, Stats., directs the department to refund to Indian tribal councils 70% of the cigarette taxes collected under s. 139.31 (1)
, Stats., in respect to “ . . . sales on reservations or trust lands of an Indian tribe to the tribal council of the tribe having jurisdiction over the reservation or trust land on which the sale is made if all the following conditions are fulfilled:
(1) The tribal council has filed a claim for the refund with the department.
(2) The tribal council has approved the retailer.
(3) The land on which the sale occurred was designated a reservation or trust land on or before January 1, 1983.
(4) The cigarettes were not delivered by the retailer to the buyer by means of a common carrier, a contract carrier or the U.S. postal service.
(5) The retailer has not sold the cigarettes to another retailer or to a jobber."
, Stats., allows the department to “... enter into agreements with Indian tribes to provide for the refunding of the cigarette tax imposed under s. 139.31 (1) on cigarettes sold on reservations to enrolled members of the tribe residing on the tribal reservation."
Except as provided in s. Tax 9.09 (2)
, Wisconsin cigarette distributors shall sell only stamped cigarettes to federally recognized Indian tribes within Wisconsin, or to persons authorized by the Indian tribe to purchase and sell cigarettes.
The Indian tribal council may authorize retailers on its reservations or trust land to purchase and sell cigarettes on which the tribal government may be entitled to a tax refund by providing the department and the cigarette distributor a certified letter stating that the retailer has tribal authorization to purchase and sell cigarettes on the reservation.
The Wisconsin cigarette distributor shall retain, for a period of 2 years from the date of sale, records substantiating sales to federally recognized Indian tribes or their authorized retailers.
The Wisconsin cigarette distributor shall include with its monthly cigarette tax returns a list of all sales of cigarettes to federally recognized Indian tribes or their authorized retailers on a separate form prescribed by the department.
Upon receipt of a proper claim for refund, the department shall reimburse the Indian tribal council 70% of the amount of tax paid under s. 139.31
, Stats., on all cigarettes purchased by the Indian tribal council or person authorized to purchase and sell cigarettes by the tribal council of the reservation where the purchaser's business is located.
Claims shall be filed upon forms prescribed and furnished by the department.
The Wisconsin cigarette distributor shall, upon request, furnish each purchaser with the original invoice prepared at the time of delivery, and the purchaser shall send the original invoice to the department when making a claim for refund. In this paragraph,“original invoice" means the top copy and not a duplicate original or carbon copy of the original invoice.
The original invoice shall be printed or rubber stamped with the words “original invoice" and shall in addition contain the following information:
Double-faced carbon paper shall be used between the original paper or product approved in advance by the department as affording protection equivalent to double-faced carbon paper.
A separate original invoice shall be used for each sale and delivery and shall be legible.
If an original invoice has been lost or destroyed, a duplicate original invoice shall be used to support a claim for refund and accompanied by an affidavit by the purchaser that the original invoice has been lost or destroyed. The distributor when issuing the duplicate original invoice, shall indicate on the face of the invoice that it is a duplicate original invoice. The duplicate invoice shall contain the same information as on the original invoice.
On the filing of a claim, the department shall determine the amount of refund due. The department may investigate the correctness of the facts stated in a claim and may require a claimant to submit records to substantiate the claim. When the department has approved a claim, it shall pay the claimant the reimbursement provided in this subsection, out of the monies collected under s. 139.31 (1)
An Indian tribe that has entered into an agreement with the department under s. 139.325
, Stats., shall file its claim for refund of the remaining 30% of the precollected tax on cigarettes sold on the reservation to enrolled members of the tribe residing on the tribal reservation on forms prescribed by the department.
The penalties provided in s. 139.44
, Stats., for filing a false or fraudulent claim apply to all refund claimants.
The right of any tribal council to a refund under s. 139.323
, Stats., is not assignable, and the application for a refund shall be made by the same tribal council who purchased or authorized the purchase of the cigarettes, and by no other person, and the proceeds or amount of the refund as determined by the department shall be paid to the tribal council whose name appears on the invoice and to no other person.
Tax 9.08 History
Cr. Register, July, 1981, No. 307
, eff. 8-1-81; emerg. r. and recr., eff. 10-1-83; r. and recr. Register, March, 1984, No. 339
, eff. 4-1-84; am. (2), (3), (4) (a), (c), (d) 1. and (i), Register, August, 1996, No. 488
, eff. 9-1-96.
Cigarette sales to and by Indians on reservations of tribes that have not entered into a refund agreement with the department. Tax 9.09(1)(1)
This section applies to sales of cigarettes to and by Indians and Indian retailers on the reservations of tribes who have not entered into agreements under s. 139.325
, Stats., with the department for refunds of precollected taxes on stamped cigarettes.
Sales to Indians for sale to resident tribal members. Tax 9.09(2)(a)(a)
A Wisconsin cigarette distributor permittee may sell untaxed cigarettes to an Indian retailer if the untaxed cigarettes are to be sold to resident tribal members on the reservation. If this occurs:
The cigarettes shall be delivered by the distributor to the purchaser on the reservation.
The Wisconsin cigarette distributor shall retain, for a period of 2 years from the date of sale, proof that all of the sales were to a qualified Indian retailer. Either of the following types of proof shall be retained:
A purchase order issued by an Indian tribal council on its letterhead.
A photocopy of the written authorization to traffic in cigarettes issued to the Indian retailer by the tribal council of the reservation to which the cigarettes are to be delivered.
The Wisconsin cigarette distributor shall list all sales of untaxed cigarettes to Indian purchasers on form CT-103 as “Out-of-State Sales."
The Wisconsin cigarette distributor may not sell untaxed cigarettes to an Indian retailer if the department has notified the distributor that the untaxed cigarettes are being sold to persons other than resident tribal members.
Sales to Indians for sale to persons other than resident tribal members.
A Wisconsin cigarette distributor shall sell only stamped cigarettes to an Indian retailer if the cigarettes are to be sold to persons other than resident tribal members.
Sales by Indians to resident tribal members.
An Indian retailer may sell untaxed cigarettes to resident tribal members on the reservation.
Sales by Indians to persons other than resident tribal members.
An Indian retailer shall sell only stamped cigarettes to persons other than resident tribal members.
Records for sales by Indians.
The Indian retailer shall keep detailed records of both taxable and nontaxable transactions and shall record the number and dollar amounts of taxable sales to nonmembers of the tribe. With respect to nontaxable sales, the retailer shall record and retain for state inspection the names of all Indian purchasers, their tribal affiliations, the Indian reservation within which sales are made, and the number, dollar amounts and dates of sales. In addition, unless the Indian purchaser is personally known to the retailer, he or she shall present a tribal identification card.
If all the statutory requirements of s. 139.323
, Stats., are fulfilled in accordance with s. Tax 9.08 (2)
, the department shall refund 70% of the tax collected under s. 139.31 (1)
, Stats., to the tribal council.
Tax 9.09 Note
Section Tax 9.09
interprets subch. II, ch. 139
Tax 9.09 History
Emerg. cr. eff. 10-1-83; cr. Register, March, 1984, No. 339
, eff. 4-1-84; am. (2) (b), (6) and (7), Register, August, 1996, No. 488
, eff. 9-1-96.
A refund shall be granted to any cigarette distributor for stamps which were applied to packages of cigarettes when the distributor supplies documentation to the department that the packages of cigarettes to which stamps have been affixed were damaged or otherwise unsalable and have been returned to the manufacturer. A distributor who has possession of unsalable cigarettes may ship the cigarettes to the manufacturer and make application for refund. The distributor shall make application for refund on a form to be furnished by the department. The application for refund shall be accompanied by a copy of the signed bill of lading for the shipment. A copy of the credit memo for each shipment from the manufacturer shall be forwarded to the department prior to processing the refund. The department also requires an affidavit from the manufacturer attesting to the number of cigarettes received in each shipment.
A refund shall be granted on all stamps unfit for use or otherwise unused and returned to the department by duly authorized permittees, providing the sale of the stamps can be verified by the department.
Tax 9.11 History
; r. cr. Register, November, 1971, No. 191
, eff. 12-1-71; correction in (1) made under s. 13.93 (2m) (b) 5., Stats., Register, October, 1995, No. 478
; am. (1) and (2), r. (3), Register, August, 1996, No. 488
, eff. 9-1-96.
Stamp application machines and stamps. Tax 9.19(2)(2)
The use of stamps and any machines or devices for their application by any distributor shall be subject to the approval of the secretary of revenue and the approval may be withdrawn at any time at the discretion of the secretary of revenue.
To be properly stamped the full revenue stamp and at least 50% of the surrounding “field" shall be clearly visible in a proper position on the cigarette package.
To be considered properly stamped an identifying code number shall also be clearly affixed to the cigarette package by the distributor or in a method approved by the secretary of revenue.
Tax 9.19 History
Cr. Register, February, 1967, No. 134
, eff. 3-1-67; am. Register, June, 1975, No. 234
, eff. 7-1-75; am. Register, August, 1996, No. 488
, eff. 9-1-96; CR 13-013
: am. (title), r. (1), am. (2) Register August 2013 No. 692
, eff. 9-1-13.
Shipments to retailers. Tax 9.21(1)(1)
Out-of-state permittees shipping cigarettes to Wisconsin retailers shall, prior to the entry of the cigarettes into this state, have affixed to the cigarette containers the proper Wisconsin revenue stamps.
Wisconsin retailers purchasing cigarettes from outside the state shall purchase them only from out-of-state manufacturers and distributors who hold permits issued to them by the department.
All out-of-state manufacturers may ship cigarettes either stamped or unstamped directly to any Wisconsin manufacturers or distributors who hold the proper permit issued by the department.
Drop shipments are prohibited to retailers unless the proper tax stamps are affixed to the cigarette containers prior to sale and delivery.
All consignors of cigarettes, on drop shipments, shall furnish a memo invoice to the distributor or the retailer receiving the merchandise directly, as well as an invoice to the distributor through whom the billing is serviced.
The consignors shall list on their regular schedule CT-107 the name of the consignee actually receiving the merchandise, as well as the name of the distributor through whom it is billed.
Tax 9.22 History
; am. Register, June, 1975, No. 234
, eff. 7-1-75; am. (3), Register, December, 1977, No. 264
, eff. 1-1-78; am. (1) to (3), r. (4), Register, August, 1996, No. 488
, eff. 9-1-96.
Trade or transfer of unstamped cigarettes. Tax 9.26(2)(2)
No manufacturer or distributor may receive unstamped cigarettes from a retailer for stamping purposes.
No unstamped cigarettes may be transferred from one permittee to another for any reason whatsoever, except for interstate commerce. All cigarettes sold by one permittee to another for the purpose of interstate commerce shall have a label affixed to each case stating “For Interstate Commerce Only." The label shall be 2 inches by 5 inches in size. This merchandise shall be used for interstate commerce and may not be diverted in any manner for intrastate sale.
Tax 9.26 History
; am. Register, June, 1975, No. 234
, eff. 7-1-75; correction in (1) made under s. 13.93 (2m) (b) 5., Stats., Register, October, 1995, No. 478
; am. Register, August, 1996, No. 488
, eff. 9-1-96; CR 13-013
: r. (1) Register August 2013 No. 692
, eff. 9-1-13.
Sales out of Wisconsin. Tax 9.31(1)(1)
The excise tax imposed upon the sale of cigarettes within the state does not apply to merchandise which is shipped from within the state to a point outside the state. Manufacturers and distributors need not affix revenue stamps to the original containers of cigarettes that are sold and shipped outside the state. The burden of proof, however, is at all times upon the Wisconsin manufacturer or distributor to show that the merchandise actually went into interstate commerce.
Wisconsin manufacturers and distributors claiming exemption from the excise tax on cigarettes on the grounds that shipments or deliveries were made in interstate commerce shall certify under oath either of the following:
Names and addresses of the persons receiving the shipments or deliveries in the foreign state.
That they are in possession of bills of lading, waybills, freight bills or other evidence of shipment issued by common carriers.
Displaying of cigarettes.
All cigarette retail outlets in the state of Wisconsin shall display all cigarettes offered for sale at retail in a manner permitting verification that they are stamped cigarettes.