77.59(4)(c)
(c) A seller who receives a refund under
par. (a) or
(b) of taxes that the seller has collected from buyers shall return the taxes and related interest to the buyers from whom the taxes were collected. The seller shall return to the department any part of a refund that the seller does not return to a buyer along with a penalty of 25% of the amount not returned or a penalty equal to the amount not returned in the case of fraud.
77.59(5)
(5) The department may offset the amount of any refund for a period, together with interest on the refund, against deficiencies for another period, and against penalties and interest on the deficiencies, or against any amount of whatever kind, due and owing on the books of the department from the person claiming the refund. If the refund is to be paid to a buyer, the department may also set off amounts in the manner in which it sets off income tax and franchise tax refunds under
s. 71.93 and may set off amounts for child support or maintenance or both in the manner in which it sets off income taxes under
ss. 49.855 and
71.93 (3),
(6) and
(7).
77.59(6)
(6) Except as provided in
sub. (4) (b), a determination by the department is final unless, within 60 days after receipt of the notice of the determination, the taxpayer, or other person directly interested, petitions the department for a redetermination. A petition is timely if it fulfills the requirements under
s. 77.61 (14). In the case of notice served by publication, the 60-day period commences with the last day of publication of the notice.
77.59(6)(a)
(a) Within 6 months of the receipt by the department of the petition for redetermination, the department shall notify the petitioner of its redetermination. The redetermination shall become final 60 days after receipt by the petitioner of notice of the redetermination unless, within that 60-day period, the petitioner appeals the redetermination under
par. (b).
77.59(6)(b)
(b) Appeals from the department's redeterminations shall be governed by the statutes applicable to income or franchise tax appeals but all appeals from decisions of the tax appeals commission with respect to the taxes imposed by this subchapter shall be appealed to the circuit court for Dane County.
77.59(6)(c)
(c) The department shall notify any person who files a petition for redetermination that the person may deposit the entire deficiency determination, including any penalty or interest, with the department when the petition is filed or at any time before the department makes its redetermination. Any deposited amount which is refunded shall bear interest at the rate of 9% per year during the time the funds were on deposit. A person may also pay any portion of a deficiency determination admitted to be correct and the payment shall be considered an admission of the validity of that portion of the deficiency determination and may not be recovered in an appeal or in any other action or proceeding.
77.59 Cross-reference
Cross Reference: See also s.
Tax 1.14, Wis. adm. code.
77.59(7)
(7) If the department believes that the collection of any tax imposed by this subchapter will be jeopardized by delay, it shall notify the person determined to owe the tax of its intention to proceed under
s. 71.91 (5) for collection of the amount determined to be owing, including penalties and interest. Such notice shall be by certified or registered mail or by personal service and the warrant of the department shall not issue if the person, within 10 days after such notice furnishes a bond in such amount not exceeding double the amount determined to be owing and with such sureties as the department approves, conditioned upon the payment of so much of the taxes, interest, and penalties as shall finally be determined to be due. Nothing in this subsection shall affect the review of determinations of tax as provided in this subchapter and any amounts collected under this subsection shall be deposited with the secretary of administration and disbursed after final determination of the taxes as are amounts deposited under
ss. 71.89 (1) and
71.90 (2).
77.59(8)
(8) Notwithstanding any other provision of this subchapter, if a person fails to file a report or return required by this subchapter or files a false or fraudulent report or return with the intent in either case to defeat or evade tax required to be paid, the department may determine the proper tax due at any time and without regard to when such failure or filing occurred and without regard to whether a field audit determination was previously made. The department may, at any time, examine and inspect any of the books, records, memoranda, or property of any person and make whatever inquiry, including the subpoena of persons, necessary to the determination of whether a failure to file or a filing was with the intent to defeat or evade the tax.
77.59(8m)
(8m) Within the time period under
sub. (4), the department of revenue may refund excess taxes paid to it under this chapter, even if the person applying for the refund has been field audited in respect to those taxes, if the applicant's customers have filed valid claims for refunds with the applicant and if the refund is passed along to those customers.
77.59(9)
(9) If any person fails to file a return, the department shall make an estimate of the amount of the gross receipts of the person, or, as the case may be, of the amount of the total sales price of tangible personal property or taxable service sold or purchased by the person, the sale by or the storage, use or other consumption of which in this state is subject to sales or use tax. The estimate shall be made for the period in respect to which the person failed to make a return and shall be based upon any information which is in the department's possession or may come into its possession. Upon the basis of this estimate the department shall compute and determine the amount required to be paid to the state, adding to the sum thus arrived at a penalty equal to 25% thereof. One or more such determinations may be made for one or for more than one period. When a business is discontinued a determination may be made at any time thereafter, within the periods specified in
sub. (3), as to liability arising out of that business.
77.59(9m)
(9m) If the department determines that a liability exists under this subchapter and that the liability may be owed by more than one person, the department may assess the entire amount to each person, specifying that it is assessing in the alternative. If the department determines that a liability exists under this subchapter and that the liability may be for either sales taxes or use taxes, the department may make an assessment for both taxes, specifying that it is assessing in the alternative.
77.59(10)
(10) As used in this section, "tax" or "taxes" include penalties and interest.
77.59 Annotation
A "spot check" by the department of a taxpayer's records for a single month was a "field audit" under sub. (2) covering that period only. DOR v. Moebius Printing Co.
89 Wis. 2d 610,
279 N.W.2d 213 (1979).
77.59 Annotation
All persons who have paid excess sales tax may file a claim for a refund under sub. (4) regardless of whether the taxes were paid to a retailer or to the department. Dairyland Harvestore v. DOR,
151 Wis. 2d 799,
447 N.W.2d 56 (Ct. App. 1989).
77.59 Annotation
If a sales and use tax return is never filed, the statute of limitations under sub. (3) never begins to run. Zignego Co., Inc. v. DOR,
211 Wis. 2d 817,
565 N.W.2d 590 (Ct. App. 1997).
77.60
77.60
Interest and penalties. 77.60(1)(a)(a) Except as provided in
par. (b), unpaid taxes shall bear interest at the rate of 12% per year from the due date of the return until paid or deposited with the department. Taxes refunded to the seller shall bear interest at 9% per year from the due date of the return to the date on which the refund is certified on the refund rolls. An extension of time within which to file a return shall not extend the due date of the return for purposes of interest computation. Taxes refunded to the buyer shall bear interest at 9% per year from the last day of the month following the month during which the buyer paid the tax to the date on which the refund is certified on the refund rolls.
77.60(1)(b)
(b) Any unpaid taxes for a calendar year or a fiscal year resulting from a field audit shall bear interest at the rate of 12% per year from the due date of the taxpayer's Wisconsin income or franchise tax return for that calendar or fiscal year or, if exempt, from the 15th day of the 4th month of the year after the close of the calendar or fiscal year for which the taxes are due to the date on which the taxes are paid or, if unpaid, become delinquent, whichever is earlier.
77.60(1m)
(1m) All nondelinquent payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.
77.60(2)
(2) Delinquent sales and use tax returns shall be subject to a $20 late filing fee unless the return was not timely filed because of the death of the person required to file or unless the return was not timely filed due to good cause and not due to neglect. The fee shall not apply if the department has failed to issue a seller's permit or a use tax registration within 30 days of the receipt of an application for a seller's permit or use tax registration accompanied by the fee established under
s. 73.03 (50), if the person does not hold a valid certificate under
s. 73.03 (50), and the security required under
s. 77.61 (2) has not been placed with the department. Delinquent sales and use taxes shall bear interest at the rate of 1.5% per month until paid. The taxes imposed by this subchapter shall become delinquent if not paid:
77.60(2)(a)
(a) In the case of a timely filed return, on or before the due date of the return, or on or before the expiration of an extension period if one has been granted.
77.60(2)(b)
(b) In the case of no return filed or a return filed late, by the due date of the return.
77.60(2)(c)
(c) In the case of deficiency determinations, on or before the due date specified in the notice of deficiency, except that if the determination is contested before the tax appeals commission or in the courts, on or before the 30th day following the date on which the order or judgment representing the final determination becomes final.
77.60(3)
(3) If due to neglect an incorrect return is filed, the entire tax finally determined shall be subject to a penalty of 25%, or 50% in the case of returns under
s. 77.61 (1) (c), of the tax exclusive of interest or other penalty. A person filing an incorrect return shall have the burden of proving that the error or errors were due to good cause and not due to neglect.
77.60(4)
(4) In case of failure to file any return required under authority of
s. 77.58 by the due date, determined with regard to any extension of time for filing, unless it is shown that such failure was due to reasonable cause and not due to neglect, there shall be added to the amount required to be shown as tax on such return 5% of the amount of such tax if the failure is not for more than one month, with an additional 5% for each additional month or fraction thereof during which such failure continues, not exceeding 25% in the aggregate. For purposes of this subsection, 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 of the tax and by the amount of any credit against the tax which may be claimed upon the return.
77.60(5)
(5) If a person fails to file a return when due or files a false or fraudulent return with intent in either case to defeat or evade the tax imposed by this subchapter, a penalty of 50% shall be added to the tax required to be paid, exclusive of interest and other penalties.
77.60(6)
(6) Any person who fails to furnish any return required to be made or who fails to furnish any data required by the department is guilty of a misdemeanor.
77.60(7)
(7) Any person, including an officer of a corporation, required to make, render, sign or verify any report or return required by this subchapter who makes a false or fraudulent report or return or who fails to furnish a report or return when due with the intent, in either case, to defeat or evade the tax imposed by this subchapter, is guilty of a misdemeanor.
77.60(8)
(8) Any person engaged in the business of making sales at retail who is at the same time engaged in some other kind of business, occupation or profession not taxable under this subchapter, shall keep books to show separately the transactions used in determining the tax herein levied. In the event of such person failing to keep such separate books, there shall be levied upon the person a tax at the rate provided in
s. 77.52 or
77.53 on the receipts of both or all of the person's businesses, occupations or professions.
77.60(9)
(9) Any person who is required to collect, account for or pay the amount of tax imposed under this subchapter and who willfully fails to collect, account for or pay to the department shall be personally liable for such amounts, including interest and penalties thereon, if that person's principal is unable to pay such amounts to the department. The personal liability of such person as provided in this subsection shall survive the dissolution of the corporation or other form of business association. Personal liability may be assessed by the department against such person under this subchapter for the making of sales tax determinations against retailers and shall be subject to the provisions for review of sales tax determinations against retailers, but the time for making such determinations shall not be limited by
s. 77.59 (3). "Person", in this subsection, includes an officer, employee or other responsible person of a corporation or other form of business association or a member, employee or other responsible person of a partnership, limited liability company or sole proprietorship 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.
77.60(10)
(10) It is unlawful for any person to aid, abet or assist another in making any false or fraudulent return or false statement in any return required by this subchapter, with intent to defraud the state or evade payment of the tax, or any part thereof, imposed by this subchapter. Anyone in violation hereof shall be guilty of a misdemeanor.
77.60(11)
(11) Whenever a person collects tax moneys imposed under
s. 77.52,
77.53 or
77.71 from a consumer, user or purchaser, the person receives those tax moneys as trust funds and state property. Any person who intentionally fails or refuses to pay over those tax moneys to the state at the time required by this subchapter or who fraudulently withholds, appropriates or uses any of those tax moneys is guilty of theft under
s. 943.20, punishable as specified in
s. 943.20 (3) according to the amount of tax moneys involved. This subsection applies regardless of the person's interest in those tax moneys. Payment to creditors in preference to the payment of those tax moneys to the state by any person is prima facie evidence of an intent to fraudulently use those tax moneys.
77.60(12)
(12) A person who negligently files an incorrect and excessive claim for a refund under
s. 77.59 is subject to a penalty of 25% of the difference between the amount claimed and the amount that should have been claimed. A person who fraudulently files an incorrect claim for a refund under
s. 77.59 is subject to a penalty of 100% of the difference between the amount claimed and the amount that should have been claimed.
77.61
77.61
Administrative provisions. 77.61(1)(a)(a) No motor vehicle, boat, snowmobile, mobile home not exceeding 45 feet in length, trailer, semitrailer, all-terrain vehicle or aircraft shall be registered or titled in this state unless the registrant presents proof that the sales or use taxes imposed by this subchapter have been paid.
77.61(1)(b)
(b) In the case of a motor vehicle purchased from a licensed Wisconsin motor vehicle dealer, the registrant shall present proof that the tax has been paid to such dealer.
77.61(1)(c)
(c) In the case of motor vehicles, boats, snowmobiles, mobile homes not exceeding 45 feet in length, trailers, semitrailers, all-terrain vehicles or aircraft registered or titled, or required to be registered or titled, in this state purchased from persons who are not Wisconsin boat, trailer or semitrailer dealers, licensed Wisconsin aircraft, motor vehicle or mobile home dealers or registered Wisconsin snowmobile or all-terrain vehicle dealers, the purchaser shall file a sales tax return and pay the tax prior to registering or titling the motor vehicle, boat, snowmobile, mobile home not exceeding 45 feet in length, trailer, semitrailer, all-terrain vehicle or aircraft in this state.
77.61(2)
(2) In order to protect the revenue of the state, the department may require any person who is or will be liable to it for the tax imposed by this subchapter to place with it, before or after a permit is issued, the security, not in excess of $15,000, that the department determines. In determining the amount of security to require under this subsection, the department may consider the person's payment of other taxes administered by the department and any other relevant facts. If any taxpayer fails or refuses to place that security, the department may refuse or revoke the permit. If any taxpayer is delinquent in the payment of the taxes imposed by this subchapter, the department may, upon 10 days' notice, recover the taxes, interest, costs and penalties from the security placed with the department by the taxpayer in the following order: costs, penalties, delinquent interest, delinquent tax. No interest may be paid or allowed by the state to any person for the deposit of security. Any security deposited under this subsection shall be returned to the taxpayer if the taxpayer has, for 24 consecutive months, complied with all the requirements of this subchapter.
77.61(3)
(3) The department shall provide a bracket system to be used by retailers in collecting the amount of the tax from their customers, but the use of such brackets shall not relieve the retailer from liability for payment of the full amount of the tax levied by
ss. 77.51 to
77.62.
77.61(4)(a)(a) Every seller and retailer and every person storing, using or otherwise consuming in this state tangible personal property or taxable services purchased from a retailer shall keep such records, receipts, invoices and other pertinent papers and records, including machine-readable records, in such form as the department requires. The department may, after giving notice, require any person to keep whatever records are needed for the department to compute the sales or use taxes the person should pay. Thereafter, the department shall add to any taxes assessed on the basis of information not contained in the records required a penalty of 25% of the amount of the tax so assessed in addition to all other penalties under this chapter.
77.61(4)(c)
(c) For reporting the sales tax and collecting and reporting the use tax imposed on the retailer under
s. 77.53 (3) and the accounting connected with it, retailers may deduct 0.5% of those taxes payable or $10 for that reporting period required under
s. 77.58 (1), whichever is greater, but not more than the amount of the sales taxes or use taxes that is payable under
ss. 77.52 (1) and
77.53 (3) for that reporting period required under
s. 77.58 (1), as administration expenses if the payment of the taxes is not delinquent. For purposes of calculating the retailer's discount under this paragraph, the taxes on retail sales reported by retailers under
subch. V, including taxes collected and remitted as required under
s. 77.785, shall be included if the payment of those taxes is not delinquent.
77.61(5)(a)(a) It is unlawful for the department or any person having an administrative duty under this subchapter to make known in any manner whatever the business affairs, operations or information obtained by an investigation of records and equipment of any retailer or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any return, or to permit any return or copy thereof to be seen or examined by any person. This paragraph does not prohibit the department of revenue from publishing statistics classified so as not to disclose the identity of particular returns or reports and the items thereof. This paragraph does not prohibit employees or agents of the department of revenue from offering or submitting information obtained by investigation or any return or any schedule, exhibit or writing pertaining to a return or any copy of, or information derived from, any of those documents as evidence into the record of any contested matter involving the department in proceedings or litigation on state tax matters if that evidence has reasonable probative value.
