71.25(9)(e)11.
11. Gross franchise fees from income-producing activities.
71.25(9)(f)
(f)
Items that are not sales. The following items are among those that are not included in “sales" in this subsection:
71.25(9)(f)1.
1. Gross receipts and gain or loss from the sale of tangible business assets, except those under par.
(e) 1.,
2. and
3. 71.25(9)(f)2.
2. Gross receipts and gain or loss from the sale of nonbusiness real or tangible personal property.
71.25(9)(f)3.
3. Gross rents and rental income or loss from real property or tangible personal property if that real property or tangible personal property is not used in the production of business income.
71.25(9)(f)4.
4. Royalties from nonbusiness real property or nonbusiness tangible personal property.
71.25(9)(f)5.
5. Proceeds and gain or loss from the redemption of securities.
71.25(9)(f)7.
7. Gross receipts and gain or loss from the sale of intangible assets, except those under par.
(e) 1. 71.25(9)(f)8.
8. Dividends deductible by corporations in determining net income.
71.25(9)(f)9.
9. Gross receipts and gain or loss from the sale of securities.
71.25(9)(f)10.
10. Proceeds and gain or loss from the sale of receivables.
71.25(9)(f)11.
11. Refunds, rebates and recoveries of amounts previously expended or deducted.
71.25(9)(f)12.
12. Other items not includable in apportionable income.
71.25(9)(g)1.1. For taxable years beginning after December 31, 2018, the amount of a broadcaster's gross receipts from advertising and the use or license of intangible property, as determined under pars.
(dh) 4. and
(dj) 2m., shall be adjusted as follows:
71.25(9)(g)1.a.
a. Determine the amount of the numerator of the sales factor for a broadcaster as provided in this subsection.
71.25(9)(g)1.b.
b. Multiply .01 by the total amount of the domestic gross receipts of the broadcaster from advertising and royalties and other gross receipts for the use or license of intangible property.
71.25(9)(g)1.c.
c. Determine the numerator of the sales for a broadcaster by substituting the amount determined under subd.
1. b. for the total amount determined under subd.
1. a. 71.25(9)(g)1.d.
d. Except as provided in subd.
1. e., if the amount of the numerator determined under subd.
1. c. is more than the amount determined under subd.
1. a., substitute the amount of total gross receipts determined under subd.
1. b. for the total amount of the gross receipts determined under subd.
1. a. For purposes of this subd.
1. d., the amount of the numerator for a broadcaster is the amount determined under subd.
1. c. 71.25(9)(g)1.e.
e. If the amount of the numerator computed under subd.
1. c. is more than 140 percent of the amount determined under subd.
1. a., adjust the total amount of the gross receipts under subd.
1. a. so that the amount of the numerator for a broadcaster is 140 percent of the numerator otherwise determined under subd.
1. a. 71.25(9)(g)2.
2. The department may promulgate rules to administer this paragraph.
71.25(10)
(10)
Railroads, financial organizations and public utilities. 71.25(10)(a)1.1. In this section, “
financial organization" means any bank, trust company, savings bank, industrial bank, land bank, safe deposit company, private banker, savings and loan association, credit union, cooperative bank, small loan company, sales finance company, investment company, brokerage house, underwriter or any type of insurance company.
71.25(10)(a)2.
2. As used in this section, “financial organization" includes any subsidiary of an entity described in subd.
1., if a significant purpose for the subsidiary is to hold investments or if the subsidiary primarily functions to hold investments.
71.25(10)(b)1.1. In this section, for taxable years beginning before January 1, 2006, “public utility" means any business entity described under subd.
2. and any business entity which owns or operates any plant, equipment, property, franchise, or license for the transmission of communications or the production, transmission, sale, delivery, or furnishing of electricity, water or steam the rates of charges for goods or services of which have been established or approved by a federal, state or local government or governmental agency.
71.25(10)(b)2.
2. In this section, for taxable years beginning after December 31, 2005, “public utility" means any business entity providing service to the public and engaged in the transportation of goods and persons for hire, as defined in s.
194.01 (4), regardless of whether or not the entity's rates or charges for services have been established or approved by a federal, state or local government or governmental agency.
71.25(10)(c)
(c) The net business income of railroads, car line companies, pipeline companies, financial organizations, telecommunications companies, air carriers, and public utilities requiring apportionment shall be apportioned pursuant to rules of the department of revenue, but the income taxed is limited to the income derived from business transacted and property located within the state.
71.25(11)
(11)
Department may waive factor. Where, in the case of any corporation engaged in business in and outside of this state and required to apportion its income as provided in sub.
(6), it shall be shown to the satisfaction of the department of revenue that the use of any one of the 3 factors provided in sub.
(6) gives an unreasonable or inequitable final average ratio because of the fact that such corporation does not employ, to any appreciable extent in its trade or business in producing the income taxed, the factors made use of in obtaining such ratio, this factor may, with the approval of the department of revenue, be omitted in obtaining the final average ratio which is to be applied to the remaining net income. This subsection does not apply to taxable years beginning after December 31, 2007.
71.25(12)
(12)
Department may apportion by rule. If the income of any such corporation properly assignable to the state of Wisconsin cannot be ascertained with reasonable certainty by the methods under this section, then the same shall be apportioned and allocated under such rules as the department of revenue may prescribe.
71.25 Cross-reference
Cross-reference: See also s.
Tax 2.45, Wis. adm. code.
71.25(13)
(13)
Unrelated business taxable income. The unrelated business taxable income of organizations that are subject to tax on that income under s.
71.26 (1) (a) shall be apportioned under the department of revenue's rules.
71.25(14)(a)(a) Upon request by a corporation on or before January 1, 2000, the department of revenue may authorize a corporation or a subsidiary thereof to use or continue to use a different method of apportioning its income to this state for purposes of this subchapter, and may specify the method of apportionment that the corporation or subsidiary shall use. This paragraph is to be used exclusively in the event of a corporate restructuring that would result in an unfair representation of the degree of business activity in this state. In no instance may the alternative method proposed under the new corporate structure result in less franchise or income tax revenue to the state than the current corporate structure is liable for, given the same overall level of sales, payroll and property.
71.25(14)(b)
(b) Before the department of revenue grants permission to any corporation to use an alternative method of allocation under par.
(a), the department of revenue shall promulgate rules that specify in more detail the circumstances in which that authority may be granted and the kinds of alternative methods that the department may authorize.
71.25(14)(c)
(c) At least 14 days before giving final approval to an alternative method of apportionment under par.
(a), the department of revenue shall submit the proposed alternative method of apportionment to the cochairpersons of the joint committee for review of administrative rules, together with a description of the proposed alternative and the reasons for the proposed alternative. If, within 14 days after receipt of the proposed alternative method, the cochairpersons of the joint committee for review of administrative rules do not notify the department of revenue that the proposed alternative must be promulgated as an administrative rule in order to be used, the department of revenue may give final approval to the proposed method without promulgating an administrative rule. If the cochairpersons of the joint committee for review of administrative rules notify the department of revenue within 14 days after receipt of the proposed alternative that the proposed alternative must be promulgated as an administrative rule, the proposed alternative may not be used until it is promulgated as an administrative rule under ch.
227.
71.25 Cross-reference
Cross-reference: See also s.
Tax 2.395, Wis. adm. code.
71.25(15)
(15)
Partnerships and limited liability companies. 71.25(15)(a)
(a) A general or limited partner's share of the numerator and denominator of a partnership's apportionment factors under this section are included in the numerator and denominator of the general or limited partner's apportionment factors under this section.
71.25(15)(b)
(b) If a limited liability company is treated as a partnership, for federal tax purposes, a member's share of the numerator and denominator of a limited liability company's apportionment factors under this section are included in the numerator and denominator of the member's apportionment factors under this section.
71.25(16)
(16)
Disaster relief work. For purposes of the apportionment of any income under this section, the disaster relief work, as defined in s.
323.12 (5) (a) 3., of an out-of-state business, as defined in s.
323.12 (5) (a) 6., shall not increase the amount of income apportioned to this state. For purposes of sub.
(7), any property brought temporarily into this state by an out-of-state business in connection with performing disaster relief work is not considered property located in this state. For purposes of sub.
(8), compensation paid to out-of-state employees, as defined in s.
323.12 (5) (a) 7., who are performing disaster relief work is not considered compensation paid in this state. For purposes of sub.
(9), gross receipts from the sale of property or services as part of performing any disaster relief work are not considered gross receipts from sales received in this state.
71.25 Cross-reference
Cross-reference: See also ss.
Tax 2.39 and
2.395, Wis. adm. code.
71.25 Annotation
Under sub. (6), it is within the Department of Revenue's discretion to decide whether to permit a multistate business to deviate from the apportionment method. Nelson Bros. v. DOR,
152 Wis. 2d 746,
449 N.W.2d 328 (Ct. App. 1989).
71.25 Annotation
Subjecting an entity's income to apportionment when the entity's operations constitute a “unitary business" under sub. (6) is discussed. Chilstrom Erecting Corp. v. DOR,
174 Wis. 2d 517,
497 N.W.2d 785 (Ct. App. 1993).
71.25 Annotation
A corporation's investment income that served an “operational" function and was not unrelated to corporate functions within the state was subject to apportionment. Port Affiliates, Inc. v. DOR,
190 Wis. 2d 271,
526 N.W.2d 806 (Ct. App. 1994).
71.25 Annotation
Sub. (9) (df) is limited to a “licensee" who uses software in Wisconsin. The provision makes no reference to use of the computer software in this state by a “sublicensee." In this case, when the defendant taxpayer received royalties from licensing its software to businesses that were not located in this state and that manufactured or assembled computers that incorporated the defendant's software but whose products were used in this state under a sublicense, the royalties were not considered in calculating the defendant's franchise tax liability under this section. The software end-users were not licensees of the defendant. DOR v. Microsoft Corp.,
2019 WI App 62,
389 Wis. 2d 350,
936 N.W.2d 160,
18-2024.
71.255
71.255
Combined reporting. 71.255(1)(a)
(a) “Combined group" means the group of all persons whose income and apportionment factors are required to be taken into account under sub.
(2) to determine a member's share of the net business income or loss apportionable to this state that is attributable to a unitary business.
71.255(1)(b)
(b) “Combined report" means a report in the form and manner prescribed by the department that specifies a combined group's income from the unitary business, apportionment factors attributable to the unitary business, and any other tax return information prescribed by the department.
71.255(1)(c)
(c) “Commonly controlled group" means any of the following:
71.255(1)(c)1.
1. A parent corporation and any one or more corporations or chains of corporations that are connected to the parent corporation by direct or indirect ownership by the parent corporation, if the parent corporation owns stock representing more than 50 percent of the voting power of at least one of the connected corporations or if the parent corporation or any of the connected corporations owns stock that cumulatively represents more than 50 percent of the voting power of each of the connected corporations.
71.255(1)(c)2.
2. Any 2 or more corporations if a common owner, regardless of whether the owner is a corporate entity, directly or indirectly owns stock representing more than 50 percent of the voting power of the corporations or connected corporations.
71.255(1)(c)3.
3. Any 2 or more corporations if stock representing more than 50 percent of the voting power in each corporation are interests that cannot be separately transferred.
71.255(1)(c)4.
4. Any 2 or more corporations if stock representing more than 50 percent of the voting power in each corporation is directly owned by, or for the benefit of, family members. In this subdivision, “family member" means an individual related by blood, marriage, or adoption within the 3rd degree of kinship, as computed under s.
990.001 (16), or the spouse of such individual.
71.255(1)(d)
(d) “Consolidated foreign operating corporation" means a corporation that, for the taxable year, satisfies all of the following conditions:
71.255(1)(d)2.
2. It is included in the same federal consolidated return as at least one other corporation in that unitary business.
71.255(1)(d)3.
3. It has active foreign business income, as defined in section 861 (c) (1) B of the Internal Revenue Code, in an amount that is 80 percent or more of the corporation's worldwide income.
71.255(1)(e)
(e) “Corporation" means any corporation, as defined in s.
71.22 (1k), wherever located, which if it were doing business in this state would be subject to this chapter. “Corporation" does not include a tax-option corporation.
71.255(1)(f)
(f) “Department" means the department of revenue.
71.255(1)(h)
(h) “Domestic" means incorporated, organized, or created in the United States or under the laws of the United States or any state.
71.255(1)(j)
(j) “Foreign" means not incorporated, organized, or created in the United States or under the laws of the United States or any state.
71.255(1)(k)
(k) “Intangible expenses" has the meaning given in s.
71.22 (3g) for corporations taxable under this subchapter and the meaning given in s.
71.42 (1sg) for corporations taxable under subch.
VII.
71.255(1)(L)
(L) “Interest expenses" has the meaning given in s.
71.22 (3m) for corporations taxable under this subchapter and the meaning given in s.
71.42 (1t) for corporations taxable under subch.
VII.
71.255(1)(m)
(m) “Pass-through entity" means a general or limited partnership, an organization of any kind treated as a partnership for tax purposes under this chapter, a tax-option corporation, a real estate investment trust, a regulated investment company, a real estate mortgage investment conduit, a financial asset securitization investment trust, a trust, or an estate.
71.255(1)(n)
(n) “Unitary business" means a single economic enterprise that is made up either of separate parts of a single business entity, of multiple business entities that are related under section
267 or
1563 of the Internal Revenue Code, or of a commonly controlled group of business entities that are sufficiently interdependent, integrated, and interrelated through their activities so as to provide a synergy and mutual benefit that produces a sharing or exchange of value among them and a significant flow of value to the separate parts. Two or more business entities are presumed to be a unitary business if the businesses have unity of ownership, operation, and use as indicated by a centralized management or a centralized executive force; centralized purchasing, advertising, or accounting; intercorporate sales or leases; intercorporate services, including administrative, employee benefits, human resources, legal, financial, and cash management services; intercorporate debts; intercorporate use of proprietary materials; interlocking directorates; or interlocking corporate officers. In no event and under no circumstances shall the preceding sentence be construed as exclusive of any and all other factors indicative of a unitary business. For purposes of this section, the term “unitary business" shall be broadly construed, to the extent permitted by the U.S. Constitution. The members of a combined group shall be jointly and severally liable for costs, penalties, interests, and taxes associated with the combined report. Any business conducted by a pass-through entity that is owned directly or indirectly by a corporation shall be treated as conducted by the corporation, to the extent of the corporation's distributive share of the pass-through entity's income, regardless of the percentage of the corporation's ownership interest. A business conducted directly or indirectly by one corporation is unitary with that portion of a business conducted by another corporation through its direct or indirect interest in a pass-through entity if there is a synergy and exchange and flow of value between the 2 parts of the business and the 2 corporations are members of the same commonly controlled group.
71.255(2)
(2)
Corporations required to use combined reporting. 71.255(2)(a)
(a) A corporation, not including a corporation of which all its income is exempt from taxation under s.
71.26 (1) or
71.45 (1), engaged in a unitary business with one or more other corporations in the same commonly controlled group shall report its share of income from that unitary business in the amount determined by a combined report filed by a designated agent of the unitary business, as determined under sub.
(7). The combined report shall include the income, determined under sub.
(3), and apportionment factor or factors determined under sub.
(5), of every corporation in the commonly controlled group that is engaged in the unitary business, except as provided in pars.
(b) to
(f).
71.255(2)(b)
(b) A foreign corporation that is a combined group member shall include in the combined report income that is derived only from sources within the United States as provided in sections
861 to
865 of the Internal Revenue Code. The foreign corporation shall include in the combined report its apportionment factor or factors related only to that income.
71.255(2)(c)1.1. Except as provided in par.
(d), if 80 percent or more of a corporation's worldwide income is active foreign business income, the income and apportionment factor or factors of the corporation shall not be included in the combined report, but the corporation shall compute and allocate or apportion its income from the unitary business separately.
71.255(2)(c)2.
2. For purposes of subd.
1., “active foreign business income” means gross income derived from sources outside the United States, as determined in subchapter N of the Internal Revenue Code, including income of a subsidiary corporation, and attributable to the active conduct of a trade or business in a foreign country or in a U.S. possession.
71.255(2)(c)3.
3. For purposes of subd.
2., a corporation is considered a subsidiary if the parent corporation owns, directly or indirectly, stock with at least 50 percent of the total voting power of the corporation and the stock has a value equal to at least 50 percent of the total value of the stock of the corporation.
71.255(2)(d)
(d) The combined report of the unitary business of which a consolidated foreign operating corporation is a member shall include, and the separate return filed by the consolidated foreign operating corporation shall exclude, the following amounts, to the extent that they are attributable to the unitary business:
71.255(2)(d)1.
1. An income amount equal to the interest expenses and intangible expenses that are paid, accrued, or incurred by any combined group member to or for the benefit of the consolidated foreign operating corporation, except to the extent such amounts constitute income to the consolidated foreign operating corporation from sources outside the United States under sections
861 to
865 of the Internal Revenue Code.
71.255(2)(d)2.
2. To the extent that the amounts were not included under subd.
1., interest income and income generated from intangible property received or accrued by the consolidated foreign operating corporation, except to the extent such amounts constitute income from sources outside the United States under sections
861 to
865 of the Internal Revenue Code. For purposes of this subdivision, income generated from intangible property includes income related to the direct or indirect acquisition, use, maintenance, management, ownership, sale, exchange, or any other disposition of intangible property; income from factoring transactions or discounting transactions; royalty, patent, technical, and copyright fees; licensing fees; and other similar income.
