PROPOSED ORDER OF THE DEPARTMENT OF REVENUE RENUMBERING AND REPEALING AND RECREATING RULES
The Wisconsin Department of Revenue proposes an order to: renumber Tax 11.55 (3) to 11.30 (1) (b), 11.30 (1) (b) to 11.30 (1) (c) 2., and 11.55 (4) to 11.30 (1) (c) 1., repeal and recreate Tax 11.55 (1) and (2) and 11.88 (6), relating to sales and use tax provisions.
The scope statement for this rule, SS 042-20, was approved by the Governor on May 7, 2020, published in Register No. 773A3 on May 18, 2020, and approved by the Secretary of Revenue on August 24, 2020. Analysis by the Department of Revenue
Statutes interpreted:
Tax 11.55 – ss. 77.51 (7i), (7j), (11d), (13), (13g), (13gm), (14) (n) 7., and (17) (g), 77.52 (3m) and (14) (c), 77.523, and 77.585 (1g) and (11), Stats. Tax 11.88 – ss. 77.51 (2), (7i), (7j), (11d), (12m) (b) 7., (13), (14) (n) 7., and (15) (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. Statutory authority: Sections 66.0615, 77.51 (7i), (7j), (13) (a), (p) 7., and (q), (13g), (13gm), (14) (n) 7., (14g) (f), and (17) (g), 77.52 (1), (2), and (3m), 77.523, 77.53 (3), 77.65 (3), 77.585 (1g), (5), and (11), 77.982 (1), 77.991, 77.9951, and 227.11 (2), Stats. Explanation of agency authority:
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 …"
Sections 77.52 (1) and (2) and 77.53 (3), Stats., provide the authority to impose a sales or use tax on retailers for the privilege of selling, licensing, leasing, or renting at retail tangible personal property and items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., and taxable services in Wisconsin (taxable products). Section 77.51 (7i) and (7j), Stats., defines a "marketplace provider" and "marketplace seller." Section 77.51 (13) (a), (c), (p) 7., and (q) and (17) (g), Stats., defines a "retailer" and "seller" required to collect and remit Wisconsin sales or use tax to include a person selling on behalf of a seller and gives the department authority to determine that marketplace providers are agents of marketplace sellers for purposes of collecting and remitting Wisconsin sales or use tax. Section 77.51 (14) (n) 7., Stats., defines "sale" to include the transfer of ownership, title, possession, or enjoyment of a taxable product regardless of whether on behalf of another seller. Sections 77.52 (3m), 77.523, and 77.585 (11), Stats., place liability for the sales and use tax imposed on taxable products on the marketplace provider unless (a) the department grants a waiver to certain providers or (b) finds the marketplace seller gave incorrect information to the provider. Only in such cases may the department impose the liability to collect and remit sales or use tax on the marketplace seller. Section 77.585 (1g), Stats., allows the marketplace provider to claim deductions for bad debts on sales facilitated on behalf of a marketplace seller. Section 77.51 (14g) (f), Stats., defines that a sale does not include repossession of taxable products when the only consideration is cancellation of the purchaser's obligation to pay the remaining balance of the purchase price. Section 77.585 (5), Stats., provides that a retailer may not reduce its taxable sales by credit sales of property repossessed unless the sales price is returned to the purchaser or the retailer recognizes a bad debt. Sections 77.51(13g), Stats., defines "retailer engaged in business in this state." Section 77.51(13gm), Stats., provides an exception from the definition of "retailer engaged in business in this state" for an out-of-state retailer that has annual gross sales of $100,000 or less in both the previous or current calendar year. Sections 66.0615, 77.982 (2), 77.991, and 77.9951, Stats., apply the marketplace provisions in ch. 77, subchs. III and V, to the local exposition district taxes and state vehicle rental fees administered by the Department of Revenue. Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule: The department estimates it will take approximately 100 hours to develop the rule.
Related statute or rule: There are no other applicable statutes or rules.
Plain language analysis: The rule (1) moves a section to an appropriate existing rule and (2) reflects the marketplace provisions in 2019 Wisconsin Act 10. a. Repossessions - Section Tax 11.30 (1) (b) is renumbered 11.30 (1) (c) 2.; 11.55 (4) is renumbered 11.30 (1) (c) 1.
b. Enforcement of liens - Section Tax 11.55 (3) is renumbered 11.30 (1) (b).
c. Marketplace providers and sellers - Section Tax 11.55 is repealed and recreated to explain the requirements to collect and remit sales or use tax by all types of sellers that facilitate sales of all types of taxable products on behalf of other sellers, as provided by 2019 Wisconsin Act 10. d. Consignment sales - Section Tax 11.88 (6) is repealed and recreated to reflect the marketplace provisions in 2019 Wisconsin Act 10 and explain the sales and use tax treatment of consignment sales of recreational vehicles. Summary of, and comparison with, existing or proposed federal regulation: The department is unaware of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
Comparison with rules in adjacent states: Minnesota, Iowa, Illinois and Michigan have similar marketplace provider laws and regulations as Wisconsin. In addition, the majority of states that impose a sales and use tax have similar marketplace laws and regulations as Wisconsin. The Streamlined Sales Tax Governing Board maintains a Marketplace Facilitator State Guidance web page to track marketplace laws and regulations in all states. Summary of factual data and analytical methodologies: 2019 Wisconsin Act 10 made changes to Wisconsin's sales and use tax laws. The department has created this proposed rule order to reflect these statutory changes as well as provide needed clarification and correction as described above. No other data or analytical methodologies were used in the preparation of this proposed rule order or analysis. Analysis and supporting documents used to determine effect on small business: This proposed rule does not expand the authority already provided in current law. There is no effect on small business.
Anticipated costs incurred by private sector: This proposed rule does not have a fiscal effect on the private sector.
Effect on small business: This proposed rule does not expand the authority already provided in current law. There is no effect on small business.
Place where comments are to be submitted and deadline for submission: Comments may be submitted to the contact person shown below. Information as to the place, date, and time of the public hearing, as well as the deadline for submitting comments, will be published in the Wisconsin Administrative Register.
Jen Olson
Department of Revenue
Mail Stop 6-40
2135 Rimrock Road
P.O. Box 8933
Madison, WI 53708-8933
SECTION 1. Tax 11.30 (1) (b) is renumbered 11.30 (1) (c) 2.
SECTION 2. Tax 11.55 (3) is renumbered 11.30 (1) (b).
SECTION 3. Tax 11.55 (4) is renumbered 11.30 (1) (c) 1.
SECTION 4. Tax 11.55 is repealed and recreated to read:
Tax 11.55 Marketplace providers and sellers. (1) Definitions. In this section:
(a) "Marketplace provider" has the meaning given in s. 77.51 (7i), Stats. (b) "Marketplace seller" has the meaning given in s. 77.51 (7j), Stats. (c) "Retailer" has the meaning given in s. 77.51 (13), Stats. (2) General. Except as provided in sub. (4), a marketplace provider is required to collect and remit Wisconsin sales or use tax on all sales of taxable products and services that the marketplace provider facilitates on behalf of a marketplace seller. The amount subject to tax is the entire amount charged to the purchaser, including any amount charged by the marketplace provider for facilitating the sale.
(3) Notification and liability. (a) A marketplace provider is required to notify the marketplace seller that it is collecting and remitting the tax on all taxable sales in Wisconsin. The department does not prescribe a required form or method for such notification.
(b) Only the marketplace provider can be audited and held liable for Wisconsin sale or use tax on sales facilitated on behalf of a marketplace seller, unless one of the following applies:
1. The marketplace provider has been granted a waiver by the department from collecting and remitting the tax, as provided in subd. 4.
