77.51(15b)(a)4.b.
b. If a shipment includes property or items that are subject to tax under this subchapter and property or items that are not subject to tax under this subchapter, the amount of the delivery charge that the seller allocates to the property and items that are subject to tax under this subchapter is based either on the total sales price of the property and items that are subject to tax under this subchapter as compared to the total sales price of all the property and items or on the total weight of the property and items that are subject to tax under this subchapter as compared to the total weight of all the property and items.
77.51(15b)(b)1.
1. Discounts, including cash, terms, or coupons, that are not reimbursed by a 3rd party, except as provided in
par. (c); that are allowed by a seller; and that are taken by a purchaser on a sale.
77.51(15b)(b)2.
2. Interest, financing, and carrying charges from credit that is extended on a sale of tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or services, if the amount of the interest, financing, or carrying charges is separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser.
77.51(15b)(b)3.
3. Any taxes legally imposed directly on the purchaser that are separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser.
77.51(15b)(b)3m.
3m. Taxes imposed on the seller that are separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser if the law imposing or authorizing the tax provides that the seller may, but is not required to, pass on to and collect the tax from the user or consumer.
77.51(15b)(b)4.
4. Delivery charges for direct mail, if the delivery charges for direct mail are separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser.
77.51(15b)(b)5.
5. In all transactions in which an article of tangible personal property, an item under
s. 77.52 (1) (b), property under
s. 77.52 (1) (c), or a good under
s. 77.52 (1) (d) is traded toward the purchase of an article, item, property, or good of greater value, the amount of the sales price that represents the amount allowed for the article, item, property, or good traded, except that this subdivision does not apply to any transaction to which
subd. 7. or
8. applies.
77.51(15b)(b)6.
6. 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 to the seller 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 from the sale of the motor vehicle. This subdivision applies only to the first motor vehicle purchased by a person after receiving a refund under
s. 218.0171 (2) (b) 2. b.
77.51(15b)(b)7.
7. Thirty-five percent of the sales price, excluding trade-ins, of a new manufactured home, as defined in
s. 101.91 (11). This subdivision does not apply to a lease or rental.
77.51(15b)(b)8.
8. At the retailer's option; except that after the 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 of a modular home, as defined in
s. 101.71 (6), or an amount equal to the sales price of the home minus the cost of materials that become an ingredient or component part of the home.
77.51(15b)(c)
(c) "Sales price" includes consideration received by the seller from a 3rd party, if:
77.51(15b)(c)1.
1. The seller actually receives consideration from a 3rd party, other than the purchaser, and the consideration is directly related to a price reduction or discount on a sale.
77.51(15b)(c)2.
2. The seller is obliged to pass the price reduction or discount to the purchaser.
77.51(15b)(c)3.
3. The amount of the consideration that is attributable to the sale is a fixed amount and the seller is able to determine that amount at the time of the sale to the purchaser.
77.51(15b)(c)4.a.
a. The purchaser presents a coupon, certificate, or other documentation to the seller to claim the price reduction or discount, if the coupon, certificate, or other documentation is authorized, distributed, or granted by the 3rd party with the understanding that the 3rd party will reimburse the seller for the amount of the price reduction or discount.
77.51(15b)(c)4.b.
b. The purchaser identifies himself or herself to the seller as a member of a group or organization that may claim the price reduction or discount.
77.51(15b)(c)4.c.
c. The seller provides an invoice to the purchaser, or the purchaser presents a coupon, certificate, or other documentation to the seller, that identifies the price reduction or discount as a 3rd-party price reduction or discount.
77.51(17)
(17) "Seller" includes every person selling, licensing, leasing, or renting tangible personal property or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d) or selling, performing, or furnishing services of a kind the sales price from the sale, license, lease, rental, performance, or furnishing of which is 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 any of the following:
77.51(17m)(a)
(a) The location of the telecommunications equipment to which a customer's telecommunications service is charged and from which the telecommunications service originates or terminates, regardless of where the telecommunications service is billed or paid.
77.51(17m)(b)
(b) If the location described under
par. (a) is not known by the seller who sells the telecommunications service, the location where the signal of the telecommunications service originates, as identified by the seller's telecommunications system or, if the signal is not transmitted by the seller's telecommunications system, by information that the seller received from the seller's service provider.
77.51(17m)(c)
(c) If the locations described under
pars. (a) and
(b) are not known by the seller who sells the telecommunications service, the customer's place of primary use.
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(17w)
(17w) "Soft drink" means a beverage that contains less than 0.5 percent of alcohol and that contains natural or artificial sweeteners. "Soft drink" does not include a beverage that contains milk or milk products; soy, rice, or similar milk substitutes; or more than 50 percent vegetable or fruit juice by volume.
77.51(17x)
(17x) "Specified digital goods" means digital audio works, digital audiovisual works, and digital books. For purposes of this subchapter, the sale, license, lease, or rental of or the storage, use, or other consumption of a digital code is treated the same as the sale, license, lease, or rental of or the storage, use, or other consumption of any specified digital goods for which the digital code relates.
77.51(18)
(18) "Storage" includes any keeping or retention in this state of tangible personal property or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d) purchased from a retailer for any purpose except sale in the regular course of business.
77.51(20)
(20) "Tangible personal property" means personal property that can be seen, weighed, measured, felt, or touched, or that is in any other manner perceptible to the senses, and includes electricity, gas, steam, water, and prewritten computer software, regardless of how it is delivered to the purchaser.
77.51(21)
(21) "Taxpayer" means the person who is required to pay, collect, or account for or who is otherwise directly interested in the taxes imposed by this subchapter, including a certified service provider.
