Chapter Tax 11

Tax 11.70 Note The entire charge by the advertising agency to Company H is exempt from tax because the specification sheets are included with Company H’s products which will be sold to customers. Company H may claim a resale exemption for the specification sheets by providing the agency with a properly completed exemption certificate claiming resale.

Tax 11.70(3)(j) (j) Tangible personal property and items under s. 77.52 (1) (b), Stats., used exclusively and directly by a manufacturer in manufacturing an article of tangible personal property or item or property under s. 77.52 (1) (b) or (c), Stats., that is destined for sale and becoming an ingredient or component part of the article of tangible personal property or item or property under s. 77.52 (1) (b) or (c), Stats., destined for sale or which is consumed or destroyed or loses its identity in manufacturing the article of tangible personal property or item or property under s. 77.52 (1) (b) or (c), Stats., in any form destined for sale.

Tax 11.70 Note Examples: 1) Company I contracts with a Wisconsin advertising agency to produce an advertising flyer. The advertising agency prepares preliminary artwork. Company I decides on one theme and the finished artwork is prepared. Company I takes the finished artwork to a Wisconsin printer and has 10,000 flyers printed. The printer uses its own paper and ink to print the flyers. The flyers are mailed by the printer to addresses in Wisconsin.

Tax 11.70 Note The charge to Company I by the advertising agency for the preliminary artwork and finished artwork is exempt from Wisconsin sales tax because the finished artwork is consumed in the production of flyers which are sold by the printer to Company I.

Tax 11.70 Note 2) Assume the same facts as Example 1, except that Company I provides the paper to the printer, in addition to the finished artwork.

Tax 11.70 Note The charge to Company I by the Wisconsin advertising agency for the preliminary artwork and finished artwork is subject to Wisconsin sales tax. The printer is selling a printing service, and not tangible personal property or an item or property under s. 77.52 (1) (b) or (c), Stats., to Company I. The destined for sale requirement is not met and exemption from tax does not apply. Even though Company I is furnishing a printing service, however, it is still considered to be engaged in manufacturing, and its machinery and equipment, if used exclusively and directly in manufacturing, qualify for exemption under s. 77.54 (6) (am) 1., Stats.

Tax 11.70(3)(k) (k) Tangible personal property or services that are used exclusively and directly by a manufacturer in manufacturing shoppers guides, newspapers, or periodicals and that become an ingredient or component of shoppers guides, newspapers, or periodicals or that are consumed or lose their identity in the manufacture of shoppers guides, newspapers, or periodicals, whether or not the shoppers guides, newspapers, or periodicals are transferred without charge to the recipient. This exemption does not apply to advertising supplements that are not newspapers.

Tax 11.70 Note Example: Company J contracts with an advertising agency to produce a shoppers guide advertisement. The advertising agency produces layouts and roughs for approval by Company J. Company J approves, and the finished artwork for the shoppers guide advertisement is produced. The preliminary artwork and finished artwork charges are billed to Company J for the job. Company J deals directly with the shoppers guide publisher to run the advertisement in a shoppers guide. The advertising agency bills Company J $1,000 for preliminary artwork and $3,000 for finished artwork.

Tax 11.70 Note The total $4,000 charge is exempt from Wisconsin sales or use tax because the preliminary artwork results in finished artwork and the finished artwork becomes an ingredient or component part of a shoppers guide, or is consumed or loses its identity in the manufacture of shoppers guides.

Tax 11.70(3)(L) (L) Containers, labels, sacks, cans, boxes, drums, bags, or other packaging and shipping materials for use in packing, packaging, or shipping tangible personal property or items or property under s. 77.52 (1) (b) or (c), Stats., if the containers, labels, sacks, cans, boxes, drums, bags, or other packaging and shipping materials are used by the purchaser to transfer merchandise to customers. Also exempt are meat casing, wrapping paper, tape, containers, labels, sacks, cans, boxes, drums, bags, or other packaging and shipping materials for use in packing, packaging, or shipping meat or meat products, regardless of whether these items are used to transfer merchandise to customers.

Tax 11.70 Note Example: An advertising agency produces finished artwork to be used on Company K’s shipping boxes. The boxes are used by Company K to ship its products to its customers. The advertising agency delivers the finished artwork to a printer who uses the finished artwork to print and produce the boxes which the advertising agency resells to Company K.

Tax 11.70 Note The entire charge for the finished artwork and boxes is exempt from Wisconsin sales or use tax because the boxes are used by Company K in packing, packaging, or shipping merchandise to customers. Company K should provide the agency with a properly completed exemption certificate.

Tax 11.70(3)(m) (m) Raw materials processed, fabricated, or manufactured into, attached to, or incorporated into printed materials that are transported and used solely outside Wisconsin.

Tax 11.70 Note Example: Company A, located in Wisconsin, publishes flyers it gives away to potential customers. Company A purchases paper from a company who delivers it to a Wisconsin printer that prints the flyers for Company A. The flyers are transported and used solely outside Wisconsin.

Tax 11.70 Note The paper purchased by Company A for the flyers is exempt from Wisconsin sales or use tax.

Tax 11.70(3)(n) (n) Advertising and promotional direct mail.

Tax 11.70 Note Example 1: Company B, located in Wisconsin, contracts with a printer to have 10,000 advertising flyers that are designed to promote Company B’s products printed. Once the printer finishes printing the advertising flyers, the printer mails the flyers to the addresses on a mailing list provided by Company B. The addresses are in and outside Wisconsin. The charge by the printer to Company B is exempt from Wisconsin sales and use tax since the advertising flyers are advertising and promotional direct mail.

Tax 11.70 Note Example 2: Same as Example 1, except the flyers are sent by the printer to Company B, the purchaser, and Company B mails the flyers to the addresses on the mailing list. The flyers are not advertising and promotional direct mail because the seller/printer is not delivering the flyers to a mass audience or to addresses on a mailing list at the direction of the purchaser.

Tax 11.70(4) (4) Measure of tax.

Tax 11.70(4)(a) (a) Tax applies to an advertising agency’s total sales price from the sale of tangible personal property, items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., and taxable services without any deduction for any cost element which becomes a part of the sales price. These elements include consultation, research, copy, supervision, model fees, rentals, photostats, typesetting, postage, express, telephone, travel, agency service fees, or any other labor or service cost incurred in the production of that property. No deduction may be taken even though the costs are separately itemized in a billing to the client.

Tax 11.70(4)(b) (b) Tax applies to in-progress billings for production work which ultimately results in the production of finished artwork or other tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats.

Tax 11.70(5) (5) When and where sale occurs.

Tax 11.70(5)(a) (a) The tax applies to an agency’s sales price from a sale of or the storage, use, or consumption of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., sourced to Wisconsin under s. 77.522, Stats., regardless of whether:

Tax 11.70(5)(a)1. 1. The transfer is to the advertiser or to a third party at the direction of or on behalf of the client.

Tax 11.70(5)(a)2. 2. The client is located in or outside Wisconsin.

Tax 11.70 Note Example: An agency’s billing to a client in Minnesota for finished artwork transferred to a business in Wisconsin is taxable.

Tax 11.70(5)(b) (b) The sale of tangible personal property, items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., and taxable services occurs when the advertising agency transfers possession of the tangible personal property or item, property, or good under s. 77.52 (1) (b), (c), or (d), Stats., to the client or the client realizes the economic benefits of the property’s, item’s, or good’s use, even though the property, item, or good may not be physically transferred to the client.

Tax 11.70(6) (6) Fees added to billings. When an amount billed as an agency “fee,” “retainer,” “service charge,” or “commission” represents services rendered which are a part of the sale of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., the amount is taxable. If it clearly represents a charge or a part of a charge for any nontaxable service rather than for the sale of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., it is not taxable. A fee representing both taxable and nontaxable sales shall be reasonably allocated between taxable and nontaxable sales, unless the fee is a bundled transaction, as defined in s. 77.51 (1f), Stats.

Tax 11.70(7) (7) Purchases by agencies.

Tax 11.70(7)(a) (a) An advertising agency is the seller of, and may purchase without tax for resale, any item that:

Tax 11.70(7)(a)1. 1. Is resold before use by the advertising agency.

