76.30(5)(b)
(b) When the department allows examination of information under
par. (a):
76.30(5)(b)1.
1. If the department has referred the case to a district attorney, the department may make disclosure on its own motion.
76.30(5)(b)2.
2. If a district attorney requests examination of information relating to a person, the request must be in writing, clearly identify the requester and the person to whom the information relates and explain the need for the information. The department may then allow the examination of information so requested and the information may be examined and used solely for the proceeding or investigation for which it was requested.
76.30(5)(c)
(c) Such information may be examined for use in preparation for any administrative or judicial proceeding or an investigation which may result in such proceeding pertaining to the enforcement of a specifically designated state criminal statute not involving tax administration to which this state or a governmental subdivision thereof is a party. Such information may be used solely for the proceeding or investigation for which it is requested.
76.30(5)(d)
(d) The department may allow an examination of information under
par. (c) only if a district attorney petitions a court of record in this state for an order allowing the examination and the court issues an order after finding all of the following:
76.30(5)(d)1.
1. There is reasonable cause to believe, based on information believed to be reliable, that a specific criminal act has been committed.
76.30(5)(d)2.
2. There is reason to believe that such information is probative evidence of a matter in issue related to the commission of the criminal act.
76.30(5)(d)3.
3. The information sought to be examined cannot reasonably be obtained from any other source, unless it is determined that, notwithstanding the reasonable availability of the information from another source, the information constitutes the most probative evidence of a matter in issue relating to the commission of such criminal act.
76.30(5)(e)
(e) If the department determines that examination of information ordered under
par. (d) would identify a confidential informant or seriously impair a civil or criminal tax investigation, the department may deny access and shall certify the reason therefor to the court.
76.30 History
History: 1991 a. 39.
TELEPHONE COMPANIES LICENSE FEES; CAR LINE COMPANIES; ELECTRIC COOPERATIVE ASSOCIATIONS
Effective date note
NOTE: Subchapter II (title) is amended eff. 5-15-98 by
1995 Wis. Act 351 to read:
Effective date text
CAR LINE COMPANIES; ELECTRIC COOPERATIVE ASSOCIATIONS
76.38
76.38
Telephone license fees. 76.38(1)(aa)
(aa) "Access expense" means any charge paid by a telephone company to another telephone company for telecommunications services and facilities that permit subscriber origination or termination of telecommunications between a point or points in one telephone exchange and a point or points in another telephone exchange.
76.38(1)(ab)
(ab) "Access revenues" means revenues of telephone companies resulting from charges to persons, including other telephone companies, for provision of telecommunications services or facilities that permits origination or termination of telecommunications between a point or points within one telephone exchange and a point or points within another telephone exchange and revenues of telephone companies resulting from customer access to the telecommunications services and facilities of a telephone exchange.
76.38(1)(ac)
(ac) "Allocable share of approved reselling services" means actual costs incurred for services under
par. (bkm) 1. actually utilized in providing the telecommunications services for which the gross revenues are received multiplied by the amount obtained by dividing the sum of the property factor and the originating revenues factor by 2, except that the department may determine the allocable share of approved reselling services based on other facts and circumstances if, in the department's judgment, the formula under this paragraph does not produce a substantially just and correct determination.
76.38(1)(ad)
(ad) "Average value" means the average of the values at the beginning and end of the calendar year unless the secretary of revenue reasonably determines that averaging monthly values is required to reflect properly the average value.
76.38(1)(am)
(am) "Customer premises equipment" means equipment employed on the premises of a person, other than a telephone company, to originate, route or terminate telecommunications but does not include equipment used to multiplex, maintain or terminate access lines.
76.38(1)(an)
(an) "Department" means the department of revenue.
76.38(1)(b)
(b) "Gross revenues" includes all revenue derived from local and rural exchange service, all toll business gross revenue, and all other operating revenues from telecommunications business. It does not include excise taxes on telephone service or facilities nor uncollectible telecommunications revenues actually written off during the year. "Gross revenues" includes recoveries within the year of all telecommunications revenues written off in prior years as uncollectible. For a telephone company operating on any form of mutual basis, "gross revenues" includes all amounts assessed against the members for the operation and maintenance of the business. "Gross revenues" also includes access revenues and revenues from directory advertising. For qualifying telecommunications resellers, "gross revenues" does not include the allocable share of approved reselling services sold to the public. "Gross revenues" does not include any revenues collected from service users under
s. 146.70 (3). For fees assessed on May 1, 1989, and thereafter, telecommunications companies may deduct 100% of access expenses that arise from services or facilities that permit origination or termination of telecommunications from a point or points in this state to a point or points in the same local access and transport area incurred during the previous year and 14.5% of all other access expenses incurred during the previous year.
76.38(1)(bd)
(bd) "Local access and transport area" means a geographic area that encompasses one telephone exchange or 2 or more contiguous telephone exchanges that serve common social, economic and other purposes and that are established pursuant to the modification of final judgment in United States v. Western Electric Company, civil action no. 82-0192 in the U.S. district court for the District of Columbia and approved by that court as an exchange area within the meaning of section IV. G. of that modification of final judgment.
76.38(1)(bf)
(bf) "Originating revenues factor" means a fraction the numerator of which is the revenues of the telephone company from toll business originated from customer premises equipment in this state, regardless of the location to which the billing notice is sent, and the denominator of which is the total revenues of the telephone company from toll business everywhere.
76.38(1)(bg)
(bg) "Person" means any individual, partnership, limited liability company, firm, association, company or corporation.
76.38(1)(bk)
(bk) "Property" does not include cash, evidences of indebtedness, special privileges, franchises, goodwill or property located in space.
76.38(1)(bkm)
(bkm) "Qualifying telecommunications reseller" means a company that provides local or rural exchange service and does not own, operate, manage or control transmission facilities for toll business outside the exchanges in which the public service commission has authorized them to provide local or rural services or a telephone company that fulfills all the following requirements:
76.38(1)(bkm)1.
1. Resells message telecommunications service, wide-area telecommunications services or other telecommunications services which have been approved for reselling by the public service commission or by the federal communications commission.
76.38(1)(bkm)2.
2. Does not own, operate, manage or control transmission facilities that have the technological capability to provide telecommunications service within this state.
76.38(1)(bkm)3.
3. Is not a person at least 50% of the voting stock of which is owned directly or indirectly by another person which directly or indirectly owns, operates, manages or controls transmission facilities that have the technological capability to provide telecommunications service within the state unless that latter person is a company that provides local or rural exchange service and does not own, operate, manage or control transmission facilities for toll business outside the exchanges in which the public service commission has authorized it to provide local or rural services or unless that latter person:
76.38(1)(bkm)3.a.
a. Owns at least 50% of the voting stock of a company that provides local or rural exchange service and that does not own, operate, manage or control transmission facilities for toll business outside the exchanges in which the public service commission has authorized it to provide local or rural services; and
76.38(1)(bkm)3.b.
b. Does not own directly or indirectly at least 50% of the voting stock of another company that owns, operates, manages or controls transmission facilities that have the technological capability to provide telecommunication services within this state.
76.38(1)(bL)
(bL) "Property factor" means a fraction the numerator of which is the average value of the property owned or rented by the telephone company and used in operating its telecommunications business in this state and the denominator of which is the average value of the property owned or rented by the telephone company and used in operating its telecommunications business everywhere.
76.38(1)(bm)
(bm) "Telecommunications facility" means telephone line, telegraph line, microwave, satellite, cellular radio, fiber optics, coaxial cable or any other transmission facility or any switching device used in the provision of telecommunications services.
76.38(1)(br)
(br) "Telecommunications services" means the transmissions of voice, video, facsimile or data messages, including telegraph messages. "Telecommunications services" does not include cable television, broadcast television, radio, one-way radio paging and the transmission of messages incidental to transient occupancy in hotels, as defined in
s. 254.61 (3).
76.38(1)(c)
(c) "Telephone company" means any person operating a telecommunications facility or providing telecommunications services to another person, including the resale of those services provided by another telephone company. "Telephone company" does not include any person who operates a private shared telecommunications system as defined in
s. 196.201 (1) and who is not otherwise a telephone company.
76.38(1)(d)
(d) "Telephone exchange" means that portion of the area served by any telephone company which is included in the exchange rate as fixed by the public service commission.
76.38(1)(e)
(e) "Toll business gross revenues" means gross revenues from toll business originating and terminating in this state and toll business gross revenues attributable to this state.
76.38(1)(f)
(f) "Toll business gross revenues attributable to this state" means the telephone company's total gross revenues from interstate toll services everywhere multiplied by the amount obtained by dividing the sum of the property factor and the originating revenues factor by 2, except that the department may determine toll business gross revenues attributable to this state based on other facts and circumstances if, in the department's judgment, the formula under this paragraph does not produce a substantially just and correct determination.
76.38(1)(fm)
(fm) "Transmission facilities" means facilities for the carriage of telecommunications services by wire, optics, radio signal or other means.
76.38(1)(g)
(g) "Value" means, for property owned by the telephone company, original cost and, for property rented by the telephone company, 8 times the amount obtained by subtracting from annual rent paid by the telephone company annual rent received by the telephone company for subletting that property.
76.38(2)(a)(a) Every telephone company shall on or before March 1 in each year make and return to the department in such form and upon such blanks as the department prescribes, a true statement of its access expenses and of the gross revenues from the operation of its business during the preceding calendar year, which statement shall be certified by the president and treasurer of such company so operating, or 2 of the principal officers thereof. For sufficient reason shown, the department may upon written request allow such further time for making and filing the report as it deems necessary but not to exceed 30 days.
76.38(2)(b)
(b) The report shall show the gross revenues attributable to this state from the service of local and rural exchange property of the telephone company. The report shall also show the toll business gross revenues.
76.38(2)(c)
(c) All other operating revenues attributable to this state which can be definitely assigned to a telephone exchange operated by that telephone company in this state shall be classified as exchange service revenue, but if assignment cannot reasonably be made, those other operating revenues shall be classified as toll business gross revenues. All access revenues are exchange service revenues.
76.38(3)
(3) On or before May 1 the department shall compute and assess the license fees imposed by
sub. (4), with respect to gross revenues of the preceding calendar year and on or before May 1 shall notify each person that was carrying on business as a telephone company on the preceding January 1 of the amount of the license fee assessed. Any person who pays the May 1 assessment in full has a license to carry on business as a telephone company in this state for the 12-month period beginning on the preceding January 1. The fees assessed by the department shall become delinquent if not paid when due, and when delinquent shall be subject to interest at the rate of 1.5% per month until paid. The department shall transmit all funds received under this section to the state treasurer within 15 days after receipt. The payment dates provided for in
sub. (3a) shall apply.
76.38(3a)
(3a) The license fees prescribed by this section shall be paid to the department on an estimated basis. Remittances of semiannual instalments of the total estimated payments for the then current calendar year shall be due on or before May 10, and November 10 of the current year. With respect to the license fee assessment by the department under
sub. (3), each telephone company shall on each May 10 pay or be credited an amount which is equal to the difference between the May 1 assessment by the department and the sum of the semiannual instalment payments made in the preceding calendar year. The additional amount shall be added to the semiannual instalment due on May 10; if there has been an overpayment the amount of the overpayment shall be credited to the semiannual instalment due May 10. If any telephone company that has a liability for the current year fails to make semiannual payments of 60% of the liability assessed by the department for the current calendar year, any amounts not paid when due shall become delinquent and shall be subject to interest under
sub. (3). If any company that has no liability for the current year fails to make semiannual payments of at least 50% of the liability assessed by the department for the subsequent calendar year or 100% of the liability in respect to revenue earned through April of the current year, any amounts not paid when due shall become delinquent and shall be subject to interest under
sub. (3). Companies with a liability assessed by the department under this section of less than $2,000 are not required to make semiannual payments but shall pay the full amount of license fees due on or before May 10 of the year of assessment.
76.38(4)
(4) Every telephone company shall pay an annual license fee equal to the following percentages of its total gross revenues in this state:
76.38(4)(a)
(a) For fees assessed on May 1, 1994, 5.80%.
76.38(4)(b)
(b) For fees assessed on May 1, 1995, 5.75%.
76.38(4)(c)
(c) For fees assessed on May 1, 1996, 5.77%.
76.38(4)(d)
(d) For fees assessed on May 1, 1997, and on May 1, 1998, 5.77%.
76.38(7m)
(7m) The legislature intends that telecommunications companies pass on to their customers, in the form of rate reductions and surcharge reductions, the tax reductions created by the treatment of
sub. (4) under
1989 Wisconsin Act 31, section 2138 and by the changes in the taxation of telecommunications companies made by
1991 Wisconsin Act 39.
76.38(8)
(8) The license fees imposed by this section upon the gross revenues of telephone companies as defined in
sub. (1) shall be in lieu of all other taxes on all property used and useful in the companies' operation as telephone companies in this state, except that the same shall be subject to special assessments for local improvements. If a general structure is used and useful in part in the operation of the business of those companies as telephone companies in this state and in part for nonoperating purposes, the license fees imposed by this section are in place of the percentage of all other taxes on the property that fairly measures and represents the extent of the use and usefulness in the operation of the business of those companies as telephone companies in this state, and the balance is subject to local assessment and taxation, except that the entire general structure is subject to special assessments for local improvements.
76.38(9)
(9) The records, books, accounts and papers of any telephone company shall be subject to inspection and examination by the secretary of revenue or by such person as the secretary may designate for that purpose.
76.38(10)
(10) If any telephone company required under this section to file a report fails to file a report within the time prescribed by law or as extended under
sub. (2), unless it is shown that the failure is due to reasonable cause and not due to wilful neglect, there shall be added to the amount required to be shown as license fees on the report 5% of the amount of such fees if the failure is for not more than one month, with an additional 5% for each additional month or fraction thereof during which the failure continues, not exceeding 25% in the aggregate.
76.38(11)
(11) In case any telephone company fails to make a report as required by
sub. (2) within the time required, the department may enter an assessment against such company in a sum representing the approximate amount of the license fees, together with penalties and interest, for which such company may be liable as estimated by the department. Notice of such assessment shall be given by certified mail, and unless a report conforming to the requirements of this section is filed within 15 days of such notice, such estimated assessment shall become final. Thereafter the telephone company assessed shall be forever barred from questioning the correctness of the same in any action or proceeding.
76.38(12)(a)(a) If after filing the reports specified in
sub. (2) and after the department's computation and assessment of license fees under
sub. (3) it is subsequently determined that the amount of gross revenues reported is in error, the department shall compute the additional license fee to be paid or the amount of the overpayment of license fee to be refunded, as the case may be. If an additional license fee is due, the department shall give notice to the telephone company against whom the license fee is to be levied. All such additional assessments and claims for refunds for excess license fees paid are subject to the same procedure for review and final determination as additional income or franchise tax assessments and claims for refunds under
ch. 71 as far as the same may be applicable, except that appeals of denials of claims for refunds shall be made directly to the tax appeals commission and except that the additional license fees shall become delinquent 60 days after notice provided in this subsection or, if review proceedings are held, 60 days following final determination of the review proceedings. All additional license fees shall bear interest at the rate of 12% per year from the time they should have been paid to the date on which the additional fees shall become delinquent if unpaid.
76.38(12)(b)
(b) In the case of overpayments of license fees by any telephone company under
par. (a), the department shall certify the overpayments to the department of administration, which shall audit the amount of the overpayments and the state treasurer shall pay the amounts determined by means of the audit. All refunds of license fees under this subsection shall bear interest at the annual rate of 9% from the date of the original payment to the date when the refund is made. The time for making additional levies of license fees or claims for refunds of excess license fees paid, in respect to any year, shall be limited to 4 years after the time the report for such year was filed.
76.38(13)
(13) Delinquent license fees of any telephone company, together with penalties and interest, shall be a lien upon all the property of such company prior to all other liens, claims and demands, which lien may be enforced in an action in the name of the state in any court of competent jurisdiction against the property of such company within the state as an entirety. The remedies for nonpayment of taxes specified in
s. 76.14 shall apply to nonpayment of license fees, penalties and interest referred to under this section.
76.38(14)
(14) In case any telephone company discontinues service through sale, merger, abandonment of its property or otherwise, the company acquiring such property or undertaking to provide service in the area of the former company shall assume the license fees due pursuant to the provisions of this section, except that the liability of the acquiring company shall be limited to those license fees which have accrued from January 1 of the previous calendar year to the date of the sale or merger.
Effective date note
NOTE: This section is repealed eff. 5-15-98 by
1995 Wis. Act 351.
76.38 History
History: 1971 c. 125,
215;
1975 c. 39,
200,
224;
1977 c. 29 ss.
829 to
832,
1648 (1);
1977 c. 142,
272,
418;
1979 c. 110 ss.
60 (11), (13);
1981 c. 20;
1983 a. 27,
189,
212;
1985 a. 29,
120,
297,
332;
1987 a. 27,
399;
1989 a. 31,
336;
1991 a. 39,
316;
1993 a. 27,
112,
205;
1995 a. 225,
351.
76.38 Annotation
Under 70.112 (4) and 76.38 (8), leased property "used and useful" in telephone utility's business is exempt from ad valorem tax. Wisconsin Tel. Co. v. City of Milwaukee, 85 W (2d) 447, 271 NW (2d) 362 (1978).
76.39
76.39
Car line taxes. 76.39(1)(1) For the purposes of this section:
76.39(1)(b)
(b) "Car line company" means any person, not operating a railroad, engaged in whole or in part in the business of leasing or furnishing car line equipment to a railroad.
76.39(1)(c)
(c) "Car line equipment" means any railroad car or other equipment used in railroad transportation under an agreement providing for rental of such car or other equipment.
76.39(1)(cm)
(cm) "Department" means the department of revenue.
76.39(1)(d)
(d) "Gross earnings" means all receipts by a car line company from operation of car line equipment.
76.39(1)(e)
(e) "Gross earnings in this state" means all gross earnings on intrastate business of a car line company from operation of car line equipment, and also gross earnings on interstate business in the proportion that the Wisconsin car miles are of the total car miles of such interstate business. The gross earnings not based on mileage shall be allocated to this state in the ratio of each carrier's average annual freight car miles in Wisconsin to the carrier's total freight car miles in all states.
76.39(2)
(2) There is levied annually a gross earnings tax in lieu of all property taxes on the car line equipment of a car line company equal to 3% of the gross earnings in this state. Every railroad company operating in this state shall, upon making payment to each car line company for use of its cars, withhold 3% of the amount constituting the gross earnings in this state of such car line company.
76.39(3)
(3) Every railroad company operating in this state shall file annually with the department, on or before April 15, on a form prepared by the department, a true and accurate statement of all rentals paid to each car line company during the previous calendar year and shall remit to the department the amount of the tax required to be withheld under
sub. (2). Every car line company, which during the previous calendar year has received gross earnings in this state from a source other than a railroad company operating in this state, shall, on or before April 15, on a form prepared by the department, file with the department a true and accurate statement of such gross earnings in this state and the name of the company from which received and shall remit to the department the amount of the tax imposed under
sub. (2) on such gross earnings in this state. The payment dates provided for in
sub. (3a) shall apply. Upon written request received by the department before April 15, the department may grant an extension of not to exceed 30 days for the filing of the report and the payment of the taxes levied in this section. If any railroad company or car line company fails to file such report when due, or as extended by the department, unless it is shown that the failure is due to reasonable cause and not due to wilful neglect, there shall be added to the amount required to be shown as gross earnings tax on the report 5% of the amount thereof if the failure is for not more than one month, with an additional 5% for each additional month or fraction thereof during which the failure continues, not exceeding 25% in the aggregate. If any railroad company or car line company fails to pay all taxes due within the time prescribed or as extended by the department, the unpaid taxes shall be delinquent, and shall be subject to interest under
sub. (4). All taxes, late filing fees, penalties and interest shall be deposited in the general fund.
76.39(3a)
(3a) The tax due under this section shall be paid to the department. Payments of semiannual instalments of the total liability for the calendar year shall be due on or before September 10 of the year prior to the assessment and on April 15 of the year of the assessment. If any railroad company or car line company fails to pay on or before September 10 at least 50% of the tax liability for the current calendar year or 50% of the tax liability for the subsequent calendar year, the amount not paid is delinquent and is subject to interest under
sub. (4) (c). If any railroad company or car line company fails to pay on or before April 15 the difference between the current year's assessment and the amount paid toward that assessment, the amount not paid is delinquent and is subject to interest under
sub. (4) (c). Companies with a tax liability under this section of less than $2,000 are not required to make semiannual payments but shall pay the full amount of taxes due on or before April 15 of the year of the assessment.
76.39(4)(a)(a) The records, books, leases and all accounts pertaining to the car line business of any railroad or car line company shall be subject to audit by the department. In any case in which it is determined that the amount of tax paid was in error, the department shall determine the additional tax or refund, as the case may be.
76.39(4)(b)
(b) Additional assessments may be made provided notice thereof is given within 4 years of the date the annual statement was filed; however, if no statement was filed or if the statement filed was incorrect and was filed with intent to defeat or evade the tax, an additional assessment may be made at any time upon the discovery of gross earnings in this state by the department. Refunds may be made provided claim therefor is filed in writing with the department within 4 years of the date the annual statement was filed.
76.39(4)(c)
(c) All additional assessments and claims for refund shall be subject to the same procedure for review and final determination as is provided with respect to additional assessments and refunds of income or franchise taxes in
chs. 71 and
73, except that appeals of denials of claims for refunds shall be made directly to the tax appeals commission and except as the same may conflict with this section. Delinquent taxes shall be subject to interest at the rate of 1.5% per month until paid.
76.39(4)(d)
(d) All refunds shall be certified by the department to the department of administration which shall audit the amount of the refunds and the state treasurer shall pay the amount, together with interest at the rate of 9% per year from the date payment was made. All additional taxes shall bear interest at the rate of 12% per year from the time they should have been paid to the date upon which the additional taxes shall become delinquent if unpaid.
76.39(5)
(5) Delinquent taxes, penalties, interest and late filing fees shall be a lien upon the property of any railroad company or car line company prior to all other liens, claims and demands, except as provided in
ss. 292.31 (8) (i),
292.41 (6) (d) and
292.81, which lien may be enforced in any action in the name of the state in any court of competent jurisdiction. All provisions of law for enforcing payment of delinquent income or franchise taxes under
ch. 71 or enforcing payment of delinquent taxes based on the value of property under this chapter shall be available to collection of taxes on gross receipts in this state levied under this section.
76.46
76.46
Powers of investigation. 76.46(1)
(1) The department may, whenever in its opinion such action is necessary, examine or cause to be examined the books and records of any railroad company or car line company in order to verify the accuracy of the reports submitted to the department.
76.46(2)
(2) If any railroad company defined in
s. 76.02, or any car line company defined in
s. 76.39, refuses or neglects to make any reports required under
subch. I, or refuses or neglects to permit an examination of its books and records, accounts and papers, when requested so to do by the department, or refuses or neglects to appear before the department in obedience to its summons, it shall be estopped to question or impeach the action or determination of the department, or validity of any assessment made by the department.
76.46(3)
(3) No such company shall be allowed in any action or proceeding to question the assessment and taxation of its property as determined by the department, unless it has made and filed with such department a full and complete report of the facts and information prescribed by law and called for by the department.
76.46 History
History: 1979 c. 102 s.
237.