77.51(21n)
(21n) "Telecommunications services" means electronically transmitting, conveying, or routing voice, data, audio, video, or other information or signals to a point or between or among points. "Telecommunications services" includes the transmission, conveyance, or routing of such information or signals in which computer processing applications are used to act on the content's form, code, or protocol for transmission, conveyance, or routing purposes, regardless of whether the service is referred to as a voice over Internet protocol service or classified by the federal communications commission as an enhanced or value-added nonvoice data service. "Telecommunications services" does not include any of the following:
77.51(21n)(a)
(a) Data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered to a purchaser by an electronic transmission, if the purchaser's primary purpose for the underlying transaction is the processed data.
77.51(21n)(b)
(b) Installing or maintaining wiring or equipment on a customer's premises.
77.51(21n)(e)
(e) Billing and collection services provided to 3rd parties.
77.51(21n)(g)
(g) Radio and television audio and video programming services, regardless of the medium in which the services are provided, including cable service, as defined in
47 USC 522 (6), audio and video programming services delivered by commercial mobile radio service providers, as defined in
47 CFR 20.3, and the transmitting, conveying, or routing of such services by the programming service provider.
77.51(21n)(i)
(i) Digital products delivered electronically, including software, music, video, reading materials, or ringtones.
77.51(21p)
(21p) "Tobacco" means cigarettes, cigars, chewing tobacco, pipe tobacco, and any other item that contains tobacco.
77.51(21q)
(21q) "Transferred electronically" means accessed or obtained by the purchaser by means other than tangible storage media.
77.51(22)(a)(a) "Use" includes the exercise of any right or power over tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable services incident to the ownership, possession or enjoyment of the property, items, goods, 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, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), 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 or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), whether or not the purchaser has possession of the property, items, or goods. "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 items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or services, or which is otherwise related to the business activities, of the purchaser of the printed material or printing service.
77.51(22)(bm)
(bm) In this subsection, "exercise of any right or power over tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable services" includes distributing, selecting recipients, determining mailing schedules, or otherwise directing the distribution, dissemination, or disposal of tangible personal property, or items, property, or goods under
s. 77.52 (1) (b),
(c), or
(d), or taxable services, regardless of whether the purchaser of such property, items, goods, or services owns or physically possesses, in this state, the property, items, goods, or services.
77.51(24)
(24) "Value-added nonvoice data service" means a service that otherwise meets the definition of telecommunications services, in which computer processing applications are used to act on the form, content, code, or protocol of the information or data provided by the service and are used primarily for a purpose other than for transmitting, conveying, or routing data.
77.51(25)
(25) "Vertical service" means an ancillary service that is provided with one or more telecommunications services and allows customers to identify callers and to manage multiple calls and call connections, including conference bridging services.
77.51(26)
(26) "Voice mail service" means an ancillary service that allows a customer to store, send, or receive recorded messages, not including any vertical service that the customer must have to use the voice mail 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;
2009 a. 2 ss.
225 to
345,
389;
2009 a. 12 s.
18;
2009 a. 28 ss.
1830b to
1836h,
1844 to
1846;
2009 a. 276,
330;
2011 a. 208;
2013 a. 20 ss.
1475 to
1484,
1489 to
1491.
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
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
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.
77.52
77.52
Imposition of retail sales tax. 77.52(1)(a)(a) For the privilege of selling, licensing, leasing or renting tangible personal property at retail a tax is imposed upon all retailers at the rate of 5% of the sales price from the sale, license, lease or rental of tangible personal property sold, licensed, leased or rented at retail in this state, as determined under
s. 77.522.
77.52(1)(b)
(b) For the privilege of selling, licensing, leasing, or renting at retail coins and stamps of the United States that are sold, licensed, leased, rented, or traded as collectors' items above their face value, a tax is imposed on all retailers at the rate of 5 percent of the sales price from the sale, license, lease, or rental of such coins and stamps.
77.52(1)(c)
(c) For the privilege of leasing property that is affixed to real property, a tax is imposed on all retailers at the rate of 5 percent of the sales price from the lease of such property, if the lessor has the right to remove the leased property upon breach or termination of the lease agreement, unless the lessor of the leased property is also the lessor of the real property to which the leased property is affixed.
77.52(1)(d)
(d) A tax is imposed on all retailers at the rate of 5 percent of the sales price from the sale, lease, license, or rental of specified digital goods and additional digital goods at retail for the right to use the specified digital goods or additional digital goods on a permanent or less than permanent basis and regardless of whether the purchaser is required to make continued payments for such right.
77.52(1b)
(1b) All sales, licenses, leases, or rentals of tangible personal property or items, property, or goods under
sub. (1) (b),
(c), or
(d) 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, licensing, performing or furnishing the services described under
par. (a) at retail in this state, as determined under
s. 77.522, to consumers or users, regardless of whether the consumer or user has the right of permanent use or less than the right of permanent use and regardless of whether the service is conditioned on continued payment from the purchaser, a tax is imposed upon all persons selling, licensing, performing or furnishing the services at the rate of 5% of the sales price from the sale, license, 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. and
c., 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)2.c.
c. Taxable sales do not include the sale of admissions by a nonprofit organization to participate in any sports activity in which more than 50 percent of the participants are 19 years old or younger.
77.52(2)(a)5.am.
am. The sale of prepaid calling services and intrastate, interstate, and international telecommunications services, except interstate 800 services.
77.52(2)(a)5.c.
c. The sale of ancillary services, except detailed telecommunications billing services.
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 services that are taxable under
subd. 5. or services that are incidental, as defined in
s. 77.51 (5), to another service that is not taxable under this subchapter and sold to the purchaser of the incidental service.
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 self-service machines.
