77.52(2)(am)
(am) For purposes of
par. (a) 12. "cable television system" means any facility which, for a fee, regularly amplifies and transmits by wire, coaxial cable, lightwave or microwave, simultaneously to 50 or more subscribers, programs broadcast by television or radio stations or originated by themselves or any other party. "Cable television system" does not include a master antenna system which serves one residential, commercial or government building or complex of buildings under common ownership or control if that facility does not provide any broadcast signals other than those which may be viewed in that facility.
77.52(2m)(a)(a) With respect to the services subject to tax under
sub. (2), no part of the charge for the service may be deemed a sale or rental of tangible personal property if the property transferred by the service provider is incidental to the selling, performing or furnishing of the service, except as provided in
par. (b).
77.52(2m)(b)
(b) With respect to the services subject to tax under
sub. (2) (a) 7.,
10.,
11. and
20., all property physically transferred to the customer in conjunction with the selling, performing or furnishing of the service is a sale of tangible personal property separate from the selling, performing or furnishing of the service.
77.52(2n)
(2n) The selling, performing, or furnishing of the services described under
sub. (2) (a) at retail in this state is subject to the tax imposed under
sub. (2) unless an exemption in this subchapter applies.
77.52(3)
(3) The taxes imposed by this section may be collected from the consumer or user.
77.52(3m)
(3m) In regard to the sale of the rights to purchase telecommunications services under
sub. (2) (a) 5. a.:
77.52(3m)(a)
(a) If the sale takes place at a retailer's place of business, the situs of the sale is that place.
77.52(3m)(b)
(b) If the sale does not take place at a retailer's place of business and an item that will implement the right to purchase telecommunications services is shipped, the situs of the sale is the customer's shipping address.
77.52(3m)(c)
(c) If the sale does not take place at a retailer's place of business and no item that will implement the right to purchase telecommunications services is shipped, the situs of the sale is the customer's billing address.
77.52(3n)
(3n) In regard to the sale of the rights to purchase telecommunications services under
sub. (2) (a) 5. b., the situs of the sale is as determined under
4 USC 116 to
126, as amended by
P.L. 106-252.
77.52(4)
(4) It is unlawful for any retailer to advertise or hold out or state to the public or to any customer, directly or indirectly, that the tax or any part thereof will be assumed or absorbed by the retailer or that it will not be added to the selling price of the property sold or that if added it, or any part thereof, will be refunded. Any person who violates this subsection is guilty of a misdemeanor.
77.52(5)
(5) The department may by rule provide that the amount collected by the retailer from the consumer or user in reimbursement of the retailer's tax be displayed separately from the list price, the price advertised in the premises, the marked price, or other price on the sales check or other proof of sale.
77.52(6)
(6) A retailer is relieved from liability for sales tax insofar as the measure of the tax is represented by accounts which have been found to be worthless and charged off for income or franchise tax purposes. If the retailer has previously paid the tax, the retailer may, under rules prescribed by the department, take as a deduction from the measure of the tax the amount found worthless and charged off for income or franchise tax purposes. If any such accounts are thereafter collected in whole or in part by the retailer, the amount as collected shall be included in the first return filed after such collection and the tax paid with the return.
77.52(7)
(7) Every person desiring to operate as a seller within this state who holds a valid certificate under
s. 73.03 (50) shall file with the department an application for a permit for each place of operations. Every application for a permit shall be made upon a form prescribed by the department and shall set forth the name under which the applicant intends to operate, the location of the applicant's place of operations, and the other information that the department requires. The application shall be signed by the owner if a sole proprietor; in the case of sellers other than sole proprietors, the application shall be signed by the person authorized to act on behalf of such sellers. A nonprofit organization that has gross receipts taxable under
s. 77.54 (7m) shall obtain a seller's permit and pay taxes under this subchapter on all taxable gross receipts received after it is required to obtain that permit. If that organization becomes eligible later for the exemption under
s. 77.54 (7m) except for its possession of a seller's permit, it may surrender that permit.
77.52(9)
(9) After compliance with
sub. (7) and
s. 77.61 (2) by the applicant, the department shall grant and issue to each applicant a separate permit for each place of operations within the state. A permit is not assignable and is valid only for the person in whose name it is issued and for the transaction of operations at the place designated in it. It shall at all times be conspicuously displayed at the place for which it was issued.
