139.325 History
History: 1983 a. 27.
139.33(1)(1) A use tax is imposed and levied upon the use of cigarettes in this state by any person for any purpose if the excise tax imposed by
s. 139.31 has not been paid on such cigarettes. Such tax is levied and shall be collected at the same rates as provided for in
s. 139.31. The tax imposed by this section is not applicable to cigarettes subject to the excise tax imposed by
s. 139.31 nor to cigarettes exempt from that tax under
s. 139.31 (3).
139.33(3)
(3) No person other than a licensed distributor may import into this state more than 400 cigarettes on which the excise tax imposed by
s. 139.31 has not been paid and the container of which does not bear proper stamps. Within 15 days, any such person importing cigarettes shall file a declaration of such cigarettes imported and shall remit therewith the tax on such cigarettes imposed by this section. Members of the armed forces shall not be required to report or pay the tax on cigarettes in their possession if such cigarettes are issued to them by the U.S. government or any of its subdivisions or were purchased in any armed forces post exchange or service store. If the use tax imposed by this section is not paid when due, it shall become delinquent and the person liable for it shall pay, in addition, a penalty of $25 for each 200 cigarettes. Interest on the delinquent tax and penalty shall accrue at the rate of 1.5% per month or each fraction of a month from the date the tax became due until paid.
139.33(4)
(4) Sections 139.30 to
139.44 relating to enforcement of the excise tax imposed by
s. 139.31 apply to enforcement of the use tax imposed by this section.
139.34
139.34
Permits required. 139.34(1)(a)(a) No person may manufacture cigarettes in this state or sell cigarettes in this state as a distributor, jobber, vending machine operator or multiple retailer and no person may operate a warehouse in this state for the storage of cigarettes for another person without first filing an application for and obtaining the proper permit to perform such operations from the department.
139.34(1)(b)
(b) This section applies to all officers, directors, agents and stockholders holding 5% or more of the stock of any corporation applying for a permit under this section.
139.34(1)(c)1.
1. The person has been convicted of a misdemeanor, not involving
chs. 340 to
349, at least 3 times.
139.34(1)(c)2.
2. The person has been convicted of a felony, unless pardoned.
139.34(1)(c)3.
3. The person is addicted to the use of a controlled substance or controlled substance analog under
ch. 961.
139.34(1)(c)4.
4. The person has income which comes principally from gambling or has been convicted of 2 or more gambling offenses.
139.34(1)(c)5.
5. The person has been guilty of crimes relating to prostitution.
139.34(1)(c)6.
6. The person has been guilty of crimes relating to loaning money or anything of value to persons holding licenses or permits pursuant to
ch. 125.
139.34(1)(d)
(d) Upon denial of a permit the department of revenue shall immediately notify such person in writing of the denial and the reasons therefor.
139.34(1)(e)
(e) A denial of a permit by the department of revenue shall be subject to judicial review under
ch. 227.
139.34(4)
(4) A separate permit shall be required of and issued to each class of permittee and the holder of any permit shall perform only the operations thereby authorized. Such permit shall not be transferable from one person to another or from one premises to another. A separate permit shall be required for each place where cigarettes are stamped or where cigarettes are stored for sale at wholesale or through vending machines or multiple retail outlets.
139.34(5)
(5) The ownership and operation of any retail outlet does not preclude a person from receiving a permit as a distributor or jobber, if more than 50% of that person's sales of cigarettes are at wholesale to retailers, vending machine operators or multiple retailers neither owned, controlled nor operated by that person.
139.34(6)
(6) A vending machine operator or a multiple retailer may acquire unstamped cigarettes from the manufacturers thereof and affix the stamps to packages or other containers only if the vending machine operator or multiple retailer also holds a permit as a distributor.
139.34(7)
(7) The secretary may require by rule that stamps affixed to cigarette packages be identified by a permit or code number assigned to the person affixing them.
139.34(8)
(8) The holder of a warehouse permit is entitled to store cigarettes on the premises described in the permit. The warehouse permit shall not authorize the holder to sell cigarettes. Unstamped cigarettes stored in a warehouse for a manufacturer or distributor may be delivered only to a person holding a permit as a manufacturer or distributor.
139.34(9)
(9) The applicant for a permit, if a nonresident, foreign corporation or foreign limited liability company, shall file proof that the applicant has appointed the department of financial institutions as agent for the service of process on any matter arising under
ss. 139.30 to
139.44. A foreign corporation without a place of business in this state need not obtain a certificate of authority under
ss. 180.1501 to
180.1505. If a foreign corporation has a certificate of authority under
ss. 180.1501 to
180.1505, the foreign corporation satisfies this subsection by filing the address of its registered office in this state and the name of its registered agent at that office and by promptly filing any changes to this information. A foreign limited liability company without a place of business in this state need not obtain a certificate of registration under
ss. 183.1002 to
183.1007. If a foreign limited liability company has a certificate of registration under
ss. 183.1002 to
183.1007, the foreign limited liability company satisfies this subsection by filing the address of its registered office in this state and the name of its registered agent at that office and by promptly filing any changes to this information.
139.34(10)
(10) Every vending machine operator shall in the vending machine operator's application for a permit list each county in which the vending machine operator operates such machines and state the number of such machines the vending machine operator is then operating in each such county.
139.35(1)(1)
Transfers. No person may give, sell or lend any stamps to another and no person may accept, purchase or borrow any stamps from another. All sales and transfers of stamps may be made only by the secretary to permit holding manufacturers and distributors.
139.35(2)
(2) Records. The secretary shall keep a record of the sale of all stamps including the names of the purchasers and the date of sale.
139.355 History
History: 1991 a. 39.
139.36
139.36
Refunds for unusable stamps. The secretary shall refund to any purchaser the money paid for any stamps returned unfit for use or otherwise unused or which have been affixed to packages which are unsalable. The secretary shall prescribe by rule the proof required to obtain such refund. The permittee shall pay the expenses of determining the amount of such refund.
139.36 History
History: 1991 a. 39;
1993 a. 482.
139.365
139.365
Other refunds. Section 71.75 (2),
(4) to
(7) and
(10) as it applies to the taxes under
ch. 71 applies to the taxes under this subchapter.
Section 71.74 (13) as it applies to the refund of taxes under
ch. 71 applies to the refund of taxes under this subchapter.
139.365 History
History: 1991 a. 39;
1993 a. 205.
139.37(1)(a)(a) No person shall sell or take orders for cigarettes for resale in this state for any manufacturer or permittee without first obtaining a salesperson's permit from the department of revenue. No manufacturer or permittee shall authorize any person to sell or take orders for cigarettes in this state without first having such person secure a salesperson's permit. The department shall issue the required number of permits to manufacturers and permittees who hold a valid certificate issued under
s. 73.03 (50). Each application for a permit shall disclose the name and address of the employer and such permit shall remain effective only while the salesperson represents such named employer. If such salesperson is thereafter employed by another manufacturer or permittee the salesperson shall obtain a new salesperson's permit. Each manufacturer and permittee shall notify the department within 10 days after the resignation or dismissal of any such salesperson holding a permit.
139.37(1)(c)1.
1. Has been convicted of a misdemeanor not involving
chs. 340 to
349, at least 3 times;
139.37(1)(c)3.
3. Is addicted to the use of a controlled substance or controlled substance analog under
ch. 961;
139.37(1)(c)4.
4. Has income which comes principally from gambling, or who has been convicted of 2 or more gambling offenses;
139.37(1)(c)5.
5. Has been guilty of crimes relating to prostitution; or
139.37(1)(c)6.
6. Has been guilty of crimes relating to loaning money or anything of value to persons holding licenses or permits pursuant to
ch. 125.
139.37(1)(d)
(d) The department of revenue shall immediately notify any person who is denied a permit in writing of the denial and the reasons therefor.
139.37(1)(e)
(e) A denial of a permit by the department of revenue is subject to judicial review under
ch. 227.
139.37(2)
(2) No representative of any manufacturer shall sell more than 3 cartons of any one kind of cigarettes to any retailer at one time.
139.38
139.38
Records, returns. 139.38(1)(1) Every manufacturer located out of the state shall keep records of all sales of cigarettes shipped into this state. Every manufacturer located in the state shall keep records of production, sales and withdrawals of cigarettes. Every distributor shall keep records of purchases and sales of cigarettes. Every manufacturer and distributor holding a permit from the secretary with the right to purchase and apply stamps shall also keep records of purchases and disposition of stamps. Every jobber, multiple retailer and vending machine operator shall keep records of all purchases and disposition of cigarettes. Every warehouse operator shall keep records of receipts and withdrawals of cigarettes. All such records shall be accurate and complete and be kept in a manner prescribed by the secretary. These records shall be preserved on the premises described in the permit or license in such a manner as to ensure permanency and accessibility for inspection at reasonable hours by authorized personnel of the department.
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 file a verified report 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 that is mailed is 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 or at the destination that the department prescribes within 5 days of the due date. A report that is not mailed is timely if it is received on or before the due date by the secretary or at the destination that the department prescribes.
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 employees 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
(7),
71.92 and
73.0301 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.
139.395
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 given to law enforcement officers to use in criminal investigations or sold to qualified buyers by the secretary, without notice. If the cigarettes are sold, 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. If the secretary finds that such cigarettes may deteriorate or become unfit for use in criminal investigations or for sale or that those uses 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;
1997 a. 291.
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 Wis. 2d 333,
544 N.W.2d 589 (Ct. App. 1995).
139.44
139.44
Interest and penalties.