77.61(5)(b)
(b) Subject to
pars. (c) and
(d) and to the rules of the department, any sales tax or use tax returns or any schedules, exhibits, writings or audit reports pertaining to the returns, on file with the department, shall be open to examination by any of the following persons or the contents thereof divulged or used as provided in the following cases and only to the extent therein authorized:
77.61(5)(b)1.
1. The secretary of revenue, or any officer, agent or employee of the department of revenue.
77.61(5)(b)2.
2. The attorney general and department of justice employees.
77.61(5)(b)3.
3. Members of the senate committee on organization or its authorized agents or the assembly committee on organization or its authorized agents provided the examination is approved by a majority vote of a quorum of its members and the tax return information is disclosed only in a meeting closed to the public. The committee may disclose tax return information to the senate or assembly or to other legislative committees if the information does not disclose the identity of particular returns or reports and the items of particular returns or reports. The department of revenue shall provide assistance to the committees or their authorized agents in order to identify returns that are considered necessary by them to accomplish the review and analysis of tax policy.
77.61(5)(b)4.
4. Public officers of the federal government or other state governments or the authorized agents of those officers, where necessary in the administration of the laws of the federal government or other state governments, to the extent that the federal government or other state governments accord similar rights of examination or information to officials of this state.
77.61(5)(b)5.a.a. The person who filed or submitted the return, or to whom the return relates or by that person's authorized agent or attorney.
77.61(5)(b)5.b.
b. The person required to file reports on collection or taxes withheld from another.
77.61(5)(b)6.
6. Any person examining a return pursuant to a court order duly obtained upon a showing to the court that the information contained in the return is relevant to a pending court action or pursuant to a subpoena signed by a judge of a court of record ordering the department's custodian of returns to produce a return in open court in a court action pending before the judge.
77.61(5)(b)7.
7. Any person against whom the department asserts liability under this subchapter, including a successor, guarantor or surety.
77.61(5)(b)8.
8. Employees of this state, to the extent that the department deems the examination necessary for the employees to perform their duties under contracts or agreements between the department and any other department, division, bureau, board or commission of this state relating to the administration of tax laws.
77.61(5)(b)9.
9. The administrator of the lottery division in the department for the purpose of withholding of lottery winnings under
s. 565.30 (5).
77.61(5)(b)10.
10. A licensing department or the supreme court, if the supreme court agrees, for the purpose of denial, nonrenewal, discontinuation and revocation of a license based on tax delinquency under
s. 73.0301.
77.61(5)(c)
(c) Copies of sales tax or use tax returns, schedules, exhibits, writings or audit reports shall not be furnished to the persons listed under
par. (b), except persons under
par. (b) 5. or under an agreement between the department and another agency of government.
77.61(5)(d)
(d) The use of information obtained under
par. (b) or
(c) is restricted to the discharge of duties imposed upon the persons by law or by the duties of their office or by order of a court as specified under
par. (b) 6.
77.61(5)(e)
(e) The department may charge for the reasonable cost of divulging information under this subsection.
77.61(5)(f)
(f) District attorneys may examine tax information of persons on file with the department of revenue as follows:
77.61(5)(f)1.
1. Such tax information may be examined for use in preparation for any judicial proceeding or any investigation which may result in a judicial proceeding involving sales or use tax if:
77.61(5)(f)1.b.
b. The treatment of an item reflected in such tax information is or may be related to the resolution of an issue in the proceeding or investigation; or
77.61(5)(f)1.c.
c. The tax information relates or may relate to a transactional relationship between the taxpayer and a person who is or may be a party to the proceeding which affects or may affect the resolution of an issue in such proceeding or investigation.
77.61(5)(f)2.
2. When the department of revenue allows examination of tax information under
subd. 1.:
77.61(5)(f)2.a.
a. If the department has referred the case to a district attorney, the department may make disclosure on its own motion.
77.61(5)(f)2.b.
b. If a district attorney requests examination of tax information relating to a person, the request must be in writing, clearly identify the requester and the person to whom the information relates and explain the need for the information. The department may then allow the examination of tax information so requested and the information may be examined and used solely for the proceeding or investigation for which it was requested.
77.61(5)(f)3.
3. Such tax information may be examined for use in preparation for any administrative or judicial proceeding or an investigation which may result in such proceeding pertaining to the enforcement of a specifically designated state criminal statute not involving tax administration to which this state or a governmental subdivision thereof is a party. Such tax information may be used solely for the proceeding or investigation for which it is requested.
77.61(5)(f)4.
4. The department of revenue may allow an examination of tax information under
subd. 3. only if a district attorney petitions a court of record in this state for an order allowing the examination and the court issues an order after finding:
77.61(5)(f)4.a.
a. There is a reasonable cause to believe, based on information believed to be reliable, that a specific criminal act has been committed;
77.61(5)(f)4.b.
b. There is reason to believe that such tax information is probative evidence of a matter in issue related to the commission of such criminal act; and
77.61(5)(f)4.c.
c. The information sought to be examined cannot reasonably be obtained from any other source, unless it is determined that, notwithstanding the reasonable availability of the information from another source, the tax information constitutes the most probative evidence of a matter in issue relating to the commission of such criminal act.
77.61(5)(f)5.
5. If the department determines that examination of tax information ordered under
subd. 4. would identify a confidential informant or seriously impair a civil or criminal tax investigation, the department may deny access and shall certify the reason therefor to the court.
77.61(5)(fm)
(fm) The department of revenue shall inform each requester of the amount paid or payable under
s. 77.52 for any reporting period and reported on a return filed by any city, village, town, county, school district, special purpose district or technical college district; whether that amount was paid by the statutory due date; the amount of any tax, fees, penalties or interest assessed by the department; and the total amount due or assessed under
s. 77.52 but unpaid by the filer, except that the department may not divulge tax return information that in the department's opinion violates the confidentiality of that information with respect to any person other than the units of government and districts specified in this paragraph. The department shall provide to the requester a written explanation if it fails to divulge information on grounds of confidentiality. The department shall collect from the person requesting the information a fee of $4 for each return.
77.61(5)(g)
(g) Any person violating this subsection may be fined not less than $100 nor more than $500, or imprisoned not less than one month nor more than 6 months, or both.
77.61 Cross-reference
Cross Reference: See also ss.
Tax 1.11 and
1.13, Wis. adm. code.
77.61(8)
(8) In any case in which a refund is authorized or prescribed in this subchapter, or in the rules of the department related to the administration hereof, no such refund shall be made if the total amount thereof is less than $2 unless specifically requested on the appropriate form designated by the department.
77.61(9)
(9) The department may by rule require the filing, submission, preparation or retention of such information returns, exemption and resale certificates and other forms, reports and data as it requires for the proper administration of this subchapter. Any person who fails or refuses to file, submit, prepare or retain such returns, certificates, forms, reports or data, at the time and place and in the manner required, is guilty of a misdemeanor for each such failure or refusal.
77.61(11)
(11) Any city, village or town clerk or other official whose duty it is to issue licenses or permits to engage in a business involving the sale at retail of tangible personal property subject to tax under this subchapter, or the furnishing of services so subject to tax, shall, before issuing such license or permit, require proof that the person to whom such license or permit is to be issued is the holder of a seller's permit as required by this subchapter or has been informed by an employee of the department that the department will issue a seller's permit to that person.
77.61(12)(a)(a) No natural person shall be excused from testifying or from producing any books, papers, records or memoranda in any investigation, or upon any hearing when ordered to do so by the secretary of revenue or the secretary's designee upon the ground that the testimony or evidence, documentary or otherwise, may tend to incriminate or subject the person to criminal penalty, but no such natural person so ordered shall be prosecuted or subjected to any criminal penalty for, or on account of such testimony or books, papers, records or memoranda which the person produces upon such investigation or hearing. No person so testifying shall be exempt from prosecution and punishment for perjury in so testifying.
