139.31 Cross-reference
Cross-reference: See also ss.
Tax 9.21,
9.31, and
9.51, Wis. adm. code.
139.31 Annotation
State cigarette tax laws do not apply to Indian persons or Indian tribes selling cigarettes on Indian reservations. 68 Atty. Gen. 151.
139.315
139.315
Cigarette inventory tax imposed; procedures. 139.315(1)(1)
Inventory tax imposed. On the effective date of any increase in the sum of the rates under s.
139.31 (1) (a) and
(c) or in the sum of the rates under s.
139.31 (1) (b) and
(d), an inventory tax is imposed upon cigarettes held in inventory for sale or resale on which the cigarette tax has been paid at the prior rate and upon unaffixed stamps in the possession of distributors. Any person who is in possession of any such cigarettes or unaffixed stamps shall pay the tax imposed under this section. Any person liable for this tax shall determine the number of cigarettes and unaffixed stamps in the person's possession on the effective date of the increase, and by the 30th day after the effective date of the increase the person shall file a return and shall by that date pay the tax due.
139.315(2)
(2) Inventory tax computation. The cigarette inventory tax under this section is computed by multiplying the number of cigarettes held in inventory for sale or resale by the difference between the prior tax rate and the new tax rate and adding to that amount an amount determined by multiplying the number of unaffixed stamps held by the difference between the prior tax rate and the new tax rate.
139.315(3)
(3) Administration. Sections
71.74 (1),
(2),
(10),
(11),
(13) and
(14),
71.75 (4) to
(7),
71.80 (12),
71.82 (2),
71.83 (2) (b) 3.,
71.88 (1) (a) and
(2) (a),
71.89,
71.90,
71.91 (1) (a) and
(c) and
(2) to
(7),
71.92,
73.01,
73.015 and
73.0301 apply to this section.
139.315(4)
(4) Late filing fee. Any person who fails to file a cigarette inventory tax return when due shall pay a late filing fee of $10. A return that is mailed is timely if it is mailed in a properly addressed envelope with postage prepaid, if the envelope is postmarked, or marked or recorded electronically as provided under section
7502 (f) (2) (c) of the Internal Revenue Code, on the due date and if the return is actually received by the department or at the destination that the department prescribes within 5 days of the due date. A return that is not mailed is timely if it is received on or before the due date by the department or at the destination that the department prescribes. For purposes of this subsection, “mailed" includes delivery by a delivery service designated under section
7502 (f) of the Internal Revenue Code.
139.315(5)
(5) Interest on delinquent payments. If any person does not timely pay the tax imposed under this section, that person is liable for interest at the rate of 1.5 percent per month or fraction of a month from the date the tax is due until the date when the tax is paid.
139.315(6)
(6) Penalty. If any person who is liable for the tax under this section files a false or fraudulent return, that person is also liable, in addition to the tax due, for an amount equal to the amount of tax the person evaded or attempted to evade.
139.32
139.32
Payment of taxes. 139.32(1)(1)
The tax imposed by s.
139.31 (1) shall be paid. To evidence the payment, the department shall provide stamps. A person who has paid the tax shall affix stamps of the proper denomination to each package in which cigarettes are packed, prior to the first sale within this state. First sale does not include a sale by a manufacturer to a distributor or to a bonded direct marketer or by a distributor to a permittee who has obtained department approval as provided for in s.
139.321 (1) (a) 2. The tax shall be paid only once on each package or container.
139.32(2)
(2) The secretary shall prepare and have available for sale stamps of such denominations and quantities as the secretary considers necessary for the payment of the taxes imposed by s.
139.31. The stamps shall be of such designs and materials as to make the removal and reuse thereof impossible after being once affixed.
139.32(2m)
(2m) The secretary shall prepare and have available for sale distinctive stamps, which shall be affixed to all packages of cigarettes in respect to which a refund can be made under s.
139.323 and only to those packages.
139.32(3)
(3) Stamps shall be affixed in the manner prescribed by the secretary.
139.32(4)
(4) In lieu of stamps the secretary may authorize impressions applied by the use of meter machines. The secretary shall prescribe by rule the type of impression and the kind of machines which may be used.
139.32(5)
(5) Manufacturers, bonded direct marketers, and distributors who are authorized by the department to purchase tax stamps shall receive a discount of 0.8 percent of the tax paid on stamp purchases.
139.32(5m)
(5m) Distributors, bonded direct marketers, and manufacturers shall pay to the department the cost of printing and shipping those stamps.
139.32(6)
(6) Manufacturers, bonded direct marketers, and distributors who are authorized by the department to purchase tax stamps may purchase stamps on credit. The secretary may require manufacturers, bonded direct marketers, and distributors who purchase stamps on credit to file under the conditions prescribed by the secretary by rule.
139.32(7)
(7) Beginning on September 1, 1993, the cost to print stamps is the actual cost to print stamps, adjusted to reflect the expenses incurred to print stamps during the previous year and the reimbursement received for that purpose during the previous year, as determined by the department. Beginning in 1994, the department shall annually determine that cost and shall make the new cost effective on July 1.
139.321
139.321
Unlawful possession of cigarettes. 139.321(1)(1)
It is unlawful for any person to possess cigarettes unless the required stamps are properly affixed as provided in ss.
139.32 (1) and
139.33 (4).
139.321(1)(a)
(a) This subsection shall not apply to the following:
139.321(1)(a)1.
1. Manufacturers, distributors or warehouse operators possessing valid permits issued by the secretary.
139.321(1)(a)2.
2. Any permittee under s.
139.34 having department approval or person authorized to acquire, possess or sell unstamped cigarettes under s.
139.31 (3) provided that said permittee or person maintains a separate inventory thereof and records pertaining thereto in such manner and form as the department prescribes by rule.
139.321(1)(a)3.
3. Common carriers licensed by the interstate commerce commission to carry such commodities in interstate commerce who are in possession of proper bills of lading covering each such shipment. The department may by rule require that copies of all such bills of lading, clearly indicating thereon the quantities of cigarettes transported, be furnished to it.
139.321(2)
(2) No retailer may possess cigarettes purchased from any person except a manufacturer, distributor or jobber who holds a valid permit from the department.
139.321 History
History: 1993 a. 16 ss.
2384,
2385,
2386;
2005 a. 25.
139.322(1)(1)
The secretary may require any person who has not paid the tax under s.
139.31 (1) or who has failed timely to file a report for that tax to place with the department security in the amount that the secretary determines. That security may be a surety bond that is payable to this state and that is in the form prescribed by the secretary.
139.322(2)
(2) The secretary may refuse to issue a permit to, and may revoke the permit of, any person who is required to place security with the department under sub.
(1) and fails to do so.
139.322(3)
(3) The department may not pay interest on security placed with the department under sub.
(1).
139.322(4)
(4) After giving 10 days' notice, the secretary may recover any tax, interest, penalties and other charges due the department from the security of any person who is delinquent under this subchapter.
139.322 History
History: 1993 a. 16.
139.323
139.323
Refunds to Indian tribes. The department shall refund 70 percent of the taxes collected under s.
139.31 (1) in respect to sales on reservations or trust lands of an Indian tribe to the tribal council of the tribe having jurisdiction over the reservation or trust land on which the sale is made if all the following conditions are fulfilled:
139.323(1)
(1) The tribal council has filed a claim for the refund with the department.
139.323(2)
(2) The tribal council has approved the retailer.
139.323(3)
(3) The land on which the sale occurred was designated a reservation or trust land on or before January 1, 1983, or on a later date as determined by an agreement between the department and the tribal council.
139.323(4)
(4) The cigarettes were not delivered by the retailer to the buyer by means of a common carrier, a contract carrier or the U.S. postal service.
139.323(5)
(5) The retailer has not sold the cigarettes to another retailer or to a jobber.
139.323 Cross-reference
Cross-reference: See also ss.
Tax 9.08 and
9.19, Wis. adm. code.
139.323 Annotation
The phrase “was designated a reservation or trust land" in sub. (3) is necessarily read as referring to the applicable formal process that must occur in order for land to be a reservation or trust land. Because the proper authorities had not completed the necessary steps for the property in question to be designated a reservation or trust land on or before January 1, 1983, and because that is required in order to qualify for the tax refund, a claim for refund was properly denied. Ho-Chunk Nation v. DOR,
2009 WI 48,
317 Wis. 2d 553,
766 N.W.2d 738,
07-1985.
139.325
139.325
Agreements with Indian tribes. The department may enter into agreements with Indian tribes to provide for the refunding of the cigarette tax imposed under s.
139.31 (1) on cigarettes sold on reservations to enrolled members of the tribe residing on the tribal reservation.
139.325 History
History: 1983 a. 27.
139.325 Cross-reference
Cross-reference: See also ss.
Tax 9.08 and
9.09, Wis. adm. code.
139.33(1)(1)
A use tax is imposed and levied upon the use of cigarettes in this state by any person for any purpose if the excise tax imposed by s.
139.31 has not been paid on such cigarettes. Such tax is levied and shall be collected at the same rates as provided for in s.
139.31. The tax imposed by this section is not applicable to cigarettes subject to the excise tax imposed by s.
139.31 nor to cigarettes exempt from that tax under s.
139.31 (3).
139.33(3)
(3) No person other than a member of the armed forces, as specified in this subsection, a distributor, or a bonded direct marketer who is authorized by the department to purchase and affix tax stamps may import into this state cigarettes on which the excise tax imposed by s.
139.31 has not been paid and the container of which does not bear proper stamps. Within 15 days, any such person importing cigarettes shall file a declaration of such cigarettes imported and shall remit therewith the tax on such cigarettes imposed by this section. Members of the armed forces shall not be required to report or pay the tax on cigarettes in their possession if such cigarettes are issued to them by the U.S. government or any of its subdivisions or were purchased in any armed forces post exchange or service store for their personal use or consumption. If the use tax imposed by this section is not paid when due, it shall become delinquent and the person liable for it shall pay, in addition, a penalty of $25 for each 200 cigarettes. Interest on the delinquent tax and penalty shall accrue at the rate of 1.5 percent per month or each fraction of a month from the date the tax became due until paid.
139.33(4)
(4) Sections
139.30 to
139.44 relating to enforcement of the excise tax imposed by s.
139.31 apply to enforcement of the use tax imposed by this section.
139.33 Cross-reference
Cross-reference: See also s.
Tax 9.51, Wis. adm. code.
139.34
139.34
Permits required. 139.34(1)(a)
(a) No person may manufacture cigarettes in this state or sell cigarettes in this state as a distributor, jobber, vending machine operator or multiple retailer and no person may operate a warehouse in this state for the storage of cigarettes for another person without first filing an application for and obtaining the proper permit to perform such operations from the department.
139.34(1)(b)
(b) This section applies to all officers, directors, agents and stockholders holding 5 percent or more of the stock of any corporation applying for a permit under this section.
139.34(1)(c)1.
1. The person has been convicted of a misdemeanor, not involving chs.
340 to
349, at least 3 times.
139.34(1)(c)2.
2. The person has been convicted of a felony, unless pardoned.
139.34(1)(c)3.
3. The person is addicted to the use of a controlled substance or controlled substance analog under ch.
961.
139.34(1)(c)4.
4. The person has income which comes principally from gambling or has been convicted of 2 or more gambling offenses.
139.34(1)(c)5.
5. The person has been guilty of crimes relating to prostitution.
139.34(1)(c)6.
6. The person has been guilty of crimes relating to loaning money or anything of value to persons holding licenses or permits pursuant to ch.
125.
139.34(1)(d)
(d) Upon denial of a permit the department of revenue shall immediately notify such person in writing of the denial and the reasons therefor.
139.34(1)(e)
(e) A denial of a permit by the department of revenue shall be subject to judicial review under ch.
227.
139.34(3)
(3) No distributor or bonded direct marketer may affix stamps to cigarette packages, as provided in s.
139.32, unless the distributor or bonded direct marketer certifies to the department, in a manner prescribed by the department, that the distributor or bonded direct marketer purchases cigarettes directly from a manufacturer.
139.34(4)
(4) A separate permit shall be required of and issued to each class of permittee and the holder of any permit shall perform only the operations thereby authorized. Such permit shall not be transferable from one person to another or from one premises to another. A separate permit shall be required for each place where cigarettes are stamped or where cigarettes are stored for sale at wholesale or through vending machines or multiple retail outlets.
139.34(5)
(5) The ownership and operation of any retail outlet does not preclude a person from receiving a permit as a distributor or jobber, if more than 50 percent of that person's sales of cigarettes are at wholesale to retailers, vending machine operators or multiple retailers neither owned, controlled nor operated by that person.
139.34(6)
(6) A vending machine operator or a multiple retailer may acquire unstamped cigarettes from the manufacturers thereof and affix the stamps to packages or other containers only if the vending machine operator or multiple retailer also holds a permit as a distributor.
139.34(7)
(7) The secretary may require by rule that stamps affixed to cigarette packages be identified by a permit or code number assigned to the person affixing them.
139.34 Cross-reference
Cross-reference: See also s.
Tax 9.19, Wis. adm. code.
139.34(8)
(8) The holder of a warehouse permit is entitled to store cigarettes on the premises described in the permit. The warehouse permit shall not authorize the holder to sell cigarettes. Unstamped cigarettes stored in a warehouse for a manufacturer or distributor may be delivered only to a person holding a permit as a manufacturer or distributor.
139.34(9)
(9) The applicant for a permit, if a nonresident, foreign corporation or foreign limited liability company, shall file proof that the applicant has appointed the department of financial institutions as agent for the service of process on any matter arising under ss.
139.30 to
139.44. A foreign corporation without a place of business in this state need not obtain a certificate of authority under ss.
180.1501 to
180.1505. If a foreign corporation has a certificate of authority under ss.
180.1501 to
180.1505, the foreign corporation satisfies this subsection by filing the address of its registered office in this state and the name of its registered agent at that office and by promptly filing any changes to this information. A foreign limited liability company without a place of business in this state need not obtain a certificate of registration under ss.
183.1002 to
183.1007. If a foreign limited liability company has a certificate of registration under ss.
183.1002 to
183.1007, the foreign limited liability company satisfies this subsection by filing the address of its registered office in this state and the name of its registered agent at that office and by promptly filing any changes to this information.
139.34(10)
(10) Every vending machine operator shall in the vending machine operator's application for a permit list each county in which the vending machine operator operates such machines and state the number of such machines the vending machine operator is then operating in each such county.
139.34 Cross-reference
Cross-reference: See also ss.
Tax 9.21,
9.56,
9.61, and
9.68, Wis. adm. code.
139.345(1)(a)
(a) No person may sell cigarettes to consumers in this state as a direct marketer unless the person submits to the department the person's name, trade name, address of the person's principal place of business, phone number, e-mail address, and website address.
139.345(1)(b)
(b) No person may sell cigarettes as described under this section unless the person certifies to the department, in the manner prescribed by the department, that the person shall acquire stamped cigarettes from a licensed distributor or unstamped cigarettes from the manufacturer thereof, pay the tax imposed under this subchapter on all unstamped cigarettes and affix stamps to the cigarette packages or containers as provided under s.
139.32 (1), store such packages or containers, and sell only such packages or containers to consumers in this state by direct marketing; or acquire cigarettes from a distributor, to the packages or containers of which stamps have been affixed as provided under s.
139.32 (1), and sell only such packages or containers to consumers in this state by direct marketing.
139.345(1)(d)
(d) No person may sell cigarettes as described in this section unless the person certifies to the department, in the manner prescribed by the department, that the person shall register with credit card and debit card companies; that the invoices and all means of solicitation for all shipments of cigarette sales from the person shall bear the person's name and address; and that the person shall provide the department any information the department considers necessary to administer this section.
139.345(2)
(2) No person may sell cigarettes to consumers in this state by direct marketing unless the tax imposed under s.
77.52 or
77.53 is paid on the sale of such cigarettes.
139.345(3)
(3) No person may sell cigarettes to consumers in this state unless the person does all of the following:
