1997 Wisconsin Act 27

27,2379c Section 2379c. 76.91 (1) of the statutes is renumbered 76.91 (1) (a).

27,2379d Section 2379d. 76.91 (2) of the statutes is renumbered 76.91 (1) (b) and amended to read:

76.91 (1) (b) Subtract from the amount under sub. (1) par. (a) the taxpayer's payment during that month of the tax under subch. IV.

27,2379e Section 2379e. 76.91 (2) of the statutes is created to read:

76.91 (2) If a person that is licensed by the federal communications commission to provide commercial mobile service in this state is a telephone company under s. 76.02 (9u), 1993 stats., on June 6, 1996, the calculation of the fee under this subchapter is limited to that person's activities as a provider of commercial mobile service in this state.

27,2379m Section 2379m. Chapter 77 (title) of the statutes is amended to read:

CHAPTER 77
TAXATION OF FOREST CROPLANDS;
REAL ESTATE TRANSFER FEES; SALES
AND USE TAXES; COUNTY AND
SPECIAL DISTRICT SALES AND USE
TAXES; MANAGED FOREST LAND;
TEMPORARY RECYCLING SURCHARGE;
LOCAL FOOD AND BEVERAGE TAX;
LOCAL RENTAL CAR TAX; premier
resort area taxes; STATE RENTAL
VEHICLE fee; dry cleaning fees;
tax on adult entertainment

27,2380 Section 2380 . 77.51 (2) of the statutes is amended to read:

77.51 (2) “Contractors" and “subcontractors" are the consumers of tangible personal property used by them in real property construction activities and the sales and use tax applies to the sale of tangible personal property to them. In this subsection, “real property construction activities" include the fabrication of modular units designed and fabricated for a specific prefabricated building to be affixed to land at a particular location designated by the purchaser before the fabrication of the modules if the modular units will have a realty function and will become a permanent accession to the realty. A contractor engaged primarily in real property construction activities may use resale certificates only with respect to purchases of property which the contractor has sound reason to believe the contractor will sell to customers for whom the contractor will not perform real property construction activities involving the use of such property. In this subsection, “real property construction activities" means activities that occur at a site where tangible personal property that is applied or adapted to the use or purpose to which real property is devoted is affixed to that real property, if the intent of the person who affixes that property is to make a permanent accession to the real property. In this subsection, “real property construction activities" do not include affixing to real property tangible personal property that remains tangible personal property after it is affixed.

27,2381 Section 2381 . 77.51 (3r) of the statutes is created to read:

77.51 (3r) “File" means mail or deliver a document that the department prescribes to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.

27,2381m Section 2381m. 77.51 (4) (a) 4. of the statutes is amended to read:

77.51 (4) (a) 4. Any tax included in or added to the purchase price, including the taxes imposed by ss. s. 78.01, unless the tax is refunded, ss.78.40, 139.02, 139.03 and 139.31, the federal motor fuel tax unless the tax is refunded and any manufacturers' or importers' excise tax; but not including any tax imposed by the United States, any other tax imposed by this state or any tax imposed by any municipality of this state upon or with respect to retail sales whether imposed upon the retailer or the consumer if that federal, state or municipal tax is measured by a stated percentage of sales price or gross receipts or the federal communications tax imposed upon the services set forth in s. 77.52 (2) (a) 5. For purposes of the sales tax, if a retailer establishes to the satisfaction of the department that the sales tax imposed by this subchapter has been added to the total amount of the sales price and has not been absorbed by the retailer, the total amount of the sales price shall be the amount received exclusive of the sales tax imposed. For the purpose of this subdivision, a tax shall be deemed “imposed upon or with respect to retail sales" only if the retailer is the person who is required to make the payment of the tax to the governmental unit levying the tax.

27,2382 Section 2382 . 77.51 (4) (b) 3. of the statutes is amended to read:

77.51 (4) (b) 3. In all transactions, except those to which subd. 7. applies, in which an article of tangible personal property is traded toward the purchase of an article of greater value, the gross receipts shall be only that portion of the purchase price represented by the difference between the full purchase price of the article of greater value and the amount allowed for the article traded.

27,2383 Section 2383 . 77.51 (4) (b) 7. of the statutes is created to read:

77.51 (4) (b) 7. For the sale of a manufactured building, as defined in s. 101.71 (6); at the retailer's option, except that after a retailer chooses an option, the retailer may not use the other option for other sales without the department's written approval; either 35% of the gross receipts or an amount equal to the gross receipts minus the cost of the materials that become an ingredient or component part of the building.

27,2383g Section 2383g. 77.51 (4) (c) 6. of the statutes is amended to read:

77.51 (4) (c) 6. Charges associated with time-share property that is taxable under s. 77.52 (2) (a) 1. or 2.

27,2383m Section 2383m. 77.51 (10) of the statutes is amended to read:

77.51 (10) “Person" includes any natural person, firm, partnership, limited liability company, joint venture, joint stock company, association, public or private corporation, the United States, the state of Wisconsin, including any unit or division thereof, any county, city, village, town, municipal utility, municipal power district or other governmental unit, cooperative, estate, trust, receiver, executor, administrator, any other fiduciary, and any representative appointed by order of any court or otherwise acting on behalf of others. “Person" also includes the owner of a single-owner entity that is disregarded as a separate entity under ch. 71.

27,2383r Section 2383r. 77.51 (15) (a) 4. of the statutes is amended to read:

77.51 (15) (a) 4. Any tax included in or added to the purchase price including the taxes imposed by ss. s. 78.01, unless the tax is refunded, ss. 78.40, 139.02, 139.03 and 139.31 and the federal motor fuel tax unless the tax is refunded and including also any manufacturers' or importers' excise tax; but not including any tax imposed by the United States, any other tax imposed by this state, or any tax imposed by any municipality of this state upon or with respect to retail sales whether imposed on the retailer or consumer, if that federal, state or municipal tax is measured by a stated percentage of sales price or gross receipts, and not including the federal communications tax imposed upon the services set forth in s. 77.52 (2) (a) 5. For the purpose of this subdivision, a tax shall be deemed “imposed upon or with respect to retail sales" only if the retailer is the person who is required to make the payment of the tax to the governmental unit levying the tax.

27,2384 Section 2384 . 77.51 (15) (b) 4. of the statutes is amended to read:

77.51 (15) (b) 4. In all transactions, except those to which subd. 6. applies, in which an article of tangible personal property is traded toward the purchase of an article of greater value, the sales price shall be only that portion of the purchase price represented by the difference between the full purchase price of the article of greater value and the amount allowed for the article traded.

27,2385 Section 2385 . 77.51 (15) (b) 6. of the statutes is created to read:

77.51 (15) (b) 6. For the sale of a manufactured building, as defined in s. 101.71 (6); at the retailer's option, except that after a retailer chooses an option, the retailer may not use the other option for other sales without the department's written approval; either 35% of the sales price or an amount equal to the sales price minus the cost of the materials that become an ingredient or component part of the building.

27,2386 Section 2386 . 77.51 (17r) of the statutes is created to read:

77.51 (17r) “Sign" means write one's signature or, if the department prescribes another method of authenticating, use that other method.

27,2386g Section 2386g. 77.51 (18) (intro.) of the statutes is renumbered 77.51 (18) and amended to read:

77.51 (18) “Storage" includes any keeping or retention in this state of tangible personal property purchased from a retailer for any purpose except the following: sale in the regular course of business.

27,2386h Section 2386h. 77.51 (18) (a) and (b) of the statutes are repealed.

27,2386j Section 2386j. 77.51 (21m) of the statutes is amended to read:

77.51 (21m) “Telecommunications services" means sending messages and information transmitted through the use of local, toll and wide-area telephone service; channel services; telegraph services; teletypewriter; computer exchange services; cellular mobile telecommunications service; specialized mobile radio; stationary two-way radio; paging service; or any other form of mobile and portable one-way or two-way communications; or any other transmission of messages or information by electronic or similar means between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities. “Telecommunications services" does not include sending collect telecommunications that are received outside of the state. In this subsection, “computer exchange services" does not include providing access to or use of the internet. In this subsection, “internet" means interconnecting networks that are connected to network access points by telecommunications services.

27,2386p Section 2386p. 77.51 (22) (a) of the statutes is amended to read:

77.51 (22) (a) “Use" includes the exercise of any right or power over tangible personal property or taxable services incident to the ownership, possession or enjoyment of the property or services, or the results produced by the services, including installation or affixation to real property and including the possession of, or the exercise of any right or power over tangible personal property by a lessee under a lease, except that “use" does not include the activities under sub. (18) (a) and (b).

27,2386q Section 2386q. 77.52 (2) (a) 1. of the statutes is amended to read:

77.52 (2) (a) 1. The furnishing of rooms or lodging to transients by hotelkeepers, motel operators and other persons furnishing accommodations that are available to the public, irrespective of whether membership is required for use of the accommodations, not including the furnishing of rooms or lodging through the sale of a time-share property, as defined in s. 707.02 (32), if the use of the rooms or lodging is not fixed at the time of sale as to the starting day or the lodging unit. In this subdivision, “transient" means any person residing for a continuous period of less than one month in a hotel, motel or other furnished accommodations available to the public. In this subdivision, “hotel" or “motel" means a building or group of buildings in which the public may obtain accommodations for a consideration, including, without limitation, such establishments as inns, motels, tourist homes, tourist houses or courts, lodging houses, rooming houses, summer camps, apartment hotels, resort lodges and cabins and any other building or group of buildings in which accommodations are available to the public, except accommodations, including mobile homes as defined in s. 66.058 (1) (d), rented for a continuous period of more than one month and accommodations furnished by any hospitals, sanatoriums, or nursing homes, or by corporations or associations organized and operated exclusively for religious, charitable or educational purposes provided that no part of the net earnings of such corporations and associations inures to the benefit of any private shareholder or individual.

27,2387 Section 2387 . 77.52 (2) (a) 5. of the statutes is amended to read:

77.52 (2) (a) 5. The sale of telecommunications services that either originate or terminate in this state; except services that are obtained by means of a toll-free number, that originate outside this state and that terminate in this state; and are charged to a service address in this state, regardless of the location where that charge is billed or paid , and the sale of telecommunications services that are paid for before the services are rendered.

27,2388 Section 2388 . 77.52 (2) (a) 5m. of the statutes is created to read:

77.52 (2) (a) 5m. The sale of services that consist of recording telecommunications messages and transmitting them to the purchaser of the service or at that purchaser's direction, but not including those services if they are merely an incidental, as defined in s. 77.51 (5), element of another service that is sold to that purchaser and is not taxable under this subchapter.

27,2388m Section 2388m. 77.52 (7) of the statutes is created to read:

77.52 (7) Every person desiring to operate as a seller within this state who holds a valid certificate under s. 73.03 (50) shall file with the department an application for a permit for each place of operations. Every application for a permit shall be made upon a form prescribed by the department and shall set forth the name under which the applicant intends to operate, the location of the applicant's place of operations, and the other information that the department requires. The application shall be signed by the owner if a sole proprietor; in the case of sellers other than sole proprietors, the application shall be signed by the person authorized to act on behalf of such sellers. A nonprofit organization that has gross receipts taxable under s. 77.54 (7m) shall obtain a seller's permit and pay taxes under this subchapter on all taxable gross receipts received after it is required to obtain that permit. If that organization becomes eligible later for the exemption under s. 77.54 (7m) except for its possession of a seller's permit, it may surrender that permit.

27,2388no Section 2388no. 77.52 (9) of the statutes is repealed and recreated to read:

77.52 (9) After compliance with sub. (7) and s. 77.61 (2) by the applicant, the department shall grant and issue to each applicant a separate permit for each place of operations within the state. A permit is not assignable and is valid only for the person in whose name it is issued and for the transaction of operations at the place designated in it. It shall at all times be conspicuously displayed at the place for which it was issued.

