77.21 Cross-reference
Cross Reference: See also ch.
Tax 15, Wis. adm. code.
77.21 Annotation
A memorandum announcing a reorganization of a land-owning partnership into a limited liability company and that the LLC was now the owner of the real estate was a document intended to transfer title to real estate. The receipt by members of ownership interests in the LLC was for value so that there was a conveyance under sub. (1) subject to taxation under s. 77.22. Wolter v. DOR,
231 Wis. 2d 651,
605 N.W.2d 283 (Ct. App. 1999).
77.22
77.22
Imposition of real estate transfer fee. 77.22(1)
(1) There is imposed on the grantor of real estate a real estate transfer fee at the rate of 30 cents for each $100 of value or fraction thereof on every conveyance not exempted or excluded under this subchapter. In regard to land contracts the value is the total principal amount that the buyer agrees to pay the seller for the real estate. This fee shall be collected by the register at the time the instrument of conveyance is submitted for recording. Except as provided in
s. 77.255, at the time of submission the grantee or his or her duly authorized agent or other person acquiring an ownership interest under the instrument, or the clerk of court in the case of a foreclosure under
s. 846.16 (1), shall execute a return, signed by both grantor and grantee, on the form prescribed under
sub. (2). The register shall enter the fee paid on the face of the deed or other instrument of conveyance before recording, and, except as provided in
s. 77.255, submission of a completed real estate transfer return and collection by the register of the fee shall be prerequisites to acceptance of the conveyance for recording. The register shall have no duty to determine either the correct value of the real estate transferred or the validity of any exemption or exclusion claimed. If the transfer is not subject to a fee as provided in this subchapter, the reason for exemption shall be stated on the face of the conveyance to be recorded by reference to the proper subsection under
s. 77.25.
77.22(2)
(2) The secretary of revenue shall prescribe the form required under
sub. (1). The form shall include an application for a credit under
s. 79.10 (5) and shall provide for the submission of the following:
77.22(2)(a)
(a) The value of the ownership interest transferred by the instrument of conveyance.
77.22(2)(b)
(b) The amount of the fee payable under this section.
77.22(2)(e)
(e) The financing terms under which agricultural land is transferred that are relevant to determining only the value of the property.
77.22(2)(f)
(f) Any other information the secretary requires.
77.22 Annotation
The transfer by all owners of property held as a in tenancy in common to a partnership consisting of all the original tenants in common was a taxable conveyance. DOR v. Mark,
168 Wis. 2d 288,
483 N.W.2d 302 (Ct. App. 1992).
77.22 Annotation
A memorandum announcing a reorganization of a land-owning partnership into a limited liability company and that the LLC was now the owner of the real estate was a document intended to transfer title to real estate. The receipt by members of ownership interests in the LLC was for value so that there was a conveyance under s. 77.21 (1) subject to taxation under sub. (1). Wolter v. DOR,
231 Wis. 2d 651,
605 N.W.2d 283 (Ct. App. 1999).
77.22 Annotation
There need not be both a conveyance and consideration with value for a transfer to be subject to the transfer fee. F.M. Management Co. v. Department of Revenue, 2004 WI App 19,
269 Wis. 2d 526,
674 N.W.2d 922,
03-1536.
77.23
77.23
Disposition of fees and returns. On or before the 15th day of each month the register shall submit to the county treasurer transfer fees collected together with the returns filed in the office during the preceding month for the treasurer's transmission to the department of revenue under
s. 77.24 and shall submit to the county treasurer, or to the city treasurer if the property is located in a city that collects taxes under
s. 74.87, all applications for credits under
s. 79.10 (5) that the county register of deeds receives during the preceding month.
77.24
77.24
Division of fee. Twenty percent of all fees collected under this subchapter shall be retained by the county and the balance shall be transmitted to the state. Remittances shall be made monthly by the county treasurers to the department of revenue by the 15th day of the month following the close of the month in which the fee was collected. The remittance to the department shall be accompanied by the returns executed under
s. 77.22.
77.24 History
History: 1977 c. 29;
1981 c. 20.
77.25
77.25
Exemptions from fee. The fees imposed by this subchapter do not apply to a conveyance:
77.25(2)
(2) From the United States or from this state or from any instrumentality, agency or subdivision of either.
77.25(2g)
(2g) By gift, to the United States or to this state or to any instrumentality, agency or subdivision of either.
77.25(2r)
(2r) Under
s. 236.29 (1) or
(2) or
236.34 (1) (e) or for the purpose of a road, street or highway, to the United States or to this state or to any instrumentality, agency or subdivision of either.
77.25(3)
(3) Which, executed for nominal, inadequate or no consideration, confirms, corrects or reforms a conveyance previously recorded.
77.25(4)
(4) On sale for delinquent taxes or assessments.
77.25(6)
(6) Pursuant to mergers of corporations.
77.25(6d)
(6d) Pursuant to partnerships registering as limited liability partnerships under
s. 178.40.
