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.
77.52(2)(a)12.
12. The sale of cable television system services, or video services, as defined in
s. 66.0420 (2) (y), including installation charges.
77.52(2)(a)20.
20. The sale of landscaping and lawn maintenance services including landscape planning and counseling, lawn and garden services such as planting, mowing, spraying and fertilizing and shrub and tree services.
77.52(2)(ag)
(ag) For purposes of
par. (a) 10., the following items shall be considered to have retained their character as tangible personal property, regardless of the extent to which the item is fastened to, connected with, or built into real property:
77.52(2)(ag)4.
4. Ovens, including associated hoods and exhaust systems.
77.52(2)(ag)38.
38. Recreational, sporting, gymnasium, and athletic goods and equipment including, by way of illustration but not of limitation, all of the following:
77.52(2)(ag)39.
39. Equipment in offices, business facilities, schools, and hospitals but not in residential facilities including personal residences, apartments, long-term care facilities, as defined under
s. 16.009 (1) (em), state institutions, as defined under
s. 101.123 (1) (i), Type 1 juvenile correctional facilities, as defined in
s. 938.02 (19), or similar facilities including, by way of illustration but not of limitation, all of the following:
