77.51(14)(n)2.
2. Whether the seller sells smaller quantities from inventory.
77.51(14)(n)3.
3. Whether the seller makes or intends to make a profit on the sale.
77.51(14)(n)4.
4. Whether the seller or the buyer receives a benefit the seller or buyer bargained for.
77.51(14)(n)5.
5. The percentage of the seller's total sales that the sale represents.
77.51(14g)(a)
(a) The transfer of property to a corporation upon its organization solely in consideration for the issuance of its stock;
77.51(14g)(b)
(b) The contribution of property to a newly formed partnership solely in consideration for a partnership interest therein;
77.51(14g)(bm)
(bm) The contribution of property to a limited liability company upon its organization solely in consideration for a membership interest;
77.51(14g)(c)
(c) The transfer of property to a corporation, solely in consideration for the issuance of its stock, pursuant to a merger or consolidation;
77.51(14g)(cm)
(cm) The transfer of property to a limited liability company, solely in consideration for a membership interest, pursuant to a merger;
77.51(14g)(d)
(d) The distribution of property by a corporation to its stockholders as a dividend or in whole or partial liquidation;
77.51(14g)(e)
(e) The distribution of property by a partnership to its partners in whole or partial liquidation;
77.51(14g)(em)
(em) The distribution of property by a limited liability company to its members in whole or partial liquidation;
77.51(14g)(f)
(f) Repossession of property by the seller from the purchaser when the only consideration is cancellation of the purchaser's obligation to pay the remaining balance of the purchase price;
77.51(14g)(g)
(g) The transfer of property in a reorganization as defined in section
368 of the internal revenue code in which no gain or loss is recognized for franchise or income tax purposes; or
77.51(14g)(h)
(h) Any transfer of all or substantially all the property held or used by a person in the course of an activity requiring the holding of a seller's permit, if after the transfer the real or ultimate ownership of the property is substantially similar to that which existed before the transfer. For the purposes of this section, stockholders, bondholders, partners, members or other persons holding an interest in a corporation or other entity are regarded as having the real or ultimate ownership of the property of the corporation or other entity. In this paragraph, "substantially similar" means 80% or more of ownership.
77.51(14r)
(14r) A sale or purchase involving transfer of ownership of property shall be deemed to have been completed at the time and place when and where possession is transferred by the seller or the seller's agent to the purchaser or the purchaser's agent, except that for purposes of this subsection a common carrier or the U.S. postal service shall be deemed the agent of the seller, regardless of any f.o.b. point and regardless of the method by which freight or postage is paid.
77.51(15)(a)(a) Except as provided in
par. (cm), "sales price" means the total amount for which tangible personal property is sold, leased or rented, valued in money, whether paid in money or otherwise, without any deduction on account of any of the following:
77.51(15)(a)2.
2. The cost of the materials used, labor or service cost, losses or any other expenses.
77.51(15)(a)3.
3. The cost of transportation of the property prior to its purchase.
77.51(15)(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 and the federal motor fuel tax unless the tax is refunded and including also 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 on the retailer or consumer, if that federal, state or municipal tax is measured by a stated percentage of sales price or gross receipts, and not including the federal communications tax imposed upon the services set forth in
s. 77.52 (2) (a) 5. 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(15)(b)
(b) "Sales price" shall not include any of the following:
77.51(15)(b)2.
2. The amount charged for property returned by customers when that entire amount is refunded either in cash or in credit.
77.51(15)(b)3.
3. Transportation charges separately stated, if the transportation occurs after the purchase of the property is made.
77.51(15)(b)4.
4. In all transactions, except those to which
subd. 6. applies, in which an article of tangible personal property is traded toward the purchase of an article of greater value, the sales price 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(15)(b)4m.
4m. 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 sales price 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(15)(b)5.
5. Thirty-five percent of the total amount for which a new manufactured home, as defined in
s. 101.91 (11), is sold. No credit may be allowed for trade-ins under
subd. 4. or
sub. (4) (b) 3. This subdivision does not apply to lease or rental.
77.51(15)(b)6.
6. 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 sales price or an amount equal to the sales price minus the cost of the materials that become an ingredient or component part of the building.
77.51(15)(c)
(c) "Sales price" includes all of the following:
77.51(15)(c)1.
1. 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(15)(c)2.
2. The amount charged for labor or services rendered 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 charged for the tangible personal property.
77.51(15)(cm)
(cm) "Sales price" 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(17)
(17) "Seller" includes every person selling, leasing, or renting tangible personal property or selling, performing, or furnishing services of a kind the gross receipts from the sale, lease, rental, performance, or furnishing of which are required to be included in the measure of the sales tax, regardless of all of the following:
77.51(17)(a)
(a) Whether the transaction is mercantile in nature.
77.51(17)(b)
(b) Whether the seller sells smaller quantities from inventory.
77.51(17)(c)
(c) Whether the seller makes or intends to make a profit on the sale.
77.51(17)(d)
(d) Whether the seller or the buyer receives a benefit the seller or buyer bargained for.
77.51(17)(e)
(e) The percentage of the seller's total sales that the sale represents.
77.51(17m)
(17m) "Service address" means the location of the telecommunications equipment from which telecommunications services are originated or at which telecommunications services are received by a buyer. If this is not a defined location; as in the case of mobile phones, paging systems, maritime systems, air-to-ground systems and the like; "service address" means the location where a buyer makes primary use of the telecommunications equipment as defined by telephone number, authorization code or location where bills are sent.
77.51(17r)
(17r) "Sign" means write one's signature or, if the department prescribes another method of authenticating, use that other method.
77.51(18)
(18) "Storage" includes any keeping or retention in this state of tangible personal property purchased from a retailer for any purpose except sale in the regular course of business.
77.51(20)
(20) "Tangible personal property" means all tangible personal property of every kind and description and includes electricity, natural gas, steam and water and also leased property affixed to realty if the lessor has the right to remove the property upon breach or termination of the lease agreement, unless the lessor of the property is also the lessor of the realty to which the property is affixed. "Tangible personal property" also includes coins and stamps of the United States sold or traded as collectors' items above their face value and computer programs except custom computer programs.
77.51(21)
(21) "Taxpayer" means the person required to pay, collect, account for or who is otherwise directly interested in the taxes imposed by this subchapter.
77.51(21m)
(21m) "Telecommunications services" means sending messages and information transmitted through the use of local, toll and wide-area telephone service; channel services; telegraph services; teletypewriter; computer exchange services; cellular mobile telecommunications service; specialized mobile radio; stationary two-way radio; paging service; or any other form of mobile and portable one-way or two-way communications; or any other transmission of messages or information by electronic or similar means between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities. "Telecommunications services" does not include sending collect telecommunications that are received outside of the state.
77.51(22)(a)(a) "Use" includes the exercise of any right or power over tangible personal property or taxable services incident to the ownership, possession or enjoyment of the property or services, or the results produced by the services, including installation or affixation to real property and including the possession of, or the exercise of any right or power over tangible personal property by a lessee under a lease, except that "use" does not include the activities under
sub. (18).
77.51(22)(b)
(b) In this subsection "enjoyment" includes a purchaser's right to direct the disposition of property, whether or not the purchaser has possession of the property. "Enjoyment" also includes, but is not limited to, having shipped into this state by an out-of-state supplier printed material which is designed to promote the sale of property or services, or which is otherwise related to the business activities, of the purchaser of the printed material or printing service.
77.51 History
History: 1973 c. 333;
1975 c. 39,
41,
99,
224;
1975 c. 413 s.
18;
1977 c. 29,
418;
1979 c. 1 ss.
57 to
59,
61,
62;
1979 c. 174;
1981 c. 20;
1981 c. 79 s.
17;
1983 a. 23,
27;
1983 a. 189 ss.
92 to
108,
329 (12);
1983 a. 510,
538;
1983 a. 544 ss.
13 to
46,
47 (1) (b);
1985 a. 29,
332;
1987 a. 27,
399;
1989 a. 31,
335,
336;
1991 a. 39,
269,
316;
1993 a. 16,
112,
184;
1997 a. 27,
237;
1999 a. 9,
83;
2001 a. 45,
102;
2003 a. 48;
2005 a. 25,
327,
441,
479;
2007 a. 11,
20,
130.
77.51 Annotation
A tax on personal property assets was upheld since the seller had a permit under sub. (10) (a) [now sub. (9) (a)]. Ramrod, Inc. v. DOR,
64 Wis. 2d 499,
219 N.W.2d 604 (1974).
77.51 Annotation
Under sub. (4) (i) [now sub. (14) (i)], the sale of building materials included the sale of an assembly kit to a dealer for construction of a silo; the dealer is a contractor under sub. (18) [now sub. (2)]. When the silo was erected on owned land, it was real property for purposes of this section. DOR v. Smith Harvestore Products,
72 Wis. 2d 60,
240 N.W.2d 357 (1976).
77.51 Annotation
A retail sale within meaning of sub. (4) [now sub. (14)] is the final and ultimate employment of the property that results in its withdrawal from the marketplace. The sale of gold to dentists for use in dental work was not a taxable sale. DOR v. Milwaukee Refining Corp.
80 Wis. 2d 44,
257 N.W.2d 855 (1977).
77.51 Annotation
Provisions of the UCC as to the time title passes are inapplicable to sales tax law. Application of s. 77.51 is discussed. Harold W. Fuchs Agency, Inc. v. DOR,
91 Wis. 2d 283,
282 N.W.2d 625 (Ct. App. 1979).
77.51 Annotation
The sale of business assets of a taxpayer who held a seller's permit was not exempted as an "occasional sale" under sub. (10) (a) [now sub. (9) (a)]. Constitutionality is discussed. Midcontinent Broadcasting Co. v. DOR,
98 Wis. 2d 379,
297 N.W.2d 191 (1980).
77.51 Annotation
A manhole fabricator was not engaged in real property construction activities under sub. (2). Advance Pipe & Supply v. DOR,
128 Wis. 2d 431,
383 N.W.2d 502 (Ct. App. 1986).
77.51 Annotation
Photocopying expenses billed to a law firm's clients are not subject to sales tax. Frisch, Dudek & Slattery v. DOR,
133 Wis. 2d 444,
396 N.W.2d 355 (Ct. App. 1986).
77.51 Annotation
Whether articles of personal property are fixtures and thus real estate, is determined by the following tests: 1) actual physical annexation to the real estate; 2) application or adaptation to the use or purpose to which the realty is devoted; and 3) an intention on the part of the person making the annexation to make a permanent accession to the freehold. All City Communication Company, Inc. v. DOR, 2003 WI App 77,
263 Wis. 2d 394,
661 N.W.2d 845,
02-1201.
77.51 Annotation
When dealers sold or assigned installment contracts to Chrysler and Chrysler paid the dealers the full amounts financed, including amounts attributable to sales tax financed as a part of the installment contracts and the dealers subsequently remitted the sales tax attributable to the purchases to DOR, Chrysler was not a retailer who has previously paid the sales tax under ss. 77.51 (4) (b) 4. and 77.52 (6) and was not entitled to a tax deduction for the portions of bad debts attributable to the sales taxes associated with those debts. DaimlerChrysler Services North America LLC v. DOR, 2006 WI App 265,
298 Wis. 2d 119,
726 N.W.2d 312,
06-0589.
77.51 Annotation
For the use tax to apply to intercompany transfers with wholly-owned subsidiaries, the subsidiaries that transferred the fixed assets must be considered "retailers" under s. 77.51 (13). It is not the case that Wisconsin has a statutory scheme that taxes all transfers of tangible personal property, unless an explicit exemption applies. When the person transferring tangible personal property lacks mercantile intent, he or she will not be subject to tax, even though no explicit exemption applies. Wisconsin Department of Revenue v. River City Refuse Removal, Inc. 2007 WI 27,
299 Wis. 2d 561,
729 N.W.2d 396,
04-2468.
77.51 Annotation
Administrative rules relating to custom computer programs under sub. (20) are applied. Department of Revenue v. Menasha Corporation, 2007 WI App 20, 2008 WI 88, ___ Wis. 2d ___, ___ N.W.2d ___,
04-3239.
77.52
77.52
Imposition of retail sales tax. 77.52(1)
(1) For the privilege of selling, leasing or renting tangible personal property, including accessories, components, attachments, parts, supplies and materials, at retail a tax is imposed upon all retailers at the rate of 5% of the gross receipts from the sale, lease or rental of tangible personal property, including accessories, components, attachments, parts, supplies and materials, sold, leased or rented at retail in this state.
77.52(1b)
(1b) All sales, leases, or rentals of tangible personal property at retail in this state are subject to the tax imposed under
sub. (1) unless an exemption in this subchapter applies.
77.52(1m)
(1m) The sales tax applies to the receipts of operators of vending machines located on army, navy or air force installations in this state and dispensing tangible personal property. This subsection shall not be deemed to require payment of sales tax measured by receipts of such operators who lease the machines to exchanges of the army, air force, navy or marine corps which acquire title to and sell the merchandise through the machines to authorized purchasers from such exchanges. The term "operator" as used in this subsection, means any person who owns or possesses vending machines and who controls the operations of the machines as by placing the merchandise therein or removing the coins therefrom, and who has access thereto for any purpose connected with the sale of merchandise through the machines, and whose compensation is based, in whole or in part, upon receipts from sales made through such machines.
77.52(2)
(2) For the privilege of selling, performing or furnishing the services described under
par. (a) at retail in this state to consumers or users, a tax is imposed upon all persons selling, performing or furnishing the services at the rate of 5% of the gross receipts from the sale, performance or furnishing of the services.
77.52(2)(a)
(a) The tax imposed herein applies to the following types of services:
77.52(2)(a)1.
1. The furnishing of rooms or lodging to transients by hotelkeepers, motel operators and other persons furnishing accommodations that are available to the public, irrespective of whether membership is required for use of the accommodations. In this subdivision, "transient" means any person residing for a continuous period of less than one month in a hotel, motel or other furnished accommodations available to the public. In this subdivision, "hotel" or "motel" means a building or group of buildings in which the public may obtain accommodations for a consideration, including, without limitation, such establishments as inns, motels, tourist homes, tourist houses or courts, lodging houses, rooming houses, summer camps, apartment hotels, resort lodges and cabins and any other building or group of buildings in which accommodations are available to the public, except accommodations, including mobile homes as defined in
s. 101.91 (10), manufactured homes as defined in
s. 101.91 (2), and recreational vehicles as defined in
s. 340.01 (48r), rented for a continuous period of more than one month and accommodations furnished by any hospitals, sanatoriums, or nursing homes, or by corporations or associations organized and operated exclusively for religious, charitable or educational purposes provided that no part of the net earnings of such corporations and associations inures to the benefit of any private shareholder or individual. In this subdivision, "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.
77.52(2)(a)2.a.a. Except as provided in
subd. 2. b., the sale of admissions to amusement, athletic, entertainment or recreational events or places except county fairs, the sale, rental or use of regular bingo cards, extra regular cards, special bingo cards and the sale of bingo supplies to players and the furnishing, for dues, fees or other considerations, the privilege of access to clubs or the privilege of having access to or the use of amusement, entertainment, athletic or recreational devices or facilities, including the sale or furnishing of use of recreational facilities on a periodic basis or other recreational rights, including but not limited to membership rights, vacation services and club memberships.
77.52(2)(a)2.b.
b. Taxable sales do not include the sale of admissions by a gun club, including the sale of a gun club membership, if the gun club is a nonprofit organization and if the gun club provides safety classes to at least 25 individuals in the calendar year.
