139.02(2)
(2)
Tax credit to eligible producers. 139.02(2)(a)
(a) Each eligible producer shall receive a credit in the amount of 50 percent of the tax paid or payable by the producer under this section in any given calendar year on the first 50,000 barrels taxed under this section in that year.
139.02(2)(b)
(b) In this section “
eligible producer" means any producer of fermented malt beverages, whether or not located in this state, producing less than 300,000 barrels of fermented malt beverages in the calendar year for which credit under par.
(a) is claimed. In determining the number of barrels, all brands or labels of a producer shall be combined. All facilities for the production of fermented malt beverages owned or controlled by the same person shall be deemed a single producer.
139.02 History
History: 1973 c. 256;
1977 c. 203.
139.02 Annotation
Sales of intoxicating liquors are taxed at higher rates than are sales of the same volume of wine, which are taxed higher than sales of the same volume of fermented malt beverages. This methods-of-production taxation system does not violate the equal protection clause. It is not unconstitutional not to impose higher taxes based on higher alcohol content. Arty's, LLC v. DOR,
2018 WI App 64,
384 Wis. 2d 320,
919 N.W.2d 590,
17-0886.
139.03
139.03
Liquor tax. An occupational tax is imposed upon the selling of intoxicating liquor as follows:
139.03(2m)
(2m) The rate of that tax is 85.86 cents per liter on intoxicating liquor, except wine containing not in excess of 21 percent of alcohol by volume, containing 0.5 percent or more of alcohol by volume. The department of revenue may, by rule, set the amount of the taxes imposed under this section for various sizes of containers if the amounts set are in the same proportion to the size of the containers as the rate per liter under this subsection.
139.03(2n)
(2n) The rate of that tax is 6.605 cents per liter on wine other than cider containing 14 percent or less of alcohol by volume, 1.71 cents per liter on cider and 11.89 cents per liter on wine containing more than 14 percent of alcohol by volume but not in excess of 21 percent of alcohol by volume.
139.03(2x)
(2x)
Intoxicating liquor floor tax imposed; procedures. 139.03(2x)(a)(a)
Floor tax imposed. On the date tax rate changes become effective under this section a floor tax is imposed upon every manufacturer, rectifier, wholesaler and retailer who is in possession of any intoxicating liquor held for resale on which the intoxicating liquor tax already has been imposed. The person shall determine the volume of that intoxicating liquor and shall file a return by the 15th day of the month following the month in which the new tax rate becomes effective and shall pay any tax due on it, as determined under par.
(b).
139.03(2x)(b)
(b)
Floor tax computation. The amount of any intoxicating liquor floor tax shall be computed by multiplying the number of liters of intoxicating liquor held in inventory as determined under par.
(a) by the difference between the tax rate already paid and the new tax rate, and expressing the resulting figure in dollars.
139.03(2x)(c)
(c)
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 the administration of this subsection for the assessment and collection of additional taxes when tax rate changes become effective.
139.03(2x)(d)
(d)
Late filing fee. Any person who fails to file a floor tax return when due shall pay a late filing fee of $10. A return that is mailed shall be considered filed in time if it is mailed in a properly addressed envelope with postage duly prepaid, if 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 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 paragraph, “mailed" includes delivery by a delivery service designated under section
7502 (f) of the Internal Revenue Code.
139.03(2x)(e)
(e)
Delinquent interest. If the tax imposed in this subsection is not paid when due, interest at the rate of 1.5 percent per month accrues from the date the tax became due until the tax is paid.
139.03(2x)(f)
(f)
Penalty. If any person liable for the tax under this subsection 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.
139.03(3)
(3) Not more than one occupational tax shall be required to be paid on any one container of intoxicating liquor.
139.03(4)
(4) 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 the administration of this section for the assessment and collection of additional taxes when a tax rate change becomes effective.
139.03(5)(a)(a) No person who enters this state from another state may have in his or her possession and bring into the state any intoxicating liquor or wine. The prohibition in this paragraph does not apply to a person who changes his or her domicile from another state or a foreign country to this state and who brings into this state intoxicating liquor and wine constituting household goods. The prohibition in this paragraph does not apply to intoxicating liquor or wine consigned to any person having a permit from the secretary to engage in the sale of such intoxicating liquor or wine.
139.03(5)(b)1.1. Except as provided in subd.
2., any person, except an underage person as defined under s.
125.02 (20m), who leaves a foreign country, after spending at least 48 hours in that foreign country, with the purpose of entering this state may have in that person's possession and bring into the state intoxicating liquor or wine in sealed original containers in amounts not to exceed, in the aggregate, 4 liters without payment of the tax imposed under this subchapter. The 4 liters of tax-free intoxicating liquor and wines may not be sent, shipped or carried into the state other than in the immediate possession of the person as qualified by this subsection.
139.03(5)(b)2.
2. A person who is a member of the national guard, the U. S. armed forces or a reserve component of the U. S. armed forces; who is a state resident; and who leaves a foreign country, after spending at least 48 hours in that foreign country on duty or for training, with the purpose of entering into this state may bring into the state, in sealed original containers and in the person's immediate possession, intoxicating liquor and wine in an aggregate amount not exceeding 16 liters without paying the tax imposed under this subchapter on that amount.
139.03(5)(c)
(c) Any person who violates any provision of pars.
(a) and
(b) by having in his or her possession more than the amount specified may be fined not less than $25 nor more than $500 or imprisoned for not more than 90 days or both. If any such person is convicted of a 2nd or subsequent offense, the person may be fined not less than $100 nor more than $500 or imprisoned for not more than 6 months or both.
139.03(5)(d)
(d) Any intoxicating liquor or wine involved in a violation of this section is declared forfeit and upon confiscation by the department of revenue shall be disposed of in accordance with s.
125.14 (2) (e).
139.03 Cross-reference
Cross-reference: See also s.
Tax 8.01, Wis. adm. code.
139.03 Annotation
Sales of intoxicating liquors are taxed at higher rates than are sales of the same volume of wine, which are taxed higher than sales of the same volume of fermented malt beverages. This methods-of-production taxation system does not violate the equal protection clause. It is not unconstitutional not to impose higher taxes based on higher alcohol content. Arty's, LLC v. DOR,
2018 WI App 64,
384 Wis. 2d 320,
919 N.W.2d 590,
17-0886.
139.03 Annotation
The occupational liquor tax is not an excise tax upon liquor itself. Instead, it is a tax on the privilege to sell intoxicating liquor and applies only to intoxicating liquor in possession of persons who are engaged in the business of selling intoxicating liquor. Thus, the tax is a tax on sales of liquor and not a tax on liquor. Arty's, LLC v. DOR,
2018 WI App 64,
384 Wis. 2d 320,
919 N.W.2d 590,
17-0886.
139.035
139.035
Wine shipped directly to individuals in this state. 139.035(1)(1)
All wine shipped directly to an individual located in Wisconsin by a person holding a direct wine shipper's permit under s.
125.535 shall be sold with the occupational tax imposed under s.
139.03 included in the selling price. As directed by the department, the taxes imposed under s.
139.03 shall be paid to, and a quarterly return filed with, the department once every quarter on or before the 15th day of the next month following the close of the calendar quarter. In addition to filing a quarterly liquor tax return, each person holding a direct wine shipper's permit under s.
125.535 shall be required to file an addendum, on forms furnished by the department, that provides, at minimum, the identity, quantity, and price of all wine shipped to individuals in this state during the previous quarter, along with the name, address, and birthdate of each person who purchased the wine as well as the name of the person of legal drinking age who acknowledged delivery of the wine. Working with permittees under s.
125.535, the department shall develop forms, in both paper and electronic format, for use by such permittees in obtaining this information and complying with any other requirement under this state's law in connection with the direct shipment of wine. The department shall keep confidential, in the same manner required for tax returns under s.
71.78 (1) and
(5) to
(8), reports submitted under this subsection, but the department may use aggregated or summary information from such reports for purposes of s.
139.11 (4) (b).
139.035(2)
(2) Any failure of a person holding a direct wine shipper's permit under s.
125.535 to pay the occupational tax or file the addendum required under sub.
(1) within 30 days of its due date constitutes grounds for revocation or suspension of the permit. The provisions on timely filing under s.
71.80 (18) apply to the tax and addendum required under this section.
139.035(3)
(3) No wine may be shipped directly to an individual in this state by a person holding a direct wine shipper's permit under s.
125.535 unless the tax imposed under s.
77.52 or
77.53 is paid on the sale of such wine.
139.035 History
History: 1987 a. 399;
2007 a. 85.
139.04(2)
(2) Furnishing by a brewer or brewpub of fermented malt beverages to workmen employed in the brewery or brewpub for consumption on the brewery premises or brewpub premises without charge.
139.04(3)
(3) Manufacture or sale of any beverage containing less than one-half of one percent of alcohol by volume.
139.04(4)
(4) Sale or shipment of fermented malt beverages by a brewer to a bottler or of intoxicating liquor in bulk between manufacturers, rectifiers and wineries.
139.04(5)
(5) Sale, possession or removal of fermented malt beverages or intoxicating liquor for shipment in interstate or foreign commerce.
139.04(6)
(6) Sale and use of wine for sacramental purposes.
139.04(7)
(7) Sale of alcohol to industrial permittees to be used for industrial purposes.
139.04(7m)
(7m) Sale of fermented malt beverages to industrial permittees to be used for industrial purposes.
139.04(8)
(8) Sale of alcohol to medicinal permittees to be used for hospital or medicinal purposes.
139.04(9)
(9) Sale of wine to industrial wine permittees to be used for industrial purposes.
139.04 Cross-reference
Cross-reference: See also ss.
Tax 8.31 and
8.35, Wis. adm. code.
139.04 Annotation
The term “levied" in this section does not mean that tax liability arises but collection is delayed. This section by all appearances is a list of complete, and not delayed, exclusions. Arty's, LLC v. DOR,
2018 WI App 64,
384 Wis. 2d 320,
919 N.W.2d 590,
17-0886.
139.04 Annotation
The plaintiff in this case bought various distilled spirits in bulk from a distillery and mixed the distilled spirits with soda, water, and various flavorings to produce bottles of premixed cocktails that the plaintiff sold to liquor wholesalers, who sold them to retailers. In this case, the first taxable sales of intoxicating liquors under s. 139.06 (1) (b) were sales by the plaintiff of its bottled mixtures to the plaintiff's wholesaler customers. Sub. (4) excludes from consideration all transactions between the plaintiff and its distiller. Arty's, LLC v. DOR,
2018 WI App 64,
384 Wis. 2d 320,
919 N.W.2d 590,
17-0886.
139.05
139.05
Payment of malt beverages tax. 139.05(1)(1)
The tax imposed in s.
139.02 shall be paid on or before the 15th day of the month following the month in which such malt beverages are first sold in this state or shipped into this state.
139.05(2)
(2) Each brewer, brewpub, and bottler in this state and each wholesaler of malt beverages within this state to whom malt beverages are shipped from outside this state shall on or before the fifteenth day of each month file with the secretary on forms prescribed by the secretary a verified return containing such information as may be required to compute and show the amount of occupational tax payable by the brewer, brewpub, bottler, or wholesaler or by the shipper for the next preceding calendar month on malt beverages.
139.05(2a)
(2a) The payments and returns under subs.
(1) and
(2) that are mailed are furnished, filed or made on time, and payments therein referred to are timely, if mailed in a properly addressed envelope, with postage duly prepaid, which envelope is officially postmarked, or marked or recorded electronically as provided under section
7502 (f) (2) (c) of the Internal Revenue Code, before midnight on the date prescribed for such furnishing, filing or making of such payment, provided such statement, return or payment is actually received by the secretary of revenue or at the destination that the department prescribes within 5 days of the prescribed date. Payments and returns that are not mailed are timely if they are 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.
139.05(3)
(3) The amount of the occupational tax disclosed by the return shall accompany the return and shall be paid to the department.
139.05(4)
(4) In order to ensure the payment of the tax under s.
139.02 together with all interest and penalties thereon, all persons required to make returns and payment of such tax shall first either deposit with the secretary security in the amount, and of a type, determined by the secretary or enter into a surety bond with corporate surety, both bond and surety to be approved by the secretary. The secretary shall require a bond in total amount equal to twice the taxpayer's estimated maximum monthly tax, ascertained in such manner as the secretary deems proper, and the secretary may increase or reduce the amount of the bond, except that the amount of such bond required of any one taxpayer shall not be less than $1,000 nor more than $100,000. These bonds shall be filed. The state shall not pay interest on security placed with the secretary.
139.05(7)(a)(a) If any present or future law or regulation effective in any state prohibits a person from shipping into such state a fermented malt beverage produced outside thereof except upon condition that the person shipping such fermented malt beverage into such state first obtain a license therefor from such state and if such license or a renewal thereof may be refused for violation of any law of such state relating to fermented malt beverages, it is unlawful to ship into this state or to purchase or sell within this state any fermented malt beverage produced in such state, unless and until the brewer or brewpub thereof is the holder of a valid subsisting license as provided in this subsection.
139.05(7)(b)
(b) Such license shall be issued by the secretary to persons who hold a valid certificate issued under s.
73.03 (50). The application for such license shall be verified and shall contain an agreement on the part of the brewer or brewpub that the brewer or brewpub shall observe all laws of this state relating to fermented malt beverages, and such other information and statements as the secretary may require. Any such brewer or brewpub who has, directly or indirectly, violated any law of this state relating to fermented malt beverages shall not be entitled to such a license. The secretary may require the applicant to furnish a bond payable to the state in an amount not less than $1,000 nor more than $5,000 conditioned upon the faithful compliance by the applicant with the undertakings set forth in the application for the license.
139.05(7)(c)
(c) The secretary may suspend or revoke any such license for any false statement made in the application therefor and for any prior or subsequent violation by the licensee, directly or indirectly, or by any person affiliated with or in any way subject to the direction or control of the licensee, of any of the laws of this state relating to fermented malt beverages.
139.05(7)(d)
(d) Any such brewer and any other person who ships or causes or permits to be shipped into this state any such fermented malt beverage, and any person who knowingly receives within this state from outside this state any such fermented malt beverage, at a time when the brewer thereof is not the holder of a valid and subsisting license as herein provided, is guilty of a misdemeanor.
139.05(7)(e)
(e) The conditions and requirements of this subsection are in addition to, and not in lieu of, the conditions and requirements of subs.
(1) to
(4).
139.05(7)(f)
(f) If any law or regulation of any state specifies uniform or substantially uniform requirements with respect to any ingredient of fermented malt beverages produced in such state and fermented malt beverages produced outside thereof but sold within such state and if such state or its officials or agencies enforce or give effect to such provisions as against any malt beverage produced outside of such state without concurrently and to the same extent enforcing and giving effect to such provisions as against all malt beverages produced and sold within such state, and if the foregoing is found and determined by the secretary after a public hearing, it shall thereafter be a misdemeanor for any person with knowledge of such finding and determination to ship into or receive or sell within this state any malt beverage produced in such state unless and until the secretary finds and determines, after a public hearing, that such discriminatory treatment has been discontinued.
139.06
139.06
Liquor tax returns; exceptions. 139.06(1)(a)
(a) The taxes imposed under s.
139.03 (intro.) on intoxicating liquor at the rates under s.
139.03 (2m) shall be paid to, and a monthly return filed with, the department of revenue on or before the 15th of the month following the month in which the tax liability is incurred. An administrative fee of 11 cents per gallon on intoxicating liquor taxed at the rates under s.
139.03 (2m) is imposed, shall be paid along with the taxes and shall be deposited in the appropriation under s.
20.566 (1) (ha).
139.06(1)(b)
(b) Liability for taxes at the rates under s.
139.03 (2m) on intoxicating liquor is incurred by a shipper when intoxicating liquor is shipped into this state, except that liability on liquor produced or bottled in this state or imported directly from a foreign country into this state by a Wisconsin permittee is incurred at the time of the first sale in this state and except that liability for liquor under sub.
(3) or
(4) is incurred when a Wisconsin permittee receives that liquor.
139.06(1)(c)
(c) Each person subject to the tax under s.
139.03 shall file an information report on the dates prescribed by the secretary.
139.06(2)(a)(a) The taxes on wine containing not in excess of 21 percent of alcohol by volume shall be paid to and a monthly return filed on or before the 15th of the month following the month in which tax liability is incurred. Tax liability is incurred by the shipper when wine is shipped into the state. In the case of wine produced or bottled within the state and wine imported directly from a foreign country into the state by a Wisconsin permittee or winery licensee, tax liability is incurred by the permittee or winery licensee at the time of first sale within the state.
139.06(2)(b)
(b) All persons required to file a return and pay intoxicating liquor taxes shall first provide security in the amount, at the time and of the type required by the department or enter into a surety bond with a corporate surety to secure payment of the tax with bond and surety to be approved by the department. Such bond shall be twice the department's estimate of the taxpayer's maximum monthly tax liability but shall not be less than $1,000 nor more than $100,000. The bonds shall be filed.
139.06(2)(c)
(c) Further to secure the payment of the taxes at the rates under s.
139.03 (2m) on intoxicating liquor, the department shall require all persons liable for the return and payment of such taxes in either of the 2 previous fiscal years to maintain a deposit of the department's estimate of tax liabilities in an amount equal to 20 percent of the estimated tax liability for fiscal year 1985-86 or an amount specified by the department. Such deposit payment shall be paid to the department on July 15, 1986, or according to an arrangement specified by the department. This deposit shall be deposited in the general fund. On August 15, 1987, the department shall credit 25 percent of the deposit against taxes due for the quarter beginning on the first day of the month before the month when the taxes are due or a later quarter. At the end of each succeeding 12-month period the department shall credit 25 percent of the original deposit until 100 percent of each deposit has been refunded. If any permittee has an unpaid tax liability at the time that a credit would be allowed the permittee, the department shall not allow the credit until the liability is paid in full.
139.06(3)
(3) In shipping intoxicating liquor in bulk for the purpose of bottling or rectifying to a rectifier located within the state, the manufacturer shall securely affix thereto a label or statement, in such form as is prescribed by the secretary, reciting that the shipment is made for the purpose of bottling or rectifying. Each manufacturer making such shipments shall file an information report that shows the dates and quantities of shipments and the name and address of each consignee.
139.06(4)
(4) When intoxicating liquor is stored in an alcohol beverage warehouse for which a permit has been issued under s.
125.19, by a manufacturer or rectifier holding a permit under s.
125.52 as a pledge for the loan of money, it is not necessary to affix front labels to the containers until the liquor is sold or removed from the warehouse. When it becomes necessary for a pledgee to sell such intoxicating liquor in good faith pursuant to the terms of the pledge, and not for the purpose of avoiding ss.
139.01 to
139.25 or ch.
125, it shall be sold to a manufacturer, rectifier or wholesaler holding a permit under s.
125.52 for the purpose of affixing front labels. All such sales shall be reported to the secretary by the pledgee.
139.06 Cross-reference
Cross-reference: See also s.
Tax 8.01, Wis. adm. code.
139.06 Annotation
The plaintiff in this case bought various distilled spirits in bulk from a distillery and mixed the distilled spirits with soda, water, and various flavorings to produce bottles of premixed cocktails that the plaintiff sold to liquor wholesalers, who sold them to retailers. In this case, the first taxable sales of intoxicating liquors under sub. (1) (b) were sales by the plaintiff of its bottled mixtures to the plaintiff's wholesaler customers. Section 139.04 (4) excludes from consideration all transactions between the plaintiff and its distiller. Also, the entire volume of each bottle was an intoxicating liquor, each liter of which was subject to the intoxicating liquor occupational tax. Arty's, LLC v. DOR,
2018 WI App 64,
384 Wis. 2d 320,
919 N.W.2d 590,
17-0886.
139.08
139.08
Powers and duties of the secretary of revenue. 139.08(1)(1)
Administration; personnel. The secretary of revenue shall administer ss.
139.01 to
139.25 and collect and keep a record of all taxes collected.
139.08(2)
(2)
Rules. The secretary of revenue shall adopt rules necessary to carry out the secretary's duties under this chapter.
139.08(3)
(3)
Police powers. The department of revenue shall enforce and the duly authorized employees of the department shall have all necessary police powers to prevent violations of s.
134.65, this subchapter and ch.
125.
139.08(4)
(4)
Inspection for enforcement. Duly authorized employees of the department of justice and the department of revenue and any sheriff, police officer, marshal, or constable, within their respective jurisdictions, may at all reasonable hours enter any licensed premises, and examine the books, papers, and records of any brewer, brewpub, manufacturer, bottler, rectifier, wholesaler, or retailer, for the purpose of inspecting the same and determining whether the tax and fee imposed by ss.
139.01 to
139.25 have been fully paid, and may inspect and examine, according to law, any premises where fermented malt beverages or intoxicating liquors are manufactured, sold, exposed for sale, possessed, or stored, for the purpose of inspecting the same and determining whether the tax imposed by ss.
139.01 to
139.25 has been fully paid, and whether ss.
139.01 to
139.25 and ch.
125 are being complied with. Any refusal to permit such examination of such premises is sufficient grounds under s.
125.12 for revocation or suspension of any license or permit granted for the sale of any fermented malt beverages or intoxicating liquors and is punishable under s.
139.25 (10).
139.09
139.09
Registration. Every brewer, brewpub, bottler, manufacturer, rectifier, wholesaler, or retailer liable for payment of the occupational tax imposed in ss.
139.01 to
139.25 shall hold a valid certificate under s.
73.03 (50). The secretary shall assign the person a registration number.
139.092
139.092
Audits; additional assessments; refunds. Sections
71.74 (1),
(2),
(10),
(11),
(13) and
(14),
71.75 (2),
(4) to
(7) and
(10),
71.77 and
71.80 (12) as they apply to the taxes under ch.
71 apply to the taxes under this subchapter, except that the period during which notice of an additional assessment shall be given begins on the due date of the report under this subchapter.
139.094 History
History: 1985 a. 120;
1991 a. 39.
139.096
139.096
Failure to file. If any taxpayer required to file any return fails to do so within the time prescribed, the taxpayer shall, on the written demand of the department, file the return within 20 days after the department sends the demand and at the same time pay the tax due on its basis. If the taxpayer fails within that time to file the return, the department shall prepare the return from the department's own knowledge and from the information that the department obtains and on that basis shall assess a tax that the taxpayer shall pay within 10 days after the department sends to the taxpayer a written notice of the amount and a demand for its payment. In any action or proceeding in respect to the assessment, the taxpayer has the burden of establishing the incorrectness or invalidity of any return or assessment made by the department because of the failure of the taxpayer to file a return.
