77.522(4)(g)1.1. The sale of a private communication service for a separate charge related to a customer channel termination point is sourced to the location of the customer channel termination point.
77.522(4)(g)2.
2. The sale of a private communication service in which all customer channel termination points are located entirely in one taxing jurisdiction for sales and use tax purposes is sourced to the taxing jurisdiction in which the customer channel termination points are located.
77.522(4)(g)3.
3. If the segments are charged separately, the sale of a private communication service that represents segments of a communications channel between 2 customer channel termination points that are located in different taxing jurisdictions for sales and use tax purposes is sourced to an equal percentage in both such jurisdictions.
77.522(4)(g)4.
4. If the segments are not charged separately, the sale of a private communication service for segments of a communications channel that is located in more than one taxing jurisdiction for sales and use tax purposes is sourced to each such jurisdiction in a percentage determined by dividing the number of customer channel termination points in that jurisdiction by the number of customer channel termination points in all jurisdictions where segments of the communications channel are located.
77.522(4)(h)
(h) The sale of an Internet access service is sourced to the customer's place of primary use.
77.522(4)(i)
(i) The sale of an ancillary service is sourced to the customer's place of primary use.
77.522(4)(j)
(j) If the location of the customer's service address, channel termination point, or place of primary use is not known, the location where the seller receives or hands off the signal shall be considered, for purposes of this section, the customer's service address, channel termination point, or place of primary use.
77.522(5)(a)(a) For purposes of this subsection, "retail florist" means a person engaged in the business of selling cut flowers, floral arrangements, and potted plants and who prepares such flowers, floral arrangements, and potted plants. "Retail florist" does not include a person who sells cut flowers, floral arrangements, and potted plants primarily by mail or via the Internet.
77.522(5)(b)
(b) Sales by a retail florist are sourced to the location determined by rule by the department.
77.522 History
History: 2009 a. 2,
28,
276,
330.
77.524
77.524
Seller and 3rd-party liability. 77.524(1)(ag)
(ag) "Agent" means a person appointed by a seller to represent the seller before the states that are signatories to the agreement, as defined in
s. 77.65 (2) (a).
77.524(1)(am)
(am) "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(1g)
(1g) "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, except that a certified service provider is not responsible for a retailer's obligation to remit tax on the retailer's own purchases.
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.
77.525
77.525
Reduction to prevent double taxation. Any person who is subject to the tax under
s. 77.52 (2) (a) 5. 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. was passed on an amount equal to the amounts not remitted.
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 purchase price of those services; on the storage, use or other consumption in this state of tangible personal property and items or property under
s. 77.52 (1) (b) or
(c) purchased from any retailer, at the rate of 5% of the purchase price of the property or items; on the storage, use, or other consumption of goods in this state under
s. 77.52 (1) (d) purchased from any retailer, if the purchaser has the right to use the goods on a permanent or less than permanent basis and regardless of whether the purchaser is required to make continued payments for such right, at the rate of 5 percent of the purchase price of the goods; and on the storage, use or other consumption of tangible personal property or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d) 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 purchase price of that material.
77.53(1b)
(1b) The storage, use, or other consumption in this state of tangible personal property or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), 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.
77.53(1m)
(1m) For motor vehicles that are used for a purpose in addition to retention, demonstration or display while held for sale in the regular course of business by a dealer who is licensed under
ss. 218.0101 to
218.0163, the base for the tax imposed under
sub. (1) is the following:
77.53(1m)(a)
(a) If the motor vehicle is assigned to and used by an employee of the dealer for whom the dealer is required to withhold amounts for federal income tax purposes or by a person who both has an ownership interest in the dealership and actively participates in the day-to-day operation of the dealership, $96 per month for each motor vehicle registration plate held by the dealer, except that beginning in 1997 the department shall annually, as of January 1, adjust the dollar amount under this paragraph, rounded to the nearest whole dollar, to reflect the annual percentage change in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the 12 months ending on June 30 of the year before the change. In this paragraph, "actively participates" means performs services for the motor vehicle dealership; including selling, accounting, managing and consulting; for more than 500 hours in a taxable year for which the person receives compensation, and "actively participates" does not include services performed only in the capacity of an investor; including studying and reviewing financial statements or reports on the operation of the business, preparing or compiling summaries or analyses of the finances of the business for the investor's own use or monitoring the finances or operations of the activity in a nonmanagerial capacity.
77.53(1m)(b)
(b) If the motor vehicle is used by the dealer or any person other than an employee of the dealer, the lease value as shown in the lease value tables that the internal revenue service prepares to interpret section
61 of the internal revenue code.
77.53(2)
(2) Every person storing, using, or otherwise consuming in this state tangible personal property, or items, property, or goods specified under
s. 77.52 (1) (b),
(c), or
(d), or taxable services purchased from a retailer is liable for the tax imposed by this section. The person's liability is not extinguished until the tax has been paid to this state, but a receipt with the tax separately stated from a retailer engaged in business in this state or from a retailer who is authorized by the department, under such rules as it prescribes, to collect the tax and who is regarded as a retailer engaged in business in this state for purposes of the tax imposed by this section given to the purchaser under
sub. (3) relieves the purchaser from further liability for the tax to which the receipt refers.
77.53(3)
(3) Every retailer engaged in business in this state and making sales of tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable services that are sourced to this state under
s. 77.522, shall, at the time of making the sales, collect the tax from the purchaser and give to the purchaser a receipt in the manner and form prescribed by the department.
77.53(5)
(5) The tax required to be collected by the retailer constitutes a debt owed by the retailer to the state.
77.53(7)
(7) The tax required to be collected by the retailer from the purchaser shall be displayed separately from the list price, the price advertised in the premises, the marked price, or other price on the sales check, invoice or other proof of sale.
77.53(8)
(8) Any person violating
sub. (3) or
(7) is guilty of a misdemeanor.
77.53(9)
(9) Every retailer selling tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable services for storage, use or other consumption in this state shall register with the department and obtain a certificate under
s. 73.03 (50) and give the name and address of all agents operating in this state, the location of all distribution or sales houses or offices or other places of business in this state, the standard industrial code classification of each place of business in this state and the other information that the department requires. Any person who may register under this subsection may designate an agent, as defined in
s. 77.524 (1) (ag), to register with the department under this subsection, in the manner prescribed by the department.
77.53(9m)(a)(a) Any person who is not otherwise required to collect any tax imposed by this subchapter and who makes sales to persons within this state of tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable services the use of which is subject to tax under this subchapter may register with the department under the terms and conditions that the department imposes and shall obtain a valid certificate under
s. 73.03 (50) and thereby be authorized and required to collect, report, and remit to the department the use tax imposed by this subchapter.
77.53(9m)(b)
(b) Any person who may register under
par. (a) may designate an agent, as defined in
s. 77.524 (1) (ag), to register with the department under
par. (a), in the manner prescribed by the department.
77.53(9m)(c)
(c) The registration under
par. (a) by a person who is not otherwise required to collect any tax imposed by this subchapter shall not be used as a factor in determining whether the seller has nexus with this state for any tax at any time.
77.53(10)
(10) For the purpose of the proper administration of this section and to prevent evasion of the use tax and the duty to collect the use tax, it is presumed that tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable services sold by any person for delivery in this state is sold for storage, use, or other consumption in this state until the contrary is established. The burden of proving the contrary is upon the person who makes the sale unless that person takes from the purchaser an electronic or paper certificate, in a manner prescribed by department, to the effect that the property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable service is purchased for resale, or otherwise exempt from the tax, except that no certificate is required for the sale of tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or services that are exempt under
s. 77.54 (7),
(7m),
(8),
(10),
(11),
(14),
(15),
(17),
(20n),
(21),
(22b),
(31),
(32),
(35),
(36),
(37),
(42),
(44),
(45),
(46),
(51), and
(52).
77.53(11)(a)(a) The certificate under
sub. (10) relieves the person selling the property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or service of the tax otherwise applicable only if the seller obtains a fully completed exemption certificate, or the information required to prove the exemption, from the purchaser no later than 90 days after the date of the sale of the tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable service, except as provided in
par. (b). The certificate under
sub. (10) shall not relieve the seller of the tax otherwise applicable if the seller fraudulently fails to collect sales tax or solicits the purchaser to claim an unlawful exemption, or accepts an exemption certificate from a purchaser who claims to be an entity that is not subject to the taxes imposed under this subchapter, if the subject of the transaction sought to be covered by the exemption certificate is received by the purchaser at a location operated by the seller in this state and the exemption certificate clearly and affirmatively indicates that the claimed exemption is not available in this state. The certificate shall provide information that identifies the purchaser and shall indicate the basis for the claimed exemption and a paper certificate shall be signed by the purchaser. The certificate shall be substantially in the form that the department prescribes by rule.
77.53(11)(b)1.1. If the seller has not obtained a fully completed exemption certificate or the information required to prove the exemption, as provided in
par. (a), the seller may, no later than 120 days after the department requests that the seller substantiate the exemption, either provide proof of the exemption to the department by other means or obtain, in good faith, a fully completed exemption certificate from the purchaser.
77.53(11)(b)2.
2. An exemption certificate is received by the seller in good faith if the certificate claims an exemption for which all of the following apply:
77.53(11)(b)2.a.
a. It was an exemption authorized by law on the date of the transaction in the jurisdiction where the transaction is sourced.
77.53(11)(b)2.b.
b. It could be applicable to the property, item, good, or service being purchased.
77.53(11)(b)3.
3. If the seller obtains the information described in
subd. 2., the seller is relieved of any liability for the tax on the transaction unless it is discovered through the audit process that the seller had knowledge, or had reason to know, at the time such information was provided that the information relating to the exemption claimed was materially false or the seller otherwise knowingly participated in activity intended to purposefully evade the tax that is properly due on the transaction. In order to enforce this subdivision, the state must establish that the seller had knowledge, or had reason to know, at the time the information was provided that the information was materially false.
77.53(12)
(12) If a purchaser who gives a certificate makes any storage or use of the property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or service other than retention, demonstration, or display while holding it for sale in the regular course of operations as a seller, the storage or use is taxable as of the time the property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or service is first so stored or used.
77.53(13)
(13) 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.
77.53(14)
(14) It is presumed that tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable services shipped or brought to this state by the purchaser were purchased from or serviced by a retailer.
77.53(16)
(16) If the purchase, rental or lease of tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or service subject to the tax imposed by this section was subject to a sales tax by another state in which the purchase was made, the amount of sales tax paid the other state shall be applied as a credit against and deducted from the tax, to the extent thereof, imposed by this section, except no credit may be applied against and deducted from a sales tax paid on the purchase of direct mail, if the direct mail purchaser did not provide to the seller a direct pay permit, an exemption certificate claiming direct mail, or other information that indicates the appropriate taxing jurisdiction to which the direct mail is delivered to the ultimate recipients. In this subsection "sales tax" includes a use or excise tax imposed on the use of tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable service by the state to which the sale was sourced and "state" includes the District of Columbia and the commonwealth of Puerto Rico but does not include the several territories organized by congress.
77.53(16m)
(16m) If the purchase, rental, license, or lease of tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or service subject to the tax imposed by this section was sourced to tribal lands and, prior to imposing the tax under this subchapter, was subject to a sales tax by a federally recognized American Indian tribe or band in this state, the amount of sales tax paid to the tribe or band may, as determined by an agreement between the department and the tribal council under
s. 73.03 (65), be applied as a credit against and deducted from the tax, to the extent thereof, imposed by this section. In this subsection "sales tax" includes a use or excise tax imposed on the use of tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable service by the tribe or band.
77.53(17)
(17) This section does not apply to tangible personal property or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d) purchased outside this state, as determined under
s. 77.522, other than motor vehicles, boats, snowmobiles, recreational vehicles, as defined in
s. 340.01 (48r), trailers, semitrailers, all-terrain vehicles and airplanes registered or titled or required to be registered or titled in this state, which is brought into this state by a nondomiciliary for the person's own storage, use or other consumption while temporarily within this state when such property, item, or good is not stored, used or otherwise consumed in this state in the conduct of a trade, occupation, business or profession or in the performance of personal services for wages or fees.
77.53(17m)
(17m) This section does not apply to a boat purchased in a state contiguous to this state, as determined under
s. 77.522, by a person domiciled in that state if the boat is berthed in this state's boundary waters adjacent to the state of the domicile of the purchaser and if the transaction was an exempt occasional sale under the laws of the state in which the purchase was made.
77.53(17r)
(17r) This section does not apply to an aircraft if all of the following requirements are fulfilled:
77.53(17r)(b)
(b) Its owner or lessee has paid all of the sales and use taxes imposed in respect to it by the state where it was purchased.
77.53(17r)(c)
(c) If the owner or lessee is a corporation, that corporation, and all corporations with which that corporation may file a consolidated return for federal income tax purposes, neither is organized under the laws of this state nor has real property or other tangible personal property; except aircraft and such property as hangars, accessories, attachments, fuel and parts required for operation of aircraft; in this state at the time the aircraft is registered in this state.
77.53(17r)(d)
(d) If the owner or lessee is a partnership, all of the corporate partners fulfill the requirements under
par. (c) and none of the general partners and none of the limited partners who has management or control responsibilities is domiciled in this state and the partnership has no other tangible personal property and no real property; except aircraft and such property as hangars, accessories, attachments, fuel and parts required for operation of aircraft; in this state at the time the aircraft is registered in this state.
77.53(17r)(dm)
(dm) If the owner or lessee is a limited liability company, all of the corporate members fulfill the requirements under
par. (c) and none of the managers and none of the members who has management or control responsibilities is domiciled in this state and the limited liability company has no other tangible personal property and no real property; except aircraft and such property as hangars, accessories, attachments, fuel and parts required for operation of aircraft; in this state at the time the aircraft is registered in this state.
77.53(17r)(e)
(e) If the owner or lessee is an individual, the owner or lessee is not domiciled in this state.
77.53(17r)(f)
(f) If the owner or lessee is an estate, a trust, a cooperative, or an unincorporated cooperative association; that estate, that trust and its grantor or that cooperative or association does not have real property or other tangible personal property; except aircraft and such property as hangars, accessories, attachments, fuel and parts required for operation of aircraft; in this state at the time the aircraft is registered in this state.
77.53(17r)(g)
(g) The department has not determined that the owner, if the owner is a corporation, trust, partnership or limited liability company, was formed to qualify for the exception under this subsection.
77.53(18)
(18) This section does not apply to the storage, use or other consumption in this state of household goods or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d) for personal use or to aircraft, motor vehicles, boats, snowmobiles, mobile homes, manufactured homes, as defined in
s. 101.91 (2), recreational vehicles, as defined in
s. 340.01 (48r), trailers, semitrailers, and all-terrain vehicles, for personal use, purchased by a nondomiciliary of this state outside this state, as determined under
s. 77.522, 90 days or more before bringing the goods, items, or property into this state in connection with a change of domicile to this state.
77.53 History
History: 1971 c. 125,
211;
1977 c. 29,
418;
1979 c. 1,
174;
1981 c. 317;
1983 a. 2;
1985 a. 29;
1987 a. 27,
268,
399;
1991 a. 39,
316;
1993 a. 16,
112;
1995 a. 27,
209;
1997 a. 27,
41,
237;
1999 a. 31;
2001 a. 109;
2003 a. 321;
2005 a. 441;
2007 a. 11,
20;
2009 a. 2,
28,
276,
330.
