77.52(17m)(b)2. 2. The applicant's accounting system will clearly indicate the amount of tax that the applicant owes under this subchapter.
77.52(17m)(b)3. 3. The applicant makes enough purchases that are taxable under this subchapter to justify the expense of regular audits by the department.
77.52(17m)(b)4. 4. The applicant is not liable for delinquent taxes; including costs, penalties, surcharges and interest; under ch. 71, 72, 76, 78 or 139 or this chapter of $400 or more if any part of the tax is delinquent for at least 5 months.
77.52(17m)(b)5. 5. It is in this state's best interests to issue the permit.
77.52(17m)(b)6. 6. The applicant purchases enough tangible personal property under circumstances that make it difficult to determine whether the property will be subject to a tax under this subchapter.
77.52(17m)(b)7. 7. The applicant holds a valid certificate under s. 73.03 (50).
77.52(17m)(c) (c) A holder of a permit that is issued under par. (b) may not transfer or assign it.
77.52(17m)(d) (d) The department may revoke a permit that is issued under par. (b) if the holder misuses it or the department determines that revocation is in this state's best interests.
77.52(17m)(e) (e) A retailer may not collect a tax under this subchapter, and is not liable for a tax under this subchapter, on any sale, except those of a type specified as ineligible for an exemption under this paragraph by a rule promulgated by the department, for which the buyer furnishes to the retailer a copy of the permit that is issued under par. (b) or a statement that the buyer holds such a permit, a statement of that permit's number and a statement of the date that the permit was issued.
77.52(17m)(f) (f) A person who holds a permit that is issued under par. (b) shall keep a record of all retailers from whom the person made a purchase for which the person used a permit that is issued under par. (b) and shall do one of the following:
77.52(17m)(f)1. 1. Fulfill the requirements for an exempt sale under par. (e) for every purchase that the person makes that may be exempt under that paragraph and pay the tax under s. 77.53 (1) to the department on all of those purchases for which the tax is due.
77.52(17m)(f)2. 2. Maintain accounting records that show the tax under ss. 77.52 (1) and (2) and 77.53 (3) paid on each purchase during each reporting period under s. 77.58 and the total tax paid during each reporting period, pay the tax under ss. 77.52 (1) and (2) and 77.53 (3) on either all or none of the purchases made from each retailer during each reporting period and pay the tax under s. 77.53 (1) to the department on all of the purchases for which the tax is due.
77.52(18) (18) If any retailer liable for any amount of tax under this subchapter sells out the retailer's business or stock of goods or quits the business, the retailer's successors or assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the department that it has been paid or a certificate stating that no amount is due.
77.52(18)(a) (a) If the purchaser of a stock of goods fails to withhold from the purchase price as required, the purchaser becomes personally liable for the payment of the amount required to be withheld by the purchaser to the extent of the purchase price valued in money. Within 60 days after receiving a written request from the purchaser for a certificate, or within 60 days from the date the former owner's records are made available for audit, whichever period expires later, but in any event not later than 90 days after receiving the request, the department shall either issue the certificate or mail notice to the purchaser at the purchaser's address as it appears on the records of the department of the amount that must be paid as a condition of issuing the certificate. Failure of the department to mail the notice will release the purchaser from any further obligation to withhold the purchase price as above provided. The obligation of the successor may be enforced within 4 years of the time the retailer sells out the retailer's business or stock of goods or at the time that the determination against the retailer becomes final, whichever event occurs later.
77.52(19) (19) The department shall by rule provide for the efficient collection of the taxes imposed by this subchapter on sales of property or services by persons not regularly engaged in selling at retail in this state or not having a permanent place of business, but who are temporarily engaged in selling from trucks, portable roadside stands, concessions at fairs and carnivals, and the like. The department may authorize such persons to sell property or sell, perform or furnish services on a permit or nonpermit basis as the department by rule prescribes and failure of any person to comply with such rules constitutes a misdemeanor.
77.52 Annotation Where gold sold to dentists was used in dental work, sale was not taxable under (1). Dept. of Revenue v. Milw. Refining Corp. 80 W (2d) 44, 257 NW (2d) 855.
77.52 Annotation Data processing service which transfers tangible property such as cards, tapes and printouts, but whose essential service is the sale of intangible coded or processed data, is not taxable under this section. Janesville Data Center v. Dept. of Revenue, 84 W (2d) 341, 267 NW (2d) 656 (1978).
77.52 Annotation See note to Art. I, sec. 18, citing Kollasch v. Adamany, 104 W (2d) 552, 313 NW (2d) 47 (1981).
77.52 Annotation Phrase "in this state" as used in (1) and defined in 77.51 (6) does not include airspace. Republic Airlines, Inc. 159 W (2d) 247, 464 NW (2d) 62 (Ct. App. 1990).
77.52 Annotation Payments under lease of taxicab from owner to driver are sales at retail, subject to tax. Sanfelippo v. Department of Revenue, 170 W (2d) 381, 490 NW 530 (2d) (Ct. App. 1992).
77.52 Annotation Sub. (18) provides no relief from successor liability where the entire purchase price is paid to a secured creditor. Kastengren v. Dept. of Revenue, 179 W (2d) 587, 508 NW (2d) 431 (Ct. App. 1993).
77.53 77.53 Imposition of use tax.
77.53(1) (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 price of those services; on the storage, use or other consumption in this state of tangible personal property purchased from any retailer, at the rate of 5% of the sales price of that property; 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 price of that material.
77.53(1m) (1m) For motor vehicles that are used for a purpose in addition to retention, demonstration or display while held for sale in the regular course of business by a dealer who is licensed under s. 218.01, the base for the tax imposed under sub. (1) is the following:
77.53(1m)(a) (a) If the motor vehicle is assigned to and used by an employe of the dealer for whom the dealer is required to withhold amounts for federal income tax purposes, $96 per month for each motor vehicle registration plate held by the dealer, except that beginning in 1997 the department shall annually, as of January 1, adjust the dollar amount under this paragraph, rounded to the nearest whole dollar, to reflect the annual percentage change in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the 12 months ending on June 30 of the year before the change.
77.53(1m)(b) (b) If the motor vehicle is used by the dealer or any person other than an employe of the dealer, the lease value as shown in the lease value tables that the internal revenue service prepares to interpret section 61 of the internal revenue code.
77.53(2) (2) Every person storing, using or otherwise consuming in this state tangible personal property 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.
77.53(3) (3) Every retailer engaged in business in this state and making sales of tangible personal property 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 this state, 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.
77.53(4) (4) A retailer is relieved from liability to collect use tax insofar as the measure of the tax is represented by accounts which have been found to be worthless and charged off for income or franchise tax purposes. If the retailer has previously paid the amount of the tax, the retailer may, under rules prescribed by the department, take as a deduction from the measure of the tax the amount found worthless and charged off for income or franchise tax purposes. If any such accounts are thereafter in whole or in part collected by the retailer, the amount so collected shall be included in the first return filed after such collection and the amount of the tax thereon paid with the return.
77.53(5) (5) The tax required to be collected by the retailer constitutes a debt owed by the retailer to the state.
77.53(7) (7) The tax required to be collected by the retailer from the purchaser shall be displayed separately from the list price, the price advertised in the premises, the marked price, or other price on the sales check, invoice or other proof of sale.
77.53(8) (8) Any person violating sub. (3) or (7) is guilty of a misdemeanor.
77.53(9) (9) Every retailer selling tangible personal property or taxable services for storage, use or other consumption in this state shall 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, and such other information as the department requires.
77.53(9m) (9m) 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 or taxable services the use of which is subject to tax under this subchapter 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.
77.53(10) (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 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 certificate to the effect that the property or taxable service is purchased for resale, or otherwise exempt from the tax.
77.53(11) (11) The certificate referred to in sub. (10) relieves the person selling the property or service from the burden of proof only if taken in good faith 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 tangible personal property 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. The certificate shall be signed by and bear the name and address of 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. The certificate shall be substantially in the form the department prescribes.
77.53(12) (12) If a purchaser who gives a certificate makes any storage or use of the property 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 or service is first so stored or used.
77.53(13) (13) If a purchaser gives a certificate with respect to the purchase of fungible goods and thereafter commingles these goods with other fungible goods not so purchased but of such similarity that the identity of the constituent goods in the commingled mass cannot be determined sales from the mass of commingled goods shall be deemed to be sales of the goods so purchased until a quantity of commingled goods equal to the quantity of purchased goods so commingled has been sold.
77.53(14) (14) It is presumed that tangible personal property or taxable services shipped or brought to this state by the purchaser were purchased from or serviced by a retailer.
77.53(15) (15) It is presumed that tangible personal property 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 or service was not purchased for storage, use or other consumption in this state.
77.53(16) (16) If the purchase, rental or lease of tangible personal property 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. In this subsection "sales tax" includes a use or excise tax imposed on the use of tangible personal property or taxable service by the state in which the sale occurred and "state" includes the District of Columbia but does not include the commonwealth of Puerto Rico or the several territories organized by congress.
77.53(17) (17) This section does not apply to tangible personal property purchased outside this state, other than motor vehicles, boats, snowmobiles, mobile homes not exceeding 45 feet in length, 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 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.
77.53(17m) (17m) This section does not apply to a boat purchased in a state contiguous to this state 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.
77.53(17r) (17r) This section does not apply to an aircraft if all of the following requirements are fulfilled:
77.53(17r)(a) (a) It is purchased in another state.
77.53(17r)(b) (b) Its owner or lessee has paid all of the sales and use taxes imposed in respect to it by the state where it was purchased.
77.53(17r)(c) (c) If the owner or lessee is a corporation, that corporation, and all corporations with which that corporation may file a consolidated return for federal income tax purposes, neither is organized under the laws of this state nor has real property or other tangible personal property; except aircraft and such property as hangars, accessories, attachments, fuel and parts required for operation of aircraft; in this state at the time the aircraft is registered in this state.
77.53(17r)(d) (d) If the owner or lessee is a partnership, all of the corporate partners fulfill the requirements under par. (c) and none of the general partners and none of the limited partners who has management or control responsibilities is domiciled in this state and the partnership has no other tangible personal property and no real property; except aircraft and such property as hangars, accessories, attachments, fuel and parts required for operation of aircraft; in this state at the time the aircraft is registered in this state.
77.53(17r)(dm) (dm) If the owner or lessee is a limited liability company, all of the corporate members fulfill the requirements under par. (c) and none of the managers and none of the members who has management or control responsibilities is domiciled in this state and the limited liability company has no other tangible personal property and no real property; except aircraft and such property as hangars, accessories, attachments, fuel and parts required for operation of aircraft; in this state at the time the aircraft is registered in this state.
77.53(17r)(e) (e) If the owner or lessee is an individual, the owner or lessee is not domiciled in this state.
77.53(17r)(f) (f) If the owner or lessee is an estate, trust or cooperative; that estate, that trust and its grantor or that cooperative does not have real property or other tangible personal property; except aircraft and such property as hangars, accessories, attachments, fuel and parts required for operation of aircraft; in this state at the time the aircraft is registered in this state.
77.53(17r)(g) (g) The department has not determined that the owner, if the owner is a corporation, trust, partnership or limited liability company, was formed to qualify for the exception under this subsection.
77.53(18) (18) This section does not apply to the storage, use or other consumption in this state of household goods for personal use or to aircraft, motor vehicles, boats, snowmobiles, mobile homes, trailers, semitrailers and all-terrain vehicles, for personal use, purchased by a nondomiciliary of this state outside this state 90 days or more before bringing the goods or property into this state in connection with a change of domicile to this state.
77.535 77.535 Increases; building materials. Increases in the rates of the taxes under this subchapter do not apply to building materials purchased by persons engaged in constructing, altering, repairing or improving real estate for others when the materials so purchased by those persons are affixed and made a structural part of real estate in the fulfillment of a written contract for a fixed price not subject to change or modification, or to a formal written bid that cannot be altered or withdrawn, if the contract is entered into or the bid is made before the effective date of the sales and use tax rate increase.
77.535 History History: 1981 c. 317.
77.54 77.54 General exemptions. There are exempted from the taxes imposed by this subchapter:
77.54(1) (1) The gross receipts from the sale of and the storage, use or other consumption in this state of tangible personal property and services the gross receipts 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.
77.54(2) (2) The gross receipts 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, but this exemption shall not include fuel or electricity.
77.54(2m) (2m) The gross receipts 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.
77.54(3) (3)
77.54(3)(a)(a) The gross receipts from the sales of and the storage, use or other consumption of tractors and machines, including accessories, attachments and parts therefor, used exclusively and directly in the business of farming, including dairy farming, agriculture, horticulture, floriculture 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.
77.54(3)(b) (b) In par. (a):
77.54(3)(b)1. 1. "Building" has the meaning given under s. 70.111 (10) (a) 1.
77.54(3)(b)2. 2. "Machine" means an assemblage of parts that transmits force, motion and energy from one part to another in a predetermined manner.
77.54(3)(b)3. 3. "Used exclusively" means used to the exclusion of all other uses except for other use not exceeding 5% of total use.
77.54(3)(c) (c) For purposes of this subsection, the following items retain their character as tangible personal property, regardless of the extent to which they are fastened to, connected to or built into real property:
77.54(3)(c)1. 1. Auxiliary power generators.
77.54(3)(c)2. 2. Bale loaders.
77.54(3)(c)3. 3. Barn cleaners and elevators.
77.54(3)(c)4. 4. Conveyors.
77.54(3)(c)5. 5. Feed elevators and augers.
77.54(3)(c)6. 6. Grain dryers and grinders.
77.54(3)(c)7. 7. Milk coolers.
77.54(3)(c)8. 8. Milking machines; including piping, pipeline washers and compressors.
77.54(3)(c)9. 9. Powered feeders, excluding platforms and troughs constructed from ordinary building materials.
77.54(3)(c)10. 10. Silo unloaders.
77.54(3m) (3m) The gross receipts from sales of and the storage, use or other consumption of seeds for planting, plants, feed, fertilizer, soil conditioners, animal bedding, sprays, pesticides, fungicides, breeding and other livestock, poultry, farm work stock, baling twine and baling wire, and containers for fruits, vegetables, grain and animal wastes used exclusively in farming, including dairy farming, agriculture, horticulture or floriculture when engaged in by the purchaser or user as a business enterprise.
77.54(4) (4) Gross receipts from the sale of tangible personal property, and the storage, use or other consumption in this state of tangible personal property which is the subject of any such sale, by any elementary school or secondary school, exempted as such from payment of income or franchise tax under ch. 71, whether public or private.
77.54(5) (5) The gross receipts from the sale of and the storage, use or other consumption of:
77.54(5)(a) (a) Aircraft, including accessories, attachments, fuel and parts therefor, sold to persons using such aircraft as certified or licensed carriers of persons or property in interstate or foreign commerce under authority of the laws of the United States or any foreign government, or sold to any foreign government for use by such government outside this state and aircraft, motor vehicles or truck bodies sold to persons who are not residents of this state and who will not use such aircraft, motor vehicles or trucks for which the truck bodies were made in this state otherwise than in the removal of such aircraft, motor vehicles or trucks from this state.
77.54(5)(b) (b) Motor trucks, truck tractors, road tractors, buses, trailers and semitrailers, and accessories, attachments, parts, supplies and materials therefor, sold to common or contract carriers who use such motor trucks, truck tractors, road tractors, buses, trailers and semitrailers exclusively as common or contract carriers, including the urban mass transportation of passengers as defined in s. 71.38.
77.54(5)(c) (c) Motor vehicles which are not required to be licensed for highway use and which are exclusively and directly used in conjunction with waste reduction or recycling activities which reduce the amount of solid waste generated, reuse solid waste, recycle solid waste, compost solid waste or recover energy from solid waste. For the purposes of this paragraph, "solid waste" means garbage, refuse, sludge or other materials or articles, whether these materials or articles are discarded or purchased, including solid, semisolid, liquid or contained gaseous materials or articles resulting from industrial, commercial, mining or agricultural operations or from domestic use or from public service activities.
77.54(5)(d) (d) Mobile units used for mixing and processing and the motor vehicle or trailer on which the unit is mounted, including accessories, attachments, parts, supplies and materials for those vehicles, trailers and units.
77.54(6) (6) The gross receipts from the sale of and the storage, use or other consumption of:
77.54(6)(a) (a) Machines and specific processing equipment and repair parts or replacements thereof, exclusively and directly used by a manufacturer in manufacturing tangible personal property and safety attachments for those machines and equipment.
77.54(6)(b) (b) Containers, labels, sacks, cans, boxes, drums, bags or other packaging and shipping materials for use in packing, packaging or shipping tangible personal property, if such items are used by the purchaser to transfer merchandise to customers and meat casing, wrapping paper, tape, containers, labels, sacks, cans, boxes, drums, bags or other packaging and shipping materials for use in packing, packaging or shipping meat or meat products regardless of whether such items are used to transfer merchandise to customers.
77.54(6)(c) (c) Fuel converted to electric energy, gas or steam by utilities and that portion of the amount of fuel converted to steam for purposes of resale by persons other than utilities.
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