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),
99-0671.
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. Grantor and grantee social security numbers and grantor and grantee telephone numbers from real estate transfer returns shall be confidential, but the returns, and the information contained in the returns, may be disclosed as follows:
77.265(1)
(1) The department of revenue shall distribute information from the returns to local assessors. The local assessors shall maintain the confidentiality of social security numbers and telephone numbers from the returns.
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 grantor and grantee social security numbers and telephone numbers from the returns.
77.265(3)
(3) The returns may be used in any proceeding involving the requisite amount of the fee and may be produced in any proceeding subject to a valid subpoena or court order, but the court, or adjudicating agency, and the parties shall maintain the confidentially of social security numbers and telephone numbers from the returns.
77.265(4)
(4) The department of workforce development may use the returns under
s. 106.50, but shall maintain the confidentiality of social security numbers and telephone numbers from the returns.
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, but shall maintain the confidentiality of social security numbers and telephone numbers from the returns.
77.265(6)
(6) Governmental agencies that acquire real property for public purposes, or that administer taxes, may use the returns, but shall maintain the confidentiality of social security numbers and telephone numbers from 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 after signing a written agreement to maintain the confidentiality of social security numbers and telephone numbers from the returns inspected.
77.265(8)
(8) A county may use the returns to develop a tract index, but shall maintain the confidentiality of social security numbers and telephone numbers from the returns.
77.265(9)
(9) The department of revenue may make available to the public all information obtained from the returns except social security numbers and telephone numbers from the returns.
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(1j)
(1j) "Catalog" means a printed and bound, stitched, sewed, or stapled book containing a list and description of property or services for sale, regardless of whether a price is specified.
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.
77.51(3m)
(3m) "Diaper service" means a business primarily engaged in the lease or rental, delivery and laundering of cloth diapers.
77.51(3r)
(3r) "File" means mail or deliver a document that the department prescribes to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.
77.51(4)(a)(a) Except as provided in
par. (cm), "gross receipts" means the total amount of the sale, lease or rental price, as the case may be, from sales at retail of tangible personal property, or taxable services, valued in money, whether received in money or otherwise, without any deduction on account of the following:
77.51(4)(a)2.
2. The cost of the materials used, labor or service cost, interest paid, losses or any other expense;
77.51(4)(a)3.
3. The cost of transportation of the property prior to its sale to the purchaser;
77.51(4)(a)4.
4. Any tax included in or added to the purchase price, including the taxes imposed by
s. 78.01 unless the tax is refunded,
ss. 78.40,
139.02,
139.03 and
139.31, the federal motor fuel tax unless the tax is refunded and any manufacturers' or importers' excise tax; but not including any tax imposed by the United States, any other tax imposed by this state or any tax imposed by any municipality of this state upon or with respect to retail sales whether imposed upon the retailer or the consumer if that federal, state or municipal tax is measured by a stated percentage of sales price or gross receipts or the federal communications tax imposed upon the services set forth in
s. 77.52 (2) (a) 5. For purposes of the sales tax, if a retailer establishes to the satisfaction of the department that the sales tax imposed by this subchapter has been added to the total amount of the sales price and has not been absorbed by the retailer, the total amount of the sales price shall be the amount received exclusive of the sales tax imposed. For the purpose of this subdivision, a tax shall be deemed "imposed upon or with respect to retail sales" only if the retailer is the person who is required to make the payment of the tax to the governmental unit levying the tax.
77.51(4)(b)1.
1. Cash or term discounts allowed and taken on sales.
77.51(4)(b)2.
2. Such part of the sales price as is refunded in cash or credit as a result of property returned or adjustments in the sales price after the sale has been completed, provided the seller has included the said refunded receipts in a prior return made by such seller and has paid the tax thereon; and provided the seller has returned to the purchaser in cash or credit any and all tax previously paid by the purchaser on the amount of such refund at the time of the purchase.
77.51(4)(b)3.
3. In all transactions, except those to which
subd. 7. applies, in which an article of tangible personal property is traded toward the purchase of an article of greater value, the gross receipts shall be only that portion of the purchase price represented by the difference between the full purchase price of the article of greater value and the amount allowed for the article traded.
77.51(4)(b)3m.
3m. If a person who purchases a motor vehicle presents a statement issued under
s. 218.0171 (2) (cq) to the seller at the time of purchase, and the person presents the statement within 60 days from the date of receiving a refund under
s. 218.0171 (2) (b) 2. b., the trade-in amount specified in the statement issued under
s. 218.0171 (2) (cq), but not to exceed the gross receipts from the sale of the motor vehicle. This subdivision applies only to the first motor vehicle purchased by a person after receiving a refund under
s. 218.0171 (2) (b) 2. b.
77.51(4)(b)4.
4. In the case of accounts which are found to be worthless and charged off for income or franchise tax purposes, a retailer is relieved from liability for sales tax. A retailer who has previously paid the sales tax on such accounts may take as a deduction from the measure of the tax the amount found to be worthless and this deduction must be taken from the measure of the tax in the period in which said account is found to be worthless or within a reasonable time thereafter.
77.51(4)(b)5.
5. Transportation charges separately stated, if the transportation occurs after the sale of the property is made to the purchaser.
77.51(4)(b)6.
6. Thirty-five percent of the sale price of a new manufactured home, as defined in
s. 101.91 (11). No credit may be allowed for trade-ins under
subd. 3. or
sub. (15) (b) 4. This subdivision does not apply to lease or rental.
77.51(4)(b)7.
7. For the sale of a modular home, as defined in
s. 101.71 (6); at the retailer's option, except that after a retailer chooses an option, the retailer may not use the other option for other sales without the department's written approval; either 35 percent of the gross receipts or an amount equal to the gross receipts minus the cost of the materials that become an ingredient or component part of the building.
77.51(4)(c)1.
1. All receipts, cash, credits, and property except as provided in
par. (b) 3., including credits for which a person's books and records show that the transaction created, with regard to the transferee, an obligation to pay a certain amount of money or an increase in accounts payable or, with regard to the transferor, a right to receive a certain amount of money or an increase in accounts receivable.
77.51(4)(c)2.
2. Any services that are a part of the sale of tangible personal property, including any fee, service charge, labor charge or other addition to the price charged a customer by the retailer which represents or is in lieu of a tip or gratuity.
77.51(4)(c)3.
3. The entire sales price of credit transactions in the reporting period in which the sale is made without reduction in the amount of tax payable by the retailer by reason of the retailer's transfer at a discount the open account, note, conditional sales contract, lease contract or other evidence of indebtedness. No reduction in the amount of tax payable by the retailer is allowable in the event property sold on credit is repossessed except where the entire consideration paid by the purchaser is refunded to the purchaser or where a credit for a worthless account is allowable under
par. (b) 4.
77.51(4)(c)4.
4. The price received for labor or services used in installing or applying tangible personal property sold, except the price received for installing or applying property which, when installed or applied, will constitute an addition or capital improvement of real property and provided such amount is separately set forth from the amount received for the tangible personal property.
77.51(4)(c)5.
5. If a lessor of tangible personal property reimbursed the vendor for sales tax on the sale of the property by the vendor to the lessor, the tax due from the lessor on the rental receipts may be offset by a credit equal to, but not exceeding, the tax otherwise due on the rental receipts from this property for the reporting period. The credit shall expire when the cumulative rental receipts equal the sales price upon which the vendor paid sales taxes to this state. If a purchaser of tangible personal property reimbursed the vendor of the property for sales tax on the sale and subsequently, prior to making any use of the property other than retention, demonstration or display while holding it for sale or rental, makes a taxable sale of the property, the tax due on the taxable sale may be offset by the tax reimbursed.
77.51(4)(cm)
(cm) "Gross receipts" means the portion of the sales price attributable to taxable goods if exempt food, food products or beverages are packaged with other goods by a person other than a retailer before a sale to a final consumer and if less than 50% of the sales price of the goods packaged together is attributable to goods that are exempt under
s. 77.54 (20).
77.51(4)(d)
(d) The department may, in cases where it is satisfied that an undue hardship would otherwise result, permit the reporting of "gross receipts" on some basis other than the accrual basis.
77.51(4m)
(4m) "Gun club" includes a trapshooting club, skeet-shooting club, sporting-clay club, rifle and pistol club, sportsmen's club, hunting club, rod and gun club, hunting and fishing club, and conservation club. "Gun club" does not include a wild animal farm or bird hunting preserve licensed under
ch. 169.
77.51(5)
(5) For purposes of
subs. (13) (e) and
(f) and
(14) (L) and
s. 77.52 (2m) "incidental" means depending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal; something incidental to the main purpose of the service. Tangible personal property transferred by a service provider is incidental to the service if the purchaser's main purpose or objective is to obtain the service rather than the property, even though the property may be necessary or essential to providing the service.
77.51(6)
(6) "In this state" or "in the state" means within the exterior limits of the state of Wisconsin.
77.51(6m)
(6m) For purposes of
s. 77.54 (48), "Internet equipment used in the broadband market" means equipment that is capable of transmitting data packets or Internet signals at speeds of at least 200 kilobits per second in either direction.
77.51(7)
(7) "Lease" includes rental, hire and license.
77.51(8)
(8) "Newspaper" means those publications which are commonly understood to be newspapers and which are printed and distributed periodically at daily, weekly or other short intervals for the dissemination of current news and information of a general character and of a general interest to the public. In addition, any publication which qualifies as a newspaper under
s. 985.03 (1) is a newspaper. "Newspaper" also includes advertising supplements if they are printed by a newspaper and distributed as a component part of one of that newspaper's publications or if they are printed by a newspaper or a commercial printer and sold to a newspaper for inclusion in publications of that newspaper. A "newspaper" does not include handbills, circulars, flyers, or the like, advertising supplements not described in this subsection which are distributed with a newspaper, nor any publication which is issued to supply information on certain subjects of interest to particular groups, unless such publication otherwise qualifies as a newspaper within this subsection. In this subsection, advertising is not considered news of a general character and of a general interest.
77.51(9)
(9) "Occasional sales" includes:
77.51(9)(a)
(a) Isolated and sporadic sales of tangible personal property or taxable services where the infrequency, in relation to the other circumstances, including the sales price and the gross profit, support the inference that the seller is not pursuing a vocation, occupation or business or a partial vocation or occupation or part-time business as a vendor of personal property or taxable services. No sale of any tangible personal property or taxable service may be deemed an occasional sale if at the time of such sale the seller holds or is required to hold a seller's permit, except that this provision does not apply to an organization required to hold a seller's permit solely for the purpose of conducting bingo games and except as provided in
par. (am).
77.51(9)(am)
(am) The sale of personal property, other than inventory held for sale, previously used by a seller to conduct its trade or business at a location after that person has ceased actively operating in the regular course of business as a seller of tangible personal property or taxable services at that location, even though the seller holds a seller's permit for one or more other locations.
77.51(9)(e)
(e) Five or fewer auctions that are the sale of personal farm property or household goods and that are held by the same auctioneer at the same location during the year. In this paragraph, with respect to indoor locations, "location" means a building, except that in the case of a shopping center or a shopping mall "location" means a store.
77.51(10)
(10) "Person" includes any natural person, firm, partnership, limited liability company, joint venture, joint stock company, association, public or private corporation, the United States, the state, including any unit or division of the state, any county, city, village, town, municipal utility, municipal power district or other governmental unit, cooperative, unincorporated cooperative association, estate, trust, receiver, personal representative, any other fiduciary, and any representative appointed by order of any court or otherwise acting on behalf of others. "Person" also includes the owner of a single-owner entity that is disregarded as a separate entity under
ch. 71.
77.51(11)
(11) "Printing" and "imprinting" include lithography, photolithography, rotogravure, gravure, letterpress, silk screen printing, multilithing, multigraphing, mimeographing, photostating, steel die engraving and similar processes.
77.51(12)(a)
(a) Any transfer of title, possession, ownership, enjoyment, or use by: cash or credit transaction, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatever of tangible personal property for a consideration, including any transaction for which a person's books and records show the transaction created, with regard to the transferee, an obligation to pay a certain amount of money or an increase in accounts payable or, with regard to the transferor, a right to receive a certain amount of money or an increase in accounts receivable;
77.51(12)(b)
(b) A transaction whereby the possession of property is transferred but the seller retains the title as security for the payment of the price.
