77.54(20)(b)
(b) "Food", "food products" and "beverages" do not include:
77.54(20)(b)1.
1. Medicines, tonics, vitamins and medicinal preparations in any form.
77.54(20)(b)4.
4. Soda water beverages as defined in
s. 97.29 (1) (i), bases, concentrates and powders intended to be reconstituted by consumers to produce soft drinks, and fruit drinks and ades not defined as fruit juices in s.
97.02 (27), 1967 stats.
77.54(20)(bg)1.
1. "Meal" includes, but is not limited to, a diversified selection of food, food products or beverages that are customarily consumed as a breakfast, lunch or dinner, that may not easily be consumed without an article of tableware and that may not conveniently be consumed while standing or walking; except that "meal" does not include frozen items that are sold to a consumer, items that are customarily heated or cooked after the retail sale and before they are consumed or a diversified selection of food, food products and beverages that is packaged together by a person other than the retailer before the sale to the consumer.
77.54(20)(bg)2.
2. "Sandwich" means food that consists of a filling; such as meat, cheese or a savory mixture; that is placed on a slice, or between 2 slices; of a variety of bread or something that takes the place of bread; such as a roll, croissant or bagel. "Sandwich" includes, but is not limited to, burritos, tacos, enchiladas, chimichangas, pita sandwiches, gyros and pocket sandwiches. "Sandwich" does not include hors d'oeuvres, canapes, egg rolls, cookies, cakes, pies and similar desserts and pastries and food that is sold frozen.
77.54(20)(c)1.1. The gross receipts from sales of meals, food, food products and beverages sold by any person, organization or establishment for direct consumption on the premises are taxable, except as provided in
subd. 4.
77.54(20)(c)2.
2. The gross receipts from sales by any person, organization or establishment of the following items for off-premises consumption are taxable:
77.54(20)(c)2.c.
c. Soda fountain items such as sundaes, milk shakes, malts, ice cream cones and sodas.
77.54(20)(c)3.
3. Taxable gross receipts shall include cover, minimum, entertainment, service or other charges made to patrons or customers.
77.54(20)(c)4.
4. Taxable sales do not include meals, food, food products or beverages sold by hospitals, sanatoriums, nursing homes, retirement homes, community-based residential facilities as defined in
s. 50.01 (1g) or day care centers registered under
ch. 48 and served at a hospital, sanatorium, nursing home, retirement home, community-based residential facility or day care center. In this subdivision "retirement home" means a nonprofit residential facility where 3 or more unrelated adults or their spouses have their principal residence and where support services, including meals from a common kitchen, are available to residents. Taxable sales do not include meals, food, food products or beverages sold to the elderly or handicapped by persons providing "mobile meals on wheels".
77.54(20)(c)4m.
4m. Taxable sales do not include food and beverage items under
pars. (b) 4. and
(c) 2., and disposable products that are transferred with such items, that are provided by a restaurant to the restaurant's employee during the employee's work hours.
77.54(20)(c)5.
5. Taxable sales shall not include meals, food, food products or beverages, furnished in accordance with any contract or agreement or paid for to such institution through the use of an account of such institution, by a public or private institution of higher education to an undergraduate student, a graduate student or a student enrolled in a professional school if the student is enrolled for credit at that institution and if the goods are consumed by that student and meals, food, food products or beverages furnished to a national football league team under a contract or agreement.
77.54(20)(c)6.
6. For purposes of
subd. 1., "premises" shall be construed broadly, and, by way of illustration but not limitation, shall include the lobby, aisles and auditorium of a theater or the seating, aisles and parking area of an arena, rink or stadium or the parking area of a drive-in or outdoor theater. The premises of a caterer with respect to catered meals or beverages shall be the place where served. Sales from a vending machine shall be considered sales for off-premises consumption.
77.54(20m)
(20m) The gross receipts from the sales of, and the storage, use or other consumption of, food, food products or beverages and of other goods that are packaged together by a person other than a retailer before the sale to the final consumer if 50% or more of the sales price of the package is attributable to goods that are exempt.
77.54(21)
(21) The gross receipts from the sales of and the storage, use or other consumption of caskets and burial vaults for human remains.
77.54(22)
(22) The gross receipts from the sales of or the storage, use or other consumption of the following property and of parts and accessories for the following property:
77.54(22)(a)
(a) Artificial devices individually designed, constructed or altered solely for the use of a particular physically disabled person so as to become a brace, support, supplement, correction or substitute for the bodily structure including the extremities of the individual.
77.54(22)(b)
(b) Artificial limbs, artificial eyes, hearing aids and other equipment worn as a correction or substitute for any functioning portion of the body.
77.54(22)(d)
(d) Eye glasses when especially designed or prescribed by an ophthalmologist, physician, oculist or optometrist for the personal use of the owner or purchaser.
77.54(22)(e)
(e) Crutches and wheelchairs including motorized wheelchairs and scooters for the use of persons who are ill or disabled.
77.54(22)(f)
(f) Antiembolism elastic hose and stockings that are prescribed by a physician and sold to the ultimate consumer.
77.54(22)(g)
(g) Adaptive equipment that makes it possible for handicapped persons to enter, operate or leave a vehicle, as defined in
s. 27.01 (7) (a) 2., if that equipment is purchased by the individual who will use it, a person acting directly on behalf of that individual or a nonprofit organization.
77.54(23m)
(23m) The gross receipts from the sale, lease or rental of or the storage, use or other consumption of motion picture film or tape, and advertising materials related thereto, sold, leased or rented to a motion picture theater or radio or television station.
77.54(25)
(25) The gross receipts from the sale of and the storage of printed material which is designed to advertise and promote the sale of merchandise, or to advertise the services of individual business firms, which printed material is purchased and stored for the purpose of subsequently transporting it outside the state by the purchaser for use thereafter solely outside the state.
77.54(26)
(26) The gross receipts from the sales of and the storage, use, or other consumption of tangible personal property which becomes a component part of an industrial waste treatment facility that is exempt under
s. 70.11 (21) (a) or that would be exempt under
s. 70.11 (21) (a) if the property were taxable under
ch. 70, or tangible personal property which becomes a component part of a waste treatment facility of this state or any agency thereof, or any political subdivision of the state or agency thereof as provided in
s. 40.02 (28). The exemption includes replacement parts therefor, and also applies to chemicals and supplies used or consumed in operating a waste treatment facility and to purchases of tangible personal property made by construction contractors who transfer such property to their customers in fulfillment of a real property construction activity. This exemption does not apply to tangible personal property installed in fulfillment of a written construction contract entered into, or a formal written bid made, prior to July 31, 1975.
77.54(26m)
(26m) The gross receipts from the sale of and the storage, use or other consumption of waste reduction or recycling machinery and equipment, including parts therefor, exclusively and directly used for 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. The exemption applies even though an economically useful end product results from the use of the machinery and equipment. For the purposes of this subsection, "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(27)
(27) The gross receipts from the sale of semen used for artificial insemination of livestock.
77.54(28)
(28) The gross receipts from the sale of and the storage, use or other consumption to or by the ultimate consumer of apparatus or equipment for the injection of insulin or the treatment of diabetes and supplies used to determine blood sugar level.
77.54(29)
(29) The gross receipts from the sales of and the storage, use or other consumption of equipment used in the production of maple syrup.
77.54(30)(a)1.
1. Coal, fuel oil, propane, steam, peat, fuel cubes produced from solid waste and wood used for fuel sold for residential use.
77.54(30)(a)2.
2. Electricity and natural gas sold during the months of November, December, January, February, March and April for residential use.
77.54(30)(a)3.
3. Electricity sold for use in farming, including but not limited to agriculture, dairy farming, floriculture and horticulture.
77.54(30)(a)4.
4. Any residue that is used as fuel in a business activity and that results from the harvesting of timber or the production of wood products, including slash, sawdust, shavings, edgings, slabs, leaves, wood chips, bark and wood pellets manufactured primarily from wood or primarily from wood residue.
77.54(30)(a)5.
5. Fuel sold for use in farming, including but not limited to agriculture, dairy farming, floriculture and horticulture.
77.54(30)(a)6.
6. Fuel and electricity consumed in manufacturing tangible personal property in this state.
77.54(30)(b)
(b) For purposes of this subsection, electricity or natural gas is considered sold at the time of billing. If the billing is by mail, the time of billing is the day on which the billing is mailed.
77.54(30)(c)
(c) If fuel or electricity is sold partly for a use exempt under this subsection and partly for a use which is not exempt under this subsection, no tax shall be collected on that percentage of the gross receipts equal to the percentage of the fuel or electricity which is used for an exempt use, as specified in an exemption certificate provided by the purchaser to the seller.
