ORDER OF THE DEPARTMENT OF REVENUE REPEALING AND RECREATING RULES
The Wisconsin Department of Revenue proposes an order to: repeal and recreate Tax 11.97; relating to sales and use tax provisions for out-of-state retailers.
The scope statement for this rule, SS 079-18, was approved by the Governor on July 5, 2018, published in Register No. 751A2 on July 9, 2018, and approved by the Secretary of Revenue on July 31, 2018.
Analysis by the Department of Revenue
Statutes interpreted: Sections 77.51 (13), (13g), (13h) and (14) (j), 77.52 (1), (1b), and (2), 77.53 (3), (5), (7), (9) and (9m), and 77.73, Stats.
Explanation of agency authority: Federal law limits Wisconsin's ability to impose sales and use tax upon out-of-state retailers, sometimes referred to as remote sellers, as is explicitly mentioned in at least one statute (sec. 77.51(13g), Stats.). The department will interpret the provisions of sales and use tax statutes enforced by it and codify its discretion in this area, to better define what retailers are subject to tax, consistent with the limits set forth in the June 21, 2018, U.S. Supreme Court decision in South Dakota v. Wayfair, Inc.
Sections 77.51 (13) and (13g), Stats., define "retailer" and "retailer engaged in business in this state." Section 77.51 (13g) (c), Stats., provides that "retailer engaged in business in this state" includes any retailer making sales of taxable products and services "unless otherwise limited by federal law." Sections 77.52 (1) and (2), Stats., provide the authority to impose a sales tax on retailers for the privilege of selling, licensing, leasing, or renting at retail tangible personal property, items, property, and goods under sec. 77.52 (1) (b), (c), and (d), Stats., and taxable services. Section 77.53 (3), Stats., provides the authority to impose a use tax on retailers engaged in business in this state on sales of tangible personal property and items, property, and goods under sec. 77.52 (1) (b), (c), and (d), Stats., and taxable services. Section 77.65 (3), Stats., provides “[t]he department may promulgate rules to administer this section…” Section 227.11 (2), Stats., provides statutory rule-making authority as follows:
(a) "Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute...”
(b) "Each agency authorized to exercise discretion in deciding individual cases may formalize the general policies evolving from its decisions by promulgating the policies as rules …"
Related statute or rule: There are no other applicable statutes or rules.
Plain language analysis: The objective of the rule is to amend guidance for out-of-state retailers without a physical presence in Wisconsin that make Wisconsin sales. The new guidance will be consistent with limits expressed in the Wayfair decision. Wisconsin will begin its enforcement on October 1, 2018.
Summary of, and comparison with, existing or proposed federal regulation: The rule codifies the federal limitation on imposing sales and use tax on small, out-of-state retailers consistent with the Wayfair decision.
Summary of public comments and feedback on scope statement: The department received a number of public comments.
Comment 1 – Trisha Pugal of the Wisconsin Hotel & Lodging Association suggested including the collection of local room taxes as part of the guidance provided in the rule and asked that the scope statement be expanded to include this.
DOR's Response to Comment 1 – Addressing municipal law on room taxes is not appropriate for a rule specific to sales and use taxes. The department is, however, in the process of updating its published guidance for lodging marketplaces. The department is taking additional steps to educate lodging marketplaces that they are required to register for a lodging marketplace license. Once a lodging marketplace license is received, the marketplace is required to collect Wisconsin sales and use taxes and local room taxes.
Comment 2 – Representative John Macco provided a list of principles, adopted by the National Conference of State Legislatures, State and Local Tax taskforce, to consider when drafting the proposed rule. The list of principles is as follows:
1. Consider waiting until January 1, 2019 to begin sales tax collection requirements on remote sellers
2. Determine whether Wisconsin has a statutory basis to require remote sellers to collect tax
3. Have systems, policy, and software in place to easily be able to differentiate between businesses that have only a sales tax liability versus those in-state business that would also have other payroll or property tax liabilities
4. Establish exemption limits based on total in-state sales and volume
5. Simplify the registration process
6. Centralize the Certified Software Provider process
7. Provide a publicly available taxability and exemption table
8. Provide a rates and boundary database
9. Provide a depository of materials that includes all of the information remote sellers need in order to comply with sales tax laws
DOR's Response to Comment 2 – Principles listed are addressed or considered as follows:
1. The effective date of October 1, 2018, is consistent with many other states' effective dates.
2. Current Wisconsin law provides authority for Wisconsin to require out-of-state sellers to collect tax in Wisconsin.
3.-4. The rule does not create an exemption; it codifies the Department's application of the federal nexus threshold limiting Wisconsin's power to tax small out-of-state sellers. That threshold is based on total in-state sales and volume.
5.-7. Wisconsin is a full-member of the Streamlined Governing Board, Inc.*; therefore, the registration, reporting, and software simplifications are all available through the Streamlined Governing Board's website.
8.-9. Wisconsin currently has a rates and boundary database, as well as a web page, with numerous links, devoted to sales made by out-of-state sellers.
* Wisconsin is one of the twenty-four states that have adopted the simplification measures outlined in the Streamlined Sales and Use Tax Agreement. The purpose of the agreement is to simplify and modernize sales and use tax administration to reduce the burden of tax compliance on retailers conducting business in multiple states.
Comment 3 – Corydon Fish of the Wisconsin Manufacturers & Commerce (WMC) commented that WMC does not take a position on the policy merits of the tax collection exemptions described in the scope statement, but questions whether the department has the authority to implement the exemption. He suggests that an exemption drafted by rule would be invalid pursuant to sec. 227.40(4)(a), Wis. Stats.
DOR's response to Comment 3 – It is the opinion of the department that current Wisconsin law provides the authority for Wisconsin to (a) require out-of-state sellers to collect Wisconsin tax, and (b) codify the Department's application of the federal nexus threshold limiting Wisconsin's power to tax small out-of-state sellers.
Comment 4 – Bill Smith of the National Federation of Independent Business (NFIB) stated that NFIB has taken a neutral position regarding state collection of sales taxes, but their members believe:
- NFIB should oppose any attempt to make the Wayfair decision retroactive
- NFIB should oppose any attempt to use the Wayfair decision to extend the sales tax to services
- NFIB should support state preemption of local online sales tax definitions
DOR's response to Comment 4 – The department is not seeking a retroactive tax treatment; however, the department believes that current Wisconsin law provides that the sale of taxable services into Wisconsin by out-of-state sellers are taxable, unless federal law limits the department's authority to require collection and remittance by the out-of-state seller. The department will continue to provide clarity on this issue through published guidance.
Comment 5 – Curt Witynski of League of Wisconsin Municipalities commented that the League of Wisconsin Municipalities joins the Wisconsin Hotel and Lodging Association and the City of Madison in asking that the rule provide guidance that national "lodging marketplaces" must fully comply with state registration and tax collection requirements, including local room taxes. He suggested that the department can no longer rely on the Quill decision to allow lodging marketplaces to avoid complying with Wisconsin's mandatory registration requirement.