77.52(2)(a)5.a.a. The sale of telecommunications services, except services subject to
4 USC 116 to
126, as amended by
P.L. 106-252, that either originate or terminate in this state; except services that are obtained by means of a toll-free number, that originate outside this state and that terminate in this state; and are charged to a service address in this state, regardless of the location where that charge is billed or paid; and the sale of the rights to purchase telecommunications services, including purchasing reauthorization numbers, by paying in advance and by using an access number and authorization code, except sales that are subject to
subd. 5. b.
77.52(2)(a)5.b.
b. The sale of services subject to
4 USC 116 to
126, as amended by
P.L. 106-252, if the customer's place of primary use of the services is in this state, as determined under
4 USC 116 to
126, as amended by
P.L. 106-252. For purposes of this
subd. 5. b., all of the provisions of
4 USC 116 to
126, as amended by
P.L. 106-252, are adopted, except that if
4 USC 116 to
126, as amended by
P.L. 106-252, or the application of
4 USC 116 to
126, as amended by
P.L. 106-252, is found unconstitutional the sale of telecommunications services is subject to the tax imposed under this section as provided in
subd. 5. a.
77.52(2)(a)5m.
5m. The sale of services that consist of recording telecommunications messages and transmitting them to the purchaser of the service or at that purchaser's direction, but not including those services if they are merely an incidental, as defined in
s. 77.51 (5), element of another service that is sold to that purchaser and is not taxable under this subchapter.
77.52(2)(a)6.
6. Laundry, dry cleaning, pressing and dyeing services, except when performed on raw materials or goods in process destined for sale, except when performed on cloth diapers by a diaper service and except when the service is performed by the customer through the use of coin-operated, self-service machines.
77.52(2)(a)7.
7. Photographic services including the processing, printing and enlarging of film as well as the service of photographers for the taking, reproducing and sale of photographs.
77.52(2)(a)9.
9. Parking or providing parking space for motor vehicles and aircraft for a consideration and docking or providing storage space for boats for a consideration.
77.52(2)(a)10.
10. Except for services provided by veterinarians and except for installing or applying tangible personal property that, subject to
par. (ag), when installed or applied, will constitute an addition or capital improvement of real property, the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, and maintenance of all items of tangible personal property unless, at the time of that repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance, a sale in this state of the type of property repaired, serviced, altered, fitted, cleaned, painted, coated, towed, inspected, or maintained would have been exempt to the customer from sales taxation under this subchapter, other than the exempt sale of a motor vehicle or truck body to a nonresident under
s. 77.54 (5) (a) and other than nontaxable sales under
s. 77.51 (14r). The tax imposed under this subsection applies to the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, or maintenance of items listed in
par. (ag), regardless of whether the installation or application of tangible personal property related to the items is an addition to or a capital improvement of real property, except that the tax imposed under this subsection does not apply to the original installation or the complete replacement of an item listed in
par. (ag), if that installation or replacement is a real property construction activity under
s. 77.51 (2).
77.52(2)(a)11.
11. The producing, fabricating, processing, printing or imprinting of tangible personal property for a consideration for consumers who furnish directly or indirectly the materials used in the producing, fabricating, processing, printing or imprinting. This subdivision does not apply to the printing or imprinting of tangible personal property that results in printed material, catalogs, or envelopes that are exempt under
s. 77.54 (25) or
(25m).
Effective date note
NOTE: Subd. 11. is shown as amended eff. 4-1-09 by
2007 Wis. Act 20. Prior to 4-1-09 it reads:
Effective date text
11. The producing, fabricating, processing, printing or imprinting of tangible personal property for a consideration for consumers who furnish directly or indirectly the materials used in the producing, fabricating, processing, printing or imprinting. This subdivision does not apply to the printing or imprinting of tangible personal property which will be subsequently transported outside the state for use outside the state by the consumer for advertising purposes.
