SB446: Bill Text

SB446, s. 113 Section 113. 77.51 (20) of the statutes is amended to read:

SB446,43,3 77.51 (20) "Tangible personal property" means all tangible personal property of every kind and description that can be seen, weighed, measured, felt, or touched, or that is in any other manner perceptible to the senses, and includes electricity, natural gas, steam and, water, and also leased property affixed to realty if the lessor has the right to remove the property upon breach or termination of the lease agreement, unless the lessor of the property is also the lessor of the realty to which the property is affixed. "Tangible personal property" also includes coins and stamps of the United States sold or traded as collectors' items above their face value and computer programs except custom computer programs prewritten computer software, but does not include items or property under s. 77.52 (1) (b) or (c).

SB446, s. 114 Section 114. 77.51 (21) of the statutes is amended to read:

SB446,43,7 77.51 (21) "Taxpayer" means the person who is required to pay, collect, or account for or who is otherwise directly interested in the taxes imposed by this subchapter, including a certified service provider.

SB446, s. 115 Section 115. 77.51 (21m) of the statutes is amended to read:

SB446,43,20 77.51 (21m) "Telecommunications Internet access services" means sending messages and information transmitted through the use of local, toll and wide-area telephone service; channel services; telegraph services; teletypewriter; computer exchange services; cellular mobile telecommunications service; specialized mobile radio; stationary two-way radio; paging service; or any other form of mobile and portable one-way or two-way communications; or any other transmission of messages or information by electronic or similar means between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities. "Telecommunications services" does not include sending collect telecommunications that are received outside of the state. "Internet access services" does not include telecommunications services to the extent that such services are taxable under s. 77.52 (2) (a) 5. am.

SB446, s. 116 Section 116. 77.51 (21n) of the statutes is created to read:

SB446,44,5 77.51 (21n) "Telecommunications services" means electronically transmitting, conveying, or routing voice, data, audio, video, or other information or signals to a point or between or among points. "Telecommunications services" includes the transmission, conveyance, or routing of such information or signals in which computer processing applications are used to act on the content's form, code, or protocol for transmission, conveyance, or routing purposes, regardless of whether the service is referred to as a voice over Internet protocol service or classified by the federal communications commission as an enhanced or value-added service. "Telecommunications services" does not include any of the following:

SB446,44,9 (a) Data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered to a purchaser by an electronic transmission, if the purchaser's primary purpose for the underlying transaction is the processed data.

SB446,44,10 (b) Installing or maintaining wiring or equipment on a customer's premises.

SB446,44,11 (c) Tangible personal property.

SB446,44,12 (d) Advertising, including directory advertising.

SB446,44,13 (e) Billing and collection services provided to 3rd parties.

SB446,44,14 (f) Internet access service.

SB446,44,19 (g) Radio and television audio and video programming services, regardless of the medium in which the services are provided, including cable service, as defined in 47 USC 522 (6), audio and video programming services delivered by commercial mobile radio service providers, as defined in 47 CFR 20.3, and the transmitting, conveying, or routing of such services by the programming service provider.

SB446,44,20 (h) Ancillary services.

SB446,44,22 (i) Digital products delivered electronically, including software, music, video, reading materials, or ringtones.

SB446, s. 117 Section 117. 77.51 (21p) of the statutes is created to read:

SB446,44,25 77.51 (21p) "Tobacco" means cigarettes, cigars, chewing tobacco, pipe tobacco, and any other item that contains tobacco.

SB446, s. 118 Section 118. 77.51 (21q) of the statutes is created to read:

SB446,45,3 77.51 (21q) "Transferred electronically" means accessed or obtained by the purchaser by means other than tangible storage media.

SB446, s. 119 Section 119. 77.51 (22) (a) of the statutes is amended to read:

SB446,45,11 77.51 (22) (a) "Use" includes the exercise of any right or power over tangible personal property, items or property under s. 77.52 (1) (b) or (c), or taxable services incident to the ownership, possession or enjoyment of the property , items, or services, or the results produced by the services, including installation or affixation to real property and including the possession of, or the exercise of any right or power over tangible personal property or items or property under s. 77.52 (1) (b) or (c) by a lessee under a lease, except that "use" does not include the activities under sub. (18).

SB446, s. 120 Section 120. 77.51 (22) (b) of the statutes is amended to read:

SB446,45,19 77.51 (22) (b) In this subsection "enjoyment" includes a purchaser's right to direct the disposition of property or items or property under s. 77.52 (1) (b) or (c), whether or not the purchaser has possession of the property or items. "Enjoyment" also includes, but is not limited to, having shipped into this state by an out-of-state supplier printed material which is designed to promote the sale of property, items or property under s. 77.52 (1) (b) or (c), or services, or which is otherwise related to the business activities, of the purchaser of the printed material or printing service.

SB446, s. 121 Section 121. 77.51 (22) (bm) of the statutes is created to read:

SB446,46,2 77.51 (22) (bm) In this subsection, "exercise of any right or power over tangible personal property, items or property under s. 77.52 (1) (b) or (c), or taxable services" includes distributing, selecting recipients, determining mailing schedules, or otherwise directing the distribution, dissemination, or disposal of tangible personal property, items or property under s. 77.52 (1) (b) or (c), or taxable services, regardless of whether the purchaser of such property, items, or services owns or physically possesses, in this state, the property, items, or services.

SB446, s. 122 Section 122. 77.51 (24) of the statutes is created to read:

SB446,46,7 77.51 (24) "Value-added non-voice data service" means a service in which computer processing applications are used to act on the form, content, code, or protocol of the data provided by the service and are used primarily for a purpose other than for transmitting, conveying, or routing data.

SB446, s. 123 Section 123. 77.51 (25) of the statutes is created to read:

SB446,46,12 77.51 (25) "Vertical service" means an ancillary service that is provided with one or more telecommunications services and allows customers to identify callers and to manage multiple calls and call connections, including conference bridging services.

SB446, s. 124 Section 124. 77.51 (26) of the statutes is created to read:

SB446,46,16 77.51 (26) "Voice mail service" means an ancillary service that allows a customer to store, send, or receive recorded messages, not including any vertical service that the customer must have to use the voice mail service.

SB446, s. 125 Section 125. 77.52 (1) of the statutes is renumbered 77.52 (1) (a) and amended to read:

SB446,46,24 77.52 (1) (a) For the privilege of selling, licensing, leasing or renting tangible personal property, including accessories, components, attachments, parts, supplies and materials, at retail a tax is imposed upon all retailers at the rate of 5% of the gross receipts sales price from the sale, license, lease or rental of tangible personal property, including accessories, components, attachments, parts, supplies and materials, sold, leased or rented at retail in this state, as determined under s. 77.522.

SB446, s. 126 Section 126. 77.52 (1) (b) of the statutes is created to read:

SB446,47,4 77.52 (1) (b) For the privilege of selling at retail coins and stamps of the United States that are sold or traded as collectors' items above their face value, a tax is imposed on all retailers at the rate of 5 percent of the sales price from the sale of such coins and stamps.

SB446, s. 127 Section 127. 77.52 (1) (c) of the statutes is created to read:

SB446,47,10 77.52 (1) (c) For the privilege of leasing property that is affixed to real property, a tax is imposed on all retailers at the rate of 5 percent of the sales price from the lease of such property, if the lessor has the right to remove the leased property upon breach or termination of the lease agreement, unless the lessor of the leased property is also the lessor of the real property to which the leased property is affixed.

SB446, s. 128 Section 128. 77.52 (1b) of the statutes, as created by 2007 Wisconsin Act 20, is repealed and recreated to read:

SB446,47,15 77.52 (1b) All sales, leases, or rentals of tangible personal property or items or property under sub. (1) (b) or (c) at retail in this state are subject to the tax imposed under sub. (1) unless an exemption in this subchapter applies.

SB446, s. 129 Section 129. 77.52 (2) (intro.) of the statutes is amended to read:

SB446,47,21 77.52 (2) (intro.) For the privilege of selling, licensing, performing or furnishing the services described under par. (a) at retail in this state, as determined under s. 77.522, to consumers or users, a tax is imposed upon all persons selling, licensing, performing or furnishing the services at the rate of 5% of the gross receipts sales price from the sale, license, performance or furnishing of the services.

SB446, s. 130 Section 130. 77.52 (2) (a) 5. a. of the statutes is repealed and recreated to read:

SB446,47,23 77.52 (2) (a) 5. a. The sale of Internet access services.

SB446, s. 131 Section 131. 77.52 (2) (a) 5. am. of the statutes is created to read:

SB446,48,2 77.52 (2) (a) 5. am. The sale of intrastate, interstate, and international telecommunications services, except interstate 800 services.

SB446, s. 132 Section 132. 77.52 (2) (a) 5. b. of the statutes is repealed.

SB446, s. 133 Section 133. 77.52 (2) (a) 5. c. of the statutes is created to read:

SB446,48,6 77.52 (2) (a) 5. c. The sale of ancillary services, except detailed telecommunications billing services.

SB446, s. 134 Section 134. 77.52 (2) (a) 5m. of the statutes is amended to read:

SB446,48,14 77.52 (2) (a) 5m. The sale of services that consist of recording telecommunications messages and transmitting them to the purchaser of the service or at that purchaser's direction, but not including those services if they are merely an that are taxable under subd. 5. or services that are incidental, as defined in s. 77.51 (5), element of to another service that is not taxable under this subchapter and sold to that the purchaser of the incidental service and is not taxable under this subchapter.

SB446, s. 135 Section 135. 77.52 (2) (a) 10. of the statutes is amended to read:

SB446,49,12 77.52 (2) (a) 10. Except for services provided by veterinarians and except for installing or applying tangible personal property that, subject to par. (ag), when installed or applied, will constitute an addition or capital improvement of real property, the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, and maintenance of all items of tangible personal property or items or property under sub. (1) (b) or (c), unless, at the time of that the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance, a sale in this state of the type of property repaired, serviced, altered, fitted, cleaned, painted, coated, towed, inspected, or maintained would have been exempt to the customer from sales taxation under this subchapter, other than the exempt sale of a motor vehicle or truck body to a nonresident under s. 77.54 (5) (a) and other than nontaxable sales under s. 77.51 (14r) juvenile 77.522 or unless the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance is provided under a contract that is subject to tax under subd. 13m. The tax imposed under this subsection applies to the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance of items listed in par. (ag), regardless of whether the installation or application of tangible personal property or items or property under sub. (1) (b) or (c) related to the items is an addition to or a capital improvement of real property, except that the tax imposed under this subsection does not apply to the original installation or the complete replacement of an item listed in par. (ag), if that the installation or replacement is a real property construction activity under s. 77.51 (2).

SB446, s. 136 Section 136. 77.52 (2) (a) 13m. of the statutes is created to read:

SB446,49,20 77.52 (2) (a) 13m. The sale of contracts, including service contracts, maintenance agreements, and warranties, that provide, in whole or in part, for the future performance of or payment for the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance of tangible personal property, unless the sale, lease, or rental in this state of the property to which the contract relates is or was exempt, to the purchaser of the contract, from taxation under this subchapter.

SB446, s. 137 Section 137. 77.52 (2m) (a) of the statutes is amended to read:

SB446,50,2 77.52 (2m) (a) With respect to the services subject to tax under sub. (2), no part of the charge for the service may be deemed a sale or rental of tangible personal property or items or property under sub. (1) (b) or (c) if the property or items transferred by the service provider is are incidental to the selling, performing or furnishing of the service, except as provided in par. (b).

SB446, s. 138 Section 138. 77.52 (2m) (b) of the statutes is amended to read:

SB446,50,9 77.52 (2m) (b) With respect to the services subject to tax under sub. (2) (a) 7., 10., 11. and 20., all property or items or property under sub. (1) (b) or (c) physically transferred, or transferred electronically, to the customer in conjunction with the selling, performing or furnishing of the service is a sale of tangible personal property or items or property under sub. (1) (b) or (c) separate from the selling, performing or furnishing of the service.

SB446, s. 139 Section 139. 77.52 (2n) of the statutes, as created by 2007 Wisconsin Act 20, is repealed and recreated to read:

SB446,50,15 77.52 (2n) The selling, licensing, performing, or furnishing of the services described under sub. (2) (a) at retail in this state, as determined under s. 77.522, is subject to the tax imposed under sub. (2) unless an exemption in this subchapter applies.

SB446, s. 140 Section 140. 77.52 (3m) of the statutes is repealed.

SB446, s. 141 Section 141. 77.52 (3n) of the statutes is repealed.

SB446, s. 142 Section 142. 77.52 (4) of the statutes is amended to read:

SB446,50,24 77.52 (4) It is unlawful for any retailer to advertise or hold out or state to the public or to any customer, directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the retailer or that it will not be added to the selling price of the property or items or property under sub. (1) (b) or (c) sold or that if added it, or any part thereof, will be refunded. Any person who violates this subsection is guilty of a misdemeanor.

SB446, s. 143 Section 143. 77.52 (6) of the statutes is repealed.

SB446, s. 144 Section 144. 77.52 (7) of the statutes is amended to read:

SB446,51,15 77.52 (7) Every person desiring to operate as a seller within this state who holds a valid certificate under s. 73.03 (50) shall file with the department an application for a permit for each place of operations. Every application for a permit shall be made upon a form prescribed by the department and shall set forth the name under which the applicant intends to operate, the location of the applicant's place of operations, and the other information that the department requires. The Except as provided in sub. (7b), the application shall be signed by the owner if a sole proprietor; in the case of sellers other than sole proprietors, the application shall be signed by the person authorized to act on behalf of such sellers. A nonprofit organization that has gross receipts a sales price taxable under s. 77.54 (7m) shall obtain a seller's permit and pay taxes under this subchapter on all taxable gross receipts sales prices received after it is required to obtain that permit. If that organization becomes eligible later for the exemption under s. 77.54 (7m) except for its possession of a seller's permit, it may surrender that permit.

SB446, s. 145 Section 145. 77.52 (7b) of the statutes is created to read:

SB446,51,19 77.52 (7b) Any person who may register under sub. (7) may designate an agent, as defined in s. 77.524 (1) (ag), to register with the department under sub. (7), in the manner prescribed by the department.

SB446, s. 146 Section 146. 77.52 (12) of the statutes is amended to read:

SB446,52,6 77.52 (12) A person who operates as a seller in this state without a permit or after a permit has been suspended or revoked or has expired, unless the person has a temporary permit under sub. (11), and each officer of any corporation, partnership member, limited liability company member, or other person authorized to act on behalf of a seller who so operates, is guilty of a misdemeanor. Permits shall be held only by persons actively operating as sellers of tangible personal property, items or property under sub. (1) (b) or (c), or taxable services. Any person not so operating shall forthwith surrender that person's permit to the department for cancellation. The department may revoke the permit of a person found not to be actively operating as a seller of tangible personal property, items or property under sub. (1) (b) or (c), or taxable services.

SB446, s. 147 Section 147. 77.52 (13) of the statutes is amended to read:

SB446,52,24 77.52 (13) For the purpose of the proper administration of this section and to prevent evasion of the sales tax it shall be presumed that all receipts are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property, items or property under sub. (1) (b) or (c), or services is not a taxable sale at retail is upon the person who makes the sale unless that person takes from the purchaser a an electronic or a paper certificate, in a manner prescribed by the department, to the effect that the property, item, or service is purchased for resale or is otherwise exempt;, 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, items or property under sub. (1) (b) or (c), and services that are exempt under s. 77.54 (7), (7m), (8), (10), (11), (14), (15), (17), (20n), (21), (22b), (30), (31), (32), (35), (36), (37), (42), (44), (45), (46), (51), and (52), except as provided in s. 77.54 (30) (e) and (f).

SB446, s. 148 Section 148. 77.52 (14) (a) (intro.) and 1. and (b) of the statutes are consolidated, renumbered 77.52 (14) (a) and amended to read:

SB446,53,25 77.52 (14) (a) The certificate referred to in sub. (13) relieves the seller from the burden of proof of the tax otherwise applicable only if any of the following is true: 1. The certificate is 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 in sub. (9) and who, at the time of purchasing purchaser no later than 90 days after the date of the sale of the tangible personal property, items or property under sub. (1) (b) or (c), or services, 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. (b) except as provided in par. (am). The certificate under sub. (13) shall not relieve the seller of the tax otherwise applicable if the seller fraudulently fails to collect sales tax, 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 referred to in sub. (13) shall be signed by and bear the name and address of provide information that identifies the purchaser, and shall indicate the general character of the tangible personal property or 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 in such form as the department prescribes by rule.

SB446, s. 149 Section 149. 77.52 (14) (a) 2. of the statutes is repealed.

SB446, s. 150 Section 150. 77.52 (14) (am) of the statutes is created to read:

SB446,54,8 77.52 (14) (am) 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.

SB446, s. 151 Section 151. 77.52 (15) of the statutes is amended to read:

SB446,54,21 77.52 (15) If a purchaser who gives a resale certificate purchases tangible personal property, items or property under sub. (1) (b) or (c), or taxable services without paying a sales tax or use tax on such purchase because such property, items, or services were for resale makes any use of the property, items, or services other than retention, demonstration or display while holding it the property, items, or services for sale, lease or rental in the regular course of the purchaser's operations, the use shall be taxable to the purchaser under s. 77.53 as of the time that the property is, items, or services are first used by the purchaser, and the sales purchase price of the property, items, or services to the purchaser shall be the measure of the tax. Only when there is an unsatisfied use tax liability on this basis because the seller has provided incorrect information about that transaction to the department shall the seller be liable for sales tax with respect to the sale of the property to the purchaser.

SB446, s. 152 Section 152. 77.52 (16) of the statutes is amended to read:

SB446,55,6 77.52 (16) Any person who gives a resale certificate for property, items or property under sub. (1) (b) or (c), or services which that person knows at the time of purchase is not to be resold by that person in the regular course of that person's operations as a seller for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction is guilty of a misdemeanor. Any person certifying to the seller that the sale of property, items or property under sub. (1) (b) or (c), or taxable service is exempt, knowing at the time of purchase that it is not exempt, for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction, is guilty of a misdemeanor.

SB446, s. 153 Section 153. 77.52 (19) of the statutes is amended to read:

SB446,55,16 77.52 (19) The department shall by rule provide for the efficient collection of the taxes imposed by this subchapter on sales of property, items or property under sub. (1) (b) or (c), or services by persons not regularly engaged in selling at retail in this state or not having a permanent place of business, but who are temporarily engaged in selling from trucks, portable roadside stands, concessions at fairs and carnivals, and the like. The department may authorize such persons to sell property or items or property under sub. (1) (b) or (c) or sell, perform , or furnish services on a permit or nonpermit basis as the department by rule prescribes and failure of any person to comply with such rules constitutes a misdemeanor.

SB446, s. 154 Section 154. 77.52 (20) of the statutes is created to read:

SB446,55,19 77.52 (20) (a) Except as provided in par. (b), the entire sales price of a bundled transaction is subject to the tax imposed under this subchapter.

SB446,56,2 (b) At the retailer's option, if the retailer can identify, by reasonable and verifiable standards from the retailer's books and records that are kept in the ordinary course of its business for other purposes, including purposes unrelated to taxes, the portion of the price that is attributable to products that are not subject to the tax imposed under this subchapter, that portion of the sales price is not taxable under this subchapter. This paragraph does not apply to a bundled transaction that contains food and food ingredients, drugs, durable medical equipment, mobility enhancing equipment, prosthetic devices, or medical supplies.