78.01(2t)
(2t) Exemption certificates. Exemption certificates used to claim the exemptions under
subs. (2) and
(2m) are valid for 3 years unless cancelled by the department or the person claiming the exemption.
78.01 Cross-reference
Cross-reference: See also ss.
Tax 4.11,
4.12, and
4.65, Wis. adm. code.
78.015
78.015
Annual adjustment of tax rate. 78.015(1)
(1) Before April 1 the department shall recompute and publish the rate for the tax imposed under
s. 78.01 (1). The new rate per gallon shall be calculated by multiplying the rate in effect at the time of the calculation by the amount obtained under
sub. (2). After the calculation of the rate that takes effect on April 1, 2006, the department shall make no further calculation under this subsection and
sub. (2).
78.015(2)
(2) Divide the annual average U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the previous year by that annual average for the year before the previous year.
78.015(4)
(4) The rate calculated under this section shall be rounded to the nearest 0.1 cent.
78.015(5)
(5) The rate calculated under this section is effective on the April 1 after the calculation.
78.017
78.017
Adjustment in 1997. On November 1, 1997, the rate of the tax imposed under
s. 78.01 (1) is increased by one cent.
78.017 History
History: 1997 a. 27.
78.07
78.07
Motor vehicle fuel received. 78.07(1)
(1) Except as provided in
subs. (1a) and
(3), motor vehicle fuel that is produced, refined, blended or manufactured, or imported for manufacturing, by any person at a refinery, marine terminal, pipeline terminal, pipeline tank farm or place of manufacture is received by a supplier when the motor vehicle fuel is removed from a refinery, marine terminal, pipeline terminal, pipeline tank farm or place of manufacture and placed in tank cars, tank trucks, tank wagons or other types of transportation equipment, containers or facilities at such refinery, marine terminal, pipeline terminal, pipeline tank farm or place of manufacture or when the motor vehicle fuel is placed in any tank or other container from which sales or deliveries not involving transportation of the motor vehicle fuel are made directly.
78.07(1a)
(1a) Motor vehicle fuel shipped by pipeline spur to an airport hydrant system is received when the motor vehicle fuel is received from the main pipeline into the initial or primary storage facility or holding terminal by the owner of the storage facility or holding terminal.
78.07(3)
(3) Except as provided in
subs. (1) and
(1a), motor vehicle fuel imported is received at the time and place of unloading by the person for whose account that shipment or delivery is made.
78.07(4)
(4) Any product that is not motor vehicle fuel and that is blended as a component part of motor vehicle fuel other than at a refinery, marine terminal, pipe line terminal, pipe line tank farm or place of manufacture is received by such person who is the owner of that product at the time and place the blending is completed.
78.07(5)
(5) Renewable fuel exempt under
s. 78.01 (2n) from the tax under
s. 78.01 (1) is not received for the purposes of this section.
78.07 Cross-reference
Cross-reference: See also s.
Tax 4.10, Wis. adm. code.
78.09
78.09
Supplier and exporter licenses. 78.09(1)
(1) No person may import motor vehicle fuel into; or sell, use, transport or store motor vehicle fuel in; this state, unless the tax on that motor vehicle fuel has been paid to, or tax liability accrued by, a holder of an unrevoked supplier license issued by the department, except that a supplier is exempt from that requirement for motor vehicle fuel manufactured in this state or imported by pipeline or marine barge and stored in a terminal in this state, and except that a supplier of alcohol is exempt from that requirement for alcohol imported by barge, railcar or transport truck. A supplier who does not transact business in this state and who has no contacts with this state except sales to wholesaler distributors or retail dealers in another state who ship motor vehicle fuel into this state may apply for, and may be given, a supplier's license under this subsection and thereby submit to the jurisdiction of this state for purposes of this subchapter.
78.09(2)
(2) To procure a license, a supplier who holds a valid certificate issued under
s. 73.03 (50) shall file with the department an application signed by the owner of the business if the owner is an individual, partnership or unincorporated association or by the president and secretary if the owner is a corporation.
78.09(3)
(3) No person may export motor vehicle fuel unless that person has obtained an export license or a supplier license or has paid the destination state motor vehicle fuel tax to the supplier and can demonstrate proof of export in the form of a destination state bill of lading.
78.09(4)
(4) In order to obtain a license to export motor vehicle fuel to another specified state, a person shall be licensed either to collect and remit motor vehicle fuel taxes or to deal in tax-free motor vehicle fuel in that other specified state of destination.
78.09(5)
(5) To procure an export license, an exporter who holds a valid certificate issued under
s. 73.03 (50) shall file with the department an application signed by the owner of the business if the owner is an individual, partnership or unincorporated association or by the president and secretary if the owner is a corporation.
78.09(6)
(6) Subject to conditions established by the department, the department shall provide for the payment of the tax imposed by this subchapter by a person importing motor vehicle fuel from a bulk plant located outside of this state.
78.09(7)
(7) Subject to conditions established by the department, the department shall provide for export by and the certification for exemption from the tax imposed by this subchapter to a wholesale distributor exporting motor vehicle fuel out of a bulk plant to a destination outside of this state.
78.10
78.10
Licensing process. 78.10(1)(1)
Application. Application for a license to receive motor vehicle fuel under
s. 78.07 shall be made upon a form prepared and furnished by the department and, in the case of a supplier, the form shall be accompanied by a copy of the applicant's license under
26 USC 4101. The application shall be subscribed by the applicant and shall contain the information that the department reasonably requires for the administration of this subchapter. Only a person who holds a valid certificate under
s. 73.03 (50) may apply for a license under this subsection.
78.10(2)
(2) Investigation. The department shall investigate each applicant under
sub. (1). No license shall be issued if the department deems that the applicant does not hold a valid certificate under
s. 73.03 (50), the application is not filed in good faith, the applicant is not the real party in interest and the license of the real party in interest has been revoked for cause, or other reasonable cause for nonissuance exists.
78.10(3)
(3) Hearing. Before refusing to issue a license, the department shall grant the applicant a hearing, of which the applicant shall be given at least 5 days' written notice.
78.10(4)
(4) Issue. If the application and the bond under
s. 78.11, if that bond is required, are approved, the department shall issue a license.
78.10(6)
(6) Transfer forbidden. A license under this section is not transferable to another person.
78.10(7)
(7) Display of license. Each license shall be preserved and conspicuously displayed at the place of business for which issued.
78.10 Cross-reference
Cross-reference: See also s.
Tax 4.55, Wis. adm. code.
78.11(1)(a)(a) To protect the revenues of this state, the department may require any person liable to the department for the tax imposed by this subchapter to place with it, either before or after a license under
s. 78.09 is issued, security in the amount which the department determines. The amount of security required may be increased or decreased as the department deems necessary, but shall not exceed 3 times the licensee's average monthly liability for taxes under this subchapter, as estimated by the department. If any applicant or licensee fails or refuses to place such security, the department may refuse to issue or may revoke the license. If any taxpayer is delinquent in the payment of taxes imposed by this subchapter, the department may, upon 10 days' notice, recover the taxes, interest, penalties, costs and disbursements from the taxpayer's security placed with the department. No interest shall be paid or allowed by the state to any person for the deposit of the security.
78.11(1)(b)
(b) The security required by this subsection may be in the form of a surety bond furnished to the department payable to the state to secure payment of any motor vehicle fuel taxes, interest and penalties accrued under this subchapter, together with the costs and disbursements incurred in the collection thereof. The department shall prescribe the form and contents of the bond.
78.11(2)
(2) Release of surety. The surety upon a bond required under
sub. (1) may elect to conditionally cancel the bond at any time by filing with the licensee and the department written notice of such conditional cancellation. The surety so filing shall not be discharged from any liability already accrued or which may accrue under the bond before the expiration of 60 days after the filing of said notice. If the licensee does not within 60 days after receiving such notice file a new bond satisfactory to the department with the department, the licensee's license shall be automatically revoked. If a new bond is furnished by a licensee, the department shall cancel and surrender the old bond of the licensee as soon as it is satisfied that all liability under the old bond has been fully discharged.
78.11(3)
(3) Additional bond; when required. If liability upon the bond filed by any licensee is discharged or reduced by judgment rendered, payment made or otherwise, or if in the opinion of the department, the bond of any licensee has become insufficient by the subsequent insolvency, death or removal of the sureties or any of them, or if for any cause any such bond is deemed insufficient as to sureties or amount, the department shall require any such licensee to give and file additional surety or new bonds in the same manner and form and with sureties satisfactory to the department. If any such licensee fails to file such additional bond within 5 days after written notice from the department, then that licensee's license shall be automatically revoked.
78.11(4)
(4) Liability on bond continues. The validity of any bond shall not be affected by the suspension, revocation or cancellation of any license under
s. 78.09 or by partial recovery upon the bond or by the execution of any new bond.
78.11 Cross-reference
Cross-reference: See also s.
Tax 4.54, Wis. adm. code.
78.12
78.12
Reports to department; computation of tax. 78.12(1)(1)
Gallons to be reported. For the purpose of the administration of this section, each receipt, shipment or delivery of motor vehicle fuel shall be reported in U.S. standard liquid gallons (231 cubic inches).
78.12(2)
(2) Reports of licensees. Each licensee shall, not later than the last day of each month, file a report for the month before the month during which the report is due.
78.12(3)
(3) Reports of others. Any person, including a terminal operator, who is not a licensee and who either uses any motor vehicle fuel in this state or who has possession of any motor vehicle fuel (other than that contained in the ordinary fuel tank attached to a motor vehicle) upon which the motor vehicle fuel tax has not been paid or the liability therefor has not been incurred by any licensee in this state shall file a report and pay the tax on that motor vehicle fuel and shall be subject to this subchapter in the same manner as is provided for licensees.
78.12(4)
(4) Computation of tax. At the time when the tax is due under
sub. (5), the licensee shall compute that tax as follows:
78.12(4)(a)1.
1. Subtract the number of gallons under
s. 78.01 (2r) for the taxable period from the number of gallons received during the taxable period.
78.12(4)(a)2.
2. Subtract from the amount under
subd. 1. an amount equal to 0.0125 multiplied by the number of gallons under
subd. 1.
78.12(4)(a)3.
3. Subtract from the amount under
subd. 2. an amount equal to 0.001 multiplied by the number of gallons under
subd. 1.
78.12(4)(b)1.
1. Subtract the number of gallons under
s. 78.01 (2r) for the taxable period from the number of gallons received during the taxable period.
78.12(5)
(5) Payment of tax. Licensed suppliers shall pay taxes on motor vehicle fuel no later than the 15th day of the month for motor vehicle fuel sold during the previous month. At the option of a wholesaler distributor, a licensed supplier shall allow the wholesaler distributor to delay paying the tax to the licensed supplier until the date that the tax is due to this state. A wholesaler distributor who makes delayed payments shall make the payments by electronic funds transfer. If a wholesaler distributor fails to make timely payments, the licensed supplier may terminate the right of the wholesaler distributor to make delayed payments. Each licensed supplier shall notify the department of each wholesaler distributor who makes delayed payments of the tax. The department may require any wholesaler distributor who makes delayed payments of the tax to furnish the department a surety bond payable to this state in an amount not to exceed 3 times the highest estimated monthly tax owed by the wholesaler distributor. Whenever the wholesaler distributor pays the licensed supplier, the licensed supplier shall credit the wholesaler distributor's account for the amount of tax reduction that results from the calculation under
s. 78.12 (4) (a) 2.
78.12 Cross-reference
Cross-reference: See also ss.
Tax 4.51,
4.52, and
4.75, Wis. adm. code.
78.12 Annotation
Sub. (3), when read in conjunction with related statutes, provides that a purchaser of motor vehicle fuel from a licensed supplier is liable to the department of revenue for the tax when the purchaser does not pay the tax to the supplier as required by s. 78.01 (1) but does collect the tax from the customers to whom the purchaser sells the fuel and when the department gives a credit to the supplier for the tax it paid as authorized by s. 78.01 (2s). Bender v. Department of Revenue,
2005 WI App 31,
278 Wis. 2d 731,
693 N.W.2d 311,
04-0766.
78.13
78.13
Notice by licensee of discontinuance, sale or transfer of business; final report. 78.13(1)
(1)
Notice required. Whenever any licensee doing business under this subchapter ceases to do business, that licensee shall notify the department in writing immediately. That notice shall specify the date when the licensee ceases doing business and, in the event of the sale or transfer of the business, the name and address of the purchaser or transferee thereof.
78.13(2)
(2) Final reports. Every licensee shall, upon the cessation of business or upon the cancellation or revocation of a license, make a report as required under
s. 78.12 and pay all motor vehicle fuel taxes, interest and penalties due the state. Such payment shall be made under
s. 78.12 (5).
78.15
78.15
Theft of tax moneys. If any licensee sells any motor vehicle fuel upon which the tax imposed by this subchapter has become due and has not been paid, all motor vehicle fuel tax moneys received by that licensee because of that sale are trust funds in that licensee's hands and the property of this state. Any licensee who fails or refuses to pay over to the state the tax on motor vehicle fuel at the time required under
s. 78.12 (5) or who fraudulently withholds or appropriates or otherwise uses such moneys or any portion thereof belonging to this state is guilty of theft and shall be punished as provided by law for the crime of theft, irrespective of whether or not that licensee has or claims to have any interest in the moneys so received by that licensee.
78.15 History
History: 1991 a. 316;
1993 a. 16.
78.155
78.155
Penalties for misuse of dyed diesel fuel. 78.155(1)(1) Any person who sells dyed diesel fuel to a buyer who the person knows or has reason to know will use the dyed diesel fuel for a purpose that is taxable under this subchapter shall pay to the department a penalty of $1,000 or twice the amount of tax that should have been paid on the dyed diesel fuel, whichever is greater.
78.155(2)
(2) Any person who knows or has reason to know that he or she used dyed diesel fuel for a purpose that is taxable under this subchapter shall pay to the department a penalty of $1,000 or twice the amount of tax that should have been paid on the dyed diesel fuel, whichever is greater.
78.155(3)
(3) Any retailer who does not conspicuously label a fuel pump, or other delivery facility, that dispenses dyed diesel fuel so as to notify customers that it contains dyed diesel fuel shall pay to the department a penalty of $1,000.
78.155 History
History: 1993 a. 437.
78.19
78.19
Refund for fuel destroyed. If any motor vehicle fuel in the possession of a licensee is destroyed by fire, lightning, storm, flood or accident not caused by the willful act of that licensee or any employee thereof, before it is sold or used by that licensee, and if the licensee applies to the department and proves the destruction or loss satisfactorily to the department, the department shall authorize a tax credit or shall refund the amount of tax paid thereon. Such application or claim shall be filed with the department within 15 days after the motor vehicle fuel is destroyed or lost or the tax credit or refund will not be allowed.
78.19 History
History: 1991 a. 316;
1993 a. 16.
78.20
78.20
Refund to retailers. 78.20(1)(1) In this section, "invoice" means the top copy and not a carbon copy.
78.20(1m)
(1m) Any person who operates a service station, store, garage or other place of business within this state for the retail sale of gasoline therefrom who has paid the tax required by this subchapter on the gasoline received into that person's storage at such place of business shall be reimbursed and repaid 0.5% of such tax to cover shrinkage and evaporation losses upon making and filing a claim.
78.20(2)
(2) Such claim shall be filed not later than one year after the date of purchase of the gasoline or the claim will not be allowed.
78.20(3)
(3) The supplier shall furnish each retailer with an invoice prepared at the time of delivery, and the retailer shall send that invoice or a list of purchases to the department when making claim for refund. The supplier shall ensure that the invoice contains the following information: date of sale; name and address of supplier; name and address of retailer, which name must be the name of the claimant and be uniform on all invoices; number of gallons purchased and the price per gallon; and the amount of Wisconsin motor vehicle fuel tax on the gasoline as a separate item. If the retailer sends invoices to the department, the retailer shall send a separate invoice for each sale and delivery and each invoice shall be legibly written. If the retailer sends a list of purchases to the department, the retailer shall retain for 4 years the invoices that are evidence of those purchases and allow the department to inspect them.
78.20(4)
(4) On the filing of a claim under
sub. (3), accompanied by the invoice or a list of purchases, the department shall determine the amount of refund due. The department may make such investigation of the correctness of the facts stated in such claim as it deems necessary. When the department has approved such claim it shall reimburse the claimant under this section out of the moneys collected under this chapter to be used for carrying out this section. No claim for refund shall be denied or the payment thereof withheld for failure of the invoice or list of purchases to show the amount of the Wisconsin motor vehicle fuel tax on the gasoline as a separate item if the amount of such tax is determinable from the information stated on the invoice or list of purchases.
78.20(5)
(5) The right of any person to a refund under this section shall not be assignable and the application for a refund shall be made by the same person who purchased the gasoline as shown in the invoice by the person selling the same, and by no other person, and the proceeds or amount of such refund as determined by the department shall be paid to the person whose name appears on the seller's invoice and to no other person.
78.21
78.21
Seizure and sale. 78.21(1)(1) The department may seize, the department of transportation may seize and the department of transportation may request any police officer to seize, any motor vehicle fuel and the vehicle or other means of transporting it if the person who possesses the motor vehicle fuel does any of the following:
78.21(1)(a)
(a) Imports, sells, uses, delivers or stores in this state motor vehicle fuel if the tax on the motor vehicle fuel has not been paid, dye has been added to the motor vehicle fuel or liability for the tax has not been incurred by the holder of an unrevoked supplier license, unless a supplier possesses the motor vehicle fuel and the motor vehicle fuel is manufactured in this state or imported by pipeline or barge and stored in this state and unless an alcohol supplier possesses the motor vehicle fuel and has imported it by barge, railcar or transport truck into a terminal in this state or unless an agricultural user possesses the motor vehicle fuel and that motor vehicle fuel is dyed.
78.21(1)(b)
(b) Exports motor vehicle fuel unless the person has an export license or a supplier's license or has paid the motor vehicle fuel tax of the destination state to the supplier and has a bill of lading that proves the export.
78.21(1)(c)
(c) Operates or maintains a motor vehicle on any highway in this state with dyed fuel, unless the vehicle is a truck that is used principally for agricultural purposes and is marked with an agricultural use plate or tag or unless the motor vehicle is a truck that has received the fuel in a jurisdiction that permits the introduction of dyed fuel of that color and type into the motor vehicle fuel tank of highway vehicles.
