Tax 11.51(3)(d)4.b.
b. Water and tea that are unsweetened are not soft drinks, even if carbonated or flavored.
Tax 11.51(3)(e)1.1. Deli foods sold unheated by weight or volume are exempt, unless utensils are provided, as explained in sub.
(4) (d).
Tax 11.51 Note
Examples: 1) A grocer's deli sells potato salad, fruit salad, cheese, ham, coleslaw, corned beef and fresh rolls at room temperature. These items are sold by weight or volume and utensils are not provided. The sale of these items is not taxable.
Tax 11.51 Note
2) A grocer's deli sells a serving of each of the following for $3.59: potato salad, fruit salad, cheese, ham, coleslaw, corned beef and fresh rolls and provides utensils. The sale is taxable as a sale of prepared food.
Tax 11.51 Note
3) A grocer's deli sells party trays by weight or volume in an unheated condition and for which utensils are not provided. The types of party trays include shrimp and sauce, meats, fresh vegetables, fresh fruits, cheeses or cookies. The sale of these party trays is not subject to tax.
Tax 11.51(4)
(4)
Prepared food. “Prepared food" is defined in s.
77.51 (10m), Stats., to mean any of the following:
Tax 11.51 Note
Example: A retailer sells heated sandwiches to a customer. The heated sandwich is prepared food.
Tax 11.51(4)(b)
(b) Food and food ingredients heated by the retailer, except for the following:
Tax 11.51(4)(b)1.
1. Two or more food ingredients that are mixed or combined by a retailer for sale as a single item, if the retailer's primary classification in the North American Industry Classification System (NAICS), 2002 edition, published by the federal office of management and budget is manufacturing under subsector 311, but not including bakeries and tortilla manufacturing under industry group number 3118.
Tax 11.51 Note
Example: A food manufacturer classified under industry code 31161 of the North American Industry Classification System (NAICS), 2002 edition, makes hot dogs by mixing and combining 2 or more food ingredients, heating the hot dogs so that they are fully cooked and then packaging the hot dogs for sale once they have cooled. Although the hot dogs were heated by the retailer while they were being manufactured, they are not prepared food because they meet the exception in par. (b) 1., assuming the hot dogs do not meet any of the other definitions of prepared food.
Tax 11.51(4)(b)2.
2. Bakery items made by a retailer, including breads, rolls, pastries, buns, biscuits, bagels, croissants, donuts, danish, cakes, tortes, pies, tarts, muffins, bars, cookies, and tortillas.
Tax 11.51 Note
Examples: 1) A bakery mixes ingredients together to make a cake. The cake mix is then heated (baked). Once the cake cools, it is decorated and sold to a customer. Although the cake was heated by the retailer, it is not prepared food because it meets the exception in par. (b) 2., assuming the cake does not meet any of the other definitions of prepared food.
Tax 11.51 Note
2) A bakery mixes 2 or more ingredients together to make a bagel. The bagel is then heated and placed in a heated display case for sale to a customer. The bagel is prepared food since it is sold heated. Although the bagel would meet the exception provided in par. (b) 2., since it is sold heated, it is prepared food.
Tax 11.51(4)(b)3.
3. Two or more food ingredients mixed or combined by a retailer for sale as a single item, sold unheated, and sold by volume or weight.
Tax 11.51 Note
Example: Grocery Store A prepares potato salad for sale to its customers. Grocery Store A boils the potatoes, cuts the potatoes up, and combines the potatoes with various other ingredients to make potato salad. Once the potato salad has cooled, Grocery Store A sells the potato salad for $2 per pound. Although the potatoes were previously heated by the retailer when the potato salad was being made, the potato salad is not prepared food since it is sold unheated by weight, assuming the potato salad does not meet any of the other definitions of prepared food.
Tax 11.51(4)(c)
(c) Two or more food ingredients mixed or combined by the retailer for sale as a single item, except if any of the following apply:
Tax 11.51(4)(c)1.
1. The retailer's primary classification in the North American Industry Classification System, 2002 edition, published by the federal office of management and budget is manufacturing under subsector 311, but not including bakeries and tortilla manufacturing under industry group number 3118.
Tax 11.51(4)(c)3.
3. The item is a bakery item made by the retailer, including breads, rolls, pastries, buns, biscuits, bagels, croissants, donuts, danish, cakes, tortes, pies, tarts, muffins, bars, cookies, and tortillas.
Tax 11.51 Note
Examples: 1) Restaurant A purchases various food and food ingredients (eggs, flour, sugar, ice cream, fudge, cookie bits, etc.) to make cakes with an ice cream layer. Restaurant A makes a layer of cake using the eggs, flour, sugar, etc. Once the cake layers are baked and cooled, Restaurant A covers one of the cake layers with a layer of fudge and cookie bits. Restaurant A then places another cake layer over the fudge and cookie bits and covers the second cake layer with a layer of ice cream. Restaurant A decorates the top of the cake according to instructions provided by its customer. Although this cake is two or more ingredients mixed or combined by the retailer for sale as a single item, it is excluded from the definition of prepared food because it is primarily a bakery item and is not subject to Wisconsin sales or use tax, assuming the cake does not meet any of the other definitions of prepared food.
Tax 11.51 Note
2) Restaurant B purchases various food and food ingredients (eggs, flour, sugar, ice cream, fudge, cookie bits, etc.) to make a layered ice cream cake. Restaurant B makes a layer of cake using the eggs, flour, sugar, etc. Once the cake layer is baked and cooled, Restaurant B places the cake layer between two layers of ice cream. Restaurant B decorates the top of the cake according to instructions provided by its customer. This cake is prepared food and subject to Wisconsin sales or use tax since Restaurant B mixed or combined 2 or more ingredients to make the cake, and the ice cream cake is not primarily a bakery item.
Tax 11.51(4)(c)4.
4. The food and food ingredients are only sliced, repackaged, or pasteurized by the retailer.
Tax 11.51 Note
Example: Grocer C sells cheese trays. The cheese trays are put together by the grocer selecting the various types of cheeses and slicing the amount of each type of cheese it wants to include, placing each type of sliced cheese on the tray, and then wrapping the cheese tray. The cheese tray is not prepared food since the cheese on the tray was only sliced and repackaged, assuming the cheese tray does not meet any of the other definitions of prepared food.
Tax 11.51(4)(c)5.
5. The item contains eggs, fish, meat, or poultry in raw form that requires cooking by the consumer, as recommended by the food and drug administration in chapter 3, part 401.11 of its food code to prevent food-borne illnesses.
Tax 11.51(4)(d)1.1. Food and food ingredients sold with eating utensils that are provided by the retailer of the food and food ingredients, including plates, bowls, knives, forks, spoons, glasses, cups, napkins, or straws. However a “plate" does not include a container or packaging used to transport the food and food ingredients. Eating utensils are provided by the retailer if:
Tax 11.51(4)(d)1.a.
a. The eating utensils are available to the purchasers and the retailer's sales of food and food ingredients as described in pars.
(a),
(b), and
(c) and food for which plates, bowls, glasses, or cups are necessary to receive the food are more than 75 percent of the retailer's total sales of all food and food ingredients at that establishment; or
Tax 11.51(4)(d)1.b.
b. The retailer's customary practice is to physically give or hand the utensils to the purchaser, except that plates, bowls, glasses, or cups that are necessary for the purchaser to receive the food and food ingredients need only be made available to the purchaser.
Tax 11.51 Note
Examples: 1) Deli A has a self-service salad bar. Customers go to the salad bar, pick up a clam shell container at the salad bar, and place the items they would like in the clam shell container. The clam shell container is a plate or bowl necessary for the customer to receive the food and is made available to the customer. Therefore, sales from the self-service salad bar are sales of prepared food.
Tax 11.51 Note
2) Retailer X has a self-service milk machine. Customers go to the milk machine, pick-up a disposable cup, and fill it with whatever kind of milk they want. The cup is necessary for the customer to receive the milk and is made available to the customer. Therefore, sales of milk in this manner are sales of prepared food.
Tax 11.51(4)(d)2.a.a. The numerator of the percentage described in subd.
1. a. includes only sales of prepared food as defined in pars.
(a),
(b), and
(c) and food for which plates, bowls, glasses, or cups are necessary to receive the food, but not including alcoholic beverages.
Tax 11.51(4)(d)2.b.
b. The denominator of the percentage described in subd.
1. a. includes all food and food ingredients, including prepared food, candy, dietary supplements, and soft drinks, but not including alcoholic beverages.
Tax 11.51(4)(d)3.a.a. If the percentage determined under subd.
2. is 75 percent or less, utensils are considered to be provided by the retailer if the retailer's customary practice is to physically give or hand the utensils to the purchaser or, in the case of plates, bowls, glasses, or cups that are necessary to receive the food, to make such items available to the purchaser.
Tax 11.51(4)(d)3.b.
b. If the percentage determined under subd.
2. is greater than 75 percent, utensils are considered to be provided by the retailer if the utensils are made available to the purchaser.
Tax 11.51(4)(d)4.a.a. For a retailer whose percentage determined under subd.
2. is greater than 75 percent, an item sold by the retailer that contains 4 or more servings packaged as one item and sold for a single price does not become prepared food simply because the retailer makes utensils available to the purchaser of the item.
Tax 11.51(4)(d)4.b.
b. For a retailer whose percentage determined under subd.
2. is greater than 75 percent, an item sold by the retailer that contains 4 or more servings packaged as one item and sold for a single price does become prepared food if the retailer physically gives or hands utensils to the purchaser of the item, except that plates, bowls, glasses, or cups necessary for the purchaser to receive the food, need only be made available to the purchaser.
Tax 11.51(4)(d)4.c.
c. For purposes of subd.
4. a. and
b., serving sizes are based on the information contained on the label of each item sold, except that, if the item sold has no label, the serving size is based on the retailer's reasonable determination.
Tax 11.51(4)(d)5.a.a. Except as provided in subd.
5. b., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer, the utensils are considered to be provided by the retailer.
Tax 11.51(4)(d)5.b.
b. Except as provided in subds.
3. and
4., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer and the person's primary classification in the North American Industrial Classification System (NAICS), 2002 edition, published by the federal office of management and budget, is manufacturing under subsector 311, the utensils are not considered to be provided by the retailer.
Tax 11.51(4)(d)6.a.a. For purposes of subd.
1. a., a retailer shall determine the percentage for the retailer's tax year or business fiscal year based on the retailer's data from the retailer's prior tax or business fiscal year as soon as practical after the retailer's accounting records are available, but no later than 90 days after the day on which the retailer's tax or business fiscal year begins.
Tax 11.51(4)(d)6.b.
b. For retailers with more than one establishment in Wisconsin, a single determination under subd.
1. a. that combines the information for all of the retailer's establishments in Wisconsin shall be made annually, and will apply to all of the retailer's establishments in Wisconsin.
Tax 11.51(4)(d)6.c.
c. If a retailer has no prior tax or business fiscal year in Wisconsin, the retailer shall make a good faith estimate of its percentage under subd.
1. a. for the retailer's first tax or business fiscal year and shall adjust the estimate prospectively after the first 3 months of the retailer's operations if the actual percentage is materially different from the estimated percentage.
Tax 11.51(5)
(5)
Federal Supplemental Nutrition Assistance Program (SNAP). A grocer's receipts from SNAP, formerly known as the federal food stamp program, are not subject to sales tax even if the items purchased by the consumer are not exempt food or food ingredients under s.
77.54 (20n), Stats.
Tax 11.51 Note
Note: The interpretations in s.
Tax 11.51 are effective under the general sales and use tax law on and after September 1, 1969, except: (a) Sales of cigarettes became taxable on September 1, 1975, pursuant to
Chapter 39, Laws of 1975; (b) Magazines and periodicals sold over-the-counter became taxable on September 1, 1983, pursuant to
1983 Wis. Act 27; (c) The definitions of “meals" and “sandwiches" and the tax treatment of prepackaged food combinations became effective August 1, 1997, pursuant to
1997 Wis. Act 237; The definitions of “candy," “dietary supplement," “food and food ingredient," “prepared food," and “soft drink," and the exemption for food and food ingredients became effective October 1, 2009, pursuant to
2009 Wis. Act 2; and (d) 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 11.51 History
History: Cr.
Register, December, 1977, No. 264, eff. 1-1-78; am. (2) (b),
Register, June, 1983, No. 330, eff. 7-1-83; am. (2) (a) and (b),
Register, September, 1984, No. 345, eff. 10-1-84; am. (1), (2) (a), (b) and (c) (intro.), 2., 3., and 4., cr. (2) (c) 5. and (3),
Register, June, 1991, No. 426, eff. 7-1-91; am. (2) (a) and (b),
Register, December, 1992, No. 444, eff. 1-1-93; am. (1) and (2) (a) and (b),
Register, December, 1996, No. 492, eff. 1-1-97; am. (1) and (2) (a) and (b), r. (2) (c) (intro.), renum. (2) (c) 1. to 4. to be (3) (a) to (d), (2) (c) 5. to be (3) (g) 1., (3) to be (4) and am. (3) (c) and (d), (3) (g) 1.; cr. (3) (intro.), (e), (f), (g) 2. and (h),
Register, October, 1999, No. 526, eff. 11-1-99;
EmR0924: emerg. r. and recr. eff. 10-1-09;
CR 09-090: r. and recr.
Register May 2010 No. 653, eff. 6-1-10; correction in (2) (a) made under s.
13.92 (4) (b) 7., Stats.,
Register May 2010 No. 653;
CR 10-094: am. (2) (a), (3) (a) 2., (d) 3., (e) 2., (5)
Register November 2010 No. 659, eff. 12-1-10;
CR 12-014: am. (2) (a), (b), r. and recr. (3) (a) 2., cr. (3) (a) 3. to 10., am. (4) (b) 1. (Example), 2. (Example 1), cr. (4) (b) 3. (Example), (c) 3. (Examples), 4. (Example), am. (4) (d) 1. (intro.), a., b., cr. (4) (d) 1. b. (Examples)
Register August 2012 No. 680, eff. 9-1-12;
CR 16-053: am. (2) (a), (b)
Register June 2018 No. 750, eff. 7-1-18.
Tax 11.52
Tax 11.52
Coin-operated vending machines and amusement devices. Tax 11.52(1)(1)
Scope. This section applies to all sales from coin-operated machines, except those located on army, air force, navy, or marine corps exchanges where the operator leases the machines to those exchanges which acquire title to and sell the merchandise through the machines to authorized purchasers from those exchanges.
Tax 11.52(2)(a)
(a) “Heated" means the food or beverages have been prepared for sale in a heated condition and which are sold at any temperature higher than the air temperature of the room or place where they are sold.
Tax 11.52(2)(c)
(c) “Retailer" for purposes of this section means either of the following:
Tax 11.52(2)(c)1.
1. Any person who owns or possesses coin-operated vending machines or amusement devices, who controls the operations of the machines as by stocking or removing the receipts from the machines or devices, who has access to the machines or devices for any purpose connected with the sale of merchandise or services through the machines or devices, and whose compensation is based, in whole or in part, upon receipts from sales made through the machines or devices.
Tax 11.52(2)(c)2.
2. A person who is responsible for providing laundry, dry cleaning, photographic, photocopy, or other taxable services through vending machines.
Tax 11.52 Note
Note: If there is a question of who is the retailer for a single machine or device, a determination regarding who is the retailer liable for tax may be obtained by writing to: Wisconsin Department of Revenue, PO Box 8902, Madison, WI 53708-8902.
Tax 11.52(3)(a)(a) Retailers of tangible personal property, items, property and goods under s.
77.52 (1) (b),
(c), and
(d), Stats., and taxable services sold through coin-operated vending machines or devices dispensing taxable tangible personal property, items, property, or goods under s.
77.52 (1) (b),
(c), or
(d), Stats., or services shall obtain a seller's permit. One permit shall be sufficient for all the machines of each retailer.
Tax 11.52 Note
Note: Refer to s.
Tax 11.002 for a description of permit requirements, how to apply for a permit, and the 15-day time period within which the department is required to act on permit applications.
Tax 11.52(3)(b)
(b) A notice must be affixed to each coin-operated machine or device showing the retailer's name, address and seller's permit number.
Tax 11.52(4)
(4)
Taxable receipts. Taxable receipts include receipts from:
Tax 11.52(4)(a)6.d.
d. Drugs and other medical supplies, such as aspirin, bandages, and suntan lotion.
Tax 11.52(4)(b)
(b) Coin-operated machines which provide a taxable service, such as telephones, car washes, televisions, vacuums, parking meters, shoe shine machines, bowling ball cleaning machines and coin-operated amusement devices such as juke boxes, pinball machines, shuffleboards, pool tables, slot racing, mechanical rides and games, and penny arcades.
Tax 11.52(4)(c)
(c) Coin-operated machines of non-governmental retailers located on army, navy, or air force installations, hospitals, or other facilities of the United States government.
