AB905: Bill Text

LRB-4534/1

JK:kjf:jf

2009 - 2010 LEGISLATURE

2009 Assembly BILL 905

March 26, 2010 - Introduced by Representative Sherman, cosponsored by Senator Jauch. Referred to Joint Committee on Finance.

AB905,1,8 An Act to renumber 77.52 (14) (am) and 77.53 (11) (b); to renumber and amend 77.522 (1) (c) and 77.59 (9); to amend 77.51 (10m) (a) 3. a., 77.51 (11d), 77.52 (2) (a) 5. am., 77.54 (18), 77.58 (3) (a), 77.58 (4), 77.585 (1) (a), 77.585 (1) (d), 77.982 (2), 77.991 (2), 77.9951 (2) and 77.9972 (2); to repeal and recreate 77.98; and to create 77.51 (1ag), 77.51 (9r), 77.52 (14) (am) 2., 77.52 (14) (am) 3., 77.522 (1) (c) 2., 77.522 (1) (c) 3., 77.522 (1) (c) 4., 77.53 (11) (b) 2., 77.53 (11) (b) 3., 77.58 (2) (d) and 77.59 (9) (b) of the statutes; relating to: streamlined sales and use tax agreement changes.

Analysis by the Legislative Reference Bureau

This bill makes technical corrections to the administration of sales and use taxes, consistent with the streamlined sales and use tax agreement.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB905, s. 1 Section 1. 77.51 (1ag) of the statutes is created to read:

AB905,2,5 77.51 (1ag) "Advertising and promotional direct mail" means direct mail that has the primary purpose of attracting public attention to a product, person, business, or organization or to attempt to sell, popularize, or secure financial support for a product, person, business, or organization.

AB905, s. 2 Section 2. 77.51 (9r) of the statutes is created to read:

AB905,2,10 77.51 (9r) (a) "Other direct mail" means any direct mail that is not advertising and promotional direct mail, regardless of whether advertising and promotional direct mail is included in the same mailing. "Other direct mail" includes all of the following:

AB905,2,12 1. Transactional direct mail that contains personal information specific to the addressee, including invoices, bills, account statements, and payroll advices.

AB905,2,14 2. Any legally required mailings, including privacy notices, tax reports, and stockholder reports.

AB905,2,17 3. Other nonpromotional direct mail, including newsletters and informational pieces, that is delivered to existing or former shareholders, customers, employees, or agents.

AB905,2,20 (b) "Other direct mail" does not include printed materials that result from developing billing information or providing any data processing service that is more than incidental, as defined in sub. (5), to producing the other direct mail.

AB905, s. 3 Section 3. 77.51 (10m) (a) 3. a. of the statutes, as created by 2009 Wisconsin Act 2, is amended to read:

AB905,3,2 77.51 (10m) (a) 3. a. The utensils are available to purchasers and the retailer's sales of prepared food under subds. 1. and, 2., soft drinks, and alcoholic beverages at an establishment and 4., and food for which plates, bowls, glasses, or cups are necessary to receive the food, are more than 75 percent of the retailer's total sales at that establishment of all food and food ingredients, as determined under par. (c).

AB905, s. 4 Section 4. 77.51 (11d) of the statutes, as created by 2009 Wisconsin Act 2, is amended to read:

AB905,3,8 77.51 (11d) For purposes of subs. (1ag), (1f), (3pf), and (9p) and ss. 77.52 (20) and (21), 77.522, and 77.54 (51) and (52), "product" includes tangible personal property, and items, property, and goods under s. 77.52 (1) (b), (c), and (d), and services.

AB905, s. 5 Section 5. 77.52 (2) (a) 5. am. of the statutes, as created by 2009 Wisconsin Act 2, is amended to read:

AB905,3,13 77.52 (2) (a) 5. am. The sale of prepaid calling services and intrastate, interstate, and international telecommunications services, except interstate 800 services.

AB905, s. 6 Section 6. 77.52 (14) (am) of the statutes, as created by 2009 Wisconsin Act 2, is renumbered 77.52 (14) (am) 1.

AB905, s. 7 Section 7. 77.52 (14) (am) 2. of the statutes is created to read:

AB905,3,18 77.52 (14) (am) 2. An exemption certificate is received by the seller in good faith if the certificate claims an exemption for which all of the following apply:

AB905,3,20 a. It was an exemption authorized by law on the date of the transaction in the jurisdiction where the transaction is sourced.

AB905,3,21 b. It could be applicable to the property, item, good, or service being purchased.

AB905,3,22 c. It is reasonable for the purchaser's type of business.

AB905, s. 8 Section 8. 77.52 (14) (am) 3. of the statutes is created to read:

AB905,4,7 77.52 (14) (am) 3. If the seller obtains the information described in subd. 2., the seller is relieved of any liability for the tax on the transaction unless it is discovered through the audit process that the seller had knowledge, or had reason to know, at the time such information was provided that the information relating to the exemption claimed was materially false or the seller otherwise knowingly participated in activity intended to purposefully evade the tax that is properly due on the transaction. In order to enforce this subdivision, the state must establish that the seller had knowledge, or had reason to know, at the time the information was provided that the information was materially false.

AB905, s. 9 Section 9. 77.522 (1) (c) of the statutes, as created by 2009 Wisconsin Act 2, is renumbered 77.522 (1) (c) 1. and amended to read:

AB905,5,15 77.522 (1) (c) 1. The Except as provided in subd. 3., the sale of advertising and promotional direct mail, including a sale characterized under the laws of this state as the sale of a service when that service is an integral part of the production and distribution of printed material that meets the definition of advertising and promotional direct mail, is sourced to the location from which the advertising and promotional direct mail is shipped, if the purchaser does not provide to the seller a direct pay permit, an exemption certificate claiming direct mail, or other information that indicates the appropriate taxing jurisdiction to which the advertising and promotional direct mail is delivered to the ultimate recipients. If the purchaser provides an exemption certificate claiming direct mail or direct pay permit to the seller, the purchaser shall source the sales to the jurisdictions to which the advertising and promotional direct mail is delivered to the recipients and 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, in the absence of bad faith, is relieved from liability for collecting such of all obligation to collect, pay, or remit the tax on any transaction to which the direct pay permit or exemption certificate applies. If the purchaser provides delivery information indicating the jurisdictions to which the advertising and promotional direct mail is to be delivered to the recipients, the seller shall source the sale to those jurisdictions and collect and remit the tax according to the delivery information provided by the purchaser and, in the absence of bad faith, the seller shall be relieved of any further obligation to collect tax on any transaction the sale of advertising and promotional direct mail for which the seller has sourced the sale and collected tax pursuant to the delivery information provided by the purchaser. An exemption certificate claiming direct mail provided to a seller under this paragraph shall remain effective for all sales by the seller who received the exemption certificate to the purchaser who provided the exemption certificate, unless the purchaser revokes the exemption certificate in writing and provides such revocation to the seller. If a transaction is a bundled transaction that includes advertising and promotional direct mail, this subdivision only applies if the primary purpose of the transaction is the sales of products or services that meet the definition of advertising and promotional direct mail.

AB905, s. 10 Section 10. 77.522 (1) (c) 2. of the statutes is created to read:

AB905,6,3 77.522 (1) (c) 2. The sale of other direct mail, including a sale characterized under the laws of this state as the sale of a service when that service is an integral part of the production and distribution of printed material that meets the definition of other direct mail, is sourced under par. (b) 3. if the purchaser does not provide to the seller a direct pay permit or an exemption certificate claiming direct mail. If the purchaser provides an exemption certificate claiming direct mail or direct pay permit to the seller, the purchaser shall source the sale to the jurisdictions to which the other direct mail is to be delivered to the recipients and 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, in the absence of bad faith, is relieved of all obligation to collect, pay, or remit tax on any transaction to which the direct pay permit or exemption certificate claiming direct mail applies.

AB905, s. 11 Section 11. 77.522 (1) (c) 3. of the statutes is created to read:

AB905,6,7 77.522 (1) (c) 3. If advertising and promotional direct mail and other direct mail are included in a single mailing, the sale of that mailing is sourced the same as a sale of other direct mail.

AB905, s. 12 Section 12. 77.522 (1) (c) 4. of the statutes is created to read:

AB905,6,14 77.522 (1) (c) 4. Transactions that include the development of billing information or the provision of a data processing service that is more than incidental to producing direct mail are not direct mail and are sourced under par. (b), but transactions that include incidental data processing services are direct mail and are sourced under this paragraph. For purposes of this subdivision, "incidental" has the meaning given in s. 77.51 (5).

AB905, s. 13 Section 13. 77.53 (11) (b) of the statutes, as created by 2009 Wisconsin Act 2, is renumbered 77.53 (11) (b) 1.

AB905, s. 14 Section 14. 77.53 (11) (b) 2. of the statutes is created to read:

AB905,6,19 77.53 (11) (b) 2. An exemption certificate is received by the seller in good faith if the certificate claims an exemption for which all of the following apply:

AB905,6,21 a. It was an exemption authorized by law on the date of the transaction in the jurisdiction where the transaction is sourced.

AB905,6,22 b. It could be applicable to the property, item, good, or service being purchased.

AB905,6,23 c. It is reasonable for the purchaser's type of business.

AB905, s. 15 Section 15. 77.53 (11) (b) 3. of the statutes is created to read:

AB905,7,9 77.53 (11) (b) 3. If the seller obtains the information described in subd. 2., the seller is relieved of any liability for the tax on the transaction unless it is discovered through the audit process that the seller had knowledge, or had reason to know, at the time such information was provided that the information relating to the exemption claimed was materially false or the seller otherwise knowingly participated in activity intended to purposefully evade the tax that is properly due on the transaction. In order to enforce this subdivision, the state must establish that the seller had knowledge, or had reason to know, at the time the information was provided that the information was materially false.

AB905, s. 16 Section 16. 77.54 (18) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read: