139.803(3)
(3) The land on which the sale occurred was designated a reservation or trust land on or before January 1, 1983.
139.803(4)
(4) The tobacco products were not delivered by the retailer to the buyer by means of a common carrier, a contract carrier or the U.S. postal service.
139.803(5)
(5) The retailer has not sold the tobacco products to another retailer or to a subjobber.
139.803 History
History: 1999 a. 9.
139.805
139.805
Agreements with Indian tribes. The department may enter into agreements with Indian tribes to provide for the refunding of the tobacco products tax imposed under
s. 139.76 (1). If the department enters into an agreement with an Indian tribe, the agreement may provide for refunding 100% of that tax on tobacco products sold on the tribal reservation to enrolled members of the tribe residing on the tribal reservation and may provide for refunding 50% of that tax on tobacco products sold on the tribal reservation to persons who are not enrolled members of the tribe residing on the tribal reservation.
139.805 History
History: 1999 a. 9.
139.81(1)(1) No person may sell or take orders for tobacco products for resale in this state for any manufacturer or permittee unless the person has filed an application for and obtained a valid certificate under
s. 73.03 (50) and a salesperson's permit from the department. No manufacturer or permittee shall authorize any person to sell or take orders for tobacco products in this state unless the person has filed an application for and obtained a valid certificate under
s. 73.03 (50) and a salesperson's permit. Each application for a permit shall disclose the name and address of the employer and shall remain effective only while the salesperson represents the named employer. If the 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 salesperson holding a permit.
139.81(3)
(3) Any person holding a cigarette salesperson's permit under
s. 139.37 may obtain a tobacco products salesperson's permit at no charge.
139.82
139.82
Records, returns. 139.82(1)(1) Every manufacturer located out of the state shall keep records of all sales of tobacco products shipped into this state. Every manufacturer located in this state shall keep records of production, sales and withdrawals of tobacco products. Every distributor shall keep records of purchases and sales of tobacco products. Every subjobber shall keep records of all purchases and disposition of tobacco products. Every warehouse operator shall keep records of receipts and withdrawals of tobacco products. All records shall be accurate and complete and be kept in a manner prescribed by the department. These records shall be preserved on the premises described in the permit in such a manner as to ensure permanency and accessibility for inspection at reasonable hours by authorized personnel of the department.
139.82(2)(a)(a) Except as provided in
par. (b), every permittee shall render a true and correct invoice of every sale of tobacco products at wholesale and shall on or before the 15th day of each calendar month file a verified report of all tobacco products purchased, sold, received, warehoused or withdrawn during the preceding calendar month.
139.82(2)(b)
(b) The department may allow any subjobber permittee who does not sell tobacco products, except for those on which the tax under this subchapter 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 value of tobacco products purchased and sold during the preceding calendar quarter.
139.82(3)
(3) The department shall prescribe reasonable and uniform methods of keeping records and making reports and shall prescribe and furnish the necessary report forms.
139.82(4)
(4) If the department 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 from them the amount of tax due, the department shall give notice of such fact to that permittee and require that the records be revised and kept in the prescribed form. If that permittee fails to comply within 30 days that 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 department shall send a bill for expenses and the permittee shall pay the amount of the bill within 10 days.
139.82(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 shall be considered filed in time if it is mailed in a properly addressed envelope with first class postage prepaid, if the envelope is officially postmarked on the date due, and if the report is actually received by the department 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 department or at the destination that the department prescribes.
139.82(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 tobacco product tax return, report, schedule, exhibit or other document or from an audit report pertaining to the same.
139.82(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.
139.82(8)
(8) Each distributor shall collect and remit the excise tax imposed by
s. 139.76 (1) on tobacco products not exempt from the tobacco products tax under
s. 139.76 (2), with the reports required to be filed under this section.
139.83
139.83
Administration and enforcement. Sections 139.355,
139.365,
139.39 and
139.40, as they apply to the tax under
subch. II, apply to the administration and enforcement of this subchapter.
139.832
139.832
Police powers. The duly authorized employees of the department have all necessary police powers to prevent violations of this subchapter.
139.832 History
History: 1989 a. 31.
139.835
139.835
Timely filing. The provisions on timely filing under
s. 71.80 (18) apply to the tax under this subchapter.
139.835 History
History: 1985 a. 302;
1987 a. 312 s.
17.
139.84
139.84
Bonds. Section 78.11, as it applies to suppliers of motor vehicle fuel, applies to persons liable for the tax under this subchapter.
139.84 History
History: 1985 a. 302;
1995 a. 408.
139.85
139.85
Interest and penalties. 139.85(1)
(1) The interest and penalties under
s. 139.44 (2) to
(7) and
(9) to
(12) apply to this subchapter. In addition, a person who violates
s. 139.82 (8) may be fined not more than $10,000 or imprisoned for not more than 9 months or both.
139.85(2)
(2) If a person fails to file any return required under
s. 139.77 (1) by the due date, unless the person shows that that failure was due to reasonable cause and not due to neglect, the department shall add to the amount of tax required to be shown on that return 5% of the amount of the tax if the failure is for not more than one month and an additional 5% of the tax for each additional month or fraction of a month during which the failure continues, but not more than 25% of the tax. For purposes of this subsection, the amount of tax required to be shown on the return shall be reduced by the amount of tax that is paid on or before the due date and by the amount of any credit against the tax that may be claimed on the return.
139.86
139.86
Prosecutions by attorney general. Upon request by the secretary of revenue, the attorney general may represent this state or assist a district attorney in prosecuting any case arising under this subchapter.
139.86 History
History: 1985 a. 302.
TAX ON CONTROLLED SUBSTANCES
139.87
139.87
Definitions. In this subchapter:
139.87(2)
(2) "Dealer" means a person who in violation of
ch. 961 possesses, manufactures, produces, ships, transports, delivers, distributes, imports, sells or transfers to another person more than 42.5 grams of material containing tetrahydrocannabinols, more than 5 plants containing tetrahydrocannabinols, more than 14 grams of mushrooms containing psilocin or psilocybin, more than 100 milligrams of any material containing lysergic acid diethylamide, more than 7 grams of any other schedule I or schedule II controlled substance or of a controlled substance analog of a schedule I or schedule II controlled substance or more than 7 grams of ketamine or flunitrazepam. "Dealer" does not include a person who lawfully possesses a controlled substance or controlled substance analog.
139.87(3)
(3) "Department" means the department of revenue.
139.87(5)
(5) "Schedule I controlled substance" means a substance included in
s. 961.14.
139.87(6)
(6) "Schedule II controlled substance" means a substance included in
s. 961.16.
139.87 AnnotationSections 139.87 to 139.96, as amended by
1997 Wis. Act 27 are constitutional. State v. Jones, 2002 WI App 196, 257 Wis. 2d. 319,
651 N.W.2d 305.
139.88
139.88
Imposition. There is imposed on dealers, upon acquisition or possession by them in this state, an occupational tax at the following rates:
139.88(1)
(1) Per gram or part of a gram of material containing tetrahydrocannabinols, whether pure or impure, measured when in the dealer's possession, $3.50.
139.88(1d)
(1d) Per plant containing tetrahydrocannabinols, regardless of weight, counted when in the dealer's possession, $1,000.
139.88(1g)
(1g) Per gram or part of a gram of mushrooms or parts of mushrooms containing psilocin or psilocybin, whether pure or impure, measured when in the dealer's possession, $10.
139.88(1r)
(1r) Per 100 milligrams or part of 100 milligrams of any material containing lysergic acid diethylamide, whether pure or impure, measured when in the dealer's possession, $100.
139.88(2)
(2) Per gram or part of a gram of other schedule I controlled substances or schedule II controlled substances, whether pure or impure, measured when in the dealer's possession, $200.
139.88(3)
(3) Per gram or part of a gram of ketamine or flunitrazepam, whether pure or impure, measured when in the dealer's possession, $200.
139.88 AnnotationSections 139.87 to 139.96, as amended by
1997 Wis. Act 27 are constitutional. State v. Jones, 2002 WI App 196, 257 Wis. 2d. 319,
651 N.W.2d 305.
139.88 Annotation
The Wisconsin drug tax is fairly characterized as a criminal punishment for the purpose of double jeopardy analysis. Jeopardy attaches to a punitive tax when the defendant voluntarily pays the amount due in full or when the government takes title to a defendant's assets. The state cannot undo the punishment by returning the money, nor can it seek to impose another punishment once the money has been paid. Dye v. Frank,
355 F. 3d 1102 (2004).
139.89
139.89
Proof of payment. The department shall create a uniform system of providing, affixing and displaying stamps, labels or other evidence that the tax under
s. 139.88 has been paid. Stamps or other evidence of payment shall be sold at face value. No dealer may possess any schedule I controlled substance, schedule II controlled substance or ketamine or flunitrazepam unless the tax under
s. 139.88 has been paid on it, as evidenced by a stamp or other official evidence issued by the department. The tax under this subchapter is due and payable immediately upon acquisition or possessing of the schedule I controlled substance, schedule II controlled substance or ketamine or flunitrazepam in this state, and the department at that time has a lien on all of the taxpayer's property. Late payments are subject to interest at the rate of 1% per month or part of a month. No person may transfer to another person a stamp or other evidence of payment.
139.89 AnnotationSections 139.87 to 139.96, as amended by
1997 Wis. Act 27 are constitutional. State v. Jones, 2002 WI App 196, 257 Wis. 2d. 319,
651 N.W.2d 305.
139.90
139.90
No immunity. Acquisition of stamps or other evidence that the tax under
s. 139.88 has been paid does not create immunity for a dealer from criminal prosecution.
139.90 History
History: 1989 a. 122.
139.90 AnnotationSections 139.87 to 139.96, as amended by
1997 Wis. Act 27 are constitutional. State v. Jones, 2002 WI App 196, 257 Wis. 2d. 319,
651 N.W.2d 305.
139.90 Annotation
This section advises dealers that compliance with the drug tax stamp law does not immunize them from criminal prosecution for drug offenses. It says nothing about what evidence may be used in a criminal prosecution and does nothing to undercut the prohibition in s. 139.91 of using information obtained as a result of compliance with the drug tax stamp law in a criminal proceeding. State v. Jones, 2002 WI App 196, 257 Wis. 2d. 319,
651 N.W.2d 305.
139.91
139.91
Confidentiality. 139.91(1)(1) The department may not reveal facts obtained in administering this subchapter, except that the department may publish statistics that do not reveal the identities of dealers.
139.91(2)
(2) The department may not require dealers to provide any identifying information in connection with the purchase of stamps.
139.91(3)
(3) No information obtained from a dealer as a result of the dealer's compliance with this subchapter may be used against the dealer in any criminal proceeding unless that information has been independently obtained, except in connection with a proceeding involving taxes due under
s. 139.88 from the dealer.
139.91 AnnotationSections 139.87 to 139.96, as amended by
1997 Wis. Act 27 are constitutional. State v. Jones, 2002 WI App 196, 257 Wis. 2d. 319,
651 N.W.2d 305.
139.92
139.92
Examination of records. For the purposes of determining the amount of tax that should have been paid, determining whether or not the dealer should have paid taxes or collecting any taxes under
s. 139.88, the department may examine, or cause to be examined, any books, papers, records or memoranda that may be relevant to making those determinations, whether the books, papers, records or memoranda are the property of or in the possession of the dealer or another person. The department may require the attendance of any person having knowledge or information that may be relevant, compel the production of books, papers, records or memoranda by persons required to attend, take testimony on matters material to the determination, issue subpoenas and administer oaths or affirmations.
139.92 History
History: 1989 a. 122.
139.92 AnnotationSections 139.87 to 139.96, as amended by
1997 Wis. Act 27 are constitutional. State v. Jones, 2002 WI App 196, 257 Wis. 2d. 319,
651 N.W.2d 305.
139.93
139.93
Appeals, presumption, administration. 139.93(1)
(1) The taxes, penalties and interest under this subchapter shall be assessed, collected and reviewed as are income taxes under
ch. 71.
139.93(2)
(2) If the department finds that the collection of the tax under this subchapter is jeopardized by delay, the department may issue, in person or by registered mail to the last-known address of the taxpayer, a notice of its intent to proceed under this subsection, may make a demand for immediate payment of the taxes, penalties and interest due and may proceed by the methods under
s. 71.91 (5) and
(6). If the taxes, penalties and interest are not immediately paid, the department may seize any of the taxpayer's assets. Immediate seizure of assets does not nullify the taxpayer's right to a hearing on the department's determination that the collection of the assessment will be jeopardized by delay, nor does it nullify the taxpayer's right to post a bond. Within 5 days after giving notice of its intent to proceed under this subsection, the department shall, by mail or in person, provide the taxpayer in writing with its reasons for proceeding under this subsection. The warrant of the department shall not issue and the department may not take other action to collect if the taxpayer within 10 days after the notice of intent to proceed under this subsection is given furnishes a bond in the amount, not exceeding double the amount of the tax, and with such sureties as the department of revenue approves, conditioned upon the payment of so much of the taxes as shall finally be determined to be due, together with interest thereon. Within 20 days after notice of intent to proceed under this subsection is given by the department of revenue, the person against whom the department intends to proceed under this subsection may appeal to the department the department's determination that the collection of the assessment will be jeopardized by delay. Any statement that the department files may be admitted into evidence and is prima facie evidence of the facts it contains. Taxpayers may appeal adverse determinations by the department to the circuit court for Dane County.
139.93(3)
(3) The taxes and penalties assessed by the department are presumed to be valid and correct. The burden is on the taxpayer to show their invalidity or incorrectness.
139.93(4)
(4) The department may request the department of administration to sell, by the methods under
s. 125.14 (2) (f), all assets seized under
sub. (2).
139.93(5)
(5) No court may issue an injunction to prevent or delay the levying, assessment or collection of taxes or penalties under this subchapter.
139.93(6)
(6) The department shall enforce, and the duly authorized employees of the department have all necessary police powers to prevent violations of, this subchapter.
139.93 History
History: 1989 a. 122.
139.93 AnnotationSections 139.87 to 139.96, as amended by
1997 Wis. Act 27 are constitutional. State v. Jones, 2002 WI App 196, 257 Wis. 2d. 319,
651 N.W.2d 305.
139.94
139.94
Refunds. If the department is determined to have collected more taxes than are owed, the department shall refund the excess and interest at the rate of 0.75% per month or part of a month when that determination is final. If the department has sold property to obtain taxes, penalties and interest assessed under this subchapter and those taxes, penalties and interest are found not to be due, the department shall give the former owner the proceeds of the sale when that determination is final.
139.94 History
History: 1989 a. 122.
139.94 AnnotationSections 139.87 to 139.96, as amended by
1997 Wis. Act 27 are constitutional. State v. Jones, 2002 WI App 196, 257 Wis. 2d. 319,
651 N.W.2d 305.
139.95(1)(1) Any dealer who possesses a schedule I controlled substance, a schedule II controlled substance or ketamine or flunitrazepam that does not bear evidence that the tax under
s. 139.88 has been paid shall pay, in addition to the tax under
s. 139.88, a penalty equal to the tax due. The department shall collect penalties under this subchapter in the same manner as it collects the tax under this subchapter.
139.95(2)
(2) A dealer who possesses a schedule I controlled substance, a schedule II controlled substance or ketamine or flunitrazepam that does not bear evidence that the tax under
s. 139.88 has been paid is guilty of a Class H felony.
139.95(3)
(3) Any person who falsely or fraudulently makes, alters or counterfeits any stamp or procures or causes the same to be done or who knowingly utters, publishes, passes or tenders as true any false, altered or counterfeit stamp or who affixes a counterfeit stamp to a schedule I controlled substance, a schedule II controlled substance or ketamine or flunitrazepam or who possesses a schedule I controlled substance, a schedule II controlled substance or ketamine or flunitrazepam to which a false, altered or counterfeit stamp is affixed is guilty of a Class F felony.