77.25(6m)
(6m) Pursuant to the conversion of a business entity to another form of business entity under
s. 179.76,
180.1161,
181.1161, or
183.1207, if, after the conversion, the ownership interests in the new entity are identical with the ownership interests in the original entity immediately preceding the conversion.
77.25(7)
(7) By a subsidiary corporation to its parent for no consideration, nominal consideration or in sole consideration of cancellation, surrender or transfer of capital stock between parent and subsidiary corporation.
77.25(8)
(8) Between parent and child, stepparent and stepchild, parent and son-in-law or parent and daughter-in-law for nominal or no consideration.
77.25(9)
(9) Between agent and principal or from a trustee to a beneficiary without actual consideration.
77.25(10)
(10) Solely in order to provide or release security for a debt or obligation.
77.25(11)
(11) By will, descent or survivorship.
77.25(12)
(12) Pursuant to or in lieu of condemnation.
77.25(13)
(13) Of real estate having a value of $100 or less.
77.25(14)
(14) Under a foreclosure or a deed in lieu of a foreclosure to a person holding a mortgage or to a seller under a land contract.
77.25(15)
(15) Between a corporation and its shareholders if all of the stock is owned by persons who are related to each other as spouses, as lineal ascendants, lineal descendants or siblings, whether by blood or by adoption, or as spouses of siblings, if the transfer is for no consideration except the assumption of debt or stock of the corporation and if the corporation owned the property for at least 3 years.
77.25(15m)
(15m) Between a partnership and one or more of its partners if all of the partners are related to each other as spouses, as lineal ascendants, lineal descendants or siblings, whether by blood or by adoption, or as spouses of siblings and if the transfer is for no consideration other than the assumption of debt or an interest in the partnership.
77.25(15s)
(15s) Between a limited liability company and one or more of its members if all of the members are related to each other as spouses, as lineal ascendants, lineal descendants or siblings, whether by blood or by adoption, or as spouses of siblings and if the transfer is for no consideration other than the assumption of debt or an interest in the limited liability company.
77.25(16)
(16) To a trust if a transfer from the grantor to the beneficiary of the trust would be exempt under this section.
77.25(17)
(17) Of a deed executed in fulfillment of a land contract if the proper fee was paid when the land contract or an instrument evidencing the land contract was recorded.
77.25 Annotation
Corporate stock constitutes "actual consideration" under sub. (9). Gottfried, Inc. v. DOR,
145 Wis. 2d 715,
429 N.W.2d 508 (Ct. App. 1988).
77.25 Annotation
A principal/agent relationship for purposes of sub. (9) must be examined as of the date of the conveyance. Washington National Development Co. v. DOR,
194 Wis. 2d 567,
535 N.W.2d 71 (Ct. App. 1995).
77.25 Annotation
Exemptions are strictly construed against granting the exemption. While subs. (15m) and (15s) exempt transfers between family members and family business entities, they do not exempt transfers from one family business to another even though the same transaction, had it been completed in 2 separate transfers, would have been exempt. Wolter v. DOR,
231 Wis. 2d 651,
605 N.W.2d 283 (Ct. App. 1999).
77.25 Annotation
Sub. (15s) applies only if the members of the limited liability company are human. The requirement that all all of the members of the LLC be related to each other was reasonably interpreted to reject the argument that if there is only one member, that member need not be human because neither humans nor entities may be related to themselves. F.M. Management Co. v. Department of Revenue, 2004 WI App 19,
269 Wis. 2d 526,
674 N.W.2d 922,
03-1536.
77.25 Annotation
There is no family member exemption under sub. (15m) when the transfer is between partnerships rather than from a partnership to exempted family members. For the exemption to apply, the partner or partners who are involved in the conveyance must be human beings, not just legal entities. Turner v. DOR, 2004 WI App 82,
271 Wis. 2d 760,
679 N.W.2d 880,
03-1517.
77.255
77.255
Exemptions from return. No return is required with respect to conveyances exempt under
s. 77.25 (1),
(2r),
(4) or
(11) from the fee imposed under
s. 77.22. No return is required with respect to conveyances exempt under
s. 77.25 (2) unless the transferor is also a lender for the transaction.
77.26
77.26
Powers of investigation, additional fees, refunds, penalties. 77.26(1)(1) The department of revenue may examine any records of any party to a conveyance to determine the real estate transfer fee due and the accuracy of the return submitted.
77.26(2)
(2) If the department of revenue determines that the amount of the real estate transfer fee reported was in error or that an exemption was improperly claimed, the department shall compute the additional transfer fee to be paid by, or the amount of the overpayment of transfer fee to be refunded to, the grantor.
77.26(3)
(3) All additional assessments and claims for refund are subject to the applicable notice provisions and procedures for review, final determination, collection, interest and penalties provided for additional income or franchise tax assessments and claims for refund under
ch. 71.
77.26(4)
(4) The department of revenue shall collect additional real estate transfer fees and divide the amount collected with the appropriate county in the proportion under
s. 77.24.
77.26(5)
(5) In the case of overpayment of transfer fees by any grantor under
sub. (2), the department of revenue shall certify the overpayment to the department of administration for payment of the refund to the grantor.
77.26(6)
(6) The department of revenue shall notify the appropriate county treasurer of any refund paid by the state, and the appropriate county treasurer shall increase the county's next payment to the state to reimburse the state for the county's share of the refund.
77.26(7)
(7) No person may make additional assessments of transfer fees or claim a refund of excess transfer fees paid after 4 years have elapsed from the date the transfer fee was due under
s. 77.22.
77.26(8)
(8) If the department of revenue determines that the value reported on the return under
s. 77.22 is understated by 25% or more or that an exemption was improperly claimed under
s. 77.25, the department shall assess and collect a penalty of $25 or 25% of the additional fee due, whichever is greater, in the manner that additional transfer fees are collected.
77.26 History
History: 1983 a. 27;
1991 a. 39.
77.265
77.265
Confidentiality. The returns filed under this subchapter are privileged information except as follows:
77.265(1)
(1) The department of revenue shall distribute information from the returns, and a copy of each return, to local assessors.
77.265(2)
(2) The local assessor shall permit the inspection of all returns filed under this subchapter for property within any local unit of government for which property taxes are levied by the chief elected official, or a person designated by the official, of that unit upon the adoption of a resolution by the governing body of the unit directing the official to inspect the returns for the purpose of reviewing the basis upon which equalized values were established by the department of revenue under
s. 70.57, and the official or designee shall maintain the confidentiality of the returns.
77.265(3)
(3) The returns may be used in any proceeding involving the requisite amount of the fee.
77.265(4)
(4) The department of workforce development may use the returns under
s. 106.50.
77.265(5)
(5) The department of revenue, county real property listers under
s. 70.09 and local assessors and their employees and agents may use the returns.
77.265(6)
(6) Governmental agencies acquiring real property for public purposes may use the returns.
77.265(7)
(7) In a condemnation proceeding or in an appeal of an assessment of real property, the property owners and the owners' agents may inspect the returns.
77.265(8)
(8) A county may use the returns to develop a tract index if the county does not reveal the social security numbers of any buyers or sellers.
77.265(9)
(9) The department of revenue may sell information obtained from the returns about street addresses, sale prices, the dates of sales and the types of conveyancing instruments.
77.27
77.27
Penalty for falsifying value. Any person who intentionally falsifies value on a return required to be filed under this subchapter may for each such offense be fined not more than $1,000 or imprisoned in the county jail not more than one year, or both.
77.27 Annotation
This section is violated when a value is intentionally falsified on a Wisconsin real estate transfer return. Falsely declaring a transfer as a sale when it is in fact a gift does not constitute a violation, nor will it support the issuance of a false swearing complaint under s. 946.32, but it may constitute a gift tax avoidance in violation of s. 72.86 (6), 1989 stats. 62 Atty. Gen. 251.
77.29
77.29
Fee for recording. In any county in which the register of deeds is compensated on a fee basis, the county shall pay the register of deeds an additional amount equal to 25% of the recording fees for all deeds or other instruments conveying real estate evidencing transfers subject to fee under this subchapter.
77.29 History
History: 1991 a. 316.
77.30
77.30
Rules. The secretary of revenue may adopt, pursuant to
ch. 227, such rules as the secretary deems necessary in the administration of this subchapter and may proceed under
s. 73.03 (9) to enforce its provisions.
77.30 History
History: 1991 a. 316.
GENERAL SALES AND USE TAX
77.51
77.51
Definitions. Except where the context requires otherwise, the definitions given in this section govern the construction of terms in this subchapter.
77.51(1)
(1) "Business" includes any activity engaged in by any person or caused to be engaged in by any person with the object of gain, benefit or advantage, either direct or indirect, and includes also the furnishing and distributing of tangible personal property or taxable services for a consideration by social clubs and fraternal organizations to their members or others.
77.51(1m)
(1m) "Cloth diaper" means a cloth diaper used for sanitary purposes.
77.51(2)
(2) "Contractors" and "subcontractors" are the consumers of tangible personal property used by them in real property construction activities and the sales and use tax applies to the sale of tangible personal property to them. A contractor engaged primarily in real property construction activities may use resale certificates only with respect to purchases of property which the contractor has sound reason to believe the contractor will sell to customers for whom the contractor will not perform real property construction activities involving the use of such property. In this subsection, "real property construction activities" means activities that occur at a site where tangible personal property that is applied or adapted to the use or purpose to which real property is devoted is affixed to that real property, if the intent of the person who affixes that property is to make a permanent accession to the real property. In this subsection, "real property construction activities" do not include affixing to real property tangible personal property that remains tangible personal property after it is affixed.
77.51(3)
(3) "Department" means the department of revenue, its duly authorized employees and agents.
