB75,1289,18 (3) Sections 71.74 (1), (2), (10), (11), (13) and (14), 71.75 (4) to (7), 71.80 (12), 71.82 (2), 71.83 (2) (b) 3., 71.88 (1) (a) and (2) (a), 71.89, 71.90, 71.91 (1) (a) and (c) and (2) to (7), 71.92, 73.01, 73.015, and 73.0301, as they apply to income and franchise taxes, apply to the tax imposed under this section.

AB75,1290,3 (4) Any person who fails to file a moist snuff tax return when due shall pay a late filing fee of $10. A return that is mailed is timely if it is mailed in a properly addressed envelope with postage prepaid, if the envelope is postmarked, or marked or recorded electronically as provided under section 7502 (f) (2) (c) of the Internal Revenue Code, on the due date and if the return is actually received by the department or at the destination that the department prescribes no later than 5 days after the due date. A return that is not mailed is timely if it is received on or before the due date by the department or at the destination that the department prescribes. For purposes of this subsection, "mailed" includes delivery by a delivery service designated under section 7502 (f) of the Internal Revenue Code.

AB75,1290,6 (5) If any person does not timely pay the tax imposed under this section, that person is liable for interest at the rate of 1.5 percent per month or fraction of a month from the date the tax is due until the date when the tax is paid.

AB75,1290,9 (6) If any person who is liable for the tax under this section files a false or fraudulent return, that person is also liable, in addition to the tax due, for an amount equal to the amount of tax the person evaded or attempted to evade.

AB75, s. 2395 Section 2395. 139.78 (1) of the statutes is amended to read:

AB75,1290,19 139.78 (1) A tax is imposed upon the use or storage by consumers of tobacco products in this state at the rate, for tobacco products, not including moist snuff, of 50 71 percent of the cost of the tobacco products and, for moist snuff, at the rate of $1.31 $1.87 per ounce, and at a proportionate rate for any other quantity or fractional part thereof, of the moist snuff's net weight, as listed by the manufacturer. The tax imposed under this subsection on cigars shall not exceed an amount equal to 50 71 cents for each cigar. The tax does not apply if the tax imposed by s. 139.76 (1) on the tobacco products has been paid or if the tobacco products are exempt from the tobacco products tax under s. 139.76 (2).

AB75, s. 2396 Section 2396. 139.78 (1m) of the statutes is created to read:

AB75,1290,24 139.78 (1m) Except as provided in s. 139.76 (2), no person other than a distributor with a valid permit under s. 139.79 may import, ship, or transport into this state tobacco products for which the tax imposed under s. 139.76 (1) has not been paid.

AB75, s. 2397 Section 2397. 139.79 (title) of the statutes is amended to read:

AB75,1291,1 139.79 (title) Permits; distributor; subjobber.

AB75, s. 2398 Section 2398. 139.79 (1) of the statutes is amended to read:

AB75,1291,6 139.79 (1) No person may engage in the business of a distributor, direct marketer, or subjobber of tobacco products at any place of business unless that person has filed an application for and obtained a permit from the department to engage in that business at such place.

AB75, s. 2399 Section 2399. 139.79 (2) of the statutes is amended to read:

AB75,1291,9 139.79 (2) Section 139.34 (1) (b) (c) to (f), (1s), (4) and (9) applies to the permits under this section.

AB75, s. 2400 Section 2400. 139.795 of the statutes is created to read:

AB75,1291,16 139.795 Direct marketing. (1) (a) No person may sell tobacco products by direct marketing to consumers in this state as a direct marketer or solicit sales of tobacco products to consumers in this state by direct marketing unless the person has obtained a permit from the department to make such sales or solicitations. The person shall file an application for a permit under this subsection with the department, in the manner prescribed by the department.

AB75,1291,20 (b) No person may be issued a permit under this subsection unless the person holds a valid distributor's permit under s. 139.79. Section 139.34 (1) (c) to (f), (4), and (9), as it applies to permits issued under s. 139.34, applies to permits issued under this subsection.

AB75,1292,3 (c) No person may be issued a permit under this subsection unless the person certifies to the department, in the manner prescribed by the department, that the person shall register with credit card and debit card companies; that the invoices and all means of solicitation for all shipments of tobacco product sales from the person shall bear the person's name and address and the permit number of the permit ultimately issued under this subsection; and that the person shall provide the department any information the department considers necessary to administer this section.

AB75,1292,6 (2) No person may sell tobacco products to consumers in this state by direct marketing unless the tax imposed under s. 139.76, and under s. 77.52 or 77.53, has been paid with regard to such products.

AB75,1292,8 (3) No person may sell tobacco products to a consumer in this state by direct marketing unless the person does all of the following:

AB75,1292,10 (a) Verifies the consumer's identity and address and that the consumer is at least 18 years of age by any of the following methods:

AB75,1292,12 1. The person uses a database that includes information based on public records.

AB75,1292,16 2. The person receives from the consumer, at the time of purchase, a copy of an identification card and verifies that the name specified on the identification card matches the name of the consumer and that the birth date on the identification card indicates that the consumer is at least 18 years of age.

AB75,1292,18 3. The person uses a mechanism, other than a mechanism specified under subd. 1. or 2., that is approved by the department.

AB75,1292,20 (b) Obtains from the consumer, at the time of purchase, a statement signed by the consumer that confirms all of the following:

AB75,1292,21 1. The consumer's name, address, and birth date.

AB75,1292,24 2. That the consumer understands that no person who is under 18 years of age may purchase or possess tobacco products or falsely represent his or her age for the purpose of receiving tobacco products, as provided under s. 254.92.