71.80
71.80
General administrative provisions. 71.80(1)
(1)
Department duties and powers. 71.80(1)(a)(a) The department shall assess incomes as provided in this chapter and in performance of such duty the department shall possess all powers now or hereafter granted by law to the department in the assessment of personal property and also the power to estimate incomes.
71.80(1)(b)
(b) In any case of 2 or more organizations, trades or businesses (whether or not incorporated, whether or not organized in the United States and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the secretary or the secretary's delegate may distribute, apportion or allocate gross income, deductions, credits or allowances between or among such organizations, trades or businesses, if the secretary determines that such distribution, apportionment or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades or businesses.
71.80(1)(c)
(c) The department may make such regulations as it shall deem necessary in order to carry out this chapter.
71.80(1)(d)
(d) The department may employ such clerks and specialists as are necessary to carry into effective operation this chapter. Salaries and compensations of such clerks and specialists shall be charged to the proper appropriation for the department.
71.80(1)(e)
(e) Representatives of the department directed by it to accept payment of income or franchise taxes shall file bonds with the state treasurer in such amount and with such sureties as the state treasurer shall direct and approve.
71.80(2)
(2) Notice to taxpayer by department. The department shall notify each taxpayer by mail of the amount of income or franchise taxes assessed against the taxpayer and of the date when the taxes become delinquent.
71.80(3)
(3) Crediting of overpayments on individual or separate returns. In the case of any overpayment, refundable credit or refund on an individual or separate return, the department, within the applicable period of limitations, may credit the amount of overpayment, refundable credit or refund including any interest allowed, against any liability in respect to any tax collected by the department, a debt under
s. 71.93 or
71.935 or a certification under
s. 49.855 on the part of the person who made the overpayment or received the refundable credit or the refund and shall refund any balance to the person. The department shall presume that the overpayment, refundable credit or refund is nonmarital property of the filer. Within 2 years after the crediting, the spouse or former spouse of the person filing the return may file a claim for a refund of amounts credited by the department if the spouse or former spouse shows by clear and convincing evidence that all or part of the state tax overpayment, refundable credit or refund was nonmarital property of the nonobligated spouse.
71.80(3m)
(3m) Crediting of overpayments on joint returns. For married persons, unless within 20 days after the date of the notice under
par. (c) the nonobligated spouse shows by clear and convincing evidence that the overpayment, refundable credit or refund is the nonmarital property of the nonobligated spouse, notwithstanding
s. 766.55 (2) (d), the department may credit overpayments, refundable credits and refunds, including any interest allowed, resulting from joint returns under this chapter as follows:
71.80(3m)(a)
(a) Against any liability of either spouse or both spouses in respect to an amount owed the department, a certification under
s. 49.855 that is subject to
s. 766.55 (2) (b) or a debt under
s. 71.93 or
71.935 that is subject to
s. 766.55 (2) (b) and that was incurred during marriage by a spouse after December 31, 1985, or after both spouses are domiciled in this state, whichever is later, except as provided in
s. 71.10 (6) (a) and
(b) and
(6m).
71.80(3m)(b)
(b) Against the liability of a spouse in the proportion that the Wisconsin adjusted gross income which would have been the property of the spouse but for the marriage has to the adjusted gross income of both spouses as follows:
71.80(3m)(b)1.
1. In respect to an amount owed the department that was incurred before January 1, 1986, or before marriage, whichever is later.
71.80(3m)(c)
(c) If the department determines that a spouse is otherwise entitled to a state tax refund or homestead or farmland credit, it shall notify the spouses under
s. 71.74 (11) that the state intends to reduce any state tax refund or a refundable credit due the spouses by the amount credited against any liability under
par. (a) or
(b) or both.
71.80(3m)(d)
(d) If a spouse does not receive notice under
par. (c) and if the department incorrectly credits the state tax overpayment, refund or a refundable credit of a spouse or spouses against a liability under
par. (a) or
(b) or both, a claim for refund of the incorrectly credited amount may be filed under
s. 71.75 (5) within 2 years after the date of the offset that was the subject of the notice under
par. (c).
71.80(4)
(4) Penalties. Unless specifically provided in this subchapter, the penalties under
subch. XIII apply for failure to comply with this subchapter unless the context requires otherwise.
71.80(5)
(5) Penalties not deductible. No penalty imposed by this chapter, or by
subch. III of ch. 77 may be deducted from gross income in arriving at net income taxable under this chapter.
71.80(6)
(6) Prosecutions by attorney general. The attorney general is authorized, upon the request of the secretary of revenue, to represent the state or to assist the district attorney in the prosecution of any case arising under
s. 71.83 (2) (a) 1. and
(b) 1. and
2.
71.80(6m)
(6m) Venue. A proceeding for a criminal violation under this chapter may be brought in the circuit court for Dane County or for the county in which the defendant resides or is located when charged with the violation.
71.80(7)
(7) Publication of notices in administrative register. The department shall annually publish notice of the standard deduction amounts and the brackets for the individual income tax in the administrative register.
71.80(8)
(8) Receipt for payment of taxes. The department shall accept payments of income or franchise taxes in accordance with this chapter, and upon request shall give a printed or written receipt therefor.
71.80(9)
(9) Records may be required of taxpayer. Whenever the department deems it necessary that a person subject to an income or franchise tax should keep records to show whether or not the person is liable to tax, the department may serve notice upon the person and require such records to be kept as will include the entire net income of the person and will enable the department to compute the taxable income. The department may require any person who keeps records in machine-readable form for federal income tax purposes to keep those records in the same form for purposes of the taxes under this chapter.
71.80(10)(a)(a) If any person, including an officer of a corporation, required by law to file a return fails to file the return within 60 days after the time required and refuses to file the return within 30 days after a request by the department to do so, the circuit court, upon petition by the department, shall issue a court order requiring that person to file a return. Any person upon whom a court order has been served shall file a return within 20 days after the service of the court order. The petition shall be heard and determined on the return day or on a later date that the court fixes, having regard for the speediest possible determination of the case consistent with the rights of the parties.
71.80(10)(b)
(b) The department shall file a petition for a court order in a circuit court for the county in which the respondent in the action resides.
71.80(10)(c)
(c) Filing a return after the time prescribed by law shall not relieve any person, including an officer of a corporation, from any penalties whether or not the department filed a petition for a court order under this subsection.
71.80(11)
(11) Return presumed correct. The department shall presume the incomes reported on the current return to be correct for the purpose of preparing initial assessments.
71.80(12)
(12) Department considered lawful attorney for nonresident. 71.80(12)(a)(a) The transaction of business or the performance of personal services in this state or the derivation of income from property the income from which has a taxable situs in this state by any nonresident person, except where the nonresident is a foreign corporation that has been licensed under
ch. 180, shall be all of the following:
71.80(12)(a)1.
1. Considered an irrevocable appointment by the nonresident, binding upon the nonresident or the nonresident's personal representative, of the department of financial institutions to be the nonresident's lawful attorney upon whom may be served any notice, order, pleading, or process, including any notice of assessment, denial of application for abatement, or denial of claim for refund, by any administrative agency or in any proceeding by or before any administrative agency, or in any proceeding or action in any court, to enforce or effect full compliance with or involving the provisions of this chapter.
71.80(12)(a)2.
2. A signification of the nonresident's agreement that any notice, order, pleading, or process described in
subd. 1. that is so served shall be of the same legal force and validity as if served on the nonresident personally, or on the nonresident's personal representative.
71.80(12)(b)
(b) The transaction of business in this state or the derivation of income that has a situs in this state under the provisions of this chapter by any person while a resident of this state shall be all of the following:
71.80(12)(b)1.
1. Considered an irrevocable appointment by that person, binding upon that person or that person's personal representative, effective upon that person becoming a nonresident of this state, of the department of financial institutions to be that person's true and lawful attorney upon whom may be served any notice, order, pleading, or process, including any notice of assessment, denial of application for abatement, or denial of claim for refund, by any administrative agency or in any proceeding by or before an administrative agency, or in any proceeding or action in any court, to enforce or effect full compliance with or involving the provisions of this chapter.
71.80(12)(b)2.
2. A signification of that person's agreement that any notice, order, pleading, or process described in
subd. 1. that is so served shall be of the same legal force and validity as if served on that person personally, or upon that person's personal representative.
71.80(12)(c)1.1. Service under
par. (a) 1. or
(b) 1. shall be made by serving a copy of the notice, order, pleading, or process upon the department of financial institutions or by filing a copy of the notice, order, pleading, or process with the department of financial institutions.
71.80(12)(c)2.
2. Service under
subd. 1. upon a person, or that person's personal representative, shall be sufficient if all of the following conditions are met:
a. Within 10 days of completion of service, notice of the service and a copy of the served notice, order, pleading, or process are sent by mail by the state department, officer, or agency making the service to the person, or that person's personal representative, at that person's last-known address.
b. An affidavit of compliance with this paragraph is filed with the department of financial institutions.
71.80(12)(c)3.
3. The department of financial institutions shall keep a record of all notices, orders, pleadings, processes, and affidavits served upon or filed with it under this section, noting in the record the day and hour of service or filing.
71.80(13)
(13) Self-insurers. The department shall compile and maintain a current list of names and addresses of persons who indicate they are self-insurers as required by
s. 71.65 (4). The list shall be furnished to the office of the commissioner of insurance on request.
71.80(14)(b)
(b) The fact that an individual's name is signed to a return, statement or other document shall be prima facie evidence for all purposes that the return, statement or other document was actually signed by that person.
71.80(15)(a)(a) In this subsection, "employer" means the resident person or firm which engages the services of an entertainer, as defined in
s. 71.01 (2), or an entertainment corporation or, in the absence of that person or firm, the resident person last having receipt, custody or control of the proceeds of the entertainment event.
71.80(15)(b)
(b) All entertainers, except entertainers who work for an entertainment corporation, and entertainment corporations not otherwise employed or regularly engaged in business in this state shall file a surety bond with the department of revenue at least 7 days before a performance. That bond shall be payable to the department to guarantee payment of income, franchise, sales and use taxes, income taxes withheld under
subch. X, penalties and interest. The amount of the bond shall be 6% of either the total contract price on all contracts that exceed $3,200 or, if the total contract price is not readily determinable and the department's estimate of the total remuneration to be received by the entertainer or entertainment corporation exceeds $3,200, 6% of the department's estimate. Amounts previously earned in this state by an entertainer or entertainment corporation during the same calendar year for which no bond or cash deposit has been filed under this paragraph or for which no amounts have been withheld under
s. 71.64 (5) shall be added together to determine the total contract price. The department shall approve the form and content of the bond. The bond shall remain in force until the liability under the bond is released by the department.
71.80(15)(c)
(c) In place of the bond under
par. (b) and with the department's approval, an entertainer or entertainment corporation may deposit with the department money equal to the face value of the bond required under
par. (b). The department shall retain the money until it determines the depositor's liability for state income, franchise, sales and use taxes and income tax withheld under
subch. X. If the deposit exceeds the liability, the department shall refund the difference to the depositor without interest.
71.80(15)(d)
(d) If the department concludes that a bond or money deposit is not necessary to protect the revenues of the state, it may waive the requirements of
pars. (b) and
(c).
71.80(15)(e)
(e) Each person who is an employer of an entertainer or entertainment corporation, as defined in
s. 71.63 (3), shall, before paying for those services, require proof that the bond required by
par. (b) or the money deposit required by
par. (c) has been provided or that the department has waived those requirements. If proof is not provided, the person shall withhold and immediately transmit to the department from that person's payment the amount for which a bond should have been provided under
par. (b). Failure to withhold or transmit the amount required under this paragraph or under
s. 71.64 (5) shall make the person required to withhold it personally liable for the amount required under this paragraph.
71.80(15)(f)
(f) An employer of an entertainer or entertainment corporation under
s. 71.63 (3) (b) who is required to withhold moneys under
par. (e) or
s. 71.64 (5) and who has no direct knowledge of the total contract price to be paid an entertainer or entertainment corporation is not liable under
par. (e) if the employer withholds moneys based upon a signed statement provided by the entertainer, the entertainment corporation or the promoter attesting to the amount of the total contract price. The employer shall deliver the signed statement to the department within 30 days after the date of the performance. Statements under this paragraph are subject to
s. 71.83 (2) (b) 1. and
2.
71.80(16)
(16) Surety bond; nonresident contractor. 71.80(16)(a)(a) All nonresident persons, whether incorporated or not, engaging in construction contracting in this state as contractor or subcontractor and not otherwise regularly engaged in business in this state, shall file a surety bond with the department, payable to the department of revenue, to guarantee the payment of income or franchise taxes, required unemployment insurance contributions, sales and use taxes and income taxes withheld from wages of employees, together with any penalties and interest thereon. The department shall approve the form and contents of such bond. The amount of the bond shall be 3% of the contract or subcontract price on all contracts of $50,000 or more or 3% of contractor's or subcontractor's estimated cost-and-profit under a cost-plus contract of $50,000 or more. When the aggregate of 2 or more contracts in one calendar year is $50,000 or more the amount of the bond or bonds shall be 3% of the aggregate amount of such contracts. Such surety bond must be filed within 60 days after construction is begun in this state by any such contractor or subcontractor on any contract the price of which is $50,000 or more (or the estimated cost-and-profit of which is $50,000 or more), or within 60 days after construction is begun in this state on any contract for less than $50,000, when the amount of such contract, when aggregated with any other contracts, construction on which was begun in this state in the same calendar year, equals or exceeds $50,000. If the department concludes that no bond is necessary to protect the tax revenues of the state, including contributions under
ch. 108, the requirements under this subsection may be waived by the secretary of revenue or the secretary's designated departmental representative. The bond shall remain in force until the liability thereunder is released by the secretary or the secretary's designated departmental representative.
71.80(16)(b)
(b) A construction contractor required to file a surety bond under
par. (a) may, in lieu of such requirement, but subject to approval by the department, deposit with the state treasurer an amount of cash equal to the face of the bond that would otherwise be required. If an offer to deposit is made the department shall issue a certificate to the state treasurer authorizing said treasurer to accept payment of such moneys and to give his or her receipt therefor. A copy of such certificate shall be mailed to the contractor who shall, within the time fixed by the department, pay such amount to said treasurer. A copy of the receipt of the state treasurer shall be filed with the department. Upon final determination by the department of such contractor's liability for state income or franchise taxes, required unemployment insurance contributions, sales and use taxes and income taxes withheld from wages of employees, interest and penalties, by reason of such contract or contracts, the department shall certify to the state treasurer the amount of taxes, penalties and interest as finally determined, shall instruct the treasurer as to the proper distribution of such amount, and shall state the amount, if any, to be refunded to such contractor. The state treasurer shall make the payments directed by such certificate within 30 days after receipt thereof. Amounts refunded to the contractor shall be without interest.
71.80(16)(c)
(c) All persons subject to this subsection shall notify the department of revenue of the completion of a construction project in this state within 30 days after such completion.
71.80(17)
(17) Tax receipts transmitted to state treasurer. Within 15 days after receipt of any income or franchise tax payments the department shall transmit the same to the state treasurer.
71.80(18)
(18) Timely filing defined. Documents and payments required or permitted by this chapter that are mailed shall be considered furnished, reported, filed or made on time, if mailed in a properly addressed envelope, with postage duly prepaid, which envelope is postmarked before midnight of the date prescribed for such furnishing, reporting, filing or making, provided such document or payment is actually received by the department or at the destination that the department or the department of administration prescribes within 5 days of such prescribed date. Documents and payments that are not mailed are timely if they are received on or before the due date by the department or at the destination that the department or the department of administration prescribes.
71.80(19)(a)(a)
Rounding amounts. With respect to any amount required to be shown on a form prescribed for any return, statement or other document required by this chapter, if the amount of such item is other than a whole dollar amount the fractional part of a dollar shall be disregarded unless it amounts to 50 cents or more, in which case the amount (determined without regard to the fractional part of a dollar) shall be increased to the next whole dollar.
71.80(19)(b)
(b)
Election not to use whole dollar amounts. Any person making a return, statement or other document required by this chapter shall be allowed to make such return, statement or other document without regard to
par. (a).
71.80(19)(c)
(c)
Inapplicability to computation of amount. Paragraph (a) does not apply to items which must be taken into account in making the computations necessary to determine the total amount required to be shown on a form, statement or other document but applies only to such final amount.
71.80(20)
(20) Magnetic media filing. If the internal revenue service requires a person to file information returns or wage statements on magnetic media or in other machine-readable form for federal income tax purposes, the person shall also file the comparable state information returns or wage statements on magnetic media or in other machine-readable form with the department of revenue for income or franchise tax purposes.
71.80(21)
(21) Business entity conversion. Notwithstanding any provision of
ss. 179.76,
180.1161,
181.1161, and
183.1207, the conversion of a business entity to another form of business entity under
s. 179.76,
180.1161,
181.1161, or
183.1207 shall be treated for state tax purposes in the same manner as the conversion is treated for federal tax purposes.
71.80(22)
(22) Business entity merger. Notwithstanding any provision of
ss. 179.77,
180.1101,
180.1104,
181.1101,
181.1104, and
183.1201, the merger of a business entity with one or more business entities under
s. 179.77,
180.1101,
180.1104,
181.1101,
181.1104, or
183.1201 shall be treated for state tax purposes in the same manner as the merger is treated for federal tax purposes.
INTEREST AND PENALTIES
71.82(1)(a)(a) In assessing taxes interest shall be added to such taxes at 12% per year from the date on which such taxes if originally assessed would have become delinquent if unpaid, to the date on which such taxes when subsequently assessed will become delinquent if unpaid.
71.82(1)(b)
(b) Except as otherwise specifically provided, in crediting overpayments of income and surtaxes against underpayments or against taxes to be subsequently collected and in certifying refunds of such taxes interest shall be added at the rate of 9% per year from the date on which such taxes when assessed would have become delinquent if unpaid to the date on which such overpayment was certified for refund except that if any overpayment of tax is certified for refund within 90 days after the last date prescribed for filing the return of such tax or 90 days after the date of actual filing of the return of such tax, whichever occurs later, no interest shall be allowed on such overpayment. For purposes of this section the return of such tax shall not be deemed actually filed by an employee unless and until the employee has included the written statement required to be filed under
s. 71.65 (1). However when any part of a tax paid on an estimate of income, whether paid in connection with a tentative return or not, is refunded or credited to a taxpayer, such refund or credit shall not draw interest.
71.82(1)(c)
(c) Any assessment made as a result of the adjustment or disallowance of a claim for credit under
s. 71.07,
71.28 or
71.47 or
subch. VIII or
IX, except as provided in
sub. (2) (c), shall bear interest at 12% per year from the due date of the claim.
71.82(2)(a)(a)
Income and franchise taxes. Income and franchise taxes shall become delinquent if not paid when due under
ss. 71.03 (8),
71.24 (9) and
71.44 (4), and when delinquent shall be subject to interest at the rate of 1.5% per month until paid.
71.82(2)(b)
(b)
Department may reduce delinquent interest. The department shall provide by rule for reduction of interest under
par. (a) to 12% per year in stated instances wherein the secretary of revenue determines that reduction is fair and equitable.
71.82(2)(c)
(c)
Adjustment to credits. Any assessment made as a result of the disallowance of a claim for credit made under
s. 71.07,
71.28 or
71.47 or
subch. VIII or
IX with fraudulent intent, or of a portion of a claim made under said subchapters or sections that was excessive and was negligently prepared, shall bear interest from the due date of the claim, until refunded or paid, at the rate of 1.5% per month.
71.82(2)(d)
(d)
Withholding tax. Of the amounts required to be withheld any amount not deposited or paid over to the department within the time required shall be deemed delinquent and deposit reports or withholding reports filed after the due date shall be deemed late. Delinquent deposits or payments shall bear interest at the rate of 1.5% per month from the date deposits or payments are required under this section until deposited or paid over to the department. The department shall provide by rule for reduction of interest on delinquent deposits to 12% per year in stated instances wherein the secretary of revenue determines reduction fair and equitable. In the case of a timely filed deposit or withholding report, withheld taxes shall become delinquent if not deposited or paid over on or before the due date of the report. In the case of no report filed or a report filed late, withheld taxes shall become delinquent if not deposited or paid over by the due date of the report. In the case of an assessment under
s. 71.83 (1) (b) 2., the amount assessed shall become delinquent if not paid on or before the first day of the calendar month following the calendar month in which the assessment becomes final, but if the assessment is contested before the tax appeals commission or in the courts, it shall become delinquent on the 30th day following the date on which the order or judgment representing final determination becomes final.
71.83(1)(a)1.1. `Failure to file.' In case of failure to file any return required under
s. 71.03,
71.24 or
71.44 on the due date prescribed therefor, including any extension of time for filing, unless it is shown that the failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on the return 5% of the amount of the tax 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. For purposes of this subdivision, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the due date prescribed for payment and by the amount of any credit against the tax which may be claimed upon the return.
71.83(1)(a)1m.
1m. `Failure to file information return.' If a person fails to file a return required under
subch. XI by the prescribed due date, including any extension, or files an incorrect or incomplete return, that person may be subject to a penalty of $10 for each violation. A penalty shall be waived if the person shows that a violation is due to reasonable cause and not due to willful neglect.
71.83(1)(a)2.
2. `Incomplete or incorrect return.' If any person required under this chapter to file an income or franchise tax return files an incomplete or incorrect return, unless it is shown that such filing was due to good cause and not due to neglect, there shall be added to such person's tax for the taxable year 25% of the amount otherwise payable on any income subsequently discovered or reported. The amount so added shall be assessed, levied and collected in the same manner as additional normal income or franchise taxes, and shall be in addition to any other penalties imposed by this chapter. In this subdivision, "return" includes a separate return filed by a spouse with respect to a taxable year for which a joint return is filed under
s. 71.03 (2) (g) to
(L) after the filing of that separate return, and a joint return filed by the spouses with respect to a taxable year for which a separate return is filed under
s. 71.03 (2) (m) after the filing of that joint return.
71.83(1)(a)3.
3. `Incomplete or incorrect deposit or withholding report.' If any person required under
subch. X to file a deposit report or withholding report files an incomplete or incorrect report, or fails to properly withhold or fails to properly deposit or pay over withheld funds, unless it can be shown that the filing or failure was due to good cause and not due to neglect, there shall be added to the tax 25% of the amount not reported or not withheld, deposited or paid over. The amount so added shall be assessed, levied and collected in the same manner as additional income or franchise taxes, and shall be in addition to any other penalties imposed in this subchapter. "Person", in this subdivision, includes an officer or employee of a corporation or other responsible person or a member or employee of a partnership or limited liability company or other responsible person who, as such officer, employee, member or other responsible person, is under a duty to perform the act in respect to which the violation occurs.
71.83(1)(a)4.
4. `Late filing of withholding report.' In case of failure to file any withholding deposit or payment report required under
s. 71.65 (3) on the due date prescribed therefor, unless it is shown that the failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as withheld taxes on the report 5% of the amount if the failure is not for 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.
71.83(1)(a)5.
5. `Failure to notify.' Any employee who fails to notify the department as required by
s. 71.64 (2) (b) 2. shall be subject to a penalty of $10.
