Tax 11.87(3)
(3)
Exempt sales. The following food and food ingredients shall be exempt:
Tax 11.87(3)(a)
(a) Health care facilities. Food and food ingredients, except soft drinks, fermented malt beverages, and intoxicating liquor, sold by hospitals, sanatoriums, nursing homes, retirement homes, community-based residential facilities as defined in s.
50.01 (1g), Stats., or any facility certified or licensed under ch.
48, Stats. However, if an affiliated organization sells the items, the exemption does not apply.
Tax 11.87 Note
Example: If a ladies' auxiliary of a hospital, separate from the hospital, operates a coffee shop on the hospital premises, although the ladies' auxiliary is a nonprofit organization, the prepared food and drinks sold at the coffee shop are taxable.
Tax 11.87(3)(b)
(b) “Meals on wheels." Prepared food sold to the elderly or disabled by persons providing “mobile meals on wheels."
Tax 11.87(3)(c)
(c)
Institutions of higher education. Food and food ingredients furnished in accordance with any contract or agreement or paid for to such institution through the use of an account of such institution, by a public or private institution of higher education to any of the following:
Tax 11.87(3)(c)1.
1. An undergraduate student, a graduate student, or a student enrolled in a professional school if the student is enrolled for credit at the public or private institution of higher education and if the food and food ingredients are consumed by the student.
Tax 11.87(3)(d)
(d) Groceries. Sales of food and food ingredients, except candy, dietary supplements, prepared foods, and soft drinks are exempt from tax under s.
77.54 (20n), Stats. This includes sales of prepackaged ice cream, ice milk, or sherbet in any size container and also of ice cream, ice milk, sherbet, or yogurt as cones, sundaes, sodas and shakes.
Tax 11.87 Note
Note: See s.
Tax 11.51 for more information.
Tax 11.87(3)(e)
(e) Supervised boarding facilities. The portion of the monthly fee charged by a supervised boarding facility for low income adults who are receiving or are eligible for social security, supplemental security income, veterans administration, or other disability and retirement benefits reflecting the value of prepared foods provided.
Tax 11.87(3)(f)
(f) Food and food ingredients to employees. Purchases by restaurants of candy, soft drinks, dietary supplements, prepared foods, and disposable products that are transferred with such items, are exempt from sales and use tax if the restaurant transfers such items to its employees during the employee's work hours for no consideration.
Tax 11.87(3)(g)
(g)
Vegetable oil and animal fat. Sales of vegetable oil and animal fat to an individual that will be converted to motor vehicle fuel for use in that individual's personal motor vehicle if the individual does not sell any of that fuel during the year. This exemption only applies if the motor vehicle fuel is exempt from the motor vehicle fuel tax under s.
78.01 (1), Stats.
Tax 11.87(3)(h)
(h)
Prepared food manufactured by the retailer. Sales of prepared food that is manufactured at one location and sold by the same retailer at a different location, are exempt if all of the following apply:
Tax 11.87(3)(h)1.
1. The prepared food is not candy, a soft drink, or a dietary supplement.
Tax 11.87(3)(h)2.
2. The prepared food is manufactured by the retailer at a building assessed as manufacturing property under s.
70.995, Stats., or that would be assessed as manufacturing property under s.
70.995, Stats., if the building was located in Wisconsin.
Tax 11.87(3)(h)3.
3. The retailer does not make any retail sales of prepared food at the building described in subd.
2. Tax 11.87(3)(h)4.a.
a. The prepared food is sold by the retailer in a frozen state without eating utensils (i.e., plates, bowls, knives, forks, spoons, glasses, cups, napkins, straws).
Tax 11.87(4)(a)(a) Specialty items. A seller engaged principally in the sale of taxable food may also be engaged in the sale of exempt food.
Tax 11.87 Note
Example: A restaurant which specializes in serving pancakes may also sell containers of its specially prepared syrup to take home. Sales of this syrup are not taxable.
Tax 11.87(4)(b)
(b) Fund-raising events. When a charge to a customer bears little or no relationship to the actual value of taxable food and food ingredients and beverages received, the tax shall be based on the reasonable value of the taxable food and food ingredients and other tangible personal property, items, property, and goods under s.
77.52 (1) (b),
(c), and
(d), Stats., and taxable services received by the customer. The retailer is responsible for determining the reasonable value and showing that the charge to the patron bears little or no relationship to the actual value received.
Tax 11.87 Note
Examples: 1) Company A puts on a fundraising dinner. Individuals wishing to attend the dinner must pay $300 per person to attend. The actual value of the dinner received is $50. Company A may compute the tax that must be remitted on the $50 since that is the actual value of the dinner received. The actual value in this example is based on the amount that an individual would be required to pay for this dinner if it was not a fundraising dinner.
Tax 11.87 Note
2) Company B puts on a fundraising dinner and dance. Individuals wishing to attend the dinner and dance must pay $300 per person to attend. The actual value of the dinner received is $50 and the actual value of admission to the dance is $25. Company B may compute the tax that must be remitted on the $75 since that is the actual value of the dinner and admission to the dance that is received. The actual values in this example are based on the amount that an individual would be required to pay for the dinner and to attend the dance if this was not a fundraising dinner and dance.
Tax 11.87 Note
Note: The interpretations in s.
Tax 11.87 are effective under the general sales and use tax law on and after September 1, 1969, except: (a) Sales of meals by retirement homes became exempt April 25, 1978, pursuant to
Chapter 250, Laws of 1977; (b) Sales of meals by certain health care facilities off their premises became taxable October 1, 1991, pursuant to
1991 Wis. Act 39; (c) Sales of meals by community-based residential facilities on their premises became exempt June 1, 1994, pursuant to 1993 Wis. Act. 332; (d) The exemption for certain meals, food, food products and beverages furnished by institutions of higher education was revised to apply only if the items are furnished to an undergraduate student, a graduate student or a student enrolled in a professional school if the student is enrolled for credit at that institution and if the items are consumed by that student, or the items are furnished to a national football league team, effective for contracts or agreements entered into on or after October 14, 1997, pursuant to
1997 Wis. Act 27, and further revised to include certain meals, food, food products or beverages paid for to an institution of higher education through the use of an account of the institution, if the items are furnished by the institution, effective December 31, 1997, pursuant to
1997 Wis. Act 41; (e) Sales of certain food combinations became exempt effective August 1, 1997, pursuant to
1997 Wis. Act 237; (f) The exemption for food and food ingredients was revised to exempt all food and food ingredients except candy, dietary supplements, prepared food and soft drinks effective October 1, 2009, pursuant to
2009 Wis. Act 2; (g) 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; and (h) The exemption for prepared food manufactured and sold by the same retailer under s.
77.54 (20n) (d), Stats., became effective September 23, 2017, pursuant to
2017 Wis. Act 59.
Tax 11.87 History
History: Cr.
Register, March, 1978, No. 267, eff. 4-1-78; renum. (1) (b) to be (1) (g), cr. (1) (b) to (f), am. (3) (a), (b) and (c),
Register, January, 1983, No. 325, eff. 2-1-83; am. (2) (d) 3., (g) and (i),
Register, June, 1983, No. 330, eff. 7-1-83; am. (3) (d),
Register, September, 1984, No. 345, eff. 10-1-84; correction in (1) (b) made under s. 13.93 (2m) (b) 7., Stats; am. (1) (intro.) and (f), (2) (a), (b), (c), (d) 1., (g), (j) and (k), (3) (a) and (4) (a), cr. (2) (k) 3.,
Register, June, 1991, No. 426, eff. 7-1-91; am. (2) (d) (intro.), 3., (f), (i) (intro.), 1. intro. and 2. intro., (k) 2., (3) (a), (b) and (d), cr. (3) (e),
Register, December, 1992, No. 444, eff. 1-1-93; renum. (1) (a) to (g) to be (b) to (h) and am. (1) (b), cr. (1) (a), am. (3) (a), (d) and (e),
Register, December, 1996, No. 492, eff. 1-1-97; am. (1) (b), (2) (c) and (3) (a), renum. (1) (e) and (f) to be (1) (f) and (e), r. and recr. (3) (c),
Register, October, 1999, No. 526, eff. 11-1-99;
EmR0924: emerg. am. (title), (1) (b), (e), (h), (2) (a), (b), (d), (f), (g) 2., (h) to (k) 1., (3) (intro.), (a), (b), (c) 1., 2., (d), (e) and (4) (b), cr. (1) (em) and (3) (f), r. and recr. (2) (c), (e) and (3) (c) (intro.), eff. 10-1-09;
CR 09-090: am. (title), (1) (b), (e), (h), (2) (a), (b), (d), (f), (g) 2., (h) to (k) 1., (3) (intro.), (a), (b), (c) 1., 2., (d), (e) and (4) (b), cr. (1) (em) and (3) (f), r. and recr. (2) (c), (e) and (3) (c) (intro.)
Register May 2010 No. 653, eff. 6-1-10;
CR 10-094: am. (2) (a), (j), (3) (a)
Register November 2010 No. 659, eff. 12-1-10;
CR 12-014: cr. (3) (g), am. (4) (b), cr. (4) (b) (Examples)
Register August 2012 No. 680, eff. 9-1-12;
CR 19-122: am. (3) (b)
Register July 2020 No. 775, eff. 8-1-20;
CR 20-018: cr. (3) (h)
Register July 2021 No. 787, eff. 8-1-21.
Tax 11.88
Tax 11.88
Manufactured homes, mobile homes, modular homes, and recreational vehicles. Tax 11.88(1)(a)1.a.
a. A structure that is designed to be used as a dwelling with or without a permanent foundation and that is certified by the federal department of housing and urban development as complying with the standards established under
42 USC 5401 to
5425.
Tax 11.88(1)(a)1.b.
b. A mobile home, unless a mobile home is specifically excluded under the applicable statute.
Tax 11.88(1)(a)2.
2. As provided in
42 USC 5402 (6), “manufactured home" means a structure, transportable in one or more sections, which, in the traveling mode, is eight body feet or more in width or forty body feet or more in length, or, when erected on site, is three hundred twenty or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein; except that such term shall include any structure which meets all the requirements of this paragraph except the size requirements and with respect to which the manufacturer voluntarily files a certification required by the Secretary of Housing and Urban Development and complies with the standards established under this chapter; and except that such term shall not include any self-propelled recreational vehicle.
Tax 11.88(1)(b)
(b) “Mobile home," as defined in s.
101.91 (10), Stats., means a vehicle manufactured or assembled before June 15, 1976, designed to be towed as a single unit or in sections upon a highway by a motor vehicle and equipped and used, or intended to be used, primarily for human habitation, with walls of rigid uncollapsible construction, which has an overall length in excess of 45 feet. “Mobile home" includes the mobile home structure, its plumbing, heating, air conditioning and electrical systems, and all appliances and all other equipment carrying a manufacturer's warranty.
Tax 11.88(1)(bm)1.1. “Modular home," as defined in s.
101.71 (6), Stats., means any structure or component thereof which is intended for use as a dwelling and satisfies either of the following conditions:
Tax 11.88(1)(bm)1.a.
a. The structure or component is of closed construction and fabricated or assembled on-site or off-site in manufacturing facilities for installation, connection, or assembly and installation, at the building site. In this subd.
1. a., “closed construction" has the meaning given in s.
101.71 (1), Stats.
Tax 11.88(1)(bm)1.b.
b. The structure or component is a building of open construction which is made or assembled in manufacturing facilities away from the building site for installation, connection, or assembly and installation, on the building site and for which certification is sought by the manufacturer. In this subd.
1. b. and subd.
2., “open construction" has the meaning given in s.
101.71 (7), Stats.
Tax 11.88(1)(bm)2.
2. “Modular home" does not mean any manufactured home under s.
101.91, Stats., or any building of open construction which is not subject to subd.
1. b. Tax 11.88(1)(c)
(c) “New manufactured home," as defined in s.
101.91 (11), Stats., means a manufactured home that has never been occupied, used or sold for personal or business use.
Tax 11.88(1)(d)
(d) “New recreational vehicle," as defined in s.
218.10 (7), Stats., means a recreational vehicle which has never been occupied, used or sold for personal or business use.
Tax 11.88(1)(e)
(e) “Recreational vehicle," as defined in s.
340.01 (48r), Stats., means a vehicle that is designed to be towed upon a highway by a motor vehicle, that is equipped and used, or intended to be used, primarily for temporary or recreational human habitation, that has walls of rigid construction, and that does not exceed 45 feet in length.
Tax 11.88(1)(h)
(h) “Used manufactured home," as defined in s.
101.91 (12), Stats., means a manufactured home that has previously been occupied, used or sold for personal or business use.
Tax 11.88(2)
(2)
Manufactured and Mobile homes as personal property vs. realty improvement. A manufactured or mobile home is personal property if it is located in a manufactured home community, a mobile home park, or other place where the land on which the manufactured or mobile home is located is not owned by the manufactured or mobile home owner. A manufactured or mobile home is a realty improvement if it is permanently affixed to land owned by the owner of the manufactured or mobile home. It is permanently affixed to the land for sales tax purposes if the manufactured or mobile home sits on a foundation and is connected to utilities. “On a foundation" means it is off the wheels and sitting on some other support.
Tax 11.88(3)
(3)
Sales of manufactured and mobile homes which are realty improvements. Tax 11.88(3)(a)
(a) The sale of a manufactured or mobile home and the land to which it is permanently affixed is the sale of a realty improvement not subject to the tax. The sale of a manufactured or mobile home which is a realty improvement on the land of the seller, and which is acquired by the purchaser for removal from the seller's land for permanent attachment to the purchaser's land, is the sale of realty.
Tax 11.88(3)(b)
(b) If the seller of a manufactured or mobile home as part of the sales transaction agrees to permanently affix the home on a foundation on land owned by the purchaser, the seller is a contractor-consumer engaged in improving realty. Except as provided in par.
(c), sales of manufactured or mobile homes to the contractor-consumer are subject to the tax, but the sales price from the subsequent sale by the contractor-consumer to the purchaser of the home are not taxable.
Tax 11.88(3)(c)
(c) Sales of manufactured homes to the contractor-consumer for use in real property construction activities outside Wisconsin are exempt from Wisconsin sales and use tax.
Tax 11.88(4)
(4)
Sales and rentals of manufactured and mobile homes which are personal property. Tax 11.88(4)(a)
(a) Under s.
77.54 (31), Stats., the total sales price from the sale of a used mobile home or a used manufactured home is exempt from the sales and use tax.
Tax 11.88(4)(b)
(b) Under s.
77.51 (15b) (b) 7. and
(12m) (b) 7., Stats., 35% of the total sales price from the sale of a new manufactured home is exempt from the tax. No credit is allowed for trade-in allowances on the purchase of these new manufactured homes.
Tax 11.88(4)(c)
(c) Under s.
77.54 (36), Stats., the rental of a mobile home or a manufactured home used for residence for a continuous period of one month or more is exempt from the sales and use tax, whether the manufactured or mobile home is classified as real or personal property.
Tax 11.88(4)(d)
(d) Under s.
77.54 (7), Stats., recreational vehicles, as defined in s.
340.01 (48r), Stats., registered or titled or required to be registered or titled in this state that are transferred to the child, spouse, parent, father-in-law, mother-in-law, son-in-law, or daughter-in-law of the transferor are exempt occasional sales if the recreational vehicle, as defined in s.
340.01 (48r), Stats., has been previously registered or titled in Wisconsin in the name of the transferor and the transferor is not engaged in the business of selling recreational vehicles, as defined in s.
340.01 (48r), Stats.
Tax 11.88(4)(e)
(e) Under s.
77.53 (18), Stats., the use tax does not apply to a manufactured home or mobile home purchased by a nonresident outside Wisconsin 90 days or more before bringing the manufactured or mobile home into Wisconsin in connection with a change of domicile to Wisconsin.
Tax 11.88(4m)(a)(a) The sale of a modular home and the land to which it is permanently affixed is the sale of a realty improvement not subject to the tax.
Tax 11.88(4m)(b)
(b) If the seller of a modular home as part of the sales transaction agrees to permanently affix the home on a foundation, the seller is a contractor-consumer engaged in improving realty. Except as provided in par.
(e), the sale of the modular home to the contractor-consumer is subject to the tax, but the sales price from the subsequent sale by the contractor-consumer to the purchaser of the home is not taxable.
Tax 11.88(4m)(c)
(c) The sales or purchase price from the sale of a modular home that is tangible personal property when sold (i.e., the sale to the contractor-consumer), may be reduced by one of the following:
Tax 11.88(4m)(c)2.
2. An amount equal to the sales or purchase price of the home minus the cost of materials that become an ingredient or component part of the home.
Tax 11.88(4m)(d)
(d) Once the retailer chooses one of the options provided in par.
(c) 1. or
2., the retailer may not use the other option without the written approval of the department.
Tax 11.88(4m)(e)
(e) Sales of modular homes to the contractor-consumer for use in real property construction activities outside Wisconsin are exempt from Wisconsin sales and use tax.
Tax 11.88(5)(a)(a) No recreational vehicle may be registered in Wisconsin unless the registrant presents proof that the sales or use tax has been paid or that the registrant's acquisition of the recreational vehicle was exempt from the tax. If the recreational vehicle registrant does not present proof that the tax has been paid, the registrant shall pay the tax at the time the recreational vehicle is registered with the department of transportation even though the recreational vehicle may also be used out-of-state.
Tax 11.88(5)(b)
(b) If a recreational vehicle purchased outside Wisconsin is subject to the Wisconsin use tax, a credit is permitted against the Wisconsin use tax for any sales or use tax paid to the state in which the recreational vehicle was purchased.
Tax 11.88(6)
(6)
Consignment sales. When a recreational vehicle dealer displays and sells a recreational vehicle on behalf of another person, the dealer is a marketplace provider and responsible for collecting and remitting tax on the transaction if the dealer directly or indirectly, through agreements or arrangements with third parties, processes the payment from the purchaser for the retail sale, regardless of whether the dealer receives compensation or other consideration in exchange for the services provided by the dealer.
Tax 11.88 Note
Note: For information regarding marketplace providers and sellers, see s.
Tax 11.555.
Tax 11.88 Note
Note: Section
Tax 11.88 interprets ss.
77.51 (2),
(7i),
(7j),
(11d),
(12m) (b) 7.,
(13),
(14) (n) 7., and
(15b) (b) 7.,
(17) (g),
77.52 (2) (a) 1.,
77.523,
77.53 (17) and
(18),
77.54 (7),
(31), and
(36),
77.61 (1) (a) and
(c),
101.91 (2),
(10),
(11), and
(12),
218.10 (1g),
(7), and
(9), and
340.01 (29) and
(48r), Stats.
Tax 11.88 Note
Note: The interpretations in s.
Tax 11.88 are effective under the general sales and use tax law on and after September 1, 1969, except: (a) Nonretailer sales of mobile homes became taxable effective August 1, 1977, pursuant to
Chapter 29, Laws of 1977; (b) Nonretailer sales of mobile homes exceeding 45 feet in length became exempt effective July 1, 1978, pursuant to
Chapter 418, Laws of 1977; (c) Rental of a mobile home that is personal property for lodging for a continuous period of one month or more became exempt effective July 1, 1984, pursuant to
1983 Wis. Act 341, clarified effective April 1, 1986, pursuant to
1985 Wis. Act 149; (d) Gross receipts from a used mobile home became exempt effective January 1, 1987, pursuant to
1985 Wis. Act 29; (e) Thirty−five percent of the gross receipts from the sale of new mobile homes became exempt January 1, 1987, pursuant to
1985 Wis. Act 29; (f) The exemption from use tax of mobile homes purchased 90 or more days before moving to Wisconsin became effective August 1, 1987, pursuant to
1987 Wis. Act 27; (g) The exemption for transfers to in-laws became effective August 15, 1991, pursuant to
1991 Wis. Act 39; (h) The exemption for certain new mobile homes transported in two unattached sections became effective October 1, 1991, pursuant to
1991 Wis. Act 39; (i) The changes in terminology related to “mobile homes,” “
manufactured homes,” and “recreational vehicles,” became effective January 1, 2008, pursuant to
2007 Wis. Act 11; (j) The change of the term “gross receipts” to “sales price” became effective October 1, 2009, pursuant to
2009 Wis. Act 2; and (k)
2019 Wis. Act 10 relating to marketplace providers became effective January 1, 2020.
Tax 11.88 History
History: Cr.
Register, December, 1980, No. 300, eff. 1-1-81; r. and recr. (3) and (6),
Register, July, 1987, No. 379, eff. 8-1-87; am. (2) (b), (3) (d), (4) (b) and (5), cr. (3) (e),
Register, June, 1991, No. 426, eff. 7-1-91; am. (3) (b) and (d),
Register, April, 1993, No. 448, eff. 5-1-93; corrections in (3) (c) and (6) (a) made under s. 13.93 (2m) (b) 7., Stats.,
Register July 2002 No. 559;
EmR0924: emerg. r. and recr. eff. 10-1-09;
CR 09-090: r. and recr.
Register May 2010 No. 653, eff. 6-1-10;
CR 12-014: am. (title), cr. (1) (bm), am. (3) (b), cr. (3) (c), (4m)
Register August 2012 No. 680, eff. 9-1-12;
CR 20-027: am. (6)
Register July 2021 No. 787, eff. 8-1-21;
CR 22-017: r. and recr. (6) Register June 2023 No. 810, eff. 7-1-23. Tax 11.90
Tax 11.90
Penalty for failure to produce records under s. 77.61 (19), Stats. Tax 11.90(1)(1)
General. A person who fails to produce records or documents, as provided under ss.
73.03 (9) and
77.59 (2), Stats., that were requested by the department may be subject to any of the following penalties under s.
77.61 (19), Stats.:
Tax 11.90(1)(a)
(a) The disallowance of deductions, credits, exemptions or inclusions of additional taxable sales or additional taxable purchases to which the requested records relate.
Tax 11.90(1)(b)
(b) In addition to any other penalties that the department may impose, a penalty for each violation that is equal to the greater of $500 or 25% of the amount of the additional tax on any adjustment made by the department that results from the person's failure to produce the records.
Tax 11.90(2)(a)
(a) “Disallowance," “
inclusion," or “adjustment" means that an item is disallowed, included or adjusted through action taken by the department when a proposed assessment or refund or notice of assessment or refund is issued to a taxpayer.
Tax 11.90(2)(b)
(b) “Records" include both paper and electronic formats. Examples include bills, receipts, invoices, contracts, letters, memos, accounting statements or schedules, general ledgers, journal entries, and board of director's minutes. “Records" do not include items protected by attorney-client privilege, if the taxpayer provides a brief description or summary of the contents of each record, the date each record was prepared, the person or persons who prepared each record, the person to whom each record was directed, or for whom each record was prepared, the purpose in preparing each record, and how each element of the privilege is met as to each record.
Tax 11.90(2)(c)
(c) “Records requested were not provided" means that all records requested were not provided to the department within the time specified by the department.
Tax 11.90(2)(d)
(d) “Written request for records" includes requests made by letter, e-mail, fax or any other written form.
Tax 11.90(2)(e)
(e) “Provided" means the records are provided by electronic means or in paper format to the address specified by the department in its written request for records. If the address specified by the department is the person's location, the records are considered provided on the date the person notifies the department they are available for review at that location.
Tax 11.90(3)
(3)
Procedures. The penalties in this section may be imposed if the records requested were not provided and the department provided the notifications in pars.
(a),
(b), and
(c) regarding the records requested. The number of days established by the department for the person to respond to the record requests should be reasonable based on the facts of each situation.
Tax 11.90(3)(a)
(a) A first written request for records where the department allowed the person a minimum of 30 days from the date of request for the records to be provided.
Tax 11.90(3)(b)
(b) After the time period to respond to the first written request has expired as provided in par.
(a), a second written request for records where the department allowed the person a minimum of 30 days from the date of request for the records to be provided. This second written request for records shall include a statement explaining that if the requested records are not provided by the date specified, the penalties provided by s.
77.61 (19), Stats., may be imposed.
