SB40: Bill Text

SB40,1125,19 (e) The sale of a postpaid calling service occurs at the location where the signal of the telecommunications service originates, as first identified by the seller's telecommunications system or, if the signal is not transmitted by the seller's telecommunications system, by information that the seller received from the seller's service provider.

SB40,1125,25 (f) The sale of a prepaid calling service or a prepaid wireless calling service occurs at the location determined under sub. (1) (b), except that, if the service is a prepaid wireless calling service and the location cannot be determined under sub. (1) (b) 1. to 4., the prepaid wireless calling service occurs at the location determined under sub. (1) (b) 5. c. or at the location associated with the mobile telephone number, as determined by the seller.

SB40,1126,3 (g) 1. The sale of a private communication service for a separate charge related to a customer channel termination point occurs at the location of the customer channel termination point.

SB40,1126,7 2. The sale of a private communication service in which all customer channel termination points are located entirely in one taxing jurisdiction for sales and use tax purposes occurs in the taxing jurisdiction in which the customer channel termination points are located.

SB40,1126,11 3. If the segments are charged separately, the sale of a private communication service that represents segments of a communications channel between 2 customer channel termination points that are located in different taxing jurisdictions for sales and use tax purposes occurs in an equal percentage in both such jurisdictions.

SB40,1126,18 4. If the segments are not charged separately, the sale of a private communication service for segments of a communications channel that is located in more than one taxing jurisdiction for sales and use tax purposes occurs in each such jurisdiction in a percentage determined by dividing the number of customer channel termination points in that jurisdiction by the number of customer channel termination points in all jurisdictions where segments of the communications channel are located.

SB40,1126,20 (h) The sale of a telecommunications Internet access service occurs at the customer's place of primary use.

SB40,1126,21 (i) The sale of ancillary services occurs at the customer's place of primary use.

SB40,1126,25 (j) If the location of the customer's service address, channel termination point, or place of primary use is not known, the location where the seller receives or hands off the signal shall be considered, for purposes of this section, the customer's service address, channel termination point, or place of primary use.

SB40,1127,5 (4) Florists. (a) For purposes of this subsection, "retail florist" means a person engaged in the business of selling cut flowers, floral arrangements, and potted plants and who prepares such flowers, floral arrangements, and potted plants. "Retail florist" does not include a person who sells cut flowers, floral arrangements, and potted plants primarily by mail or via the Internet.

SB40,1127,10 (b) The sale of tangible personal property by a retail florist who takes an order from a purchaser occurs at the location where the retail florist takes the order, if the retail florist forwards the order to another retail florist who is at a location other than the location of the florist who takes the order and who transfers the tangible personal property to a person identified by the purchaser.

SB40,1127,11 (c) This subsection does not apply to sales occurring on or after January 1, 2008.

SB40, s. 2320 Section 2320. 77.523 (title) of the statutes is repealed.

SB40, s. 2321 Section 2321. 77.523 of the statutes is renumbered 77.59 (9p) (a) and amended to read:

SB40,1128,11 77.59 (9p) (a) If a customer purchases a service that is subject to 4 USC 116 to 126, as amended by P.L. 106-252, and if the customer believes that the amount of the tax assessed for the service under this subchapter or the place of primary use or taxing jurisdiction assigned to the service is erroneous, the customer may request that the service provider correct the alleged error by sending a written notice to the service provider. The notice shall include a description of the alleged error, the street address for the customer's place of primary use of the service, the account name and number of the service for which the customer seeks a correction, and any other information that the service provider reasonably requires to process the request. Within 60 days from the date that a service provider receives a request under this section paragraph, the service provider shall review its records to determine the customer's taxing jurisdiction. If the review indicates that there is no error as alleged, the service provider shall explain the findings of the review in writing to the customer. If the review indicates that there is an error as alleged, the service provider shall correct the error and shall refund or credit the amount of any tax collected erroneously, along with the related interest, as a result of the error from the customer in the previous 48 months, consistent with s. 77.59 (4). A customer may take no other action against the service provider, or commence any action, to correct an alleged error in the amount of the tax assessed under this subchapter on a service that is subject to 4 USC 116 to 126, as amended by P.L. 106-252, or to correct an alleged error in the assigned place of primary use or taxing jurisdiction, unless the customer has exhausted his or her remedies under this section paragraph.

SB40, s. 2322 Section 2322. 77.524 (1) (a) of the statutes is renumbered 77.524 (1) (am).

SB40, s. 2323 Section 2323. 77.524 (1) (ag) of the statutes is created to read:

SB40,1128,16 77.524 (1) (ag) "Agent" means a person appointed by a seller to represent the seller before the states that are signatories to the agreement, as defined in s. 77.65 (2) (a).

SB40, s. 2324 Section 2324. 77.524 (1) (b) of the statutes is renumbered 77.51 (1g) and amended to read:

SB40,1128,23 77.51 (1g) "Certified service provider" means an agent that is certified jointly by the states that are signatories to the agreement, as defined in s. 77.65 (2) (a), and that performs all of a seller's sales tax and use tax functions related to the seller's retail sales, except that a certified service provider is not responsible for a retailer's obligation to remit tax on the retailer's own purchases.

SB40, s. 2325 Section 2325. 77.525 of the statutes is amended to read:

SB40,1129,8 77.525 Reduction to prevent double taxation. Any person who is subject to the tax under s. 77.52 (2) (a) 5. a. 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. a. was passed on an amount equal to the amounts not remitted.

SB40, s. 2326 Section 2326. 77.53 (1) of the statutes is amended to read:

SB40,1129,22 77.53 (1) Except as provided in sub. (1m), an excise tax is levied and imposed on the use or consumption in this state of taxable services under s. 77.52 purchased from any retailer, at the rate of 5% of the sales purchase price of those services; on the storage, use or other consumption in this state of tangible personal property purchased from any retailer, at the rate of 5% of the sales purchase price of that property; on the storage, use, or other consumption of specified digital goods or additional digital goods purchased from any retailer, regardless of whether the purchaser has the right to permanently use such goods or whether the purchaser's right to access or retain such goods is not permanent, at the rate of 5% of the sales price of such goods; and on the storage, use or other consumption of tangible personal property manufactured, processed or otherwise altered, in or outside this state, by the person who stores, uses or consumes it, from material purchased from any retailer, at the rate of 5% of the sales purchase price of that material.

SB40, s. 2327 Section 2327. 77.53 (2) of the statutes is amended to read:

SB40,1130,8 77.53 (2) Every person storing, using, or otherwise consuming in this state tangible personal property, specified digital goods, additional digital goods, or taxable services purchased from a retailer is liable for the tax imposed by this section. The person's liability is not extinguished until the tax has been paid to this state, but a receipt with the tax separately stated from a retailer engaged in business in this state or from a retailer who is authorized by the department, under such rules as it prescribes, to collect the tax and who is regarded as a retailer engaged in business in this state for purposes of the tax imposed by this section given to the purchaser under sub. (3) relieves the purchaser from further liability for the tax to which the receipt refers.

SB40, s. 2328 Section 2328. 77.53 (3) of the statutes is amended to read:

SB40,1130,18 77.53 (3) Every retailer engaged in business in this state and making sales of tangible personal property, specified digital goods, additional digital goods, or taxable services for delivery into this state or with knowledge directly or indirectly that the property or service is intended for storage, use or other consumption in that are sourced to this state under s. 77.522, shall, at the time of making the sales or, if the storage, use or other consumption of the tangible personal property or taxable service is not then taxable under this section, at the time the storage, use or other consumption becomes taxable, collect the tax from the purchaser and give to the purchaser a receipt in the manner and form prescribed by the department.

SB40, s. 2329 Section 2329. 77.53 (4) of the statutes is repealed.

SB40, s. 2330 Section 2330. 77.53 (9) of the statutes is amended to read:

SB40,1131,5 77.53 (9) Every retailer selling tangible personal property, specified digital goods, additional digital goods, 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 the other information that the department requires. Any person who may register under this subsection may designate an agent, as defined in s. 77.524 (1) (ag), to register with the department under this subsection, in the manner prescribed by the department.

SB40, s. 2331 Section 2331. 77.53 (9m) of the statutes is renumbered 77.53 (9m) (a) and amended to read:

SB40,1131,15 77.53 (9m) (a) 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, specified digital goods, additional digital goods, 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.

SB40, s. 2332 Section 2332. 77.53 (9m) (b) of the statutes is created to read:

SB40,1131,19 77.53 (9m) (b) Any person who may register under par. (a) may designate an agent, as defined in s. 77.524 (1) (ag), to register with the department under par. (a), in the manner prescribed by the department.

SB40, s. 2333 Section 2333. 77.53 (9m) (c) of the statutes is created to read:

SB40,1131,23 77.53 (9m) (c) The registration under par. (a) by a person who is not otherwise required to collect any tax imposed by this subchapter shall not be used as a factor in determining whether the seller has nexus with this state for any tax at any time.

SB40, s. 2334 Section 2334. 77.53 (10) of the statutes is amended to read:

SB40,1132,19 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, specified digital goods, additional digital goods, 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 an electronic or paper certificate, in a manner prescribed by department, to the effect that the property, specified digital goods, additional digital goods, or taxable service is purchased for resale, or otherwise exempt from the tax;, except that no certificate is required for sales of cattle, sheep, goats, and pigs that are sold at an animal market, as defined in s. 95.68 (1) (ag), and no certificate is required for sales of commodities, as defined in 7 USC 2, that are consigned for sale in a warehouse in or from which the commodity is deliverable on a contract for future delivery subject to the rules of a commodity market regulated by the U.S. commodity futures trading commission if upon the sale the commodity is not removed from the warehouse the sale of tangible personal property, specified digital goods, additional digital goods, and services that are exempt under s. 77.54 (7), (7m), (8), (10), (11), (14), (15), (17), (20n), (20p), (21), (22b), (22c), (30), (31), (32), (35), (36), (37), (42), (44), (45), and (46), except as provided in s. 77.54 (30) (e) and (f).

SB40, s. 2335 Section 2335. 77.53 (11) of the statutes is renumbered 77.53 (11) (a) and amended to read:

SB40,1133,21 77.53 (11) (a) The certificate referred to in under sub. (10) relieves the person selling the property, specified digital goods, additional digital goods, or service from the burden of proof only if taken in good faith the seller obtains a fully completed exemption certificate, or the information required to prove the exemption, from a person who is engaged as a seller of tangible personal property or taxable services and who holds the permit provided for by s. 77.52 (9) and who, at the time of purchasing purchases no later than 90 days after the date of the sale of the tangible personal property, specified digital goods, additional digital goods, or taxable service, intends to sell it in the regular course of operations or is unable to ascertain at the time of purchase whether the property or service will be sold or will be used for some other purpose, or if taken in good faith from a person claiming exemption, except as provided in par. (b). The certificate under sub. (10) shall not relieve the seller of the burden of proof if the seller fraudulently fails to collect sales tax or solicits the purchaser to claim an unlawful exemption, accepts an exemption certificate from a purchaser who claims to be an entity that is not subject to the taxes imposed under this subchapter, if the subject of the transaction sought to be covered by the exemption certificate is received by the purchaser at a location operated by the seller in this state and the exemption certificate clearly and affirmatively indicates that the claimed exemption is not available in this state. The certificate shall be signed by and bear the name and address of provide information that identifies the purchaser and shall indicate the number of the permit issued to the purchaser, the general character of tangible personal property or taxable service sold by the purchaser and the basis for the claimed exemption and a paper certificate shall be signed by the purchaser. The certificate shall be substantially in the form that the department prescribes by rule.

SB40, s. 2336 Section 2336. 77.53 (11) (b) of the statutes is created to read:

SB40,1134,3 77.53 (11) (b) If the seller has not obtained a fully completed exemption certificate or the information required to prove the exemption, as provided in par. (a), the seller may, no later than 120 days after the department requests that the seller substantiate the exemption, either provide proof of the exemption to the department by other means or obtain, in good faith, a fully completed exemption certificate from the purchaser.

SB40, s. 2337 Section 2337. 77.53 (12) of the statutes is amended to read:

SB40,1134,9 77.53 (12) If a purchaser who gives a certificate makes any storage or use of the property, specified digital goods, additional digital goods, or service other than retention, demonstration, or display while holding it for sale in the regular course of operations as a seller, the storage or use is taxable as of the time the property, specified digital goods, additional digital goods, or service is first so stored or used.

SB40, s. 2338 Section 2338. 77.53 (14) of the statutes is amended to read:

SB40,1134,13 77.53 (14) It is presumed that tangible personal property, specified digital goods, additional digital goods, or taxable services shipped or brought to this state by the purchaser were purchased from or serviced by a retailer.

SB40, s. 2339 Section 2339. 77.53 (15) of the statutes is amended to read:

SB40,1134,24 77.53 (15) It is presumed that tangible personal property, specified digital goods, additional digital goods, or taxable services delivered outside this state to a purchaser known by the retailer to be a resident of this state were purchased from a retailer for storage, use, or other consumption in this state and stored, used, or otherwise consumed in this state. This presumption may be controverted by a written statement, signed by the purchaser or an authorized representative, and retained by the seller that the property, digital good, or service was purchased for use at a designated point outside this state. This presumption may also be controverted by other evidence satisfactory to the department that the property , digital good, or service was not purchased for storage, use, or other consumption in this state.

SB40, s. 2340 Section 2340 . 77.53 (16) of the statutes is amended to read:

SB40,1135,14 77.53 (16) If the purchase, rental or lease of tangible personal property, specified digital goods, additional digital goods, or service subject to the tax imposed by this section was subject to a sales tax by another state in which the purchase was made, the amount of sales tax paid the other state shall be applied as a credit against and deducted from the tax, to the extent thereof, imposed by this section, except no credit may be applied against and deducted from a sales tax paid on the purchase of direct mail, if the direct mail purchaser did not provide to the seller a direct pay permit, a direct mail form, or other information that indicates the appropriate taxing jurisdiction to which the direct mail is delivered to the ultimate recipients. In this subsection "sales tax" includes a use or excise tax imposed on the use of tangible personal property, specified digital goods, additional digital goods, or taxable service by the state in which the sale occurred and "state" includes the District of Columbia but does not include and the commonwealth of Puerto Rico or but does not include the several territories organized by congress.

SB40, s. 2341 Section 2341. 77.53 (17) of the statutes is amended to read:

SB40,1135,25 77.53 (17) This section does not apply to tangible personal property, specified digital goods, or additional digital goods purchased outside this state, as determined under s. 77.522, other than motor vehicles, boats, snowmobiles, mobile homes not exceeding 45 feet in length, trailers, semitrailers, all-terrain vehicles and airplanes registered or titled or required to be registered or titled in this state, which is brought into this state by a nondomiciliary for the person's own storage, use or other consumption while temporarily within this state when such property or digital good is not stored, used or otherwise consumed in this state in the conduct of a trade, occupation, business or profession or in the performance of personal services for wages or fees.

SB40, s. 2342 Section 2342. 77.53 (17m) of the statutes is amended to read:

SB40,1136,6 77.53 (17m) This section does not apply to a boat purchased in a state contiguous to this state, as determined under s. 77.522, by a person domiciled in that state if the boat is berthed in this state's boundary waters adjacent to the state of the domicile of the purchaser and if the transaction was an exempt occasional sale under the laws of the state in which the purchase was made.

SB40, s. 2343 Section 2343. 77.53 (17r) (a) of the statutes is amended to read:

SB40,1136,8 77.53 (17r) (a) It is purchased in another state, as determined under s. 77.522.

SB40, s. 2344 Section 2344. 77.53 (18) of the statutes is amended to read:

SB40,1136,16 77.53 (18) This section does not apply to the storage, use or other consumption in this state of household goods, specified digital goods, or additional digital goods for personal use or to aircraft, motor vehicles, boats, snowmobiles, mobile homes, trailers, semitrailers and all-terrain vehicles, for personal use, purchased by a nondomiciliary of this state outside this state, as determined under s. 77.522, 90 days or more before bringing the goods or property into this state in connection with a change of domicile to this state.

SB40, s. 2345 Section 2345. 77.54 (1) of the statutes is amended to read:

SB40,1136,22 77.54 (1) The gross receipts sales price from the sale of and the storage, use or other consumption in this state of tangible personal property and services the gross receipts sales price from the sale of which, or the storage, use or other consumption of which, this state is prohibited from taxing under the constitution or laws of the United States or under the constitution of this state.

SB40, s. 2346 Section 2346. 77.54 (2) of the statutes is amended to read:

SB40,1137,3 77.54 (2) The gross receipts sales price from sales of and the storage, use or other consumption of tangible personal property becoming an ingredient or component part of an article of tangible personal property or which is consumed or destroyed or loses its identity in the manufacture of tangible personal property in any form destined for sale, except as provided in sub. (30) (a) 6.

SB40, s. 2347 Section 2347. 77.54 (2m) of the statutes is amended to read:

SB40,1137,13 77.54 (2m) The gross receipts sales price from the sales of and the storage, use or other consumption of tangible personal property or services 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. In this subsection, "shoppers guides", "newspapers" and "periodicals" have the meanings under sub. (15). The exemption under this subdivision does not apply to advertising supplements that are not newspapers.

SB40, s. 2348 Section 2348. 77.54 (3) (a) of the statutes, as affected by 2005 Wisconsin Act 366, is amended to read:

SB40,1138,4 77.54 (3) (a) The gross receipts sales price from the sales of and the storage, use, or other consumption of tractors and machines, including accessories, attachments, and parts, lubricants, nonpowered equipment, and other tangible personal property that are used exclusively and directly, or are consumed or lose their identities, in the business of farming, including dairy farming, agriculture, horticulture, floriculture, silviculture, and custom farming services, but excluding automobiles, trucks, and other motor vehicles for highway use; excluding personal property that is attached to, fastened to, connected to, or built into real property or that becomes an addition to, component of, or capital improvement of real property; and excluding tangible personal property used or consumed in the erection of buildings or in the alteration, repair or improvement of real property, regardless of any contribution that that personal property makes to the production process in that building or real property and regardless of the extent to which that personal property functions as a machine, except as provided in par. (c).

SB40, s. 2349 Section 2349. 77.54 (3m) (intro.) of the statutes, as affected by 2005 Wisconsin Act 366, is amended to read:

SB40,1138,10 77.54 (3m) (intro.) The gross receipts sales price 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, silviculture, and custom farming services:

SB40, s. 2350 Section 2350. 77.54 (4) of the statutes is amended to read:

SB40,1138,16 77.54 (4) Gross receipts The sales price from the sale of tangible personal property, and the storage, use or other consumption in this state of tangible personal property which is the subject of any such sale, by any elementary school or secondary school, exempted as such from payment of income or franchise tax under ch. 71, whether public or private.

SB40, s. 2351 Section 2351. 77.54 (5) (intro.) of the statutes is amended to read:

SB40,1138,19 77.54 (5) (intro.) The gross receipts sales price from the sale of and the storage, use or other consumption of:

SB40, s. 2352 Section 2352. 77.54 (6) (intro.) of the statutes is amended to read:

SB40,1138,22 77.54 (6) (intro.) The gross receipts sales price from the sale of and the storage, use or other consumption of:

SB40, s. 2353 Section 2353. 77.54 (7m) of the statutes is amended to read:

SB40,1139,12 77.54 (7m) Occasional sales of tangible personal property or services, including admissions or tickets to an event; by a neighborhood association, church, civic group, garden club, social club or similar nonprofit organization; not involving entertainment for which payment in the aggregate exceeds $500 for performing or as reimbursement of expenses unless access to the event may be obtained without payment of a direct or indirect admission fee; conducted by the organization if the organization is not engaged in a trade or business and is not required to have a seller's permit. For purposes of this subsection, an organization is engaged in a trade or business and is required to have a seller's permit if its sales of tangible personal property and services, not including sales of tickets to events, and its events occur on more than 20 days during the year, unless its receipts do not exceed $25,000 during the year. The exemption under this subsection does not apply to gross receipts the sales price from the sale of bingo supplies to players or to the sale, rental or use of regular bingo cards, extra regular cards and special bingo cards.

SB40, s. 2354 Section 2354. 77.54 (8) of the statutes is amended to read:

SB40,1139,16 77.54 (8) Charges for interest, financing or insurance, not including contracts under s. 77.52 (2) (a) 13m., where such charges are separately set forth upon the invoice given by the seller to the purchaser.

SB40, s. 2355 Section 2355. 77.54 (9) of the statutes is amended to read:

SB40,1139,20 77.54 (9) The gross receipts sales price from sales of tickets or admissions to public and private elementary and secondary school activities, where the entire net proceeds therefrom are expended for educational, religious or charitable purposes.

SB40, s. 2356 Section 2356. 77.54 (9a) (intro.) of the statutes is amended to read:

SB40,1139,24 77.54 (9a) (intro.) The gross receipts sales price from sales to, and the storage by, use by or other consumption of tangible personal property and taxable services by:

SB40, s. 2357 Section 2357. 77.54 (9a) (a) of the statutes is amended to read:

SB40,1140,4 77.54 (9a) (a) This state or any agency thereof, the University of Wisconsin Hospitals and Clinics Authority, the Wisconsin Aerospace Authority, the Health Insurance Risk-Sharing Plan Authority, the Healthy Wisconsin Authority, and the Fox River Navigational System Authority.

SB40, s. 2358 Section 2358. 77.54 (10) of the statutes is amended to read:

SB40,1140,9 77.54 (10) The gross receipts sales price from the sale of all admission fees, admission stickers or camping fees under s. 27.01 (7) to (11) and all admission fees to any museum operated by a nonprofit corporation under a lease agreement with the state historical society.

SB40, s. 2359 Section 2359. 77.54 (11) of the statutes is amended to read:

SB40,1140,15 77.54 (11) The gross receipts sales price from the sales of and the storage, use or other consumption in this state of motor vehicle fuel, general aviation fuel or alternate fuel, subject to taxation under ch. 78, unless the motor vehicle fuel or alternate fuel tax is refunded under s. 78.75 because the buyer does not use the fuel in operating a motor vehicle upon the public highways.