SB446: Bill Text

SB446,59,24 (d) A license of tangible personal property or items or property under s. 77.52 (1) (b) or (c) shall be treated as a lease or rental of tangible personal property under this subsection.

SB446,59,25 (3) Telecommunications. (a) In this subsection:

SB446,60,3 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.

SB446,60,5 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.

SB446,60,8 3. "Communications channel" means a physical or virtual path of communications over which signals are transmitted between or among customer channel termination points.

SB446,60,15 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.

SB446,60,17 5. "Customer channel termination point" means the location where a customer inputs or receives communications.

SB446,60,18 6. "End user" means an individual who uses a telecommunications service.

SB446,60,20 7. "Home service provider" means a home service provider under section 124 (5) of P.L. 106-252.

SB446,60,22 8. "Mobile telecommunications service" means a mobile telecommunications service under 4 USC 116 to 126, as amended by P.L. 106-252.

SB446,60,24 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.

SB446,61,8 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.

SB446,61,10 14. "Radio service" means a communication service provided by the use of radio, including radiotelephone, radiotelegraph, paging, and facsimile service.

SB446,61,12 15. "Radiotelegraph service" means transmitting messages from one place to another by means of radio.

SB446,61,14 16. "Radiotelephone service" means transmitting sound from one place to another by means of radio.

SB446,61,20 (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.

SB446,61,23 (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.

SB446,62,3 (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.

SB446,62,8 (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.

SB446,62,14 (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.

SB446,62,17 (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.

SB446,62,21 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.

SB446,62,25 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.

SB446,63,7 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.

SB446,63,9 (h) The sale of an Internet access service occurs at the customer's place of primary use.

SB446,63,10 (i) The sale of ancillary services occurs at the customer's place of primary use.

SB446,63,14 (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.

SB446,63,19 (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.

SB446,63,21 (b) Sales by a retail florist occur at the location determined by rule by the department.

SB446,63,22 (c) This subsection does not apply to sales occurring on or after January 1, 2010.

SB446, s. 159 Section 159. 77.523 (title) of the statutes is repealed.

SB446, s. 160 Section 160. 77.523 of the statutes is renumbered 77.59 (9p) (a) and amended to read:

SB446,64,22 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.

SB446, s. 161 Section 161. 77.524 (1) (a) of the statutes is renumbered 77.524 (1) (am).

SB446, s. 162 Section 162. 77.524 (1) (ag) of the statutes is created to read:

SB446,65,3 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).

SB446, s. 163 Section 163. 77.524 (1) (b) of the statutes is renumbered 77.51 (1g) and amended to read:

SB446,65,10 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.

SB446, s. 164 Section 164. 77.525 of the statutes is amended to read:

SB446,65,19 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.

SB446, s. 165 Section 165. 77.53 (1) of the statutes is amended to read:

SB446,66,5 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 and items or property under s. 77.52 (1) (b) or (c) purchased from any retailer, at the rate of 5% of the sales purchase price of that the property or items; 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.

SB446, s. 166 Section 166. 77.53 (1b) of the statutes, as created by 2007 Wisconsin Act 20, is repealed and recreated to read:

SB446,66,11 77.53 (1b) The storage, use, or other consumption in this state of tangible personal property or items or property under s. 77.52 (1) (b) or (c), and the use or other consumption in this state of a taxable service, purchased from any retailer is subject to the tax imposed in this section unless an exemption in this subchapter applies.

SB446, s. 167 Section 167. 77.53 (2) of the statutes is amended to read:

SB446,66,22 77.53 (2) Every person storing, using, or otherwise consuming in this state tangible personal property, items or property specified under s. 77.52 (1) (b) or (c), 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.

SB446, s. 168 Section 168. 77.53 (3) of the statutes is amended to read:

SB446,67,7 77.53 (3) Every retailer engaged in business in this state and making sales of tangible personal property, items or property under s. 77.52 (1) (b) or (c), 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.

SB446, s. 169 Section 169. 77.53 (4) of the statutes is repealed.

SB446, s. 170 Section 170. 77.53 (9) of the statutes is amended to read:

SB446,67,19 77.53 (9) Every retailer selling tangible personal property, items or property under s. 77.52 (1) (b) or (c), 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.

SB446, s. 171 Section 171. 77.53 (9m) of the statutes is renumbered 77.53 (9m) (a) and amended to read:

SB446,68,4 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, items or property under s. 77.52 (1) (b) or (c), 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.

SB446, s. 172 Section 172. 77.53 (9m) (b) of the statutes is created to read:

SB446,68,8 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.

SB446, s. 173 Section 173. 77.53 (9m) (c) of the statutes is created to read:

SB446,68,12 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.

SB446, s. 174 Section 174. 77.53 (10) of the statutes is amended to read:

SB446,69,7 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, items or property under s. 77.52 (1) (b) or (c), 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, items or property under s. 77.52 (1) (b) or (c), 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, items or property under s. 77.52 (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. 175 Section 175. 77.53 (11) of the statutes is renumbered 77.53 (11) (a) and amended to read:

SB446,70,9 77.53 (11) (a) The certificate referred to in under sub. (10) relieves the person selling the property, items or property under s. 77.52 (1) (b) or (c), or service from the burden of proof of the tax otherwise applicable 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 the purchaser no later than 90 days after the date of the sale of the tangible personal property, items or property under s. 77.52 (1) (b) or (c), 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 tax otherwise applicable 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.

SB446, s. 176 Section 176. 77.53 (11) (b) of the statutes is created to read:

SB446,70,16 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.

SB446, s. 177 Section 177. 77.53 (12) of the statutes is amended to read:

SB446,70,22 77.53 (12) If a purchaser who gives a certificate makes any storage or use of the property, items or property under s. 77.52 (1) (b) or (c), 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, items or property under s. 77.52 (1) (b) or (c), or service is first so stored or used.

SB446, s. 178 Section 178. 77.53 (14) of the statutes is amended to read:

SB446,71,3 77.53 (14) It is presumed that tangible personal property, items or property under s. 77.52 (1) (b) or (c), or taxable services shipped or brought to this state by the purchaser were purchased from or serviced by a retailer.

SB446, s. 179 Section 179. 77.53 (15) of the statutes is amended to read:

SB446,71,14 77.53 (15) It is presumed that tangible personal property, items or property under s. 77.52 (1) (b) or (c), 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 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, item, or service was not purchased for storage, use, or other consumption in this state.

SB446, s. 180 Section 180. 77.53 (16) of the statutes is amended to read:

SB446,72,4 77.53 (16) If the purchase, rental or lease of tangible personal property, items or property under s. 77.52 (1) (b) or (c), 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, items or property under s. 77.52 (1) (b) or (c), 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.

SB446, s. 181 Section 181. 77.53 (17) of the statutes, as affected by 2007 Wisconsin Act 11, is amended to read:

SB446,72,16 77.53 (17) This section does not apply to tangible personal property or items or property under s. 77.52 (1) (b) or (c) purchased outside this state, as determined under s. 77.522, other than motor vehicles, boats, snowmobiles, recreational vehicles, as defined in s. 340.01 (48r), 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 item 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.

SB446, s. 182 Section 182. 77.53 (17m) of the statutes is amended to read:

SB446,72,22 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.

SB446, s. 183 Section 183. 77.53 (17r) (a) of the statutes is amended to read:

SB446,72,24 77.53 (17r) (a) It is purchased in another state, as determined under s. 77.522.

SB446, s. 184 Section 184. 77.53 (18) of the statutes, as affected by 2007 Wisconsin Act 11, is amended to read:

SB446,73,10 77.53 (18) This section does not apply to the storage, use or other consumption in this state of household goods or items or property under s. 77.52 (1) (b) or (c) for personal use or to aircraft, motor vehicles, boats, snowmobiles, mobile homes, manufactured homes, as defined in s. 101.91 (2), recreational vehicles, as defined in s. 340.01 (48r), 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, items, or property into this state in connection with a change of domicile to this state.

SB446, s. 185 Section 185. 77.54 (1) of the statutes is amended to read:

SB446,73,17 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, items and property under s. 77.52 (1) (b) and (c) 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.

SB446, s. 186 Section 186. 77.54 (2) of the statutes is amended to read:

SB446,73,23 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.

SB446, s. 187 Section 187. 77.54 (2m) of the statutes is amended to read:

SB446,74,9 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.

SB446, s. 188 Section 188. 77.54 (3) (a) of the statutes, as affected by 2005 Wisconsin Act 366, is amended to read:

SB446,74,25 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).

SB446, s. 189 Section 189. 77.54 (3m) (intro.) of the statutes, as affected by 2005 Wisconsin Act 366, is amended to read:

SB446,75,6 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: