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Tax 11.96(2)(f) (f) Repeal of stadium tax resolution. A baseball park district and a football stadium district described in par. (e) may repeal a baseball or football stadium district tax by delivering a certified copy of the repeal resolution to the secretary of revenue at least 120 days before the effective date of the repeal. The effective date of the repeal may only be on the first day of January, the first day of April, the first day of July, or the first day of October.
Tax 11.96(3) (3)Delivery of ordinance or resolution. An ordinance or resolution referred to in s. 77.70, 77.9941 (1) or (3), 229.68 (15), or 229.824 (15), Stats., is timely delivered to the secretary of revenue if, by the prescribed number of days before the effective date, any of the following occur:
Tax 11.96(3)(a) (a) The ordinance or resolution is hand delivered to and received by the secretary of revenue.
Tax 11.96(3)(b) (b) The ordinance or resolution is mailed in a properly addressed envelope with the postage duly prepaid, if the envelope is postmarked before midnight and the ordinance or resolution is received by the secretary of revenue within 5 days after the prescribed date.
Tax 11.96(3)(c) (c) The ordinance or resolution is delivered by a carrier other than the U.S. postal service and the ordinance is received by the secretary of revenue.
Tax 11.96 Note Note: Section Tax 11.96 interprets ss. 77.70, 77.705, 77.706, 77.707, 77.9941 (1) and (3), 229.68 (15), and 229.824 (15), Stats.
Tax 11.96 History History: Cr. Register, April, 2000, No. 532, eff. 5-1-00; correction in (2) (a) made under s. 13.93 (2m) (b) 7., Stats., Register July 2002 No. 559; EmR0924: emerg. am. (title) and (1) to (3), cr. (2) (c) to (h), eff. 10-1-09; CR 09-090: am. (title) and (1) to (3), cr. (2) (c) to (h) Register May 2010 No. 653, eff. 6-1-10; CR 12-014: am. (title), (1), r. (2) (g), (h), am. (3) (intro.) Register August 2012 No. 680, eff. 9-1-12.
Tax 11.97 Tax 11.97 "Engaged in business" in Wisconsin.
Tax 11.97(1)(1)General.
Tax 11.97(1)(a)(a) Out-of-state retailers shall register and collect a state's use tax if the retailer is subject to the state's jurisdiction. The United States supreme court has resolved certain jurisdictional questions by interpreting the due process clause of the 14th Amendment to the U.S. Constitution. The court has said due process requires that there be some definite link, some minimum connection between the state and the person, property, or transaction it seeks to tax. If this minimum connection, often called "nexus," is established, the out-of-state seller shall register and collect the state's use tax.
Tax 11.97 Note Note: Retailers having nexus in Wisconsin for use tax purposes do not necessarily have nexus in Wisconsin for franchise or income tax purposes. Refer to s. Tax 2.82 for nexus standards with respect to franchise and income taxes.
Tax 11.97(1)(b) (b) Some United States supreme court decisions concerning nexus include:
Tax 11.97(1)(b)1. 1. Nelson vs. Sears Roebuck & Co., 312 U.S. 359 (1941).
Tax 11.97(1)(b)2. 2. Nelson vs. Montgomery Ward & Co., 312 U.S. 373 (1941).
Tax 11.97(1)(b)3. 3. General Trading Co.
Tax 11.97(1)(b)3.vs.vs. State Tax Commission of the State of Iowa, 322 U.S. 335 (1944).
Tax 11.97(1)(b)4. 4. Miller Bros.
Tax 11.97(1)(b)4.Co.Co. vs. Maryland, 347 U.S. 340 (1954).
Tax 11.97(1)(b)5. 5. Scripto, Inc.
Tax 11.97(1)(b)6. 6. National Bellas Hess, Inc.
Tax 11.97(1)(b)6.vs.vs. Illinois Department of Revenue, 386 U.S. 753 (1967).
Tax 11.97(1)(b)7. 7. National Geographic Society vs. California Board of Equalization, 430 U.S. 551 (1977).
Tax 11.97(1)(b)8. 8. Quill Corp.
Tax 11.97(1)(b)8.vs.vs. North Dakota, 504 U.S. 298 (1992).
Tax 11.97(2) (2)Statutes.
Tax 11.97(2)(a)(a) Section 77.51 (13) (k), Stats., defines "retailer" to include any person deriving rentals from a lease of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., sourced to this state as provided under s. 77.522, Stats., and s. 77.51 (14) (j), Stats., defines a lease as a continuing sale.
Tax 11.97(2)(b) (b) Section 77.51 (13g), Stats., defines the term "retailer engaged in business in this state" and s. 77.51 (13h), Stats., provides an exception for foreign publishers.
Tax 11.97(2)(c) (c) Under s. 77.53 (5), Stats., the tax required to be collected by a use tax registrant is a debt owed by the registrant to this state, and s. 77.53 (7), Stats., provides the tax is to be stated separately from the list price of the goods sold.
Tax 11.97(3) (3)Activities which in themselves create Wisconsin "nexus". Unless otherwise limited by federal statute, a retailer engaged in business in Wisconsin who shall register includes the following:
Tax 11.97(3)(a) (a) Any retailer owning any real property in this state.
Tax 11.97(3)(b) (b) Any retailer leasing or renting out any tangible personal property or items or property under s. 77.52 (1) (b) or (c), Stats., sourced to this state under s. 77.522, Stats.
Tax 11.97(3)(c) (c) Any retailer maintaining, occupying, or using, permanently or temporarily, directly or indirectly, or through a subsidiary, agent, or other person, an office, place of distribution, sales or sample room, or place, warehouse, or storage place, or other place of business in this state.
Tax 11.97(3)(d) (d) Any retailer having any representative, including a manufacturer's representative, agent, salesperson, canvasser, or solicitor operating in Wisconsin under the authority of the retailer or its subsidiary for the purpose of selling, delivering, or taking orders for any tangible personal property, items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., or taxable services.
Tax 11.97(3)(e) (e) Any person servicing, repairing, or installing equipment or other tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., in Wisconsin.
Tax 11.97(3)(f) (f) Any person delivering property, items, or goods into this state in company operated vehicles.
Tax 11.97(3)(g) (g) Any person performing construction activities in this state.
Tax 11.97(3)(h) (h) Any retailer selling tangible personal property, items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., or taxable services for storage, use, or other consumption in Wisconsin, unless otherwise limited by federal law.
Tax 11.97(3)(i) (i) Any person who has an affiliate in Wisconsin, if the person is related to the affiliate and if the affiliate uses facilities or employees in Wisconsin to advertise, promote, or facilitate the establishment of or market for sales of items by the related person to purchasers in Wisconsin or for providing services to the related person's purchasers in Wisconsin, including accepting returns of purchases or resolving customer complaints. For purposes of this paragraph, two persons are "related" if any of the following apply:
Tax 11.97(3)(i)1. 1. One person, or each person, is a corporation and one person and any person related to that person in a manner that would require a stock attribution from the corporation to the person or from the person to the corporation under section 318 of the Internal Revenue Code owns directly, indirectly, beneficially, or constructively at least 50% of the corporation's outstanding stock value.
Tax 11.97(3)(i)2. 2. One person, or each person, is a partnership, estate, or trust and any partner or beneficiary; and the partnership, estate, or trust and its partners or beneficiaries; own directly, indirectly, beneficially, or constructively, in the aggregate, at least 50% of the profits, capital, stock, or value of the other person or both persons.
Tax 11.97(3)(i)3. 3. An individual stockholder and the members of the stockholder's family, as defined in section 318 of the Internal Revenue Code, owns directly, indirectly, beneficially, or constructively, in the aggregate, at least 50% of both persons' outstanding stock value.
Tax 11.97(4) (4)Activities which in themselves do not create "nexus". Activities which, in themselves, do not create nexus in this state, include:
Tax 11.97(4)(a) (a) Advertising in newspapers published in or outside this state.
Tax 11.97(4)(b) (b) Sending catalogues into this state from an out-of-state location if subsequent orders are shipped either by mail or common carrier to Wisconsin consumers.
Tax 11.97(4)(c) (c) Receiving mail or telephone orders outside this state from consumers located in Wisconsin if such orders are shipped either by mail or common carrier into Wisconsin.
Tax 11.97(4)(d) (d) Making cash or credit sales over-the-counter at an out-of-state location to Wisconsin consumers, when the goods are shipped by mail or common carrier by the retailer into this state, or when possession of the goods is taken at the out-of-state location by the consumer.
Tax 11.97(4)(e) (e) A foreign corporation obtaining a certificate of authority from the Wisconsin secretary of state to transact business in Wisconsin.
Tax 11.97(5) (5)Exception for foreign publishers.
Tax 11.97(5)(a)(a) Under s. 77.51 (13g) and (13h), Stats., a foreign corporation that is a publisher of printed materials does not have nexus in Wisconsin if its only activities in Wisconsin are:
Tax 11.97(5)(a)1. 1. Storage of its raw materials for any length of time in Wisconsin in or on property owned by a person, other than the foreign corporation, if the materials are for printing by that person.
Tax 11.97(5)(a)2. 2. Delivery of its raw materials to another person in Wisconsin, if the delivery is for printing by that other person.
Tax 11.97(5)(a)3. 3. Purchase from a printer of a printing service or of printed materials in Wisconsin for the foreign corporation and the storage of the printed materials for any length of time in Wisconsin in or on property owned by a person other than the foreign corporation.
Tax 11.97(5)(a)4. 4. Maintaining, occupying, and using, directly or by means of another person, a place in Wisconsin, that is not owned by the publisher and that is used for the distribution of printed materials.
Tax 11.97(5)(b) (b) In this subsection, "raw materials" means tangible personal property which becomes an ingredient or component part of the printed materials or which is consumed or destroyed or loses its identity in the printing of the printed materials.
Tax 11.97(6) (6)Registration. Every out-of-state retailer engaged in business in this state and not required to hold a seller's permit who makes sales for storage, use, or other consumption in this state, except as provided in sub. (5), shall apply for a use tax registration certificate. The registration form is titled "Application for Business Tax Registration," form BTR-101.
Tax 11.97 Note Note: Form BTR-101 may be obtained from any department of revenue office, or by writing or calling Wisconsin Department of Revenue, P.O. Box 8902, Madison, WI 53708-8902, telephone (608) 266-2776.
Tax 11.97 Note Note: Refer to s. Tax 11.002 for a description of use tax registration certificate requirements, how to apply for a use tax registration certificate and the 15-day time period within which the department is required to act on certificate applications.
Tax 11.97(7) (7)Out-of-state retailers not engaged in business in this state. Retailers who are not engaged in business in Wisconsin, but who elect to collect use tax for the convenience of their Wisconsin customers may apply for a use tax registration certificate with the department in the manner described in sub. (6). Holders of the use tax registration certificates shall collect the use tax from Wisconsin customers, give receipts therefor and report and pay the use tax to the Wisconsin department of revenue in the same manner as retailers engaged in business in this state.
Tax 11.97(8) (8)County and special district taxes. Retailers that are registered or required to be registered to collect and remit Wisconsin state sales or use taxes are also required to collect, report, and remit the applicable county and stadium district sales or use taxes, regardless of whether the retailer is engaged in business in the county or special district, as provided in s. 77.73 (3), Stats.
Tax 11.97 Note Note: Section Tax 11.97 interprets ss. 77.51 (13) (c) and (k), (13g), (13h) and (14) (j), 77.53 (3), (5), (7), (9) and (9m) and 77.73, Stats.
Tax 11.97 Note Note: The interpretations in s. Tax 11.97 are effective under the general sales tax law on and after September 1, 1969, except: (a) The provision in sub. (5) is effective January 1, 1980, for foreign publishers of books and/or periodicals other than catalogs and January 1, 1990, for all other foreign publishers, pursuant to 1989 Wis. Act 336; (b) The provisions in pars. (3) (h) and (i) became effective October 1, 2009, pursuant to 2009 Wis. Acts 2 and 28; and (c) The change of the term "gross receipts" to "sales price" and the separate impositions of tax on coins and stamps sold above face value under s. 77.52 (1) (b), Stats., certain leased property affixed to real property under s. 77.52 (1) (c), Stats., and digital goods under s. 77.52 (1) (d), Stats., became effective October 1, 2009, pursuant to 2009 Wis. Act 2.
Tax 11.97 History History: Cr. Register, July, 1978, No. 271, eff. 8-1-78; am. (2) (b) and (c), Register, January, 1983, No. 325, eff. 2-1-83; cr. (5) (c), Register, August, 1985, No. 356, eff. 9-1-85; emerg. am. (6), eff. 3-24-86; cr. (6), Register, October, 1986, No. 370, eff. 11-1-86; cr. (4) (e) and (5), r. and recr. (2) (b), am. (1) and (3) (d) and (e), renum. (5) (a) to (c) and (6) to be (6) (a), (7), (6) (b) and (8) and am. (6) (a), (b) and (7), Register, March, 1991, No. 423, eff. 4-1-91; am. (1), renum. (6) (a) to be (6) and am. r. (6) (b), Register, October, 1997, No. 502, eff. 11-1-97; EmR0924: emerg. am. (1) (a), (2) (a), (3) (b) to (f), (5) (a) 4. and (6), cr. (1) (b) 8., (3) (h) and (i), eff. 10-1-09; CR 09-090: am. (1) (a), (2) (a), (3) (b) to (f), (5) (a) 4. and (6), cr. (1) (b) 8., (3) (h) and (i) Register May 2010 No. 653, eff. 6-1-10; CR 10-094: am. (8) Register November 2010 No. 659, eff. 12-1-10; CR 12-014: r. and recr. (8) Register August 2012 No. 680, eff. 9-1-12.
Tax 11.98 Tax 11.98 Reduction of delinquent interest rate under s. 77.62, Stats.
Tax 11.98(1) (1)Procedures. The secretary may reduce the delinquent interest rate from 18% to 12% per year effective for all determinations, assessments, or other actions for additional tax made by the department on or after August 1, 1981, when the secretary determines the reduction fair and equitable, if the person from whom delinquent taxes are owing:
Tax 11.98(1)(a) (a) Requests the reduction in writing, addressed to the Wisconsin Department of Revenue, Delinquent Tax Collection System, P.O. Box 8901, Madison, WI 53708.
Tax 11.98(1)(b) (b) Clearly indicates why it is fair and equitable for the rate of interest to be reduced. Information regarding one or more of the factors under sub. (2) may be indicated.
Tax 11.98(1)(c) (c) Is current in all return and report filings and tax payments for all matters other than the delinquencies for which interest reduction is being sought.
Tax 11.98(1)(d) (d) Pays the sales and use taxes, reduced amount of interest, and any penalties associated with them within 30 days of receiving notice from the department of the reduction.
Tax 11.98(2) (2)Factors for secretary's consideration. In determining whether an interest rate reduction is fair and equitable, the secretary may consider the following factors:
Tax 11.98(2)(a) (a) The taxpayer's prior record of reporting and payment to the department.
Tax 11.98(2)(b) (b) The taxpayer's financial condition.
Tax 11.98(2)(c) (c) If the taxpayer is a natural person, any circumstances which may have prevented payment such as death, imprisonment, hospitalization, or other institutionalization.
Tax 11.98(2)(d) (d) Any unusual circumstances which may have caused the taxpayer to incur the delinquency or prevent its payment.
Tax 11.98(2)(e) (e) Any other factor which the secretary believes pertinent.
Tax 11.98(3) (3)Determination not appealable. The secretary's determination under this section is not appealable.
Tax 11.98 Note Note: Section Tax 11.98 interprets ss. 71.82 (2) (b), 77.60 (2) and 77.62, Stats.
Tax 11.98 Note Note: The interpretations in s. Tax 11.98 are effective under the general sales and use tax law on and after September 1, 1969, except that the secretary could reduce the delinquent interest rate from 18% to 9% for determinations made prior to August 1, 1981.
Tax 11.98 History History: Cr. Register, February, 1979, No. 278, eff. 3-1-79; am. (1) (intro.), Register, June, 1983, No. 330, eff. 7-1-83; EmR0924: emerg. am. (1) (intro.), (d), (2) (c) and (3), eff. 10-1-09; CR 09-090: am. (1) (intro.), (d), (2) (c) and (3) Register May 2010 No. 653, eff. 6-1-10.
Tax 11.985 Tax 11.985 Bundled transactions.
Tax 11.985(1) (1)Definitions. In this section:
Tax 11.985(1)(a)1.1. "Bundled transaction" means the retail sale of 2 or more products, not including real property and services to real property, if the products are distinct and identifiable products and sold for one nonitemized price.
Tax 11.985(1)(a)2. 2. "Bundled transaction" does not include any of the following:
Tax 11.985(1)(a)2.a. a. The sale of any products for which the sales price varies or is negotiable based on the purchaser's selection of the products included in the transaction.
Tax 11.985 Note Example: Retailer A enters into a contract with Customer B to provide various information technology services. Customer B selects the information technology services it wants from Retailer A. Through negotiation, Retailer A and Customer B agree on a price based on the services selected and Retailer A bills Customer B one nonitemized price for all of the services. Since the price was based on the products selected by Customer B, the transaction is not a bundled transaction.
Tax 11.985(1)(a)2.b. b. The retail sale of tangible personal property and a service, if the tangible personal property is essential to the use of the service, and provided exclusively in connection with the service, and if the true object of the transaction is the service. The Wisconsin sales and use tax treatment of this transaction would follow the tax treatment of the service provided.
Tax 11.985(1)(a)2.c. c. The retail sale of a service and items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., if such items, property, or goods are essential to the use of the service, and provided exclusively in connection with the service, and if the true object of the transaction is the service. The Wisconsin sales and use tax treatment of this transaction would follow the tax treatment of the service provided.
Tax 11.985(1)(a)2.d. d. The retail sale of services, if one of the services is essential to the use or receipt of a second service, and provided exclusively in connection with the second service, and if the true object of the transaction is the second service. The Wisconsin sales and use tax treatment of this transaction would follow the tax treatment of the second service.
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