77.52(11)
(11) If any person fails to comply with any provision of this subchapter relating to the sales tax or any rule of the department relating to the sales tax adopted under this subchapter, is delinquent in respect to any tax imposed by the department or fails timely to file any return or report in respect to any tax under
ch. 71,
72,
76,
77,
78 or
139 after having been requested to file that return or report, the department upon hearing, after giving the person 10 days' notice in writing specifying the time and place of hearing and requiring the person to show cause why the permit should not be revoked or suspended, may revoke or suspend any one or more of the permits held by the person. The department shall give to the person written notice of the suspension or revocation of any of the permits. The notices required in this subsection may be served personally or by mail in the manner prescribed for service of notice of a deficiency determination. If the department suspends or revokes a permanent permit under this subsection, it may grant a temporary permit that is valid for one month and may then grant additional temporary permits if the person pays all amounts owed under this chapter for the month for which the previous temporary permit was issued. Persons who receive a temporary permit waive the notice requirement under
s. 77.61 (2). The department shall not issue a new permanent permit after the revocation of a permit unless it is satisfied that the former holder of the permit will comply with the provisions of this subchapter, the rules of the department relating to the sales tax and the provisions relating to other taxes administered by the department.
77.52(12)
(12) A person who operates as a seller in this state without a permit or after a permit has been suspended or revoked or has expired, unless the person has a temporary permit under
sub. (11), and each officer of any corporation, partnership member, limited liability company member or other person authorized to act on behalf of a seller who so operates, is guilty of a misdemeanor. Permits shall be held only by persons actively operating as sellers of tangible personal property or taxable services. Any person not so operating shall forthwith surrender that person's permit to the department for cancellation. The department may revoke the permit of a person found not to be actively operating as a seller of tangible personal property or taxable services.
77.52(13)
(13) For the purpose of the proper administration of this section and to prevent evasion of the sales tax it shall be presumed that all receipts are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property or services is not a taxable sale at retail is upon the person who makes the sale unless that person takes from the purchaser a certificate to the effect that the property or service is purchased for resale or is otherwise exempt; except that no certificate is required for sales of cattle, sheep, goats, and pigs that are sold at an animal market, as defined in
s. 95.68 (1) (ag), and no certificate is required for sales of commodities, as defined in
7 USC 2, that are consigned for sale in a warehouse in or from which the commodity is deliverable on a contract for future delivery subject to the rules of a commodity market regulated by the U.S. commodity futures trading commission if upon the sale the commodity is not removed from the warehouse.
77.52(14)(a)(a) The certificate referred to in
sub. (13) relieves the seller from the burden of proof only if any of the following is true:
77.52(14)(a)1.
1. The certificate is taken in good faith from a person who is engaged as a seller of tangible personal property or taxable services and who holds the permit provided for in
sub. (9) and who, at the time of purchasing the tangible personal property or services, intends to sell it in the regular course of operations or is unable to ascertain at the time of purchase whether the property or service will be sold or will be used for some other purpose.
77.52(14)(a)2.
2. The certificate is taken in good faith from a person claiming exemption.
77.52(14)(b)
(b) The certificate referred to in
sub. (13) shall be signed by and bear the name and address of the purchaser, and shall indicate the general character of the tangible personal property or service sold by the purchaser and the basis for the claimed exemption. The certificate shall be in such form as the department prescribes.
77.52(15)
(15) If a purchaser who gives a resale certificate makes any use of the property other than retention, demonstration or display while holding it for sale, lease or rental in the regular course of the purchaser's operations, the use shall be taxable to the purchaser under
s. 77.53 as of the time the property is first used by the purchaser, and the sales price of the property to the purchaser shall be the measure of the tax. Only when there is an unsatisfied use tax liability on this basis because the seller has provided incorrect information about that transaction to the department shall the seller be liable for sales tax with respect to the sale of the property to the purchaser.
77.52(16)
(16) Any person who gives a resale certificate for property or services which that person knows at the time of purchase is not to be resold by that person in the regular course of that person's operations as a seller for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction is guilty of a misdemeanor. Any person certifying to the seller that the sale of property or taxable service is exempt, knowing at the time of purchase that it is not exempt, for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction, is guilty of a misdemeanor.
77.52(17)
(17) If a purchaser gives a certificate with respect to the purchase of fungible goods and thereafter commingles these goods with other fungible goods not so purchased but of such similarity that the identity of the constituent goods in the commingled mass cannot be determined, sales from the mass of commingled goods shall be deemed to be sales of the goods so purchased until a quantity of commingled goods equal to the quantity of purchased goods so commingled has been sold.
77.52(17m)(a)(a) A person who holds a valid certificate issued under
s. 73.03 (50) may apply for a direct pay permit by filing a completed form that the department prescribes.
77.52(17m)(b)
(b) The department shall issue a direct pay permit, at the beginning of a taxpayer's taxable year, if the following requirements are fulfilled:
77.52(17m)(b)1.
1. Because of the nature of the applicant's business, issuing the permit will significantly reduce the work of administering the taxes under this subchapter.
77.52(17m)(b)2.
2. The applicant's accounting system will clearly indicate the amount of tax that the applicant owes under this subchapter.
77.52(17m)(b)3.
3. The applicant makes enough purchases that are taxable under this subchapter to justify the expense of regular audits by the department.
77.52(17m)(b)4.
4. The applicant is not liable for delinquent taxes; including costs, penalties, surcharges and interest; under
ch. 71,
72,
76,
78 or
139 or this chapter of $400 or more if any part of the tax is delinquent for at least 5 months.
77.52(17m)(b)5.
5. It is in this state's best interests to issue the permit.
77.52(17m)(b)6.
6. The applicant purchases enough tangible personal property under circumstances that make it difficult to determine whether the property will be subject to a tax under this subchapter.
77.52(17m)(c)
(c) A holder of a permit that is issued under
par. (b) may not transfer or assign it.
77.52(17m)(d)
(d) The department may revoke a permit that is issued under
par. (b) if the holder misuses it or the department determines that revocation is in this state's best interests.
77.52(17m)(e)
(e) A retailer may not collect a tax under this subchapter, and is not liable for a tax under this subchapter, on any sale, except those of a type specified as ineligible for an exemption under this paragraph by a rule promulgated by the department, for which the buyer furnishes to the retailer a copy of the permit that is issued under
par. (b) or a statement that the buyer holds such a permit, a statement of that permit's number and a statement of the date that the permit was issued.
77.52(17m)(f)
(f) A person who holds a permit that is issued under
par. (b) shall keep a record of all retailers from whom the person made a purchase for which the person used a permit that is issued under
par. (b) and shall do one of the following:
77.52(17m)(f)1.
1. Fulfill the requirements for an exempt sale under
par. (e) for every purchase that the person makes that may be exempt under that paragraph and pay the tax under
s. 77.53 (1) to the department on all of those purchases for which the tax is due.
77.52(17m)(f)2.
2. Maintain accounting records that show the tax under
ss. 77.52 (1) and
(2) and
77.53 (3) paid on each purchase during each reporting period under
s. 77.58 and the total tax paid during each reporting period, pay the tax under
ss. 77.52 (1) and
(2) and
77.53 (3) on either all or none of the purchases made from each retailer during each reporting period and pay the tax under
s. 77.53 (1) to the department on all of the purchases for which the tax is due.
77.52(18)(am)(am) If any retailer liable for any amount of tax under this subchapter sells out the retailer's business or stock of goods or quits the business, the retailer's successors or assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the department that it has been paid or a certificate stating that no amount is due.
77.52(18)(bm)
(bm) If the purchaser of a stock of goods fails to withhold from the purchase price as required, the purchaser becomes personally liable for the payment of the amount required to be withheld by the purchaser to the extent of the purchase price valued in money. Within 60 days after receiving a written request from the purchaser for a certificate, or within 60 days from the date the former owner's records are made available for audit, whichever period expires later, but in any event not later than 90 days after receiving the request, the department shall either issue the certificate or mail notice to the purchaser at the purchaser's address as it appears on the records of the department of the amount that must be paid as a condition of issuing the certificate. Failure of the department to mail the notice will release the purchaser from any further obligation to withhold the purchase price as above provided. The obligation of the successor may be enforced within 4 years of the time the retailer sells out the retailer's business or stock of goods or at the time that the determination against the retailer becomes final, whichever event occurs later.
77.52(19)
(19) The department shall by rule provide for the efficient collection of the taxes imposed by this subchapter on sales of property or services by persons not regularly engaged in selling at retail in this state or not having a permanent place of business, but who are temporarily engaged in selling from trucks, portable roadside stands, concessions at fairs and carnivals, and the like. The department may authorize such persons to sell property or sell, perform or furnish services on a permit or nonpermit basis as the department by rule prescribes and failure of any person to comply with such rules constitutes a misdemeanor.
77.52 History
History: 1973 c. 156;
1975 c. 39;
1977 c. 29,
142,
418;
1979 c. 174,
221;
1981 c. 20,
317;
1983 a. 2,
27;
1983 a. 189 ss.
99,
103,
107,
329 (12);
1983 a. 341,
510,
544;
1985 a. 29,
149;
1987 a. 27,
399;
1989 a. 31,
335;
1991 a. 39,
316;
1993 a. 112,
213,
308,
437;
1995 a. 27,
225,
351;
1997 a. 27,
237,
291;
1999 a. 9,
83;
1999 a. 150 s.
672;
2001 a. 16,
104,
109;
2003 a. 33,
321;
2005 a. 149,
327,
344;
2007 a. 11,
20,
42,
97.
77.52 Annotation
When gold sold to dentists was used in dental work, the sale was not taxable under sub. (1). DOR v. Milwaukee Refining Corp.
80 Wis. 2d 44,
257 N.W.2d 855 (1977).
77.52 Annotation
A data processing service that transfers tangible property such as cards, tapes, and printouts, but whose essential service is the sale of intangible coded or processed data, is not taxable under this section. Janesville Data Center v. DOR,
84 Wis. 2d 341,
267 N.W.2d 656 (1978).
77.52 Annotation
Meals served by a religious order in carrying out its religious work were not subject to sales tax for that portion of charges made to guests for lodging, food, and use of the order's facilities. Kollasch v. Adamany,
104 Wis. 2d 552,
313 N.W.2d 47 (1981).
77.52 Annotation
"In this state" as used in sub. (1) and defined in s. 77.51 (6) does not include airspace. Republic Airlines, Inc. v. DOR,
159 Wis. 2d 247,
464 N.W.2d 62 (Ct. App. 1990).
77.52 Annotation
Payments under a taxicab lease from a driver/lessee to the owner/lessor were sales at retail subject to tax. Sanfelippo v. DOR,
170 Wis. 2d 381,
490 N.W.2d 530 (Ct. App. 1992).
77.52 Annotation
Sub. (18) provides no relief from successor liability when the entire purchase price is paid to a secured creditor. Kastengren v. DOR,
179 Wis. 2d 587,
508 N.W.2d 431 (Ct. App. 1993).
77.52 Annotation
Contractors are considered to be the consumers of personal property used by them in real property construction and are subject to sales tax. Performing a real property construction activity for an exempt entity does not make a contractor exempt. Zignego Co., Inc. v. DOR,
211 Wis. 2d 819,
565 N.W.2d 590 (Ct. App. 1997),
96-1965.
77.52 Annotation
A resort's sale of flexible time-share interests in condominiums was subject to sales tax. Sub. (2) (a) 1., as applied to sales of flexible time-shares, does not violate the Art. VIII, s.1,"uniformity clause," nor does it violate guarantees of equal protection. Telemark Development, Inc. v. DOR,
218 Wis. 2d 809,
581 N.W.2d 585 (Ct. App. 1998),
97-3133.
77.52 Annotation
A communications tower constructed on leased land was properly deemed "personal property." The owner of the tower was liable for sales tax on proceeds from renting or leasing space on the tower, and a renter of space on the tower was liable for use tax on its rental of space on the tower. All City Communication Company, Inc. v. DOR, 2003 WI App 77,
263 Wis. 2d 394,
661 N.W.2d 845,
02-1201.
77.52 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.