77.54(30)(d)
(d) In this subsection "residential use" means use in a structure or portion of a structure which is a person's permanent residence, but does not include use in transient accommodations, as specified in
s. 77.52 (2) (a) 1., motor homes, travel trailers or other recreational vehicles.
77.54(30)(e)
(e) For purposes of this subsection, a seller of electricity or natural gas is not required to comply with the requirement of obtaining exemption certificates under
s. 77.52 (13) for sales of electricity or natural gas to accounts not covered by
par. (c) which are properly classified as residential or farms pursuant to schedules which are filed for rate tariff purposes with the public service commission under
s. 196.19 and which are in force at the time of the sales or are properly so classified for classification purposes as directed by the federal rural electrification administration. Nothing in this paragraph shall be construed to broaden the exemption specified in
par. (a).
77.54(30)(f)
(f) Sellers of coal, fuel oil, propane, steam, peat, fuel cubes produced from solid waste and wood used for fuel shall not be required to obtain an exemption certificate under
s. 77.52 (13) from a purchaser if all the fuel sold is for residential use and the seller maintains adequate records to identify which sales are exempt.
77.54(31)
(31) The gross receipts from the sale of and the storage, use or other consumption in this state, but not the lease or rental, of used mobile homes that are primary housing units under
s. 340.01 (29).
77.54(32)
(32) The gross receipts from charges, including charges for a search, imposed by an authority, as defined in
s. 19.32 (1), for copies of a public record that a person may examine and use under
s. 16.61 (12) or for copies of a record under
s. 19.35 (1).
77.54(33)
(33) The gross receipts from sales of and the storage, use or other consumption of medicines used on farm livestock, not including workstock.
77.54(34)
(34) The gross receipts from the sale of and the storage, use or other consumption of milk house supplies used exclusively in producing and handling milk on dairy farms.
77.54(35)
(35) The gross receipts from the sales of tangible personal property, tickets or admissions by any baseball team affiliated with the Wisconsin Department of American Legion baseball.
77.54(36)
(36) The gross receipts from the rental for a continuous period of one month or more of a mobile home, as defined in
s. 66.0435 (1) (d), that is used as a residence. In this subsection, "one month" means a calendar month or 30 days, whichever is less, counting the first day of the rental and not counting the last day of the rental.
77.54(38)
(38) The gross receipts from the sale of and the storage, use or other consumption of snowmobile trail groomers and attachments for them that are purchased, stored, used or consumed by a snowmobile club that meets at least 3 times a year, that has at least 10 members, that promotes snowmobiling and that participates in the department of natural resources' snowmobile program under
s. 350.12 (4) (b).
77.54(39)
(39) The gross receipts from the sale of and the storage, use or other consumption of off-highway, heavy mechanical equipment such as feller bunchers, slashers, delimbers, chippers, hydraulic loaders, loaders, skidder-forwarders, skidders, timber wagons and tractors used exclusively and directly in the harvesting or processing of raw timber products in the field by a person in the logging business. In this subsection, "heavy mechanical equipment" does not include hand tools such as axes, chains, chain saws and wedges.
77.54(40)
(40) The gross receipts from the sale, lease or rental of and the storage, use or other consumption of cloth diapers.
77.54(41)
(41) The gross receipts from the sale of building materials, supplies and equipment to; and the storage, use or other consumption of those kinds of property by; owners, contractors, subcontractors or builders if that property is acquired solely for or used solely in, the construction, renovation or development of property that would be exempt under
s. 70.11 (36).
77.54(42)
(42) The gross receipts from the sale of and the storage, use or other consumption of animal identification tags provided under
s. 93.06 (1h) and standard samples provided under
s. 93.06 (1s).
77.54(43)
(43) The gross receipts from the sale of and the storage, use or other consumption of raw materials used for the processing, fabricating or manufacturing of, or the attaching to or incorporating into, printed materials that are transported and used solely outside this state.
77.54(45)
(45) The gross receipts from the sale of and the use or other consumption of a onetime license or similar right to purchase admission to professional football games at a football stadium, as defined in
s. 229.821 (6), that is granted by a municipality; a local professional football stadium district; or a professional football team or related party, as defined in
s. 229.821 (12); if the person who buys the license or right is entitled, at the time the license or right is transferred to the person, to purchase admission to at least 3 professional football games in this state during one football season.
77.54(46)
(46) The gross receipts from the sale of and the storage, use, or other consumption of the U.S. flag or the state flag. This subsection does not apply to a representation of the U.S. flag or the state flag.
77.54(46m)
(46m) The gross receipts from the sale of and the storage, use, or other consumption of telecommunications services, if the telecommunications services are obtained by using the rights to purchase telecommunications services, including purchasing reauthorization numbers, by paying in advance and by using an access number and authorization code; and if the tax imposed under
s. 77.52 or
77.53 was previously paid on the sale or purchase of such rights.
77.54(47)
(47) The gross receipts from the sale of and the storage, use, or other consumption of live game birds, and clay pigeons, that are sold to bird hunting preserves licensed under
s. 169.19.
77.54 History
History: 1971 c. 64,
154,
215,
311;
1973 c. 90,
156,
240;
1975 c. 39,
96,
102,
146,
200;
1977 c. 29;
1977 c. 83 ss.
13,
26;
1977 c. 250,
368,
418;
1979 c. 1,
34,
87,
174;
1981 c. 20;
1981 c. 79 s.
18;
1981 c. 96 s.
67;
1981 c. 264;
1981 c. 282 s.
47;
1981 c. 317;
1983 a. 27 ss.
1284d to
1284np,
2202 (38);
1983 a. 189 ss.
101,
106,
329 (5), (12), (13);
1983 a. 192,
287,
405,
426,
498,
510,
538,
544;
1985 a. 29,
149,
332;
1987 a. 27;
1987 a. 312 s.
17;
1987 a. 399;
1989 a. 31,
238,
270,
335,
359;
1991 a. 37,
39,
269,
316;
1993 a. 16,
263,
332;
1995 a. 27,
125,
225,
227;
1997 a. 27,
35,
41,
184,
237,
291;
1999 a. 9,
65,
83;
1999 a. 150 s.
672;
1999 a. 167;
2001 a. 16,
103,
109;
2003 a. 99,
128.
77.54 Annotation
A taxpayer in the business of processing scrap metal is engaged in manufacturing under s. 77.51 (27) [now s. 77.54 (6m)]. H. Samuels Co. v. DOR,
70 Wis. 2d 1076,
236 N.W.2d 250 (1975).
77.54 Annotation
A carrier's contract status is established under the "primary business test" if the carrier's primary occupation is the supplying of transportation for compensation, even though the operator owns the goods at the time of transport and carries them for the purpose of sale. If, however, the operator's primary business is manufacturing or another noncarrier commercial enterprise, a determination must be made as to whether the motor operations are in furtherance of the primary business or are conducted as a related enterprise with the purpose of profiting from the transportation. Gensler v. DOR,
70 Wis. 2d 1108,
236 N.W.2d 648 (1975).
77.54 Annotation
The sale of a supper club's furnishings and equipment was an "occasional sale" under s. 77.54 (7). Three Lions Supper Club v. DOR,
72 Wis. 2d 546,
241 N.W.2d 190 (1976).
77.54 Annotation
Consumption of gas at interstate pipeline compressor stations in Wisconsin is protected from state use tax by the commerce clause. Midwestern Gas Transmission Co. v. DOR,
84 Wis. 2d 261,
267 N.W.2d 253 (1978).
77.54 Annotation
To satisfy s. 77.51 (27) [now s. 77.54 (6m)], a change in name must be attributable to a change in the nature, purpose, and function of the article. DOR v. Bailey-Bohrman Steel Corp.
93 Wis. 2d 602,
287 N.W.2d 715 (1980).
77.54 Annotation
A vending machine company, which placed machines in schools and hospitals, was the "seller" of the products dispensed by its machines. Servomation Corp. v. DOR,
106 Wis. 2d 616,
317 N.W.2d 464 (1982).
77.54 Annotation
Under the "use or function" test, a greenhouse was a "machine" used in floriculture under sub. (3). DOR v. Greiling,
112 Wis. 2d 602,
334 N.W.2d 118 (1983).
77.54 Annotation
The exemption under sub. (9a) (f) is limited to services used by tax-exempt organizations and does not extend to services by those foundations. DOR v. EAA Aviation Foundation,
143 Wis. 2d 681,
422 N.W.2d 458 (Ct. App. 1988).
77.54 Annotation
Calf hutches are not "machines" exempt from sales tax under sub. (3). L.T. Hampel Corp. v. DOR,
157 Wis. 2d 422,
459 N.W.2d 598 (Ct. App. 1990).
