Amendment ASA1-SB40

SB40-ASA1,1068,23 a. The utensils are available to purchasers and the retailer's sales of prepared food under subds. 1. and 2., soft drinks, and alcoholic beverages at an establishment are more than 75 percent of the retailer's total sales at that establishment, as determined under par. (c).

SB40-ASA1,1069,2 b. For retailers not described under subd. 3. a., the retailer's customary practice is to physically give or hand the utensils to the purchaser, not including plates, glasses, or cups that are necessary for the purchaser to receive the food and food ingredients and that the retailer makes available to the purchaser.

SB40-ASA1,1069,4 4. Except as provided in par. (b), 2 or more food ingredients mixed or combined by a retailer for sale as a single item.

SB40-ASA1,1069,5 (b) "Prepared food" under par. (a) 4. does not include:

SB40-ASA1,1069,10 1. Two or more food ingredients mixed or combined by a retailer for sale as a single item, if the retailer's primary classification in the 2002 North American Industry Classification System, published by the federal office of management and budget, is manufacturing under subsector 311, not including bakeries and tortilla manufacturing under industry group number 3118.

SB40-ASA1,1069,12 2. Two or more food ingredients mixed or combined by a retailer for sale as a single item, sold unheated, and sold by volume or weight.

SB40-ASA1,1069,15 3. Bakery items made by a retailer, including breads, rolls, pastries, buns, biscuits, bagels, croissants, donuts, danish, cakes, tortes, pies, tarts, muffins, bars, cookies, and tortillas.

SB40-ASA1,1069,17 4. Food and food ingredients that are only sliced, repackaged, or pasteurized by a retailer.

SB40-ASA1,1069,21 5. Eggs, fish, meat, and poultry, and foods containing any of them in raw form, that require cooking by the consumer, as recommended by the food and drug administration in chapter 3, part 401.11 of its food code to prevent food-borne illnesses.

SB40-ASA1,1069,23 (c) 1. The percentage specified under par. (a) 3. a. shall be determined using the following:

SB40-ASA1,1070,3 a. A numerator that includes sales of prepared food, as defined in par. (a) 1. and 2. and food for which plates, bowls, glasses, or cups are necessary to receive the food, but not including alcoholic beverages.

SB40-ASA1,1070,6 b. A denominator that includes all food and food ingredients, including prepared food, candy, dietary supplements, and soft drinks, but not including alcoholic beverages.

SB40-ASA1,1070,11 2. a. If the percentage determined under subd. 1. is 75 percent or less, utensils are considered to be provided by the retailer if the retailer's customary practice is to physically give or hand the utensils to the purchaser or, in the case of plates, bowls, glasses, or cups that are necessary to receive the food, to make such items available to the purchaser.

SB40-ASA1,1070,14 b. If the percentage determined under subd. 1. is greater than 75 percent, utensils are considered to be provided by the retailer if the utensils are made available to the purchaser.

SB40-ASA1,1070,22 3. For a retailer whose percentage determined under subd. 1. is greater than 75 percent, an item sold by the retailer that contains 4 or more servings packaged as 1 item and sold for a single price does not become prepared food simply because the retailer makes utensils available to the purchaser of the item, but does become prepared food if the retailer physically gives or hands utensils to the purchaser of the item. For purposes of this subdivision 3. a., serving sizes are based on the information contained on the label of each item sold, except that, if the item has no label, the serving size is based on the retailer's reasonable determination.

SB40-ASA1,1070,25 4. a. Except as provided in subd. 4. b., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer, the utensils are considered to be provided by the retailer.

SB40-ASA1,1071,5 b. Except as provided in subds. 2. and 3., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer and the person's primary classification in the 2002 North American Industry Classification System, published by the federal office of management and budget, is manufacturing under subsector 311, the utensils are not considered to be provided by the retailer.

SB40-ASA1,1071,18 5. For purposes of par. (a) 3., a retailer shall determine the percentage for the retailer's tax year or business fiscal year, based on the retailer's data from the retailer's prior tax year or business fiscal year, as soon as practical after the retailer's accounting records are available, but not later than 90 days after the day on which the retailer's tax year or business fiscal year begins. For retailer's with more than one establishment in this state, a single determination under subd. 1. that combines the information for all of the retailer's establishments in this state shall be made annually, as provided in this subdivision, and apply to each of the retailer's establishments in this state. A retailer that has no prior tax year or business fiscal year shall make a good faith estimate of its percentage for purposes of par. (a) 3. for the retailer's first tax year or business fiscal year and shall adjust the estimate prospectively after the first 3 months of the retailer's operations if the actual percentage is materially different from the estimated percentage.

SB40-ASA1, s. 1923 Section 1923. 77.51 (10n) of the statutes is created to read:

SB40-ASA1,1071,22 77.51 (10n) "Prescription" means an order, formula, or recipe that is issued by any oral, written, electronic, or other means of transmission and by a person who is authorized by the laws of this state to issue such an order, formula, or recipe.

SB40-ASA1, s. 1924 Section 1924. 77.51 (10r) of the statutes is created to read:

SB40-ASA1,1071,24 77.51 (10r) "Prewritten computer software" means any of the following:

SB40-ASA1,1072,2 (a) Computer software that is not designed and developed by the author or creator of the software according to a specific purchaser's specifications.

SB40-ASA1,1072,4 (b) Computer software upgrades that are not designed and developed by the author or creator of the software according to a specific purchaser's specifications.

SB40-ASA1,1072,7 (c) Computer software that is designed and developed by the author or creator of the software according to a specific purchaser's specifications and that is sold to another purchaser.

SB40-ASA1,1072,9 (d) Any combination of computer software under pars. (a) to (c), including any combination with any portion of such software.

SB40-ASA1,1072,14 (e) Computer software as described under pars. (a) to (d), and any portion of such software, that is modified or enhanced by any degree to a specific purchaser's specifications, except such modification or enhancement that is reasonably and separately indicated on an invoice, or other statement of the price, provided to the purchaser.

SB40-ASA1, s. 1925 Section 1925. 77.51 (10s) of the statutes is created to read:

SB40-ASA1,1072,21 77.51 (10s) "Private communication service" means a telecommunications service that entitles the customer to exclusive or priority use of a communications channel or group of communications channels, regardless of the manner in which the communications channel or group of communications channels is connected, and includes switching capacity, extension lines, stations, and other associated services that are provided in connection with the use of such channel or channels.

SB40-ASA1, s. 1926 Section 1926. 77.51 (11d) of the statutes is created to read:

SB40-ASA1,1072,25 77.51 (11d) "Product" includes tangible personal property, items and property under s. 77.52 (1) (b) and (c), specified digital goods, additional digital goods, and services.

SB40-ASA1, s. 1927 Section 1927. 77.51 (11m) of the statutes is created to read:

SB40-ASA1,1073,5 77.51 (11m) "Prosthetic device" means a device, including the repair parts and replacement parts for the device, that is placed in or worn on the body to artificially replace a missing portion of the body; to prevent or correct a physical deformity or malfunction; or to support a weak or deformed portion of the body.

SB40-ASA1, s. 1928 Section 1928. 77.51 (12) (a) of the statutes is amended to read:

SB40-ASA1,1073,11 77.51 (12) (a) Any transfer of title, possession, ownership, enjoyment, or use by: cash or credit transaction, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatever of tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods for a consideration;

SB40-ASA1, s. 1929 Section 1929. 77.51 (12) (b) of the statutes is amended to read:

SB40-ASA1,1073,16 77.51 (12) (b) A transaction whereby the possession of property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods is transferred but the seller retains the title as security for the payment of the price.

SB40-ASA1, s. 1930 Section 1930. 77.51 (12m) of the statutes is created to read:

SB40-ASA1,1073,22 77.51 (12m) (a) "Purchase price" means the total amount of consideration, including cash, credit, property, and services, for which tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, additional digital goods, or services are sold, leased, or rented, valued in money, whether paid in money or otherwise, without any deduction for the following:

SB40-ASA1,1073,24 1. The seller's cost of the property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods sold.

SB40-ASA1,1074,3 2. The cost of materials used, labor or service cost, interest, losses, all costs of transportation to the seller, all taxes imposed on the seller, and any other expense of the seller.

SB40-ASA1,1074,5 3. Charges by the seller for any services necessary to complete a sale, not including delivery and installation charges.

SB40-ASA1,1074,6 4. a. Delivery charges, except as provided in par. (b) 4.

SB40-ASA1,1074,17 b. If a shipment includes property, items under s. 77.52 (2) (b) or (c), specified digital goods, or additional digital goods that are subject to tax under this subchapter and property, items, or goods that are not subject to tax under this subchapter, the amount of the delivery charge that the seller allocates to the property, items, or goods that are subject to tax under this subchapter is based on the total purchase price of the property, items, or goods that are subject to tax under this subchapter as compared to the total purchase price of all the property, items, or goods or on the total weight of the property or items that are subject to tax under this subchapter as compared to the total weight of all the property or items, except that if the seller does not make the allocation under this subd. 4. b., the purchaser shall allocate the delivery charge amount, consistent with this subd. 4. b.

SB40-ASA1,1074,18 5. Installation charges.

SB40-ASA1,1074,19 (b) "Purchase price" does not include:

SB40-ASA1,1074,22 1. Discounts, including cash, terms, or coupons, that are not reimbursed by a 3rd party, except as provided in par. (c); that are allowed by a seller; and that are taken by a purchaser on a sale.

SB40-ASA1,1075,2 2. Interest, financing, and carrying charges from credit that is extended on a sale of tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, additional digital goods, or services, if the amount of the interest, financing, or carrying charges is separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser.

SB40-ASA1,1075,5 3. Any taxes legally imposed directly on the purchaser that are separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser.

SB40-ASA1,1075,6 4. Delivery charges for direct mail.

SB40-ASA1,1075,11 5. In all transactions in which an article of tangible personal property, items under s. 77.52 (2) (b) or (c), specified digital goods, or additional digital goods are traded toward the purchase of an article of greater value, the amount of the purchase price that represents the amount allowed for the article traded, except that this subdivision does not apply to any transaction to which subd. 7. or 8. applies.

SB40-ASA1,1075,18 6. If a person who purchases a motor vehicle presents a statement issued under s. 218.0171 (2) (cq) to the seller at the time of purchase, and the person presents the statement to the seller within 60 days from the date of receiving a refund under s. 218.0171 (2) (b) 2. b., the trade-in amount specified in the statement issued under s. 218.0171 (2) (cq), but not to exceed the purchase price from the sale of the motor vehicle. This subdivision applies only to the first motor vehicle purchased by a person after receiving a refund under s. 218.0171 (2) (b) 2. b.

SB40-ASA1,1075,24 7. Thirty-five percent of the purchase price, excluding trade-ins, of a new mobile home, as defined in s. 340.01 (29), that is a primary housing unit or of a new mobile home, as defined in s. 340.01 (29), that is transported in 2 unattached sections if the total size of the combined sections, not including additions and attachments, is at least 984 square feet measured when the sections are ready for transport. This subdivision does not apply to a lease or rental.

SB40-ASA1,1076,6 8. At the retailer's option; except that after the retailer chooses an option the retailer may not use the other option for other sales without the department's written approval; either 35 percent of the purchase price of a manufactured building, as defined in s. 101.71 (6), or an amount equal to the purchase price of the manufactured building minus the cost of materials that become an ingredient or component part of the building.

SB40-ASA1,1076,8 (c) "Purchase price" includes consideration received by the seller from a 3rd party, if:

SB40-ASA1,1076,11 1. The seller actually receives consideration from a 3rd party, other than the purchaser, and the consideration is directly related to a price reduction or discount on a sale.

SB40-ASA1,1076,12 2. The seller is obliged to pass the price reduction or discount to the purchaser.

SB40-ASA1,1076,15 3. The amount of the consideration that is attributable to the sale is a fixed amount and the seller is able to determine that amount at the time of the sale to the purchaser.

SB40-ASA1,1076,16 4. Any of the following also applies:

SB40-ASA1,1076,21 a. The purchaser presents a coupon, certificate, or other documentation to the seller to claim the price reduction or discount, if the coupon, certificate, or other documentation is authorized, distributed, or granted by the 3rd party with the understanding that the 3rd party will reimburse the seller for the amount of the price reduction or discount.

SB40-ASA1,1076,23 b. The purchaser identifies himself or herself to the seller as a member of a group or organization that may claim the price reduction or discount.

SB40-ASA1,1077,3 c. The seller provides an invoice to the purchaser, or the purchaser presents a coupon, certificate, or other documentation to the seller, that identifies the price reduction or discount as a 3rd-party price reduction or discount.

SB40-ASA1, s. 1931 Section 1931. 77.51 (12p) of the statutes is created to read:

SB40-ASA1,1077,7 77.51 (12p) "Purchaser" means a person to whom a sale of tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods are made or to whom a service is furnished.

SB40-ASA1, s. 1932 Section 1932. 77.51 (13) (a) of the statutes is amended to read:

SB40-ASA1,1077,12 77.51 (13) (a) Every seller who makes any sale, regardless of whether the sale is mercantile in nature, of tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods, or a service specified under s. 77.52 (2) (a).

SB40-ASA1, s. 1933 Section 1933. 77.51 (13) (b) of the statutes is amended to read:

SB40-ASA1,1077,19 77.51 (13) (b) Every person engaged in the business of making sales of tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods for storage, use or consumption or in the business of making sales at auction of tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods owned by the person or others for storage, use or other consumption.

SB40-ASA1, s. 1934 Section 1934. 77.51 (13) (c) of the statutes is amended to read:

SB40-ASA1,1078,5 77.51 (13) (c) When the department determines that it is necessary for the efficient administration of this subchapter to regard any salespersons, representatives, peddlers or canvassers as the agents of the dealers, distributors, supervisors or employers under whom they operate or from whom they obtain the tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods sold by them, irrespective of whether they are making the sales on their own behalf or on behalf of such dealers, distributors, supervisors or employers, the department may so regard them and may regard the dealers, distributors, supervisors or employers as retailers for purposes of this subchapter.

SB40-ASA1, s. 1935 Section 1935. 77.51 (13) (d) of the statutes is amended to read:

SB40-ASA1,1078,11 77.51 (13) (d) Every wholesaler to the extent that the wholesaler sells tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods to a person other than a seller as defined in sub. (17) provided such wholesaler is not expressly exempt from the sales tax on such sale or from collecting the use tax on such sale.

SB40-ASA1, s. 1936 Section 1936. 77.51 (13) (e) of the statutes is amended to read:

SB40-ASA1,1078,19 77.51 (13) (e) A person selling tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods to a service provider who transfers the property, items, or goods in conjunction with the selling, performing, or furnishing of any service and the property is, items, or goods are incidental to the service, unless the service provider is selling, performing, or furnishing services under s. 77.52 (2) (a) 7., 10., 11., and 20. This subsection does not apply to sub. (2).

SB40-ASA1, s. 1937 Section 1937. 77.51 (13) (f) of the statutes is amended to read:

SB40-ASA1,1079,2 77.51 (13) (f) A service provider who transfers tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods in conjunction with but not incidental to the selling, performing or furnishing of any service and a service provider selling, performing or furnishing services under s. 77.52 (2) (a) 7., 10., 11. and 20. This subsection does not apply to sub. (2).

SB40-ASA1, s. 1938 Section 1938. 77.51 (13) (k) of the statutes is amended to read:

SB40-ASA1,1079,6 77.51 (13) (k) As respects With regards to a lease, any person deriving rentals from a lease of tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods situated in this state.

SB40-ASA1, s. 1939 Section 1939. 77.51 (13) (m) of the statutes is amended to read:

SB40-ASA1,1079,11 77.51 (13) (m) A person selling tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods to a veterinarian to be used or furnished by the veterinarian in the performance of services in some manner related to domestic animals, including pets or poultry.

SB40-ASA1, s. 1940 Section 1940. 77.51 (13) (n) of the statutes is amended to read:

SB40-ASA1,1079,16 77.51 (13) (n) A person selling household furniture, furnishings, equipment, appliances or other items of tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods to a landlord for use by tenants in leased or rented living quarters.

SB40-ASA1, s. 1941 Section 1941. 77.51 (13) (o) of the statutes is amended to read:

SB40-ASA1,1079,19 77.51 (13) (o) A person selling medicine drugs for animals to a veterinarian. As used in this paragraph, "animal" includes livestock, pets and poultry.

SB40-ASA1, s. 1942 Section 1942. 77.51 (13g) (intro.) of the statutes is amended to read:

SB40-ASA1,1079,23 77.51 (13g) (intro.) Except as provided in sub. (13h), "retailer engaged in business in this state", unless otherwise limited by federal statute, for purposes of the use tax, means any of the following:

SB40-ASA1, s. 2238b Section 2238b. 77.51 (13g) (a) of the statutes is amended to read:

SB40-ASA1,1080,7 77.51 (13g) (a) Any retailer owning any real property in this state or leasing or renting out any tangible personal property, items or property under s. 77.52 (1) (b) or (c), specified digital goods, or additional digital goods located in this state or maintaining, occupying or using, permanently or temporarily, directly or indirectly, or through a subsidiary, or agent, by whatever name called, an office, place of distribution, sales or sample room or place, warehouse or storage place or other place of business in this state.

SB40-ASA1, s. 2238d Section 2238d. 77.51 (13g) (b) of the statutes is amended to read: