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;
2011 a. 208;
2013 a. 20.
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contract for a fixed price not subject to change or modification, or to a formal written bid that cannot be altered or withdrawn, if the contract is entered into or the bid is made before the effective date of the sales and use tax rate increase.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:
77.54(3)(c)8.
8. Milking machines; including piping, pipeline washers and compressors.
77.54(3)(c)9.
9. Powered feeders, excluding platforms and troughs constructed from ordinary building materials.
77.54(3m)
(3m) The sales price from the sale of and the storage, use or other consumption of the following items if they are used exclusively by the purchaser or user in the business of farming; including dairy farming, agriculture, horticulture, floriculture, silviculture, and custom farming services:
77.54(3m)(L)
(L) Containers for fruits, vegetables, grain, hay, silage and animal wastes.
77.54(3m)(m)
(m) Plastic bags, plastic sleeves and plastic sheeting used to store or cover hay or silage.
77.54(4)
(4) The sales price from the sale of tangible personal property and items and property under
s. 77.52 (1) (b) and
(c) 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), which is the subject of any such sale, by any elementary school or secondary school, exempted as such from payment of income or franchise tax under
ch. 71, whether public or private.
77.54(5)
(5) The sales price from the sale of and the storage, use or other consumption of:
77.54(5)(a)1.1. Aircraft, including accessories, attachments, and fuel for such aircraft, sold to persons using the aircraft as certified or licensed carriers of persons or property in interstate or foreign commerce under authority of the laws of the United States or any foreign government, or sold to any foreign government for use by such government outside this state.
77.54(5)(a)2.
2. Aircraft, including attachments for such aircraft, sold to persons who are not residents of this state and who will not use such aircraft in this state otherwise than in the removal of such aircraft from this state or in the repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection, and maintenance of such aircraft in this state.
77.54(5)(a)4.
4. Motor vehicles or truck bodies sold to persons who are not residents of this state and who will not use such motor vehicles or trucks for which the truck bodies were made in this state otherwise than in the removal of such motor vehicles or trucks from this state.
77.54(5)(am)
(am) Modular homes, as defined in
s. 101.71 (6), and manufactured homes, as defined in
s. 101.91 (2), that are used in real property construction activities outside this state.
77.54(5)(b)
(b) Motor trucks, truck tractors, road tractors, buses, trailers and semitrailers, and accessories, attachments, parts, supplies and materials therefor, sold to common or contract carriers who use such motor trucks, truck tractors, road tractors, buses, trailers and semitrailers exclusively as common or contract carriers, including the urban mass transportation of passengers as defined in
s. 71.38.
77.54(5)(c)
(c) Motor vehicles which are not required to be licensed for highway use and which are exclusively and directly used in conjunction with waste reduction or recycling activities which reduce the amount of solid waste generated, reuse solid waste, recycle solid waste, compost solid waste or recover energy from solid waste. For the purposes of this paragraph, "solid waste" means garbage, refuse, sludge or other materials or articles, whether these materials or articles are discarded or purchased, including solid, semisolid, liquid or contained gaseous materials or articles resulting from industrial, commercial, mining or agricultural operations or from domestic use or from public service activities.
77.54(5)(d)
(d) Mobile units used for mixing and processing and the motor vehicle or trailer on which the unit is mounted, including accessories, attachments, parts, supplies and materials for those vehicles, trailers and units.
77.54(6)(am)(am) The sales price from the sale of and the storage, use or other consumption of:
77.54(6)(am)1.
1. Machines and specific processing equipment and repair parts or replacements thereof, exclusively and directly used by a manufacturer in manufacturing tangible personal property or items or property under
s. 77.52 (1) (b) or
(c) and safety attachments for those machines and equipment.
77.54(6)(am)2.
2. Containers, labels, sacks, cans, boxes, drums, bags or other packaging and shipping materials for use in packing, packaging or shipping tangible personal property or items or property under
s. 77.52 (1) (b) or
(c), if the containers, labels, sacks, cans, boxes, drums, bags, or other packaging and shipping materials are used by the purchaser to transfer merchandise to customers.
77.54(6)(am)2m.
2m. Meat casing, wrapping paper, tape, containers, labels, sacks, cans, boxes, drums, bags or other packaging and shipping materials for use in packing, packaging or shipping meat or meat products regardless of whether such items are used to transfer merchandise to customers.
77.54(6)(am)3.
3. Fuel converted to electric energy, gas or steam by utilities and that portion of the amount of fuel converted to steam for purposes of resale by persons other than utilities.
77.54(6)(am)4.
4. Machines and specific processing equipment used exclusively and directly in a fertilizer blending, feed milling, or grain drying operation, including holding structures used for weighing and dropping feed or fertilizer ingredients into a mixer, wet corn holding bins, grain dryers, mixers, conveying equipment, and grinding, mixing, and saturation bins, regardless of whether such items become an addition to, a component of, or a capital improvement of real property. The exemption under this subdivision applies to repair parts, replacements, and safety attachments for such machines and equipment.
77.54(6)(am)5.
5. Building materials acquired solely for and used solely in the construction or repair of holding structures used for weighing and dropping feed or fertilizer ingredients into a mixer or for storage of grain, if such structures are used in a fertilizer blending, feed milling, or grain drying operation.
77.54(6)(bn)
(bn) The exemptions under
par. (am) 4. and
5. apply only to items located on the same parcel of property where the fertilizer blending, feed milling, or grain drying operation activities are conducted, or on an adjoining parcel, including parcels that are separated only by a public road. The exemptions under
par. (am) 4. and
5. apply only to persons who are primarily engaged in fertilizer blending, feed milling, or grain handling operations which include grain drying operations, or primarily engaged in any combination of fertilizer blending, feed milling, or grain handling operations which include grain drying operations, and to contractors providing real property construction activities to such persons.
77.54(6)(cn)
(cn) The exemptions under this subsection shall be strictly construed.
77.54(7)(a)(a) Except as provided in
pars. (b) to
(d), the occasional sales of tangible personal property, items and property under
s. 77.52 (1) (b) and
(c), and services 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) the transfer of which to the purchaser is an occasional sale.
77.54(7)(b)
(b) If the item transferred is a motor vehicle, snowmobile, recreational vehicle, as defined in
s. 340.01 (48r), trailer, semitrailer, all-terrain vehicle, utility terrain vehicle, or aircraft and the item is registered or titled, or required to be registered or titled, in this state or if the item is a boat that is registered or titled, or required to be registered or titled, in this state or under the laws of the United States, the exemption under
par. (a) applies only if all of the following conditions are fulfilled:
77.54(7)(b)1.
1. The item is transferred to a child, spouse, parent, father-in-law, mother-in-law, daughter-in-law or son-in-law of the transferor or, if the item is a motor vehicle, from the transferor to a corporation owned solely by the transferor or by the transferor's spouse.
77.54(7)(b)2.
2. The item has been registered or titled in the name of the transferor.
77.54(7)(b)3.
3. The transferor is not engaged in the business of selling the type of item that is transferred.
77.54(7)(c)
(c) The exemption under
par. (a) does not apply to the sale of bingo supplies to players or to the sale, rental or use of regular bingo cards, extra regular cards and special bingo cards.
77.54(7)(d)
(d) The exemption under
par. (a) does not apply to sales by a nonprofit organization.
77.54(7m)
(7m) Occasional sales of tangible personal property, or items or property under
s. 77.52 (1) (b) or
(c), or services, including admissions or tickets to an event; by a neighborhood association, church, civic group, garden club, social club or similar nonprofit organization; not involving entertainment for which payment in the aggregate exceeds $500 for performing or as reimbursement of expenses unless access to the event may be obtained without payment of a direct or indirect admission fee; conducted by the organization if the organization is not engaged in a trade or business and is not required to have a seller's permit. For purposes of this subsection, an organization is engaged in a trade or business and is required to have a seller's permit if its sales of tangible personal property, and items, property, and goods under
s. 77.52 (1) (b),
(c), and
(d), and services, not including sales of tickets to events, and its events occur on more than 20 days during the year, unless its receipts do not exceed $25,000 during the year. The exemption under this subsection does not apply to the sales price from the sale of bingo supplies to players or to the sale, rental or use of regular bingo cards, extra regular cards and special bingo cards.
77.54(8)
(8) Charges for insurance, not including contracts under
s. 77.52 (2) (a) 13m., where such charges are separately set forth upon the invoice given by the seller to the purchaser.
77.54(9)
(9) The sales price from sales of tickets or admissions to public and private elementary and secondary school activities, where the entire net proceeds therefrom are expended for educational, religious or charitable purposes.
77.54(9a)
(9a) The sales price from sales to, and the storage by, use by or other consumption of tangible personal property, and items and property under
s. 77.52 (1) (b) and
(c), and taxable services by:
77.54(9a)(a)
(a) This state or any agency thereof, the University of Wisconsin Hospitals and Clinics Authority, the Wisconsin Aerospace Authority, the Wisconsin Economic Development Corporation, and the Fox River Navigational System Authority.
77.54(9a)(b)
(b) Any county, city, village, town or school district in this state.
77.54(9a)(e)
(e) Any other unit of government in this state or any agency or instrumentality of one or more units of government in this state.
77.54(9a)(ed)
(ed) Any federally recognized American Indian tribe or band in this state.
77.54(9a)(f)
(f) Any corporation, community chest fund, foundation or association organized and operated exclusively for religious, charitable, scientific or educational purposes, or for the prevention of cruelty to children or animals, except hospital service insurance corporations under
s. 613.80 (2), no part of the net income of which inures to the benefit of any private stockholder, shareholder, member or corporation.
77.54(9a)(i)
(i) A cemetery company or corporation described under section
501 (c) (13) of the Internal Revenue Code, if the tangible personal property or taxable services are used exclusively by the cemetery company or corporation for the purposes of the company or corporation.
77.54(10)
(10) The sales price from the sale of all admission fees, admission stickers or camping fees under
s. 27.01 (7) to
(11) and all admission fees to any museum operated by a nonprofit corporation under a lease agreement with the state historical society.
77.54(11)
(11) The sales price from the sales of and the storage, use or other consumption in this state of motor vehicle fuel, general aviation fuel or alternate fuel, subject to taxation under
ch. 78, unless the motor vehicle fuel or alternate fuel tax is refunded under
s. 78.75 because the buyer does not use the fuel in operating a motor vehicle upon the public highways.
77.54(11m)
(11m) The sales price from the sales of and the storage, use, or other consumption of vegetable oil or animal fat that is converted into motor vehicle fuel that is exempt under
s. 78.01 (2n) from the taxes imposed under
s. 78.01 (1).
77.54(12)
(12) The sales price from the sales of and the storage, use or other consumption in this state of rail freight or passenger cars, locomotives or other rolling stock used in railroad operations, or accessories, attachments, parts, lubricants or fuel therefor.
77.54(13)
(13) The sales price from the sales of and the storage, use or other consumption in this state of commercial vessels and barges of 50-ton burden or over primarily engaged in interstate or foreign commerce or commercial fishing, and the accessories, attachments, parts and fuel therefor.
