SB40: Bill Text

SB40,1120,24 c. Aircraft that is operated by air carriers that are authorized by the federal government or a foreign authority to carry persons or property in interstate or foreign commerce.

SB40,1121,2 d. Containers that are designed for use on the vehicles described in subd. 4. a. to c. and component parts attached to or secured on such vehicles.

SB40,1121,4 (b) Except as provided in par. (c) and subs. (2), (3), and (4), the location of a sale is determined as follows:

SB40,1121,6 1. If a purchaser receives the product at a seller's business location, the sale occurs at that business location.

SB40,1121,10 2. If a purchaser does not receive the product at a seller's business location, the sale occurs at the location where the purchaser, or the purchaser's designated donee, receives the product, including the location indicated by the instructions known to the seller for delivery to the purchaser or the purchaser's designated donee.

SB40,1121,14 3. If the location of a sale of a product cannot be determined under subds. 1. and 2., the sale occurs at the purchaser's address as indicated by the seller's business records, if the records are maintained in the ordinary course of the seller's business and if using that address to establish the location of a sale is not in bad faith.

SB40,1121,18 4. If the location of a sale of a product cannot be determined under subds. 1. to 3., the sale occurs at the purchaser's address as obtained during the consummation of the sale, including the address indicated on the purchaser's payment instrument, if no other address is available and if using that address is not in bad faith.

SB40,1121,20 5. If the location of a sale of a product cannot be determined under subds. 1. to 4., the location of the sale is determined as follows:

SB40,1121,22 a. If the item sold is tangible personal property, the sale occurs at the location from which the tangible personal property is shipped.

SB40,1121,25 b. If the item sold is a digital good, or computer software delivered electronically, the sale occurs at the location from which the digital good or computer software was first available for transmission by the seller.

SB40,1122,2 c. If a service is sold, the sale occurs at the location from which the service was provided.

SB40,1122,13 (c) The sale of direct mail occurs at the location from which the direct mail is shipped, if the purchaser does 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. If the purchaser provides a direct mail form or direct pay permit to the seller, the purchaser shall pay or remit, as appropriate, to the department the tax imposed under s. 77.53 on all purchases for which the tax is due and the seller is relieved from liability for collecting such tax or that satisfy the requirements under par. (e) or (f). A direct mail form provided to a seller under this paragraph shall remain effective for all sales by the seller who received the form to the purchaser who provided the form, unless the purchaser revokes the form in writing and provides such revocation to the seller.

SB40,1122,23 (2) Lease or rental. (a) Except as provided in pars. (b) and (c), with regard to the first or only payment on the lease or rental, the lease or rental of tangible personal property occurs at the location determined under sub. (1) (b). If the property is moved from the place where the property was initially delivered, the subsequent periodic payments on the lease or rental occur at the property's primary location as indicated by an address for the property that is provided by the lessee and that is available to the lessor in records that the lessor maintains in the ordinary course of the lessor's business, if the use of such an address does not constitute bad faith. The location of a lease or rental as determined under this paragraph shall not be altered by any intermittent use of the property at different locations.

SB40,1123,7 (b) The lease or rental of motor vehicles, trailers, semitrailers, and aircraft, that are not transportation equipment, occurs at the primary location of such motor vehicles, trailers, semitrailers, or aircraft as indicated by an address for the property that is provided by the lessee and that is available to the lessor in records that the lessor maintains in the ordinary course of the lessor's business, if the use of such an address does not constitute bad faith, except that a lease or rental under this paragraph that requires only one payment occurs at the location determined under sub. (1) (b). The location of a lease or rental as determined under this paragraph shall not be altered by any intermittent use of the property at different locations.

SB40,1123,9 (c) The lease or rental of transportation equipment occurs at the location determined under sub. (1) (b).

SB40,1123,12 (d) A license of tangible personal property, specified digital goods, or additional digital goods shall be treated as a lease or rental of tangible personal property under this subsection.

SB40,1123,13 (3) Telecommunications. (a) In this subsection:

SB40,1123,16 1. "Air-to-ground radiotelephone service" means a radio service in which common carriers are authorized to offer and provide radio telecommunications service for hire to subscribers in aircraft.

SB40,1123,18 2. "Call-by-call basis" means any method of charging for telecommunications services by which the price of such services is measured by individual calls.

SB40,1123,21 3. "Communications channel" means a physical or virtual path of communications over which signals are transmitted between or among customer channel termination points.

SB40,1124,3 4. "Customer" means a person who enters into a contract with a seller of telecommunications services or, in any transaction for which the end user is not the person who entered into a contract with the seller of telecommunications services, the end user of the telecommunications services. "Customer" does not include a person who resells telecommunications services or, for mobile telecommunications services, a serving carrier under an agreement to serve a customer outside the home service provider's licensed service area.

SB40,1124,5 5. "Customer channel termination point" means the location where a customer inputs or receives communications.

SB40,1124,6 6. "End user" means an individual who uses a telecommunications service.

SB40,1124,8 7. "Home service provider" means a home service provider under section 124 (5) of P.L. 106-252.

SB40,1124,10 8. "Mobile telecommunications service" means a mobile telecommunications service under 4 USC 116 to 126, as amended by P.L. 106-252.

SB40,1124,12 9. "Place of primary use" means place of primary use, as determined under 4 USC 116 to 126, as amended by P.L. 106-252.

SB40,1124,20 10. "Postpaid calling service" means a telecommunications service that is obtained by paying for it on a call-by-call basis using a bankcard, travel card, credit card, debit card, or similar method, or by charging it to a telephone number that is not associated with the location where the telecommunications service originates or terminates. "Postpaid calling service" includes a telecommunications service, not including a prepaid wireless calling service, that would otherwise be a prepaid calling service except that the service provided to the customer is not exclusively a telecommunications service.

SB40,1124,22 14. "Radio service" means a communication service provided by the use of radio, including radiotelephone, radiotelegraph, paging, and facsimile service.

SB40,1124,24 15. "Radiotelegraph service" means transmitting messages from one place to another by means of radio.

SB40,1125,2 16. "Radiotelephone service" means transmitting sound from one place to another by means of radio.

SB40,1125,8 (b) Except as provided in pars. (d) to (j), the sale of a telecommunications service that is sold on a call-by-call basis occurs in the taxing jurisdiction for sales and use tax purposes where the call originates and terminates, in the case of a call that originates and terminates in the same such jurisdiction, or the taxing jurisdiction for sales and use tax purposes where the call originates or terminates and where the service address is located.

SB40,1125,11 (c) Except as provided in pars. (d) to (j), the sale of a telecommunications service that is sold on a basis other than a call-by-call basis occurs at the customer's place of primary use.

SB40,1125,14 (d) The sale of a mobile telecommunications service, except an air-to-ground radiotelephone service and a prepaid calling service, occurs at the customer's place of primary use.

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: