Chapter 40

40.06(3) (3) Interest shall be charged on accounts receivable from any employer if the remittance and any corresponding report are not received by the department in the manner and within the time limit fixed by rule or statute at the rate of 0.04 percent for each day, from the due date to the date received by the department with a minimum charge of $3, and the interest or minimum charge shall be paid immediately to the department. If the amount is not paid within 30 days after it is payable, the amount shall be collected as provided under sub. (4).

40.06(4) (4) 

40.06(4)(a) (a) Whenever any employer, other than the state, fails to pay to the department any amount due, the department shall certify the amount or the estimated amount to the department of administration which shall withhold the amount or the estimated amount from the next apportionment of state aids or taxes of any kind payable to the employer or, if so directed by the department, collect the amount as provided in sub. (2) (c) and shall pay the amount so withheld or collected to the department. When the exact amount due is determined and the department receives a sum in excess of the exact amount, the department shall pay the excess amount to the employer from whose aid the excess was withheld.

40.06(4)(b) (b) Whenever any amount is payable by a department or agency of the state, the department shall certify the amount payable with an explanation of the charge, together with a voucher in payment for the amount to the department of administration which shall immediately approve the voucher and within no more than 5 days, notwithstanding s. 16.53 (10), make payment from the appropriation of the department or agency which failed to transmit the payment on time.

40.06(5) (5) Whenever it is determined that contributions and premiums were not paid in the year when due, the amount to be paid shall be determined at the employee and employer contribution or premium rates in effect when the payment should have been made and increased by interest at the effective rate which would have been credited if the amount had been paid and deposited in the accumulation reserves of the core annuity division under s. 40.04 (4) and (5) at the time the contributions or premiums were due. The employer shall collect from the employee the amount which the employee would have paid if the amounts had been paid when due, plus the corresponding interest, and shall transmit the amount collected to the department together with the balance of the amount to be paid, or the employer may elect to pay part or all of the employee amounts.

40.06(6) (6) Notwithstanding ss. 16.52 (2) and 40.02 (22) (a), fiscal year coding adjustments may be made for contributions received after August 1 for earnings paid for services rendered in the previous fiscal year, so that the amount of the contributions received and earnings paid are substantially reflected in the annual earnings period to which they apply.

40.06(7) (7) Within 30 days after receipt of a qualified domestic relations order or of a written request from the department pursuant to a qualified domestic relations order, a participating employer shall submit to the department a report, in the form specified by the department, of the earnings, service and contributions of the participant named in the order. The report shall include all earnings paid to and all service and contributions of the participant through the day before the decree date that have not previously been reported to the department.

40.06(8) (8) For periods during which a protective occupation participant who is a participating employee is on a deployment, training, or readiness exercise with an urban search and rescue task force under a contract under s. 323.72 (1), all of the following shall apply:

40.06(8)(a) (a) The employer shall remit required contributions to the department under s. 40.05 (1) (a) and (2) (a).

40.06(8)(b) (b) The employer shall report to the department service and earnings that are at least the same rate the employee would have received if the employee had not been on the deployment, training, or readiness exercise.

40.06(9) (9) For periods during which a protective occupation participant who is a participating employee is responding to an emergency involving a level A release, or a potential level A release, as a member of a regional emergency response team under a contract under s. 323.70 (2), all of the following shall apply:

40.06(9)(a) (a) The employer shall remit required contributions to the department under s. 40.05 (1) (a) and (2) (a).

40.06(9)(b) (b) The employer shall report to the department service and earnings that are at least the same rate the employee would have received if the employee had not been responding to an emergency involving a level A release or potential level A release.

40.06 History History: 1981 c. 96, 386; 1983 a. 290, 368; 1987 a. 309; 1989 a. 13, 31, 166, 218; 1991 a. 152, 315; 1995 a. 27; 1999 a. 83; 2003 a. 33 ss. 1016, 9160; 2005 a. 153; 2015 a. 55; 2021 a. 104; s. 35.17 correction in (8) (a), (b), (9) (intro.), (a), (b).

40.06 Annotation The statute of limitations under sub. (1) (e) 1. cannot be applied to extinguish pension rights established prior to its enactment without providing the plan participant with fair notice of the change and fair opportunity to preserve the claim. Dicks v. Employee Trust Funds Board, 202 Wis. 2d 703, 551 N.W.2d 845 (Ct. App. 1996), 95-1661.

40.07 40.07 Records.

40.07(1) (1) Notwithstanding any other statutory provision, individual personal information in the records of the department is not a public record and shall not be disclosed except as provided in this section.

40.07(1m) (1m) Individual personal information, other than medical records, may only be disclosed by the department under any of the following circumstances:

40.07(1m)(a) (a) The information is requested by the person whose record contains the information or by the duly authorized representative of the person;

40.07(1m)(b) (b) The information is requested by a public employee for use in the discharge of the employee’s official duties;

40.07(1m)(c) (c) The information is required to be disclosed under a court order duly obtained upon a showing to the court that the information is relevant to a pending court action; or

40.07(1m)(d) (d) The information is required to be disclosed for the proper administration of the department or to assist in locating participants or beneficiaries the department is otherwise unable to contact.

40.07(1r) (1r) Upon request of the department of revenue, the department may disclose information, including social security numbers, to the department of revenue concerning an annuity only for the following purposes:

40.07(1r)(a) (a) To administer the payment of state taxes.

40.07(1r)(am) (am) To aid in collecting debts owed to the department of revenue.

40.07(1r)(b) (b) To locate participants, or the assets of participants, who have failed to file tax returns, underreported their taxable income, or who are delinquent debtors.

40.07(1r)(c) (c) To identify fraudulent tax returns and credit claims.

40.07(1r)(d) (d) To provide information for tax-related prosecutions.

40.07(2) (2) Medical records may be disclosed by the department only under any of the following circumstances:

40.07(2)(a) (a) When a disability application or health insurance claim denial is appealed.

40.07(2)(b) (b) Under a court order, or order of a hearing examiner, that is duly obtained upon prior notice to the department and a showing to the court or administrative tribunal that the information is relevant to a pending court or administrative action.

40.07(2)(c) (c) Upon a written authorization that specifically identifies the medical records that may be disclosed, but only to the person who is the subject of the medical records or to the person’s designee, except that this paragraph shall not apply to any medical records to which the person’s access is otherwise prohibited by law.

40.07(2m) (2m) Medical information gathered for any one of the benefit plans established under this chapter may be used by any other benefit plan established under this chapter.

40.07(3) (3) The department shall not furnish lists of participants, annuitants or beneficiaries to any person or organization except as required for the proper administration of the department.

40.07 History History: 1981 c. 96; 2005 a. 152; 2013 a. 20.

40.08 40.08 Benefit assignments and corrections.

40.08(1) (1) Exemptions. The benefits payable to, or other rights and interests of, any member, beneficiary or distributee of any estate under any of the benefit plans administered by the department, including insurance payments, shall be exempt from any tax levied by the state or any subdivision of the state and shall not be assignable, either in law or equity, or be subject to execution, levy, attachment, garnishment or other legal process except as specifically provided in this section. The exemption from taxation under this section shall not apply with respect to any tax on income.

40.08(1c) (1c) Withholding of annuity and certain benefit payments. Notwithstanding sub. (1), any monthly annuity paid under s. 40.23, 40.24, 40.25 (1) or (2), or 40.63 and any benefit paid under s. 40.62 or duty disability payment paid under s. 40.65 is subject to s. 767.75. The board and any member or agent thereof and the department and any employee or agent thereof are immune from civil liability for any act or omission while performing official duties relating to withholding any payment pursuant to s. 767.75.

40.08(1g) (1g) Withholding of lump sum payments. Notwithstanding sub. (1), any lump sum payment made under s. 40.23, 40.24, 40.25 (1) or (2), or 40.63 is subject to s. 49.852. The board and any member or agent thereof and the department and any employee or agent thereof are immune from civil liability for any act or omission while performing official duties relating to withholding any lump sum payment pursuant to s. 49.852.

40.08(1m) (1m) Division of benefits.

40.08(1m)(a) (a) Notwithstanding sub. (1), a participant’s accumulated rights and benefits under the Wisconsin retirement system shall be divided pursuant to a qualified domestic relations order only if the order provides for a division as specified in this subsection.

40.08(1m)(b) (b) The creditable service and the value of the participant’s account that are subject to division on the decree date shall be equal to one of the following:

40.08(1m)(b)1. 1. The creditable service and the dollar amounts credited to all parts of the participant’s account through the day before the decree date, if the participant is not an annuitant on the decree date.

40.08(1m)(b)2. 2. The present value of the annuity being paid if the participant is an annuitant.

40.08(1m)(c) (c) The present value of the annuity specified in par. (b) 2. shall be computed in accordance with the actuarial tables then in effect and shall consider the number of remaining guaranteed payments, if any. If the participant is an annuitant who is not receiving an annuity from all parts of the participant’s accounts, then par. (b) 1. applies to those parts of the account from which the annuity is not being received.

40.08(1m)(d) (d) The amount computed under par. (b) shall be divided between the participant and the alternate payee in the percentages specified in the qualified domestic relations order. The participant shall have no further right, interest or claim on that portion of the participant’s creditable service and account balances or annuity amount allocated to the alternate payee.

40.08(1m)(e) (e) The alternate payee share of the amount computed under par. (b) shall be distributed to the alternate payee or, in the case of an individual adjudged mentally incompetent, to a named guardian under sub. (9), as follows:

40.08(1m)(e)1. 1. The creditable service and amounts computed under par. (b) 1. shall be transferred to a separate account in the name of the alternate payee.

40.08(1m)(e)2. 2. Except as provided in subds. 3. and 4., the control and ownership rights of the alternate payee over his or her share of the account shall be the same as if the alternate payee were a participant who had ceased to be a participating employee but had not applied for a benefit under s. 40.23 or 40.25 on the decree date or the date that the participant terminated covered employment, whichever is earlier.

40.08(1m)(e)3. 3. If par. (b) 1. applies and the effective date of the alternate payee’s benefit is after the date that the participant would have met the age requirement for a retirement annuity under s. 40.23, the benefits for the alternate payee shall be determined under s. 40.23. The alternate payee’s benefits shall be computed using the participant’s final average earnings on the first day of the annual earnings period in which the alternate payee’s annuity is effective. If the effective date of the alternate payee’s benefit is before the date that the participant would have met the age requirement for a retirement annuity under s. 40.23, the alternate payee’s benefits shall be determined under s. 40.25 (2).

40.08(1m)(e)4. 4. An alternate payee, who elects an annuity option, may only elect among the options under s. 40.24 that provide payments that are calculated only on the basis of the age of the alternate payee.

40.08(1m)(f) (f) After division of the participant’s account under par. (b), the account and any benefits payable shall be adjusted as follows:

40.08(1m)(f)1. 1. If the participant is not an annuitant on the decree date, an amount equal to the total of the alternate payee share distributed under par. (e), including creditable service, shall be subtracted from the participant’s account.

40.08(1m)(f)2. 2. If the participant is an annuitant on the decree date, the annuity shall be recomputed using the total value of the participant’s account determined under par. (b) reduced by the total of the alternate payee share transferred under par. (e) 1., in accordance with the actuarial tables in effect and using the participant’s age on the decree date. The decree date shall be the effective date of recomputation. If the optional annuity form before division of the participant’s account under par. (b) was not a joint and survivor annuity with the alternate payee as the named survivor, the same annuity option with no change in the remaining guarantee period, if any, shall be continued upon recomputation to the participant. The present value of the alternate payee’s share of the annuity after division shall be paid to the alternate payee as a straight life annuity based on the age of the alternate payee on the decree date. The alternate payee’s annuity shall have the same remaining guarantee period, if any, as the participant’s annuity. If the optional annuity form before division of the participant’s account under par. (b) was a joint and survivor annuity with the alternate payee as the named survivor, the present value of the annuity after division shall be paid to both the participant and the alternate payee as a straight life annuity based upon their respective ages on the decree date. If the participant’s account is reestablished under s. 40.63 (10) after the decree date, the amounts and creditable service reestablished shall be reduced by an amount equal to the percentage of the alternate payee share computed under this subdivision.

40.08(1m)(g) (g) If par. (b) 1. applies, eligibility for benefit rights that are available only after attainment of a specified length of service shall be determined based on the service that would have been credited, if the account had not been divided under this subsection, to the participant’s account on the effective date of the participant’s benefit and on the effective date of the alternate payee’s benefit for purposes of determining the participant’s and alternate payee’s benefit rights, respectively. However, no creditable service may be added to the alternate payee’s account under this paragraph, and the participant shall not receive creditable service under this paragraph, for any service that has been transferred to the alternate payee’s account. This paragraph applies only if all eligibility requirements, other than length-of-service requirements, for the benefit rights being established have been met.

40.08(1m)(h) (h) Notwithstanding pars. (b) to (g), if the participant is both an annuitant and is receiving a benefit under s. 40.65 that is effective on or before the decree date, the adjustments specified in s. 40.65 (5) (b) 4. shall be computed as though the participant’s account had not been divided.

40.08(1m)(i) (i) The department, its employees, the fund and the board are immune from any liability for any act or omission under this subsection in accordance with a qualified domestic relations order and may not be required to take any action or make any notification as part of the exercise of ownership rights granted under this subsection.

40.08(1m)(j) (j) This subsection applies to qualified domestic relations orders issued on or after January 1, 1982, that provide for divisions of the accumulated rights and benefits of participants whose marriages have been terminated by a court on or after January 1, 1982.

40.08(1m)(k) (k)

40.08(1m)(k)1. 1. Nothing in this subsection authorizes a court to revise or modify a judgment or order with respect to a final division of property under s. 767.61, in contravention of s. 767.59 (1c) (b).

40.08(1m)(k)2. 2. Notwithstanding subd. 1., a court may revise or modify a judgment or order specified under subd. 1. for participants whose marriages were terminated by a court on or after January 1, 1982, and before April 28, 1990, but only with respect to providing for payment in accordance with a qualified domestic relations order of benefits under the Wisconsin retirement system that are already divided under the judgment or order.

40.08(1r) (1r) Delinquent state tax obligations. Notwithstanding sub. (1) and s. 40.01 (2), the department of revenue may attach any lump sum payment or monthly annuity paid under s. 40.23, 40.24, 40.25 (1) or (2), or 40.63 to satisfy delinquent tax obligations. The board and any member or agent thereof and the department and any employee or agent thereof are immune from civil liability for any act or omission while performing official duties relating to withholding any payment under this subsection.

40.08(1t) (1t) Payment of restitution for certain misconduct. Notwithstanding sub. (1), the department may withhold amounts from any lump sum payment or annuity paid under s. 40.23, 40.24, 40.25 (1) or (2), or 40.63, as required by a restitution order under s. 973.20 (2). Notwithstanding s. 40.01 (2), the department shall deliver any amount withheld under this subsection in accordance with the restitution order issued under s. 973.20 (2). The board and any member or agent thereof and the department and any employee or agent thereof are immune from civil liability for any act or omission while performing official duties relating to withholding any payment under this subsection.

40.08(1u) (1u) Deferred compensation plan assets. Notwithstanding sub. (1), a participant’s accumulated assets held in an account in the deferred compensation plan established under subch. VII may be divided, in the manner provided by the deferred compensation board and under s. 40.80 (2r), pursuant to a domestic relations order, as defined under s. 40.80 (2r) (a).

40.08(2) (2) Insurance premiums.

40.08(2)(a) (a) Insurance premiums shall be deducted from annuities for group insurance benefit plans as provided in s. 40.05 and, with the written consent of the annuitant, for premiums for group life and health insurance plans provided by the city of Milwaukee to former Milwaukee teachers if the annuity is sufficient.

40.08(2)(b) (b) If permitted under a deferred compensation plan established under subch. VII, insurance premiums for health or long-term care insurance coverage for an eligible retired public safety officer may be deducted from an amount distributed under a deferred compensation plan and paid directly to an insurer.

40.08(3) (3) Waivers. Any participant, beneficiary, or distributee of any estate may waive, absolutely and without right of reconsideration or recovery, the right to or the payment of all or any portion of any benefit payable or to become payable under this chapter. The waiver shall be effective 30 days after it is received by the department or on the date specified in the waiver, if earlier. The waiver may be cancelled by the participant, beneficiary, or distributee in writing before the effective date.

40.08(4) (4) Retention of payments. Unless voluntarily repaid and except as limited by sub. (10), the department may retain out of any annuity or benefit an amount as the department in its discretion may determine, for the purpose of reimbursing the appropriate benefit plan accounts for a balance due under s. 40.25 (5) or for any money paid, plus interest at the assumed rate, unless the department sets a different rate by rule, to any person or estate, through misrepresentation, fraud, or error. Upon the request of the department any employer shall withhold from any sum payable by the employer to any person or estate and remit to the department any amount, plus interest at the assumed rate, unless the department sets a different rate by rule, which the department paid to the person or estate through misrepresentation, fraud, or error. Any amount, plus interest at the assumed rate, unless the department sets a different rate by rule, not recovered by the department from the employer may be procured by the department by action brought against the person or estate.

40.08(5) (5) Employer error.

40.08(5)(a) (a) Whenever any sum becomes due to the department from any recipient as the result of incorrect or incomplete reporting by an employer and the sum cannot be recovered from the recipient, then the employer shall be charged with the sum.

40.08(5)(b) (b) Any amount determined to be due under this subsection shall be due with the next payment by the employer under s. 40.06 and shall be subject to the penalties and collection procedures provided in s. 40.06 if not paid when due.

40.08(6) (6) Refunds.

40.08(6)(a) (a) Notwithstanding s. 20.913, but subject to par. (b), the department may refund any money paid in error to the fund by or on behalf of a person who is not a participant.

40.08(6)(b) (b) The department may not refund any money paid into the fund by an employer, but shall by rule credit the money to the employer.

40.08(6)(c) (c) Except as provided in par. (d), money paid into the fund by an employer on behalf of a participant which exceeds the contribution limits under s. 40.32 may not be refunded to the employer, but the department shall by rule credit the money to the employer and the employer shall pay the participant the amount of the credit as additional wages or salary.

40.08(6)(d) (d) Money paid into the fund by a participant which exceeds the contribution limits under s. 40.32 may be refunded directly to the participant if the department determines that the money was paid on an after-tax basis.

40.08(6)(e) (e) In accordance with rules promulgated by the department, and at the rate of interest established by rule, the department may credit interest on moneys refunded or credited under this subsection.

40.08(7) (7) Overpayments and underpayments.

40.08(7)(a) (a) Any overpayment or underpayment of a lump-sum payment under s. 40.25 or a death benefit which is less than 60 percent of the amount specified in s. 40.25 (1) (a) rounded to the next highest dollar amount, and any annuity payment error which is less than $2 per month may not be corrected but shall be credited or debited to the employer accumulation reserve or the appropriate insurance account. However, if the amount of unapplied additional contributions would increase an annuity payment by less than $2 but is more than 60 percent of the amount specified in s. 40.25 (1) (a) rounded to the next highest dollar amount, the unapplied additional contributions shall be paid to the annuitant as a lump sum.

40.08(7)(b) (b) Any overpayment exceeding the limits in par. (a) to a person who cannot be located or which proves to be uncollectible and any underpayment exceeding the limits in par. (a) to a person who cannot be located may be written off 2 years after the underpayment or overpayment is discovered and credited or debited to the employer accumulation reserve or the appropriate insurance account.

40.08(7)(c) (c) If an annuity underpayment exceeding the limits in par. (a) has not been corrected for at least 12 months, the payment to the annuitant to correct the underpayment shall include 0.4 percent interest on the amount of the underpayment for each full month during the period beginning on the date on which the underpayment occurred and ending on the date on which the underpayment is corrected.

40.08 Cross-reference Cross-reference: See also s. ETF 20.30, Wis. adm. code.

40.08(8) (8) Abandonment.

40.08(8)(a) (a) Benefits provided under this chapter shall be considered abandoned as follows:

40.08(8)(a)1. 1. Any potential primary beneficiary under s. 40.02 (8), other than an estate, who has not applied for any benefit payable under this chapter as a result of the death of the participant and whom the department cannot locate by reasonable efforts, as determined by the department by rule, within one year after the death of the participant shall be presumed to have predeceased the participant and all other potential beneficiaries. Thereafter, if the department is unable to locate any resulting subsequent beneficiary within 6 months, all beneficiaries under s. 40.02 (8) (a) 1. and 2. shall be presumed to have predeceased the participant and the department shall pay all benefits payable under this chapter as a result of the death of the participant to the participant’s estate in a lump sum.

40.08(8)(a)2. 2. If an estate that is determined by the department to be a beneficiary is never opened or is closed prior to the payment of benefits payable under this chapter as a result of the death of the participant and the estate is not opened or reopened within 6 months after the department notifies the estate that a benefit is payable, the benefit shall be considered irrevocably abandoned and shall be transferred to the employer accumulation reserve, unless the estate was the designated beneficiary under s. 40.02 (8) (a) 1.

40.08(8)(a)2m. 2m. If the estate was the designated beneficiary under s. 40.02 (8) (a) 1. and the estate is never opened or is closed prior to the payment of benefits payable under this chapter as a result of death of the participant and the estate is not opened or reopened within 6 months after the department notifies the estate that a benefit is payable, the department shall pay the benefit to a beneficiary as determined under s. 40.02 (8) (a) 2. If the department is unable to locate any such beneficiary within 6 months, all such beneficiaries shall be presumed to have predeceased the participant and the benefit shall be considered irrevocably abandoned and shall be transferred to the employer accumulation reserve.

40.08(8)(a)3. 3. A participant, other than a participating employee or annuitant, whom the department cannot locate by reasonable efforts, with such efforts beginning by the end of the month in which the participant attains, or would have attained, the age of 65, shall be considered to have abandoned all benefits under the Wisconsin retirement system on the date on which the participant attains, or would have attained, the age of 70. The department shall close the participant’s account and shall transfer the moneys in the account to the employer accumulation reserve. The department shall restore the participant’s account and shall debit the employer accumulation reserve accordingly if the participant subsequently applies for retirement benefits under this chapter before attaining the age of 80.