Tax 11.70 Note Example: Company L is an advertising agency. Company L purchases various art equipment such as paint brushes, easels, etc., that it uses in its operations. A portion of the art equipment is sold to the general public for use. The art equipment Company L sells to the general public may be purchased by Company L without Wisconsin sales or use tax as property for resale, provided Company L gives its supplier a properly completed exemption certificate claiming resale.

Tax 11.70(7)(a)2. 2. Physically becomes an ingredient or component part of tangible personal property or items or property under s. 77.52 (1) (b) or (c), Stats., the advertising agency produces and sells.

Tax 11.70 Note Example: Company M is an advertising agency that produces displays for customers. The displays are usually framed or matted photographs or prints. Company M may purchase the frames, matting, and paper for photographs and prints without Wisconsin sales or use tax as property for resale, provided it gives its supplier a properly completed exemption certificate claiming resale.

Tax 11.70(7)(b) (b) An advertising agency is the consumer of all tangible personal property and items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., purchased by the agency, other than tangible personal property and items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., purchased for immediate sale to customers or that are used exclusively and directly by a manufacturer in manufacturing an article of tangible personal property or an item or property under s. 77.52 (1) (b) or (c), Stats., that is destined for sale and that becomes an ingredient or component part of the article of tangible personal property or the item or property under s. 77.52 (1) (b) or (c), Stats., that is destined for sale. As the consumer, the advertising agency is subject to Wisconsin sales or use tax on the tangible personal property and items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., purchased.

Tax 11.70 Note Example: Company N purchases various office equipment, such as typewriters, computers, tables and cabinets which it uses in its advertising agency office. Company N purchases the equipment from an out-of-state supplier that is not required to collect Wisconsin sales or use tax. Company N is subject to Wisconsin use tax on its purchase of the office equipment.

Tax 11.70 Note Note: Exemption certificates and their instructions may be obtained free of charge from the department’s web site at www.revenue.wi.gov, by writing to Wisconsin Department of Revenue, P.O. Box 8902, Madison, WI 53708-8902, or by calling [phone].

Tax 11.70 Note Note: Section Tax 11.70 interprets ss. 77.51 (1f), (1fr), (3rm), (14) (intro.) and (h), 77.52 (1) and (2), 77.522, 77.54 (2), (2m), (6) (am) 2., (25), (25m), (43), and (59), and 77.585 (8), Stats.

Tax 11.70 Note Note: The interpretations in s. Tax 11.70 are effective under the general sales and use tax law on and after September 1, 1969, except: (a) The exemption for printing or imprinting of tangible personal property furnished by customers and used out-of-state for advertising became effective March 1, 1970; (b) The exemption for printed advertising material used out-of-state became effective May 21, 1972; (c) The exemption for ingredients or components of shoppers guides, newspapers, and periodicals became effective July 7, 1983; (d) The sales and use tax exemption for raw materials for printed materials transported and used solely outside Wisconsin became effective December 1, 1997, pursuant to 1997 Wis. Act 27; (e) The exemption for catalogs and their mailing envelopes became effective April 1, 2009, pursuant to 2007 Wis. Act 20; (f) The provision that items must be consumed exclusively and directly by a manufacturer in manufacturing property or items destined for sale became effective August 1, 2009, pursuant to 2009 Wis. Act 28; (g) The definitions of bundled transaction and finished artwork became effective October 1, 2009, pursuant to 2009 Wis. Act 2; (h) 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; (i) The definition of “direct mail” became effective October 1, 2009 pursuant to 2009 Wis. Act 2; (j) The definition of “advertising and promotional direct mail” became effective May 27, 2010, pursuant to 2009 Wis. Act 330; (k) The sales and use tax exemption for advertising and promotional direct mail became effective July 1, 2013, pursuant to 2011 Wis. Act 32; and (L) Services resulting in advertising and promotional direct mail were excluded from taxable services effective July 1, 2013, pursuant to 2013 Wis. Act 20.

Tax 11.70 History History: Cr. Register, December, 1977, No. 264, eff. 1-1-78; r. and recr. Register, April, 1993, No. 448, eff. 5-1-93; cr. (3) (m), Register, June, 1999, No. 522, eff. 7-1-99; EmR0924: emerg. renum. (1) (a) and (b) to be (1) (b) and (c) and am., cr. (1) (a) and (3) (gm), am. (2) (a) to (c), (e), (3) (a), (d), (g) to (m), (4), (5) (a) (intro.), (b), (6), (7) (a) 2. and (b), eff. 10-1-09; CR 09-090: renum. (1) (a) and (b) to be (1) (b) and (c) and am., cr. (1) (a) and (3) (gm), am. (2) (a) to (c), (e), (3) (a), (d), (g) to (m), (4), (5) (a) (intro.), (b), (6), (7) (a) 2. and (b) Register May 2010 No. 653, eff. 6-1-10; CR 10-094: am. (2) (c), (e) Register November 2010 No. 659, eff. 12-1-10; CR 12-014: am. (7) (a) 2. Register August 2012 No. 680, eff. 9-1-12; CR 13-011: renum. (1) (a) to (c) to (1) (b), (d), (e), cr. (1) (a), (c), am. (2) (c), (3) (gm), cr. (3) (n) Register August 2013 No. 692, eff. 9-1-13; correction in (1) (c) made under s. 13.92 (4) (b) 7., Stats., Register August 2013 No. 692; CR 13-012: am. (2) (e) Register August 2013 No. 692, eff. 9-1-13; CR 14-006: am. (2) (e) Register August 2014 No. 704, eff. 9-1-14; correction in (3) (j) (Example [2]) Register August 2014 No. 704.

Tax 11.71 Tax 11.71 Computer industry.

Tax 11.71(1) (1) Definition of terms. In this section:

Tax 11.71(1)(a) (a) “Application” means the specific job performance by an automatic data processing installation.

Tax 11.71(1)(b) (b) “Automatic data processing equipment” includes computers used for data processing purposes and their peripheral equipment as well as punched card tabulating machines. It does not include tape-controlled automatic drilling, milling, or other manufacturing machinery or equipment.

Tax 11.71(1)(c) (c) “Coding” means the list, in computer code, of the successive computer instructions for successive computer operations for solving a specific problem.

Tax 11.71(1)(d) (d) “Computer” means an electronic device that accepts information in digital or similar form and that manipulates such information to achieve a result based on a sequence of instructions.

Tax 11.71(1)(e) (e) “Computer software” means a set of coded instructions designed to cause a computer or automatic data processing equipment to perform a task.

Tax 11.71(1)(em) (em) “Computer software maintenance contract” means a contract that obligates a vendor of computer software to provide a customer with future updates or upgrades to computer software, computer software support services, or both.

Tax 11.71(1)(f) (f) “Data processing” means the recording and handling of information by means of mechanical or electronic equipment, commonly referred to as automatic data processing.

Tax 11.71(1)(g) (g) “Input” means the information or data transferred, or to be transferred, from external storage media including punched cards, punched paper tape, and magnetic media into the internal storage of the computer.

Tax 11.71(1)(h) (h) “Keypunching” means recording information in cards, paper tapes, or magnetic tapes, disc, or drum by punching holes or otherwise entering information in the cards, tapes, discs, or drums, or recording data on any media to represent letters, digits, and special characters. Keypunching includes the necessary preliminary encoding or marking of the source documents.

Tax 11.71(1)(i) (i) “Keystroke verifying” means the use of a machine known as a punched card verifier or tape transcriber, which has a keyboard, to ensure that information punched in a punch card or transcribed on a tape during the keypunching operation has been punched properly.

Tax 11.71(1)(j) (j) “Load-and-leave” means delivery to a purchaser by using a tangible storage media that is not physically transferred to the purchaser.