77.523
77.523
Customer remedy. If a customer purchases a service that is subject to
4 USC 116 to
126, as amended by
P.L. 106-252, and if the customer believes that the amount of the tax assessed for the service under this subchapter or the place of primary use or taxing jurisdiction assigned to the service is erroneous, the customer may request that the service provider correct the alleged error by sending a written notice to the service provider. The notice shall include a description of the alleged error, the street address for the customer's place of primary use of the service, the account name and number of the service for which the customer seeks a correction, and any other information that the service provider reasonably requires to process the request. Within 60 days from the date that a service provider receives a request under this section, the service provider shall review its records to determine the customer's taxing jurisdiction. If the review indicates that there is no error as alleged, the service provider shall explain the findings of the review in writing to the customer. If the review indicates that there is an error as alleged, the service provider shall correct the error and shall refund or credit the amount of any tax collected erroneously, along with the related interest, as a result of the error from the customer in the previous 48 months, consistent with
s. 77.59 (4). A customer may take no other action, or commence any action, to correct an alleged error in the amount of the tax assessed under this subchapter on a service that is subject to
4 USC 116 to
126, as amended by
P.L. 106-252, or to correct an alleged error in the assigned place of primary use or taxing jurisdiction, unless the customer has exhausted his or her remedies under this section.
77.523 History
History: 2001 a. 109.
77.524
77.524
Seller and 3rd-party liability. 77.524(1)(a)
(a) "Certified automated system" means software that is certified jointly by the states that are signatories to the agreement, as defined in
s. 77.65 (2) (a), and that is used to calculate the sales tax and use tax imposed under this subchapter and
subch. V on a transaction by each appropriate jurisdiction, to determine the amount of tax to remit to the appropriate state, and to maintain a record of the transaction.
77.524(1)(b)
(b) "Certified service provider" means an agent that is certified jointly by the states that are signatories to the agreement, as defined in
s. 77.65 (2) (a), and that performs all of a seller's sales tax and use tax functions related to the seller's retail sales.
77.524(2)
(2) A certified service provider is the agent of the seller with whom the certified service provider has contracted and is liable for the sales and use taxes that are due the state on all sales transactions that the provider processes for a seller, except as provided in
sub. (3).
77.524(3)
(3) A seller that contracts with a certified service provider is not liable for sales and use taxes that are due the state on transactions that the provider processed, unless the seller has misrepresented the type of items that the seller sells or has committed fraud. The seller is subject to an audit on transactions that the certified service provider processed only if there is probable cause to believe that the seller has committed fraud or made a material misrepresentation. The seller is subject to an audit on transactions that the certified service provider does not process. The states that are signatories to the agreement, as defined in
s. 77.65 (2) (a), may jointly check the seller's business system and review the seller's business procedures to determine if the certified service provider's system is functioning properly and to determine the extent to which the seller's transactions are being processed by the certified service provider.
77.524(4)
(4) A person that provides a certified automated system is responsible for the system's proper functioning and is liable to this state for tax underpayments that are attributable to errors in the system's functioning. A seller that uses a certified automated system is responsible and liable to this state for reporting and remitting sales and use tax.
77.524(5)
(5) A seller that has a proprietary system for determining the amount of tax that is due on transactions and that has signed an agreement with the states that are signatories to the agreement, as defined in
s. 77.65 (2) (a), establishing a performance standard for the system is liable for the system's failure to meet the performance standard.
77.524 History
History: 2001 a. 16;
2003 a. 321.
77.525
77.525
Reduction to prevent double taxation. Any person who is subject to the tax under
s. 77.52 (2) (a) 5. a. on telecommunications services that terminate in this state and who has paid a similar tax on the same services to another state may reduce the amount of the tax remitted to this state by an amount equal to the similar tax properly paid to another state on those services or by the amount due this state on those services, whichever is less. That person shall refund proportionally to the persons to whom the tax under
s. 77.52 (2) (a) 5. a. was passed on an amount equal to the amounts not remitted.
77.525 History
History: 1997 a. 27;
2001 a. 109.
77.53
77.53
Imposition of use tax. 77.53(1)
(1) Except as provided in
sub. (1m), an excise tax is levied and imposed on the use or consumption in this state of taxable services under
s. 77.52 purchased from any retailer, at the rate of 5% of the sales price of those services; on the storage, use or other consumption in this state of tangible personal property purchased from any retailer, at the rate of 5% of the sales price of that property; and on the storage, use or other consumption of tangible personal property manufactured, processed or otherwise altered, in or outside this state, by the person who stores, uses or consumes it, from material purchased from any retailer, at the rate of 5% of the sales price of that material.
77.53(1b)
(1b) The storage, use, or other consumption in this state of tangible personal property, and the use or other consumption in this state of a taxable service, purchased from any retailer is subject to the tax imposed in this section unless an exemption in this subchapter applies.
