77.52(14)(am)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.
77.52(14)(bm)
(bm) A certified service provider is relieved from liability for the tax otherwise applicable to the same extent as the seller, who is the certified service provider's client, is relieved from liability for the tax otherwise applicable under par.
(a) or
(am).
77.52(15)
(15) If a purchaser who purchases tangible personal property, or items, property, or goods under s.
77.52 (1) (b),
(c), or
(d), or taxable services without paying a sales tax or use tax on such purchase because such property, items, goods, or services were for resale makes any use of the property, items, goods, or services other than retention, demonstration or display while holding the property, items, goods, or services for sale, lease or rental in the regular course of the purchaser's operations, the use shall be taxable to the purchaser under s.
77.53 as of the time that the property, items, goods, or services are first used by the purchaser, and the purchase price of the property, items, goods, or services to the purchaser shall be the measure of the tax.
77.52(16)
(16) Any person who gives a resale certificate for property, or items, property, or goods under sub.
(1) (b),
(c), or
(d), or services which that person knows at the time of purchase is not to be resold by that person in the regular course of that person's operations as a seller for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction is guilty of a misdemeanor. Any person certifying to the seller that the sale of property, or items, property, or goods under sub.
(1) (b),
(c), or
(d), or taxable service is exempt, knowing at the time of purchase that it is not exempt, for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction, is guilty of a misdemeanor.
77.52(17)
(17) 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.
77.52(17m)(a)(a) A person who holds a valid certificate issued under s.
73.03 (50) may apply for a direct pay permit by filing a completed form that the department prescribes.
77.52(17m)(b)
(b) The department shall issue a direct pay permit, at the beginning of a taxpayer's taxable year, if the following requirements are fulfilled:
77.52(17m)(b)1.
1. Because of the nature of the applicant's business, issuing the permit will significantly reduce the work of administering the taxes under this subchapter.
77.52(17m)(b)2.
2. The applicant's accounting system will clearly indicate the amount of tax that the applicant owes under this subchapter.
77.52(17m)(b)3.
3. The applicant makes enough purchases that are taxable under this subchapter to justify the expense of regular audits by the department.
77.52(17m)(b)4.
4. The applicant is not liable for delinquent taxes; including costs, penalties, surcharges and interest; under ch.
71,
72,
76,
78 or
139 or this chapter of $400 or more if any part of the tax is delinquent for at least 5 months.
77.52(17m)(b)5.
5. It is in this state's best interests to issue the permit.
77.52(17m)(b)6.
6. The applicant purchases enough tangible personal property or items, property, or goods under s.
77.52 (1) (b),
(c), or
(d) under circumstances that make it difficult to determine whether the property, items, or goods will be subject to a tax under this subchapter.
77.52(17m)(c)
(c) A holder of a permit that is issued under par.
(b) may not transfer or assign it.
77.52(17m)(d)
(d) The department may revoke a permit that is issued under par.
(b) if the holder misuses it or the department determines that revocation is in this state's best interests.
77.52(17m)(e)
(e) A retailer may not collect a tax under this subchapter, and is not liable for a tax under this subchapter, on any sale, except those of a type specified as ineligible for an exemption under this paragraph by a rule promulgated by the department, for which the buyer furnishes to the retailer a copy of the permit that is issued under par.
(b) or a statement that the buyer holds such a permit, a statement of that permit's number and a statement of the date that the permit was issued.
77.52(17m)(f)
(f) A person who holds a permit that is issued under par.
(b) shall keep a record of all retailers from whom the person made a purchase for which the person used a permit that is issued under par.
(b) and shall do one of the following:
77.52(17m)(f)1.
1. Fulfill the requirements for an exempt sale under par.
(e) for every purchase that the person makes that may be exempt under that paragraph and pay the tax under s.
77.53 (1) to the department on all of those purchases for which the tax is due.
77.52(17m)(f)2.
2. Maintain accounting records that show the tax under ss.
77.52 (1) and
(2) and
77.53 (3) paid on each purchase during each reporting period under s.
77.58 and the total tax paid during each reporting period, pay the tax under ss.
77.52 (1) and
(2) and
77.53 (3) on either all or none of the purchases made from each retailer during each reporting period and pay the tax under s.
77.53 (1) to the department on all of the purchases for which the tax is due.
77.52(18)(am)(am) If any retailer liable for any amount of tax under this subchapter sells out the retailer's business or stock of goods or quits the business, the retailer's successors or assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the department that it has been paid or a certificate stating that no amount is due.
77.52(18)(bm)
(bm) If the purchaser of a stock of goods fails to withhold from the purchase price as required, the purchaser becomes personally liable for the payment of the amount required to be withheld by the purchaser to the extent of the purchase price valued in money. Within 60 days after receiving a written request from the purchaser for a certificate, or within 60 days from the date the former owner's records are made available for audit, whichever period expires later, but in any event not later than 90 days after receiving the request, the department shall either issue the certificate or send notice to the purchaser at the purchaser's address as it appears on the records of the department of the amount that must be paid as a condition of issuing the certificate. Failure of the department to send the notice releases the purchaser from any further obligation to withhold the purchase price as above provided. The obligation of the successor may be enforced within 4 years of the time the retailer sells out the retailer's business or stock of goods or at the time that the determination against the retailer becomes final, whichever event occurs later.
77.52(19)
(19) The department shall by rule provide for the efficient collection of the taxes imposed by this subchapter on sales of tangible personal property, or items, property, or goods under sub.
(1) (b),
(c), or
(d), or services by persons not regularly engaged in selling at retail in this state or not having a permanent place of business, but who are temporarily engaged in selling from trucks, portable roadside stands, concessions at fairs and carnivals, and the like. The department may authorize such persons to sell property or items, property or goods under sub.
(1) (b),
(c), or
(d) or sell, perform, or furnish services on a permit or nonpermit basis as the department by rule prescribes and failure of any person to comply with such rules constitutes a misdemeanor.
77.52(20)(a)(a) Except as provided in par.
(b), the entire sales price of a bundled transaction is subject to the tax imposed under this subchapter.
77.52(20)(b)
(b) At the retailer's option, if the retailer can identify, by reasonable and verifiable standards from the retailer's books and records that are kept in the ordinary course of its business for other purposes, including purposes unrelated to taxes, the portion of the price that is attributable to products that are not subject to the tax imposed under this subchapter, that portion of the sales price is not taxable under this subchapter. This paragraph does not apply to a bundled transaction that contains food and food ingredients, drugs, durable medical equipment, mobility enhancing equipment, prosthetic devices, or medical supplies.
77.52(21)(a)(a) Except as provided in par.
(b), a person who provides a product that is not distinct and identifiable because it is provided free of charge, as provided in s.
77.51 (3pf) (b), is the consumer of the product that is provided free of charge and shall pay the tax imposed under this subchapter on the purchase price of that product.
77.52(21)(b)
(b) Except as provided in sub.
(2m) (a), a person who provides a product that is not distinct and identifiable because it is provided free of charge to a purchaser who must also purchase another product that is subject to the tax imposed under this subchapter from that person in the same transaction may purchase the product provided free of charge without tax, for resale.
77.52(22)
(22) With regard to transactions described in s.
77.51 (1f) (b), the service provider is the consumer of the tangible personal property or items, property, or goods under sub.
(1) (b),
(c), or
(d) and shall pay the tax imposed under this subchapter on the purchase price of the property, items, or goods.
77.52(23)
(23) With regard to transactions described in s.
77.51 (1f) (c), the service provider is the consumer of the service that is essential to the use or receipt of the other service and shall pay the tax imposed under this subchapter on the purchase price of the service that is essential to the use or receipt of the other service.
77.52 History
History: 1973 c. 156;
1975 c. 39;
1977 c. 29,
142,
418;
1979 c. 174,
221;
1981 c. 20,
317;
1983 a. 2,
27;
1983 a. 189 ss.
99,
103,
107,
329 (12);
1983 a. 341,
510,
544;
1985 a. 29,
149;
1987 a. 27,
399;
1989 a. 31,
335;
1991 a. 39,
316;
1993 a. 112,
213,
308,
437;
1995 a. 27,
225,
351;
1997 a. 27,
237,
291;
1999 a. 9,
83;
1999 a. 150 s.
672;
2001 a. 16,
104,
109;
2003 a. 33,
321;
2005 a. 149,
327,
344;
2007 a. 11,
20,
42,
97;
2009 a. 2,
12,
28,
330;
2011 a. 18,
32;
2013 a. 20,
185;
2015 a. 84,
216;
2017 a. 17,
59,
324,
365,
367.
77.52 Annotation
Meals served by a religious order in carrying out its religious work were not subject to sales tax for that portion of charges made to guests for lodging, food, and use of the order's facilities. Kollasch v. Adamany,
104 Wis. 2d 552,
313 N.W.2d 47 (1981).
77.52 Annotation
Sub. (18) provides no relief from successor liability when the entire purchase price is paid to a secured creditor. Kastengren v. DOR,
179 Wis. 2d 587,
508 N.W.2d 431 (Ct. App. 1993).
77.52 Annotation
Contractors are considered to be the consumers of personal property used by them in real property construction and are subject to sales tax. Performing a real property construction activity for an exempt entity does not make a contractor exempt. Zignego Co., Inc. v. DOR,
211 Wis. 2d 819,
565 N.W.2d 590 (Ct. App. 1997),
96-1965.
77.52 Annotation
A resort's sale of flexible time-share interests in condominiums was subject to sales tax. Sub. (2) (a) 1., as applied to sales of flexible time-shares, does not violate the Art. VIII, s.1,“uniformity clause," nor does it violate guarantees of equal protection. Telemark Development, Inc. v. DOR,
218 Wis. 2d 809,
581 N.W.2d 585 (Ct. App. 1998),
97-3133.
77.52 Annotation
A communications tower constructed on leased land was properly deemed “personal property." The owner of the tower was liable for sales tax on proceeds from renting or leasing space on the tower, and a renter of space on the tower was liable for use tax on its rental of space on the tower. All City Communication Company, Inc. v. DOR,
2003 WI App 77,
263 Wis. 2d 394,
661 N.W.2d 845,
02-1201.
77.52 Annotation
Whether Milwaukee Symphony Orchestra concerts were entertainment events, ticket sales to which are subject to sales tax under sub. (2) (a) 2., depends on the “primary purpose" of the event. The determination is a holistic one that looks to the motivation, mission, or purpose of the sponsoring organization, as well as any evidence of the motivation and reaction of those paying admission and ultimately the nature of the place or event itself. If the primary purpose of an event or place is 50 percent or more “amusement, athletic, entertainment or recreational," then admission to the event or place is taxable under this provision of the statute. Milwaukee Symphony Orchestra v. DOR,
2010 WI 33,
324 Wis. 2d 68,
781 N.W.2d 674,
08-1684.
77.52 Annotation
Sub. (2) (a) 1. does not impose a sales tax on those selling the service of making reservations on behalf of members of the public with those who furnish rooms or lodging. The omission of the words “the sale of" in sub. (2) (a) 1. indicates that the legislature did not intend to impose a tax on those selling the services of making hotel reservations but not actually furnishing the accommodations. Wisconsin Department of Revenue v. Orbitz, L.L.C.
2016 WI App 22,
367 Wis. 2d 593,
877 N.W.2d 372,
15-0200.
77.52 Annotation
The term “processing” in sub. (2) (a) 11. encompasses the performance of a mechanical or chemical operation on tangible personal property, a task that can be completed without transforming the property into a new product or adding anything to it that was not already there. Processing includes the separation of river sediment into its component parts. Tetra Tech EC, Inc. v. DOR,
2018 WI 75,
382 Wis. 2d 496,
914 N.W.2d 21,
15-2019.
77.52 Annotation
Changes on the Horizon: Sales and Use Tax in the E-Commerce Era. Pascaly. Wis. Law. Oct. 2015.
77.522(1)(a)1.
1. “Receive" means taking possession of tangible personal property or items or property under s.
77.52 (1) (b) or
(c); making first use of services; or taking possession or making first use of digital goods under s.
77.52 (1) (d), whichever comes first. “Receive" does not include a shipping company taking possession of tangible personal property or items or property under s.
77.52 (1) (b) or
(c) on a purchaser's behalf.
77.522(1)(a)2.
2. “Transportation equipment" means any of the following:
77.522(1)(a)2.a.
a. Locomotives and railcars that are used to carry persons or property in interstate commerce.
77.522(1)(a)2.b.
b. Trucks and truck tractors that have a gross vehicle weight rating of 10,001 pounds or greater, trailers, semitrailers, and passenger buses, if such vehicles are registered under the international registration plan under s.
341.405 and operated under the authority of a carrier that is authorized by the federal government to carry persons or property in interstate commerce.
77.522(1)(a)2.c.
c. Aircraft that are operated by air carriers that are authorized by the federal government or a foreign authority to carry persons or property in interstate or foreign commerce.
77.522(1)(a)2.d.
d. Containers that are designed for use on the vehicles described in subd.
2. a. to
c. and component parts attached to or secured on such vehicles.
77.522(1)(b)
(b) Except as provided in par.
(c) and subs.
(3),
(4), and
(5), the location of a sale is determined as follows:
77.522(1)(b)1.
1. If a purchaser receives the product at a seller's business location, the sale is sourced to that business location.
77.522(1)(b)2.
2. If a purchaser does not receive the product at a seller's business location, the sale is sourced to the location where the purchaser, or the purchaser's designated donee, receives the product, including the location indicated by the instructions known to the seller for delivery to the purchaser or the purchaser's designated donee.
77.522(1)(b)3.
3. If the location of a sale of a product cannot be determined under subds.
1. and
2., the sale is sourced to the purchaser's address as indicated by the seller's business records, if the records are maintained in the ordinary course of the seller's business and if using that address to establish the location of a sale is not in bad faith.
77.522(1)(b)4.
4. If the location of a sale of a product cannot be determined under subds.
1. to
3., the sale is sourced to the purchaser's address as obtained during the consummation of the sale, including the address indicated on the purchaser's payment instrument, if no other address is available and if using that address is not in bad faith.
77.522(1)(b)5.
5. If the location of a sale of a product cannot be determined under subds.
1. to
4., including the circumstance in which the seller has insufficient information to determine the locations under subds.
1. to
4., the location of the sale is determined as follows:
77.522(1)(b)5.a.
a. If the item sold is tangible personal property or an item or property under s.
77.52 (1) (b) or
(c), the sale is sourced to the location from which the tangible personal property or item or property under s.
77.52 (1) (b) or
(c) is shipped.
77.522(1)(b)5.b.
b. If the item sold is a digital good or computer software delivered electronically, the sale is sourced to the location from which the digital good or computer software was first available for transmission by the seller, not including any location that merely provided the digital transfer of the product sold.
77.522(1)(b)5.c.
c. If a service is sold, the sale is sourced to the location from which the service was provided.
77.522(1)(c)1.1. Except as provided in subd.
3., the sale of advertising and promotional direct mail, including a sale characterized under the laws of this state as the sale of a service when that service is an integral part of the production and distribution of printed material that meets the definition of advertising and promotional direct mail, is sourced to the location from which the advertising and promotional direct mail is shipped, if the purchaser does 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 advertising and promotional direct mail is delivered to the ultimate recipients. If the purchaser provides an exemption certificate claiming direct mail or direct pay permit to the seller, the purchaser shall source the sales to the jurisdictions to which the advertising and promotional direct mail is delivered to the recipients and pay or remit, as appropriate, to the department the tax imposed under s.
77.53 on all purchases for which the tax is due and the seller, in the absence of bad faith, is relieved of all obligation to collect, pay, or remit the tax on any transaction to which the direct pay permit or exemption certificate applies. If the purchaser provides delivery information indicating the jurisdictions to which the advertising and promotional direct mail is to be delivered to the recipients, the seller shall source the sale to those jurisdictions and collect and remit the tax according to the delivery information provided by the purchaser and, in the absence of bad faith, the seller shall be relieved of any further obligation to collect tax on the sale of advertising and promotional direct mail for which the seller has sourced the sale and collected tax pursuant to the delivery information provided by the purchaser. If a transaction is a bundled transaction that includes advertising and promotional direct mail, this subdivision only applies if the primary purpose of the transaction is the sales of products or services that meet the definition of advertising and promotional direct mail.
77.522(1)(c)2.
2. The sale of other direct mail, including a sale characterized under the laws of this state as the sale of a service when that service is an integral part of the production and distribution of printed material that meets the definition of other direct mail, is sourced under par.
(b) 3. if the purchaser does not provide to the seller a direct pay permit or an exemption certificate claiming direct mail. If the purchaser provides an exemption certificate claiming direct mail or direct pay permit to the seller, the purchaser shall source the sale to the jurisdictions to which the other direct mail is to be delivered to the recipients and the purchaser shall pay or remit, as appropriate, to the department the tax imposed under s.
77.53 on all purchases for which the tax is due and the seller, in the absence of bad faith, is relieved of all obligation to collect, pay, or remit tax on any transaction to which the direct pay permit or exemption certificate claiming direct mail applies.
77.522(1)(c)3.
3. If advertising and promotional direct mail and other direct mail are included in a single mailing, the sale of that mailing is sourced the same as a sale of other direct mail.
77.522(1)(c)4.
4. Transactions that include the development of billing information or the provision of a data processing service that is more than incidental to producing direct mail are not direct mail and are sourced under par.
(b), but transactions that include incidental data processing services are direct mail and are sourced under this paragraph. For purposes of this subdivision, “incidental" has the meaning given in s.
77.51 (5).
77.522(3)(a)
(a) Except as provided in pars.
(b) and
(c), with regard to the first or only payment on the lease or rental, the lease or rental of tangible personal property or items, property, or goods under s.
77.52 (1) (b),
(c), or
(d) is sourced to the location determined under sub.
(1) (b). Subsequent periodic payments on the lease or rental are sourced to the property's, item's, or good's primary location as indicated by an address for the property, item, or good that is provided by the lessee and that is available to the lessor in records that the lessor maintains in the ordinary course of the lessor's business, if the use of such an address does not constitute bad faith. The location of a lease or rental as determined under this paragraph shall not be altered by any intermittent use of the property, item, or good at different locations.
77.522(3)(b)
(b) The lease or rental of motor vehicles, trailers, semitrailers, and aircraft, that are not transportation equipment, is sourced to the primary location of such motor vehicles, trailers, semitrailers, or aircraft as indicated by an address for the property that is provided by the lessee and that is available to the lessor in records that the lessor maintains in the ordinary course of the lessor's business, if the use of such an address does not constitute bad faith, except that a lease or rental under this paragraph that requires only one payment is sourced to the location determined under sub.
(1) (b). The location of a lease or rental as determined under this paragraph shall not be altered by any intermittent use of the property at different locations.
77.522(3)(c)
(c) The lease or rental of transportation equipment is sourced to the location determined under sub.
(1) (b).
77.522(3)(d)
(d) A license of tangible personal property or items, property, or goods under s.
77.52 (1) (b),
(c), or
(d) shall be treated as a lease or rental of such tangible personal property, items, property, or goods under this subsection.
77.522(4)(a)1.
1. “Air-to-ground radiotelephone service" means a radio service in which common carriers are authorized to offer and provide radio telecommunications service for hire to subscribers in aircraft.
77.522(4)(a)2.
2. “Call-by-call basis" means any method of charging for telecommunications services by which the price of such services is measured by individual calls.
77.522(4)(a)3.
3. “Communications channel" means a physical or virtual path of communications over which signals are transmitted between or among customer channel termination points.
77.522(4)(a)4.
4. “Customer" means a person who enters into a contract with a seller of telecommunications services or, in any transaction for which the end user is not the person who entered into a contract with the seller of telecommunications services, the end user of the telecommunications services. “Customer" does not include a person who resells telecommunications services or, for mobile telecommunications services, a serving carrier under an agreement to serve a customer outside the home service provider's licensed service area.
77.522(4)(a)5.
5. “Customer channel termination point" means the location where a customer inputs or receives communications.
77.522(4)(a)6.
6. “End user" means the person who uses a telecommunications service. In the case of an entity, “end user" means the individual who uses the telecommunications service on the entity's behalf.
77.522(4)(a)7.
7. “Home service provider" means a home service provider under section 124 (5) of P.L.
106-252.
77.522(4)(a)9.
9. “Place of primary use" means the residential street address or the primary business street address of the customer. In the case of mobile telecommunications services, “place of primary use" means a street address within the licensed service area of the home service provider.
77.522(4)(a)10.
10. “Postpaid calling service" means a telecommunications service that is obtained by paying for it on a call-by-call basis using a bankcard, travel card, credit card, debit card, or similar method, or by charging it to a telephone number that is not associated with the location where the telecommunications service originates or terminates. “Postpaid calling service" includes a telecommunications service, not including a prepaid wireless calling service, that would otherwise be a prepaid calling service except that the service provided to the customer is not exclusively a telecommunications service.
77.522(4)(a)14.
14. “Radio service" means a communication service provided by the use of radio, including radiotelephone, radiotelegraph, paging, and facsimile service.
77.522(4)(a)15.
15. “Radiotelegraph service" means transmitting messages from one place to another by means of radio.
77.522(4)(a)16.
16. “Radiotelephone service" means transmitting sound from one place to another by means of radio.
77.522(4)(b)
(b) Except as provided in pars.
(d) to
(j), the sale of a telecommunications service that is sold on a call-by-call basis is sourced to the taxing jurisdiction for sales and use tax purposes where the call originates and terminates, in the case of a call that originates and terminates in the same such jurisdiction, or the taxing jurisdiction for sales and use tax purposes where the call originates or terminates and where the service address is located.
77.522(4)(c)
(c) Except as provided in pars.
(d) to
(j), the sale of a telecommunications service that is sold on a basis other than a call-by-call basis is sourced to the customer's place of primary use.