Tax 11.71(1)(k) (k) “Prewritten computer software” is defined in s. 77.51 (10r), Stats., to mean computer software, including prewritten upgrades, that is not designed and developed by the author or other creator to the specifications of a specific purchaser. The combining of 2 or more “prewritten computer software” programs or prewritten portions of computer software does not cause the combination to be other than “prewritten computer software.” “Prewritten computer software” includes software designed and developed by the author or other creator to the specifications of a specific purchaser if it is sold to a person other than the specific purchaser. If a person modifies or enhances computer software of which the person is not the author or creator, the person is the author or creator only of the person’s modifications or enhancements. “Prewritten computer software” or a prewritten portion of computer software that is modified or enhanced to any degree, with regard to a modification or enhancement that is designed and developed to the specifications of a specific purchaser, remains “prewritten computer software,” except that if there is a reasonable, separately stated charge or an invoice or other statement of the price given to the purchaser for the modification or enhancement, the modification or enhancement is not “prewritten computer software.”

Tax 11.71(1)(L) (L) “Processing a client’s data” means the developing of original information from raw data furnished by a client. Automatic data processing operations which develop original information include summarizing, computing, extracting, sorting, sequencing, or the updating of a continuous file of information maintained for a client by a service bureau.

Tax 11.71(1)(m) (m) “Program” means the complete plan for the solution of a problem, i.e., the complete sequence of automatic data processing equipment instructions necessary to solve a specific problem. It includes both systems and application programs and subdivisions, such as assemblers, compilers, routines, generators, and utility programs. For purposes of this section a program is either a prewritten or custom program.

Tax 11.71(1)(n) (n) “Reformatting of data” means the rearranging of data by mechanical or electronic equipment.

Tax 11.71(1)(o) (o) “Service bureau” means a business rendering automatic data processing services.

Tax 11.71(1)(p) (p) “Source document” means a document from which basic data are extracted, such as a sales invoice.

Tax 11.71(2) (2) Taxable receipts. Receipts from the following transactions involving automatic data processing equipment, computer software, output, and services are taxable:

Tax 11.71(2)(a) (a) The retail sale, license, lease, or rental of new or used automatic data processing equipment and charges for the installation, service, and maintenance of this equipment. In this subsection, the following applies to licenses, leases, and rentals:

Tax 11.71(2)(a)1. 1. License, lease, or rental includes a contract by which a licensee or lessee, for a consideration, obtains the full or partial use of equipment if the licensee’s or lessee’s employees operate the equipment. License, lease, or rental does not include obtaining remote access to equipment by telephone or other means when that person’s employees do not operate the equipment or control its operations. License, lease, or rental also does not include any transaction in which the licensor or lessor of the equipment provides the operator of the equipment and the operator does more than maintain, inspect, or set up the equipment.

Tax 11.71(2)(a)2. 2. Subleasing receipts are taxable without any deduction or credit for sales or use tax paid by the original lessee to the lessor if the original lessee uses the equipment in addition to subleasing it. If the original lessee uses the equipment solely for lease or rental to others, the lessor’s charge to the original lessee is exempt as a purchase for resale.

Tax 11.71(2)(b) (b) The retail sale, lease, rental, or license to use prewritten computer software, regardless of how it is delivered to the purchaser. The tax applies to the total charge for prewritten computer software, including:

Tax 11.71(2)(b)1. 1. The consideration received for the temporary transfer of possession of prewritten computer software for the purpose of direct use or to be recorded by the customer.

Tax 11.71(2)(b)2. 2. The consideration received for prewritten computer software in the form of license fees or royalty payments, present or future, whether for a minimum use or for extended periods.

Tax 11.71(2)(b)3. 3. The consideration received for designing, producing, implementing, testing, and installing the prewritten computer software.

Tax 11.71(2)(bm) (bm) The sale of computer software maintenance contracts for prewritten computer software, unless the sale, license, lease, or rental in Wisconsin of the software to which the maintenance contract relates is or was exempt from tax to the purchaser of the contract.

Tax 11.71(2)(c) (c) The sale of training materials, such as books and manuals, including digital books and manuals furnished to trainees for a specific charge. However, separately stated training services are not taxable, unless they are a service necessary to complete the sale of a taxable product.

Tax 11.71 Note Examples: 1) Company A sells prewritten computer software to Customer B for $1,000. Company A also offers optional training on how to use the prewritten computer software for an additional $100. Customer B chooses to purchase the training service. The $1,000 sale of the prewritten computer software is subject to Wisconsin sales tax but the $100 charge for the training is not subject to tax since the training was not required by the seller or the purchaser as a service necessary to complete the sale.

Tax 11.71 Note 2) Company C sells prewritten computer software to Customer D for $1,000. In addition, Company C also requires that any customer that purchases the prewritten computer software, must also purchase the training services on how to use the software for $100. Since Company C requires that Customer D purchase the training services as a part of the sale of the prewritten computer software to Customer D, the training services are a service necessary to complete the sale and Company C must charge Wisconsin sales tax on the entire $1,100 it charges Customer D.

Tax 11.71(2)(d) (d) The charge for additional copies of records, reports, or tabulations, including copies produced by means of photocopying, multi-lithing, or by other means. “Additional copies” means all the copies in excess of copies produced on multipart carbon paper simultaneous with the production of the original and on the same printer, whether the copies are prepared by rerunning the same program, by using multiple simultaneous printers, by looping a program so that a program is run continuously, by using different programs to produce the same output product, or by other means.

Tax 11.71(2)(e) (e) The sale of mailing lists as set forth in s. Tax 11.82, including listings in the form of mailing labels produced as result of a computer run. However, the tax does not apply to the charge for addressing material to be mailed with names and addresses furnished by a customer, or maintained by a service bureau for the customer, by the use of automatic data processing equipment.

Tax 11.71(3) (3) Nontaxable computer and data processing services. The sales price from the following computer or data processing services are not taxable:

Tax 11.71(3)(a) (a) Processing a client’s data.

Tax 11.71 Note Note: A contract to process a client’s data by the use of computer software or through an electrical accounting machine programmed by a wired plugboard will usually include receiving the client’s source documents, recording data in machine readable form such as in punch cards or on magnetic media, making corrections, rearranging or creating new information as the result of the processing, and then providing tabulated listings or recording output on other media. This service is not taxable, even though the total charge is broken down into specific charges for each step.

Tax 11.71 Note Note: If a client furnishes data and computer software for processing the data and the processing is under the direction and control of the person providing the service, the processing service is not taxable, even though charges for the service may be based on computer time. The true object of this arrangement is considered to be a service, even though some tangible personal property may be incidentally transferred to the client.

Tax 11.71(3)(b) (b) Providing computer software that is not prewritten computer software.

Tax 11.71(3)(c) (c) Providing program technical support, error correction services, and maintenance and enhancement to computer software that is not prewritten computer software.

Tax 11.71(3)(d) (d) Providing time-sharing services which permit persons at different locations to access the same computer through remote access by telephone lines, microwave, or other means. Nontaxable time-sharing exists when a person or that person’s employees, who have access to the equipment, are not located on the premises where the equipment is located and do not operate the equipment or control its operation.

Tax 11.71(3)(e) (e) Miscellaneous services which are not part of the sale of prewritten computer software or other tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., including:

Tax 11.71(3)(e)1. 1. Designing and implementing computer systems including determining equipment and personnel required and how they will be utilized.

Tax 11.71(3)(e)2. 2. Designing storage and data retrieval systems including determining what data communications and high-speed input-output terminals are required.

Tax 11.71(3)(e)3. 3. Consulting services including study of all or part of a data processing system.

Tax 11.71(3)(e)4. 4. Feasibility studies including studies to determine what benefits would be derived if procedures were automated.

Tax 11.71(3)(e)5. 5. Evaluation of bids including studies to determine which proposal for computer equipment would be most beneficial.

Tax 11.71(3)(f) (f) Keypunching and keystroke verifying services, including:

Tax 11.71(3)(f)1. 1. Keypunching only, keypunching and keystroke verification, or keypunching and providing a proof list or verification data, or both. Charges for these services are not taxable, whether the cards or tapes are furnished by the customer or by a service bureau.

Tax 11.71(3)(f)2. 2. Recording data from source documents directly on magnetic tape, off-line. This operation may include keystroke verifying or proof listing of data, or both, and is comparable to the punch card operation.