27,2388p Section 2388p. 77.52 (12) of the statutes is amended to read:

77.52 (12) A person who operates as a seller in this state without a permit or after a permit has been suspended, or revoked or has expired , unless the person has a temporary permit under sub. (11), and each officer of any corporation, partnership member, limited liability company member or other person authorized to act on behalf of a seller who so operates, is guilty of a misdemeanor. Permits shall be held only by persons actively operating as sellers of tangible personal property or taxable services. Any person not so operating shall forthwith surrender that person's permit to the department for cancellation. The department may revoke the permit of a person found not to be actively operating as a seller of tangible personal property or taxable services.

27,2391 Section 2391 . 77.52 (17m) (a) of the statutes is amended to read:

77.52 (17m) (a) A person who holds a valid certificate issued under s. 73.03 (50) may apply for a direct pay permit by submitting to the department filing a completed form that the department prescribes.

27,2391m Section 2391m. 77.52 (17m) (b) 7. of the statutes is amended to read:

77.52 (17m) (b) 7. The applicant holds a valid certificate under s. 73.03 (50) permit under sub. (9) or is registered under s. 77.53 (9).

27,2391mn Section 2391mn. 77.525 of the statutes is created to read:

77.525 Reduction to prevent double taxation. Any person who is subject to the tax under s. 77.52 (2) (a) 5. on telecommunications services that terminate in this state and who has paid a similar tax on the same services to another state may reduce the amount of the tax remitted to this state by an amount equal to the similar tax properly paid to another state on those services or by the amount due this state on those services, whichever is less. That person shall refund proportionally to the persons to whom the tax under s. 77.52 (2) (a) 5. was passed on an amount equal to the amounts not remitted.

27,2392 Section 2392 . 77.53 (1m) (a) of the statutes is amended to read:

77.53 (1m) (a) If the motor vehicle is assigned to and used by an employe of the dealer for whom the dealer is required to withhold amounts for federal income tax purposes or by a person who both has an ownership interest in the dealership and actively participates in the day-to-day operation of the dealership, $96 per month for each motor vehicle registration plate held by the dealer, except that beginning in 1997 the department shall annually, as of January 1, adjust the dollar amount under this paragraph, rounded to the nearest whole dollar, to reflect the annual percentage change in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the 12 months ending on June 30 of the year before the change. In this paragraph, “actively participates" means performs services for the motor vehicle dealership; including selling, accounting, managing and consulting; for more than 500 hours in a taxable year for which the person receives compensation, and “actively participates" does not include services performed only in the capacity of an investor; including studying and reviewing financial statements or reports on the operation of the business, preparing or compiling summaries or analyses of the finances of the business for the investor's own use or monitoring the finances or operations of the activity in a nonmanagerial capacity.

27,2392m Section 2392m. 77.53 (9) of the statutes is amended to read:

77.53 (9) Every retailer selling tangible personal property or taxable services for storage, use or other consumption in this state shall obtain a certificate under s. 73.03 (50) and give the name and address of all agents operating in this state, the location of all distribution or sales houses or offices or other places of business in this state, the standard industrial code classification of each place of business in this state and such other information as the department requires.

27,2392mm Section 2392mm. 77.53 (9) of the statutes, as affected by 1997 Wisconsin Act .... (this act), is amended to read:

77.53 (9) Every retailer selling tangible personal property or taxable services for storage, use or other consumption in this state shall register with the department and obtain a certificate under s. 73.03 (50) and give the name and address of all agents operating in this state, the location of all distribution or sales houses or offices or other places of business in this state, the standard industrial code classification of each place of business in this state and such the other information as that the department requires.

27,2392no Section 2392no. 77.53 (9m) of the statutes is amended to read:

77.53 (9m) Any person who is not otherwise required to collect any tax imposed by this subchapter and who makes sales to persons within this state of tangible personal property or taxable services the use of which is subject to tax under this subchapter may register with the department under the terms and conditions that the department imposes and shall obtain a valid certificate under s. 73.03 (50) and thereby be authorized and required to collect, report and remit to the department the use tax imposed by this subchapter.

27,2392p Section 2392p. 77.53 (10) of the statutes is amended to read:

77.53 (10) For the purpose of the proper administration of this section and to prevent evasion of the use tax and the duty to collect the use tax, it is presumed that tangible personal property or taxable services sold by any person for delivery in this state is sold for storage, use or other consumption in this state until the contrary is established. The burden of proving the contrary is upon the person who makes the sale unless that person takes from the purchaser a certificate to the effect that the property or taxable service is purchased for resale, or otherwise exempt from the tax; except that no certificate is required for sales of commodities, as defined in 7 USC 2, that are consigned for resale in a warehouse in or from which the commodity is deliverable on a contract for future delivery subject to a commodity market regulated by the U.S. commodity futures trading commission if upon the sale the commodity is not removed from the warehouse.

27,2393 Section 2393 . 77.54 (3m) of the statutes is repealed and recreated to read:

77.54 (3m) The gross receipts from the sale of and the storage, use or other consumption of the following items if they are used exclusively by the purchaser or user in the business of farming; including dairy farming, agriculture, horticulture, floriculture and custom farming services:

(a) Seeds for planting.

(b) Plants.

(c) Feed.

(d) Fertilizer.

(e) Soil conditioners.

(f) Animal bedding.

(g) Sprays, pesticides and fungicides.

(h) Breeding and other livestock.

(i) Poultry.

(j) Farm work stock.

(k) Baling twine and baling wire.

(L) Containers for fruits, vegetables, grain, hay, silage and animal wastes.

(m) Plastic bags, plastic sleeves and plastic sheeting used to store or cover hay or silage.

27,2393no Section 2393no. 77.54 (14) (f) of the statutes is created to read:

77.54 (14) (f) Furnished without charge to a physician, surgeon, nurse anesthetist, advanced practice nurse, osteopath, dentist who is licensed under ch. 447, podiatrist who is licensed under ch. 448 or optometrist who is licensed under ch. 449 if the medicine may not be dispensed without a prescription.

27,2393noo Section 2393noo. 77.54 (15) of the statutes is amended to read:

77.54 (15) The gross receipts from the sale of and the storage, use or other consumption of all newspapers, of periodicals sold by subscription and regularly issued at average intervals not exceeding 3 months, or issued at average intervals not exceeding 6 months by an educational association or corporation sales to which are exempt under sub. (9a) (f), of controlled circulation publications sold to commercial publishers for distribution without charge or mainly without charge or regularly distributed by or on behalf of publishers without charge or mainly without charge to the recipient and of shoppers guides which distribute no less than 48 issues in a 12-month period. In this subsection, “shoppers guide" means a community publication delivered, or attempted to be delivered, to most of the households in its coverage area without a required subscription fee, which advertises a broad range of products and services offered by several types of businesses and individuals. In this subsection, “controlled circulation publication" means a publication that has at least 24 pages, is issued at regular intervals not exceeding 3 months, that devotes not more than 75% of its pages to advertising and that is not conducted as an auxiliary to, and essentially for the advancement of, the main business or calling of the person that owns and controls it.

27,2393nq Section 2393nq. 77.54 (20) (c) 5. of the statutes is amended to read:

77.54 (20) (c) 5. Taxable sales shall not include meals, food, food products or beverages furnished in accordance with any contract or agreement by a public or private institution of higher education 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 goods are consumed by that student and meals, food, food products or beverages furnished to a national football league team under a contract or agreement entered into on or before January 1, 1998.

27,2393nv Section 2393nv. 77.54 (30) (d) of the statutes is amended to read:

77.54 (30) (d) In this subsection “residential use" means use in a structure or portion of a structure which is a person's permanent residence, but does not include use in transient accommodations, as specified in s. 77.52 (2) (a) 1.,; time-share property, as defined in s. 707.02 (32); motor homes,; or travel trailers or other recreational vehicles.

27,2393q Section 2393q. 77.54 (43) of the statutes is created to read:

77.54 (43) The gross receipts from the sale of and the storage, use or other consumption of raw materials used for the processing, fabricating or manufacturing of, or the attaching to or incorporating into, printed materials that are transported and used solely outside this state.