77.53 Annotation
For a taxpayer to use tangible personal property for use tax purposes the taxpayer must own, possess, or enjoy the property and exercise some right or power over the property in Wisconsin. A taxpayer's purpose in entering into a transaction is not dispositive of whether the property is subject to use tax. The substance and realities of a taxpayer's activities are determinative. The exercise of a right or power over property encompasses financial or economic control as well as physical control. G & G Trucking, Inc. v. DOR, 2003 WI App 228,
267 Wis. 2d 847,
672 N.W.2d 80,
02-2648.
77.53 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.
77.535
77.535
Increases; building materials. Increases in the rates of the taxes under this subchapter do not apply to building materials purchased by persons engaged in constructing, altering, repairing or improving real estate for others when the materials so purchased by those persons are affixed and made a structural part of real estate in the fulfillment of a written contract for a fixed price not subject to change or modification, or to a formal written bid that cannot be altered or withdrawn, if the contract is entered into or the bid is made before the effective date of the sales and use tax rate increase.
77.535 History
History: 1981 c. 317.
77.54
77.54
General exemptions. There are exempted from the taxes imposed by this subchapter:
77.54(1)
(1) The sales price from the sale of and the storage, use or other consumption in this state of tangible personal property, and items and property under
s. 77.52 (1) (b) and
(c), and services the sales price from the sale of which, or the storage, use or other consumption of which, this state is prohibited from taxing under the constitution or laws of the United States or under the constitution of this state.
77.54(2)
(2) The sales price from the sales of and the storage, use, or other consumption of tangible personal property or item under
s. 77.52 (1) (b) that is used exclusively and directly by a manufacturer in manufacturing an article of tangible personal property or item or property under
s. 77.52 (1) (b) or
(c) that is destined for sale and that becomes an ingredient or component part of the article of tangible personal property or item or property under
s. 77.52 (1) (b) or
(c) destined for sale or is consumed or destroyed or loses its identity in manufacturing the article of tangible personal property or item or property under
s. 77.52 (1) (b) or
(c) destined for sale, except as provided in
sub. (30) (a) 6.
77.54(2m)
(2m) The sales price from the sales of and the storage, use, or other consumption of tangible personal property or services that are used exclusively and directly by a manufacturer in manufacturing shoppers guides, newspapers, or periodicals and that become an ingredient or component of shoppers guides, newspapers, or periodicals or that are consumed or lose their identity in the manufacture of shoppers guides, newspapers, or periodicals, whether or not the shoppers guides, newspapers, or periodicals are transferred without charge to the recipient. In this subsection, "shoppers guides," "newspapers," and "periodicals" have the meanings under
sub. (15). The exemption under this subdivision does not apply to advertising supplements that are not newspapers.
77.54(3)(a)(a) The sales price from the sales of and the storage, use, or other consumption of tractors and machines, including accessories, attachments, and parts, lubricants, nonpowered equipment, and other tangible personal property, or items or property under
s. 77.52 (1) (b) or
(c), that are used exclusively and directly, or are consumed or lose their identities, in the business of farming, including dairy farming, agriculture, horticulture, floriculture, silviculture, and custom farming services, but excluding automobiles, trucks, and other motor vehicles for highway use; excluding personal property that is attached to, fastened to, connected to, or built into real property or that becomes an addition to, component of, or capital improvement of real property; and excluding tangible personal property, or items or property under
s. 77.52 (1) (b) or
(c), used or consumed in the erection of buildings or in the alteration, repair, or improvement of real property, regardless of any contribution that that personal property, or item or property under
s. 77.52 (1) (b) or
(c), makes to the production process in that building or real property and regardless of the extent to which that personal property, or item or property under
s. 77.52 (1) (b) or
(c), functions as a machine, except as provided in
par. (c).
77.54(3)(b)2.
2. "Machine" means an assemblage of parts that transmits force, motion and energy from one part to another in a predetermined manner.
77.54(3)(b)3.
3. "Used exclusively" means used to the exclusion of all other uses except for other use not exceeding 5% of total use.
77.54(3)(c)
(c) For purposes of this subsection, the following items retain their character as tangible personal property, regardless of the extent to which they are fastened to, connected to or built into real property:
