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. DOR,
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 percent 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.
78.21(1)(d)
(d) Engages in a business for which a license is required under s.
78.09 and does not have that license.
78.21(1)(e)
(e) Operates a transport truck to ship diesel fuel on the highways of the state, destined for delivery in this state, as shown on the shipping papers and does not have on board a shipping paper that sets out on its face a notation that the load is exempt if it is exempt or taxable if it is taxable.
78.21(2)
(2) The department of transportation may promulgate rules to interpret sub.
(1).
78.21 History
History: 1993 a. 16.
78.215
78.215
Separate fuel supply tanks required. Every motor vehicle operated by diesel fuel shall be equipped with a diesel fuel supply tank separate from and in no way connected to any cargo tank on or attached to that motor vehicle.
78.215 History
History: 1993 a. 16.
78.22
78.22
Motor vehicle fuel floor tax. 78.22(1)(1)
Floor tax imposed. On the date any motor vehicle fuel tax rate change becomes effective under s.
78.01, a floor tax is hereby imposed upon every person who is in possession of any motor vehicle fuel held for sale or resale and on which the motor vehicle fuel tax already has been imposed. The person shall determine the volume of motor vehicle fuel and shall file by the 15th day of the month in which the new tax rate becomes effective a return, together with any tax due on it, determined in accordance with sub.
(2).
78.22(2)
(2) Floor tax or refund computation. The amount of any motor vehicle fuel floor tax or refund shall be computed by multiplying the number of gallons of motor vehicle fuel held in inventory as determined under sub.
(1) by the difference between the tax rate already paid and the new tax rate, and the resulting figure shall be expressed in dollars.
78.22(3)
(3) Administration. Sections
71.74 (1),
(2),
(10),
(11),
(13) and
(14),
71.75 (4) to
(7),
71.82 (2) (a) and
(b),
71.83 (2) (b) 3.,
71.88 (1) (a) and
(2) (a),
71.89 to
71.91,
71.92,
73.01 and
73.015 apply to the administration of this section.
78.22(4)
(4) Late filing fee. Any person who fails to file a motor vehicle fuel floor tax return when due shall pay a late filing fee of $10. A return that is mailed is filed in time if it is mailed in a properly addressed envelope with postage duly prepaid and the envelope is officially postmarked, or marked or recorded electronically as provided under section
7502 (f) (2) (c) of the Internal Revenue Code, on the date due and 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.
78.22(5)
(5) Delinquent interest. If the tax imposed in this section is not paid when due, interest at the rate of 1.5 percent per month accrues from the date the tax became due until paid.
78.22(6)
(6) Penalty. If any person liable for the tax files a false or fraudulent return, there shall be added to the tax an amount equal to the tax the person evaded or attempted to evade.
ALTERNATE FUELS TAX
78.39
78.39
Definitions. In this subchapter:
78.39(1)
(1) “Alternate fuels" means all combustible gases and liquids suitable for generation of power for propulsion of motor vehicles, except that “alternate fuels" does not include motor vehicle fuel, as defined in s.
78.005 (13), or general aviation fuel, as defined in s.
78.55 (3).
78.39(2)
(2) “Alternate fuels dealer" means any person, including the state and any political subdivision of the state, but not including the United States or its agencies except to the extent now or hereafter permitted by the constitution and laws of the United States, in the business of handling alternate fuels who delivers any part of the alternate fuels into the fuel supply tank or tanks of a motor vehicle not then owned or controlled by that person or to a retailer or user if the supplier reports and pays the tax under s.
78.40 (1).
78.39(3)
(3) “Alternate fuels user" means the owner or other person, including the state and any political subdivision of the state, but not including the United States or its agencies except to the extent now or hereafter permitted by the constitution and laws of the United States, responsible for the operation of a motor vehicle at the time an alternate fuel is placed in the fuel supply tank or tanks of the motor vehicle while the vehicle is within this state.
78.39(4)
(4) “Department" means the department of revenue.
78.39(4m)
(4m) “File" means mail or deliver a document that the department prescribes to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.
78.39(5f)
(5f) “Person" includes any individual, sole proprietorship, partnership, limited liability company, corporation, or association. A single-owner entity that is disregarded as a separate entity under ch.
71 is disregarded as a separate entity for purposes of this subchapter.
78.39(7)
(7) “Use" means the receipt, delivery, or placing of alternate fuels into the fuel supply tank of a motor vehicle in this state, by an alternate fuels user and the delivery to a retailer or user if the supplier reports and pays the tax under s.
78.40 (1).
78.40
78.40
Tax imposed; collected; exceptions. 78.40(1)(1)
Imposition of tax and by whom paid. An excise tax at the rate determined under ss.
78.405 and
78.407 is imposed on the use of alternate fuels. The tax, with respect to all alternate fuel delivered by an alternate fuel dealer into supply tanks of motor vehicles in this state, attaches at the time of delivery and shall be collected by the dealer from the alternate fuels user and shall be paid to the department. The tax, with respect to alternate fuels acquired by any alternate fuels user other than by delivery by an alternate fuel dealer into a fuel supply tank of a motor vehicle, of a snowmobile, of a limited use off-highway motorcycle that is not registered for private use under s.
23.335 (3) (a), of an all-terrain vehicle or utility terrain vehicle that is not registered for private use under s.
23.33 (2) (d) or
(2g), or of a recreational motorboat, attaches at the time of the use of the fuel and shall be paid to the department by the user. The department may permit any supplier of alternate fuels to report and pay to the department the tax on alternate fuels delivered into the storage facility of an alternate fuels user or retailer which will be consumed for alternate fuels tax purposes or sold at retail.
78.40(2)
(2) Exceptions. No tax is hereby imposed upon or with respect to the following:
78.40(2)(a)
(a) Alternate fuels used by the United States or its agencies where such use is evidenced by an exemption certificate executed by an authorized representative of the U.S. government or agency thereof certifying that the fuel used is for the exclusive consumption by the U.S. government or its agencies.
78.40(2)(c)
(c) Alternate fuels used by a common motor carrier as defined in ch.
194, if the carrier certifies to the department that the fuel is for use in the operation of a motor vehicle for the urban mass transportation of passengers as defined in s.
71.38.
