139.38(2)(a)(a) Except as provided in
par. (b), every permittee shall render a true and correct invoice of every sale of cigarettes at wholesale and shall on or before the 15th day of each calendar month make a verified report to the department of all cigarettes purchased, sold, received, warehoused or withdrawn during the preceding calendar month.
139.38(2)(b)
(b) The department may allow any jobber, multiple retailer or vending machine operator permittee who does not sell cigarettes, except for those on which the tax under this chapter is paid, to file a quarterly report. The quarterly report shall be filed on or before the 15th day of the next month following the close of each calendar quarter. The report shall specify the number of cigarettes purchased and sold during the preceding calendar quarter.
139.38(2m)
(2m) The provisions on timely filing under
s. 71.80 (18) apply to the tax under this subchapter.
139.38(3)
(3) The secretary shall prescribe reasonable and uniform methods of keeping records and making reports. The secretary shall prescribe and furnish the necessary report forms.
139.38(4)
(4) If the secretary finds that the records of any permittee are not kept in the prescribed form or are in such condition that an unusual amount of time is required to determine therefrom the amount of tax due, the secretary shall give notice of such fact to such permittee and, in such notice, require that the records be revised and kept in the prescribed form. If such permittee fails to comply within 30 days the permittee shall pay the expenses reasonably attributable to a proper examination and tax determination at the rate of $30 per day of each auditor. The secretary shall send a bill for such expenses and the permittee shall pay the amount of such bill within 10 days.
139.38(5)
(5) If any permittee fails to file a report when due the permittee shall be required to pay a late filing fee of $10. A report shall be considered filed in time if it is mailed in a properly addressed envelope with first class postage duly prepaid, which envelope is officially postmarked on the date due, and if the report is actually received by the secretary within 5 days of the due date.
139.38(6)
(6) Sections 71.78 (1) and
(4) to
(9) and
71.83 (2) (a) 3., relating to confidentiality of income, franchise and gift tax returns, apply to any information obtained from any person on a cigarette tax return, report, schedule, exhibit or other document or from an audit report pertaining to the same.
139.38(7)
(7) The department may inspect the business records of any retailer doing business on a reservation or on an Indian tribe's trust land.
139.39
139.39
Administration and enforcement. 139.39(1m)
(1m) The duly authorized employes of the department have all necessary police powers to prevent violations of this subchapter.
139.39(2)
(2) Authorized personnel of the department of justice and the department of revenue, and any sheriff, police officer, marshal or constable, within their respective jurisdictions, may at all reasonable hours enter the premises of any permittee or retailer and examine the books and records to determine whether the tax imposed by
s. 139.31 has been fully paid and may enter and inspect any premises where cigarettes are made, sold or stored to determine whether
ss. 139.30 to
139.44 are being complied with.
139.39(3)
(3) The secretary may suspend or revoke the permit of any permittee who violates
ss. 100.30 or
139.30 to
139.44 or any rules adopted under
sub. (1). The secretary shall revoke the permit of any permittee who violates
s. 100.30 3 or more times within a 5-year period.
139.39(4)
(4) No suit shall be maintained in any court to restrain or delay the collection or payment of the tax levied in
s. 139.31. The aggrieved taxpayer shall pay the tax when due and, if paid under protest, may at any time within 90 days from the date of payment, sue the state to recover the tax paid. If it is finally determined that any part of the tax was wrongfully collected, the department of administration shall issue a warrant on the state treasurer for the amount wrongfully collected, and the treasurer shall pay the same out of the general fund. A separate suit need not be filed for each separate payment made by any taxpayer, but a recovery may be had in one suit for as many payments as may have been made.
139.39(5)(a)(a) Any person may be compelled to testify in regard to any violation of
ss. 134.65 and
139.30 to
139.44 of which the person may have knowledge, even though such testimony may tend to incriminate the person, upon being granted immunity from prosecution in connection therewith, and upon the giving of such testimony, the person shall not be prosecuted because of the violation relative to which the person has testified.
139.39(6)
(6) Sections 71.74 (1),
(2),
(10),
(11) and
(14),
71.77,
71.80 (12),
71.91 (1) (a) and
(c) and
(2) to
(8) and
71.92 as they apply to the taxes under
ch. 71 apply to the taxes under this subchapter.
Section 71.74 (13) as it applies to the collection of the taxes under
ch. 71 applies to the collection of the taxes under this subchapter, except that the period during which notice of an additional assessment shall be given begins on the due date of the report under this subchapter.
139.39 Note
NOTE: Sub. (6) is shown as affected by 2 acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
139.395
139.395
Theft of tax moneys. All cigarette tax moneys received by a distributor or manufacturer for the sale of cigarettes on which the tax under this subchapter has become due and has not been paid are trust funds in the hands of the distributor or manufacturer and are the property of this state. Any distributor or manufacturer who fraudulently withholds, appropriates or otherwise uses cigarette tax moneys that are the property of this state is guilty of theft under
s. 943.20 (1), whether or not the distributor or manufacturer has or claims to have an interest in those moneys.
139.395 History
History: 1993 a. 16.
139.40
139.40
Seizure and confiscation. 139.40(1)
(1) All cigarettes owned, possessed, kept, stored, made, sold, distributed or transported in violation of this chapter, and all personal property used in connection therewith is unlawful property and subject to seizure by the secretary or any peace officer.
139.40(2)
(2) If cigarettes which do not bear the proper tax stamps or on which the tax has not been paid are so seized they may be sold to qualified buyers by the secretary, without notice, and after deducting the costs of the sale and the keeping of the property, the proceeds of the sale shall be paid into the state treasury. When the secretary finds that such cigarettes may deteriorate or become unfit for sale or that such sale would otherwise be impractical the secretary may order them destroyed or give them to a charitable or penal institution for free distribution to patients or inmates.
139.40(3)
(3) If cigarettes on which the tax has been paid and which bear the proper tax stamps are seized they shall be returned to the true owner if ownership can be ascertained and such owner or the owner's agent is not involved in the violation resulting in such seizure. If such ownership cannot be ascertained or if the owner or the owner's agent was guilty of a violation of any of the provisions of
ss. 139.30 to
139.44, which resulted in the seizure of such cigarettes, they may be sold or otherwise disposed of as provided in
sub. (2).
139.40(4)
(4) If personal property other than cigarettes is so seized the secretary shall advertise the same for sale by publication of a class 2 notice under
ch. 985. If no claimant, either of lien or ownership, has notified the secretary within 10 days after last insertion of such notice, the property shall be sold. If such sale is not practical the property may be destroyed. If a claimant of a lien or ownership notifies the secretary within the prescribed time, the secretary may apply to a court of record in the county where the property was seized for an order directing disposition of said property or the proceeds thereof. If a sale of such seized property is ordered, all liens, if any, may be transferred from the property to the proceeds of such sale. Neither the property seized nor the proceeds from the sale thereof shall be turned over to any claimant of lien or ownership unless such claimant first establishes that the property was not used in connection with any violation of
ss. 139.30 to
139.44 or that, if so used, it was done without the claimant's knowledge or consent and without the claimant's knowledge of such facts as should have given the claimant reason to believe it would be put to such use. If no claim of lien or ownership is so established the property may be ordered destroyed. In case of sale, the net proceeds after deducting costs, expenses and established claims shall be paid into the state treasury.
139.40 History
History: 1993 a. 482.
139.41
139.41
Place to place delivery. No person shall peddle any cigarettes from house to house, where the sale is consummated and delivery made concurrently.
139.42
139.42
Nuisance. Any building or place of any kind where cigarettes are sold, possessed, stored or manufactured without a lawful permit in violation of
ss. 139.30 to
139.41 is declared a public nuisance and may be closed and abated as such.
139.43
139.43
Statewide concern. Sections 139.30 to
139.44 shall be construed as an enactment of statewide concern for the purpose of providing a uniform regulation of the sale of cigarettes.
139.43 History
History: 1993 a. 213;
1995 a. 225.
139.43 Annotation
The state regulatory scheme for tobacco sales preempts municipalities from adopting regulations which are not in strict conformity with those of the state. U.S. Oil, Inc. v. City of Fond du Lac, 199 W (2d) 333, 544 NW (2d) 589 (Ct. App. 1995).
139.44
139.44
Interest and penalties. 139.44(1)
(1) Any person who falsely or fraudulently makes, alters or counterfeits any stamp or procures or causes the same to be done, or who knowingly utters, publishes, passes or tenders as true any false, altered or counterfeit stamp, or who affixes the same to any package or container of cigarettes, or who possesses with the intent to sell any cigarettes in containers to which false, altered or counterfeit stamps have been affixed shall be imprisoned for not less than one year nor more than 10 years.
139.44(1m)
(1m) Any person who falsely or fraudulently tampers with a cigarette meter in order to evade the tax under
s. 139.31 shall be imprisoned for not less than one year nor more than 10 years.
139.44(2)
(2) Any person who makes or verifies any false or fraudulent report or who attempts to evade the tax imposed by
s. 139.31 or
139.76, or who aids in or abets the evasion or attempted evasion of that tax shall be fined not less than $1,000 nor more than $5,000 or imprisoned not less than 90 days nor more than one year or both.
139.44(3)
(3) Any permittee who fails to keep the records required by
ss. 139.30 to
139.42 or
139.77 to
139.82 shall be fined not less than $100 nor more than $500 or imprisoned not more than 6 months or both.
139.44(4)
(4) Any person who refuses to permit the examination or inspection authorized in
s. 139.39 (2) or
139.83 may be fined not more than $500 or imprisoned not more than 90 days or both. Such refusal shall be cause for immediate suspension or revocation of permit by the secretary.
139.44(5)
(5) Any person who violates any of the provisions of
ss. 139.30 to
139.41 or
139.75 to
139.83 for which no other penalty is prescribed shall be fined not less than $100 nor more than $1,000 or imprisoned not less than 10 days nor more than 90 days or both.
139.44(6)
(6) Any person who violates any of the rules of the department shall be fined not less than $100 nor more than $500 or be imprisoned not more than 6 months or both.
139.44(7)
(7) In addition to the penalties imposed for violation of
ss. 139.30 to
139.41 or
139.75 to
139.83 or any of the rules of the department, the permit of any person convicted shall be automatically revoked and he or she shall not be granted another permit for a period of 2 years following such revocation.
139.44(8)(a)
(a) If the number of cigarettes does not exceed 6,000, a fine of not more than $200 or imprisonment for not more than 6 months or both.
139.44(8)(b)
(b) If the number of cigarettes exceeds 6,000 but does not exceed 36,000, a fine of not more than $1,000 or imprisonment for not more than one year in the county jail or both.
139.44(8)(c)
(c) If the number of cigarettes exceeds 36,000, a fine of not more than $10,000 or imprisonment for not more than 2 years or both.
139.44(9)
(9) Unpaid taxes bear interest at the rate of 12% per year from the due date of the return until paid or deposited with the department, and all refunded taxes bear interest at the rate of 9% per year from the due date of the return to the date on which the refund is certified on the refund rolls.
139.44(10)
(10) All nondelinquent payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.
139.44(11)
(11) Delinquent cigarette taxes bear interest at the rate of 1.5% per month until paid. The taxes imposed by this subchapter shall become delinquent if not paid:
139.44(11)(a)
(a) In the case of a timely filed return, no return filed or a late return, on or before the due date of the return; or
139.44(11)(b)
(b) In the case of a deficiency determination of taxes, within 2 months after the date of demand.
139.44(12)
(12) If due to neglect an incorrect return is filed, the entire tax finally determined is subject to a penalty of 25% of the tax exclusive of interest or other penalty. A person filing an incorrect return has the burden of proving that the error or errors were due to good cause and not due to neglect.
139.45
139.45
Prosecutions by attorney general. Upon request by the secretary of revenue, the attorney general may represent this state or assist a district attorney in prosecuting any case arising under this subchapter.
139.45 History
History: 1985 a. 302.
TOBACCO PRODUCTS TAX
139.75
139.75
Definitions. In this subchapter:
139.75(1)
(1) "Business" means any trade, occupation, activity or enterprise engaged in for the purpose of selling or distributing tobacco products in this state.
139.75(2)
(2) "Consumer" means any person who has title to or possession of tobacco products in storage for use or other consumption in this state.
139.75(3)
(3) "Department" means the department of revenue.
139.75(4)(a)
(a) Any person engaged in the business of selling tobacco products in this state who brings, or causes to be brought, into this state from outside the state any tobacco products for sale;
139.75(4)(b)
(b) Any person who makes, manufactures or fabricates tobacco products in this state for sale in this state; or
139.75(4)(c)
(c) Any person engaged in the business of selling tobacco products outside this state who ships or transports tobacco products to retailers in this state to be sold by those retailers.
139.75(5)
(5) "Manufacturer" means any person who manufactures and sells tobacco products.
139.75(6)
(6) "Place of business" means any place where tobacco products are sold, manufactured, stored or kept for the purpose of sale or consumption, including any vessel, vehicle, airplane, train or vending machine.
139.75(7)
(7) "Retail outlet" means each place of business from which tobacco products are sold to consumers.
139.75(8)
(8) "Retailer" means any person engaged in the business of selling tobacco products to ultimate consumers.
139.75(9)
(9) "Sale" means any transfer, exchange or barter for a consideration. It includes a gift by a person engaged in the business of selling tobacco products for advertising or as a means of evading this subchapter or for any other purpose, and it includes solicitation of orders for, and the sale for, future delivery.
139.75(10)
(10) "Storage" means any keeping or retention of tobacco products for use or consumption in this state.
139.75(11)
(11) "Subjobber" means any person, other than a manufacturer or distributor, who buys tobacco products from a distributor and sells them to persons other than the ultimate consumers.
139.75(12)
(12) "Tobacco products" means cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready-rubbed and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking; but "tobacco products" does not include cigarettes, as defined under
s. 139.30 (1).
139.75(13)
(13) "Use" means the exercise of any right or power incidental to the ownership of tobacco products.
139.75 History
History: 1981 c. 20;
1985 a. 302.
139.76
139.76
Imposition; exceptions. 139.76(1)
(1) An occupational tax is imposed upon the sale, offering or exposing for sale, possession with intent to sell or removal for consumption or sale or other disposition for any purpose of tobacco products by any person engaged as a distributor of them at the rate of 20% of the manufacturer's established list price to distributors without diminution by volume or other discounts on domestic products. On products imported from another country the rate of tax is 20% of the amount obtained by adding the manufacturer's list price to the federal tax, duties and transportation costs to the United States. The tax attaches at the time the tobacco products are received by the distributor in this state.
139.76(2)
(2) Tobacco products sold to or by post exchanges of the U.S. armed forces, to or by federally or state-operated veterans hospitals in this state, and tobacco products sold to an interstate carrier of passengers for hire to be resold to bona fide passengers actually being transported and tobacco products sold for shipment outside this state in interstate commerce are not subject to the tax. The tax imposed by
sub. (1) and
s. 139.78 shall not apply with respect to any tobacco products which under the constitution and laws of the United States may not be taxed by this state.
139.77
139.77
Distributors, monthly returns. 139.77(1)
(1) On or before the 15th day of each month, every distributor with a place of business in this state shall file a return with the department showing the quantity and taxable price of each tobacco product brought, or caused to be brought, into this state for sale; or made, manufactured or fabricated in this state for sale in this state, during the preceding month. Every distributor outside this state shall file a return showing the quantity and taxable price of each tobacco product shipped or transported to retailers in this state to be sold by those retailers during the preceding month. Returns shall be made upon forms furnished and prescribed by the department and shall contain other information that the department requires. Each return shall be accompanied by a remittance for the full tax liability shown.
139.77(2)
(2) As soon as practicable after any return is filed, the department shall examine each return and correct it, if necessary, according to its best judgment and information. If the department finds that any amount of tax is due from the taxpayer and unpaid, it shall notify the taxpayer of the deficiency, stating that it proposes to assess the amount due together with interest and penalties. If a deficiency disclosed by the department's examination cannot be allocated to one or more particular months, the department shall notify the taxpayer of the deficiency, stating its intention to assess the amount due for a given period without allocating it to any particular months.
139.77(3)
(3) If, within 60 days after the mailing of notice of the proposed assessment, the taxpayer files a protest to the proposed assessment and requests a hearing on it, the department shall give notice to the taxpayer of the time and place fixed for the hearing, shall hold a hearing on the protest and shall issue a final assessment to the taxpayer for the amount found to be due as a result of the hearing. If a protest is not filed within 60 days, the department shall issue a final assessment to the taxpayer. In any action or proceeding in respect to the proposed assessment the taxpayer shall have the burden of establishing the incorrectness or invalidity of any final assessment made by the department.
139.77(4)
(4) If any taxpayer required to file any return fails to do so within the time prescribed, the taxpayer shall, on the written demand of the department, file the return within 20 days after the mailing of it and at the same time pay the tax due on its basis. If the taxpayer fails within that time to file the return, the department shall prepare the return from its own knowledge and from the information that it obtains and on that basis shall assess a tax, which shall be paid within 10 days after the department has mailed to the taxpayer a written notice of the amount and a demand for its payment. In any action or proceeding in respect to the assessment, the taxpayer shall have the burden of establishing the incorrectness or invalidity of any return or assessment made by the department because of the failure of the taxpayer to make a return.
139.77(5)
(5) All taxes are due not later than the 15th day of the month following the calendar month in which they were incurred.
139.77(7)
(7) The department may recover the amount of any tax due and unpaid, interest and any penalty in a civil action. The collection of the tax, interest or penalty is not a bar to any prosecution under
s. 139.85 (1).
