Chapter 71

71.738(3e) (3e) “Pass-through item” means a tax-option item under s. 71.34 (3) or an item of income, gain, loss, deduction, credit, or any other item that originates with a pass-through entity and is required to be reported by one or more pass-through members under this chapter.

71.738(3f) (3f) “Pass-through member” means a person who is a partner in a partnership, member of a limited liability company, shareholder in a tax-option corporation, beneficiary of an estate or a trust, or any other person whose tax liability under this chapter is determined in whole or in part by taking into account the person’s share of pass-through items, directly or indirectly, from a pass-through entity.

71.738(4) (4) “Sign” means write one’s signature or, if the department prescribes another method of authenticating, use that other method.

71.738 History History: 1995 a. 428; 1997 a. 27; 2005 a. 362; 2007 a. 20; 2021 a. 262.

71.74 71.74 Department audits, additional assessments and refunds.

71.74(1) (1) Office audit. The department shall, as soon as practicable, office audit such returns as it deems advisable and if it is found from such office audit that a person has been over or under assessed, or found that no assessment has been made when one should have been made, the department shall correct or assess the income of such person. Any assessment, correction or adjustment made as a result of such office audit shall be presumed to be the result of an audit of the return only, and such office audit shall not be deemed a verification of any item in said return unless the amount of such item and the propriety thereof shall have been determined after hearing and review as provided in s. 71.88 (1) (a) and (2) (a). Such office audit shall not preclude the department from making field audits of the books and records of the taxpayer and from making further adjustment, correction and assessment of income.

71.74(2) (2) Field audit.

71.74(2)(a) (a) Whenever the department deems it advisable to verify any return directly from the books and records of any person, or from any other sources of information, the department may direct any return to be so verified.

71.74(2)(b) (b) For the purpose of ascertaining the correctness of any return or for the purpose of making a determination of the taxable income of any person, the department may examine or cause to be examined by any agent or representative designated by it, any books, papers, records or memoranda bearing on the income of the person, and may require the production of the books, papers, records or memoranda, and require the attendance of any person having knowledge in the premises, and may take testimony and require proof material for its information. Upon such information as it may be able to discover, the department shall determine the true amount of income received during the year or years under investigation.

71.74(2)(c) (c) If it appears upon such investigation that a person has been over or under assessed, or that no assessment has been made when one should have been made, the department shall make a correct assessment in the manner provided in this chapter.

71.74(3) (3) Default assessment. Any person required to file an income or franchise tax return, who fails, neglects or refuses to do so within the time prescribed by this chapter or files a return that does not disclose the person’s entire net income, shall be assessed by the department according to its best judgment.

71.74(4) (4) Assessment for failure of natural persons and fiduciaries to file information returns. The department may assess as an addition to taxable income the amount of deductions taken in arriving at federal adjusted gross income or federal taxable income by natural persons and fiduciaries for wages, rent or royalties, upon failure to file information returns concerning such payments where required under s. 71.65 (1) and (2) (a) or (b) and 71.70 (1). Such assessments shall be made and reviewed in the same manner as other income tax assessments.

71.74 Cross-reference Cross-reference: See also s. Tax 2.04, Wis. adm. code.

71.74(5) (5) Assessment when prices affect taxable income. When any corporation liable to taxation under this chapter conducts its business in such a manner as either directly or indirectly to benefit the members or stockholders thereof or any person interested in such business, by selling its products or the goods or commodities in which it deals at less than the fair price which might be obtained therefor, or where a corporation, a substantial portion of whose capital stock is owned either directly or indirectly by another corporation, acquires and disposes of the products of the corporation so owning a substantial portion of its stock in such a manner as to create a loss or improper net income, the department may determine the amount of taxable income to such corporation for the calendar or fiscal year, having due regard to the reasonable profits which but for such arrangement or understanding might or could have been obtained from dealing in such products, goods or commodities.

71.74(6) (6) Consolidated statements. For the purpose of this chapter, whenever a corporation which is required to file an income or franchise tax return is affiliated with or related to any other corporation through stock ownership by the same interests or as parent or subsidiary corporations, or whose income is regulated through contract or other arrangement, the department may require such consolidated statements as in its opinion are necessary in order to determine the taxable income received by any one of the affiliated or related corporations or to determine whether the corporations are a unitary business.

71.74(7) (7) Additional assessments against dissolved corporation. If all or substantially all of the business or property of a corporation is transferred to one or more persons and the corporation is liquidated, dissolved, merged, consolidated or otherwise terminated, any tax imposed by this chapter on such corporation may be assessed and collected as prescribed in this section against the transferee or transferees of such business or property. Notice shall be given to such transferee or transferees under sub. (11) within the time specified in s. 71.77 irrespective of any other limitations imposed by law. If such corporation has dissolved, such notice may be served on any one of the last officers or members of the board of directors of such corporation.

71.74(8) (8) Adjustment of credits.

71.74(8)(a) (a) If an audit of a claim for a credit under s. 71.07, 71.28 or 71.47 or subch. VIII or IX indicates that an incorrect claim was filed, the department shall make a determination of the correct amount and notify the claimant of the determination and the reasons therefor under sub. (11) within 4 years of the last day prescribed by law for filing the claim. If the claim has been paid, or credited against income or franchise taxes otherwise payable, the credit shall be reduced or canceled, and the proper portion of any amount paid shall be similarly recovered by assessment as income or franchise taxes are assessed.

71.74(8)(b) (b) If a claim for a credit under s. 71.07, 71.28 or 71.47 or subch. VIII or IX is false or excessive and was filed with fraudulent intent, the claim shall be disallowed in full and, if the claim has been paid or a credit has been allowed against income or franchise taxes otherwise payable, the credit shall be canceled and the amount paid may be recovered by assessment as income or franchise taxes are assessed.

71.74(8)(c) (c) If a claim for a credit under s. 71.07, 71.28 or 71.47 or subch. VIII or IX is excessive and was negligently prepared, 10 percent of the corrected claim shall be disallowed and, if the claim has been paid or credited against income or franchise taxes otherwise payable, the credit shall be reduced or canceled and the proper portion of any amount paid shall be similarly recovered by assessment as income or franchise taxes are assessed.

71.74(8)(d) (d) If a claim for a state historic rehabilitation credit under s. 71.07 (9r) is false or excessive, the department shall disallow the claim in full. If a credit has been allowed against income taxes otherwise payable, the credit shall be canceled and the amount may be recovered by assessment as income taxes are assessed. Notwithstanding par. (a) and s. 71.77, the department shall notify the claimant of the determination and shall give reasons for the disallowance under sub. (11) within 4 years after the date that the state historical society notifies the department that the preservation or rehabilitation is not in compliance with s. 71.07 (9r) (b) 3. b. or 4., but that notification must be made within 6 years after the date that the physical work of construction, or destruction in preparation for construction, begins.

71.74(9) (9) Liability may be assessed to more than one person. If the department determines that a liability exists under this chapter and that the liability may be owed by more than one person, the department may assess the entire amount to each person, specifying that it is assessing in the alternative.

71.74(10) (10) Notice to taxpayer of adjustment. The department shall notify the taxpayer, as provided in sub. (11), of any adjustment, correction and assessment made under sub. (1).

71.74(11) (11) Notice of additional assessment. The department shall notify the taxpayer in writing of any additional assessment by office audit or field investigation. The department shall serve that notice as provided in s. 73.03 (73m). In the case of joint returns, notice of additional assessment may be a joint notice, and service on one spouse is proper notice to both spouses. If the spouses have different addresses at the time the department serves the notice of additional assessment and if either spouse notifies the department in writing of those addresses, the department shall serve a duplicate of the original notice on the spouse who has the address other than the address to which the department sent the original notice, if no request for a redetermination or a petition for review has been commenced or finalized. For the spouse who did not receive the original notice, redetermination and appeal rights begin upon the service of a duplicate notice. If the taxpayer is a corporation and the department is unable to serve that taxpayer as provided in s. 73.03 (73m), the department may serve the notice by publishing a class 3 notice, under ch. 985, in the official state newspaper.

71.74(12) (12) Taxes delinquent after due date. Additional income or franchise taxes assessed under subs. (1) to (5), (7) and (8) shall become delinquent if not paid on or before the due date stated in the notice to the taxpayer.

71.74(13) (13) Collection of additional tax and issuance of refunds.

71.74(13)(a) (a) If the tax is increased the department shall proceed to collect the additional tax in the same manner as other income or franchise taxes are collected. If the income or franchise taxes are decreased upon direction of the department the secretary of administration shall refund to the taxpayer such part of the overpayment as was actually paid in cash, and the certification of the overpayment by the department shall be sufficient authorization to the secretary of administration for the refunding of the overpayment. No refund of income or franchise tax shall be made by the secretary of administration unless the refund is so certified. The part of the overpayment paid to the county and the local taxation district shall be deducted by the secretary of administration in the secretary’s next settlement with the county and local treasurer.

71.74(13)(b) (b) No action or proceeding whatsoever shall be brought against the state or the secretary of administration for the recovery, refund, or credit of any income or surtaxes; except in case the secretary of administration shall neglect or refuse for a period of 60 days to refund any overpayment of any income or surtaxes certified, the taxpayer may maintain an action to collect the overpayment against the secretary of administration so neglecting or refusing to refund such overpayment, without filing a claim for refund with the secretary of administration, provided that such action shall be commenced within one year after the certification of such overpayment.

71.74(14) (14) Additional remedy to collect tax. The department may also proceed under s. 71.91 (5) for the collection of any additional assessment of income or franchise taxes or surtaxes, after notice thereof has been given under sub. (11) and before the same shall have become delinquent, when the department has reasonable grounds to believe that the collection of such additional assessment will be jeopardized by delay. In such cases, the department shall give notice of the intention to so proceed to the taxpayer as provided in s. 73.03 (73m), and the warrant of the department shall not issue if the taxpayer within 10 days after such notice furnishes a bond in such amount, not exceeding double the amount of the tax, and with such sureties as the department shall approve, conditioned upon the payment of so much of the additional taxes as shall finally be determined to be due, together with interest thereon as provided by s. 71.82 (1) (a). Nothing in this subsection affects the review of additional assessments provided by ss. 71.88 (1) (a) and (2) (a), 71.89 (2), 73.01, and 73.015, and any amounts collected under this subsection shall be deposited with the department and disbursed after final determination of the taxes as are amounts deposited under s. 71.90 (2).

71.74(15) (15) Payments. All nondelinquent payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.

71.74 History History: 1987 a. 312; 1989 a. 31; 1991 a. 39; 1993 a. 205; 1997 a. 27; 2003 a. 33; 2007 a. 20; 2009 a. 28; 2017 a. 324.

71.74 Annotation The investigative power of the Department of Revenue under s. 71.11 (20) (b) [now sub. (2)] is similar to the power of the Internal Revenue Service under 26 USC 7602. A taxpayer subpoenaed by the department has limited discovery rights under Genser, 595 F.2d 146 (1979). State v. Beno, 99 Wis. 2d 77, 298 N.W.2d 405 (Ct. App. 1980).

71.745 71.745 Pass-through entity audits, additional assessments and refunds at the entity level.

71.745(1) (1) General applicability. Unless specifically provided in subs. (2) to (9), additional assessments and refunds of pass-through entities and pass-through members shall follow the provisions under this chapter. This section shall not apply for taxable years for which a pass-through entity made an election under s. 71.21 (6) (a) or 71.365 (4m) (a) that the pass-through entity did not revoke under s. 71.21 (6) (c) or 71.365 (4m) (c). The department shall not make additional assessments and refunds under this section to an entity treated as a disregarded entity described under U.S. Treasury Regulation 301.7701-2 or to a grantor trust the income of which is reportable under the Internal Revenue Code by the grantor of the trust or by any person other than the trust.

71.745(2) (2) Audit assessments and refunds. Except as provided in sub. (9), for the purpose of performing audit assessments and issuing refunds, the department may do all of the following:

71.745(2)(a) (a) Assess and collect additional tax from a pass-through entity on income otherwise reportable by its pass-through members. In computing the tax to assess to a pass-through entity under this paragraph, the department shall apply the highest tax rate under s. 71.06 on income otherwise reportable by pass-through members that are individuals, estates, or trusts with a direct interest in the pass-through entity and apply the highest tax rate under s. 71.27 on income otherwise reportable by pass-through members, other than individuals, estates, or trusts, with a direct interest in the pass-through entity.

71.745(2)(b) (b) Direct the secretary of administration to refund to a pass-through entity that part of an overpayment paid by the pass-through entity and not by the entity’s pass-through members. Pass-through members may claim overpayments not paid by the pass-through entity within one year after the date the determination of the overpayment becomes final or before the end of the period specified under s. 71.75, whichever is later.

71.745(3) (3) Adjustment of credits. Except as provided in sub. (9), for the purpose of adjusting credits, the department may do all of the following:

71.745(3)(a) (a) Assess an adjustment to reduce a credit under s. 71.07, 71.28, or 71.47 to a pass-through entity if the pass-through entity previously computed the credit and reported the credit to its pass-through members. An assessment made under this paragraph may be reduced by the tax effect from the modifications described under ss. 71.05 (6) (a) 15. and 25., 71.21 (4), 71.26 (2) (a) 4. and 11., 71.34 (1k) (g) and (m), and 71.45 (2) (a) 10., if the modification occurs in a taxable year under review, except that the modification shall not pass through to nor be claimed by the pass-through members.

71.745(3)(b) (b) Assess an adjustment to increase a credit under s. 71.07, 71.28, or 71.47 to offset additional tax assessed to a pass-through entity under sub. (2). Any excess credit not used to offset additional tax may be claimed by the pass-through members within one year from the date the determination of the adjustment becomes final or before the end of the period specified under s. 71.75, whichever is later.

71.745(4) (4) Adjustments attributable to members. Adjustments to pass-through items under this section are attributable to each pass-through member in a manner, and for the taxable year, that is consistent with the treatment of the pass-through items if a determination was not made under this section.

71.745(5) (5) Statutes of limitations, interest, and penalties. Statutes of limitations, interest, and penalties under ss. 71.77, 71.82, and 71.83 apply to determinations made under this section without regard to the action or inaction of pass-through members.

71.745(6) (6) Contested adjustments.

71.745(6)(a) (a) Except as provided in par. (b), a determination made by the department under this section is final and conclusive upon receipt by the pass-through entity. Pass-through members shall concede to the accuracy of and shall be bound by a determination made under this section. A pass-through entity shall timely notify all pass-through members of any administrative or judicial proceeding regarding the determination of any pass-through item.

71.745(6)(b) (b) A pass-through entity aggrieved by a determination made by the department under this section may, within 60 days after receipt of the determination, petition the department for redetermination. The department shall make a redetermination on the petition within 6 months after the date on which the petition is filed. If no timely petition for redetermination is filed with the department, the department’s determination shall be final and conclusive.

71.745(7) (7) Liability may be assessed to more than one person. If the department determines that a liability exists under this chapter and that the liability may be owed by more than one pass-through member of a pass-through entity, the department may assess any pass-through member of the pass-through entity for their allocated portion of additional tax otherwise due under this chapter.

71.745(8) (8) Election to reduce assessment. Within 60 days after the department’s determination under this section becomes final, a pass-through entity may elect, in a manner prescribed by the department, to have the pass-through entity’s assessment under this section reduced for pass-through items reported and paid by pass-through members within 60 days of the election. A pass-through entity shall furnish to the department and its pass-through members the adjustments to the each pass-through member’s proportionate share of pass-through items for each taxable year.

71.745(9) (9) Election to preclude assessment. Within 60 days after the department’s determination under this section becomes final, a pass-through entity with 25 or fewer pass-through members for all years under review may elect, in a manner prescribed by the department, to require the department to make an assessment to each of its pass-through members. This subsection does not apply to a pass-through entity if one or more of its pass-through members is a pass-through entity for any year under review. The election under this subsection does not relieve a representative designated by the pass-through entity under s. 71.80 (26) (a) of the representative’s duties under s. 71.80 (26) (b) 2., 3., and 6.

71.745 History History: 2021 a. 262; s. 35.17 correction in (1), (2) (intro.), (5).

71.75 71.75 Claims for refund.

71.75(1) (1) Except as provided in ss. 49.855, 71.77 (5) and (7) (b) and 71.935, the provisions for refunds and credits provided in this section shall be the only method for the filing and review of claims for refund of income and surtaxes, and no person may bring any action or proceeding for the recovery of such taxes other than as provided in this section.

71.75(2) (2) With respect to income taxes and franchise taxes, except as otherwise provided in subs. (5) and (9) and ss. 71.30 (4) and 71.77 (5) and (7) (b), refunds may be made if the claim therefor is filed within 4 years of the unextended date under this section on which the tax return was due.

71.75(3) (3) No refund shall be made on the over-withholding or overpayment of estimated income taxes or franchise taxes with respect to any person for any taxable year in an amount less than $1.

71.75(4) (4) Except as provided in subs. (5) and (5m), no refund shall be made and no credit shall be allowed for any year that has been the subject of a field audit if the audit resulted in a refund or no change to the tax owed or in an assessment that is final under s. 71.88 (1) (a) or (2) (a), 71.89 (2), 73.01 or 73.015 and if the department of revenue notifies the taxpayer that unless the taxpayer appeals the result of the field audit under subch. XIV, the field audit is final. No refund shall be made and no credit shall be allowed on any item of income or deduction, assessed as a result of an office audit, the assessment of which is final under s. 71.88 (1) (a) or (2) (a), 71.89 (2), 73.01 or 73.015.

71.75(5) (5) A claim for refund may be made within 4 years after the assessment of a tax or an assessment to recover all or part of any tax credit, including penalties and interest, under this chapter, assessed by office audit or field audit and paid if the assessment was not protested by the filing of a petition for redetermination. No claim may be allowed under this subsection for any tax, interest or penalty paid with respect to any item of income, credit or deduction self-assessed or determined by the taxpayer or assessed as the result of any assessment made by the department with respect to which all the conditions specified in this subsection are not met. If a claim is filed under this subsection, the department of revenue may make an additional assessment in respect to any item of income or deduction that was a subject of the prior assessment. No claim for refund may be made in respect to items that were not adjusted in the notice of assessment or of refund. A person whose returns for more than one year have been adjusted may make a claim under this subsection whether or not the net result of the adjustments for those years is an assessment. This subsection does not extend the time to file under s. 71.53 (2) or 71.59 (2), and it does not extend the time period during which the department of revenue may assess, or the taxpayer may claim a refund, in respect to any item of income or deduction that was not a subject of the prior assessment.

71.75(5m) (5m) In respect to overpayments attributable to a capital loss carry-back, a corporation may claim a refund within 4 years after the due date, including extensions, for filing the return for the taxable year of the capital loss that is carried back.

71.75(6) (6) Every claim for refund or credit of income taxes, franchise taxes or surtaxes, if any, shall be filed with the department and signed by the person or, in the case of joint returns, by both persons who filed the return on which the claim is based and shall set forth specifically and explain in detail the reasons for and the basis of the claim. After the claim has been filed it shall be considered and acted upon in the same manner as are additional assessments made under s. 71.74 (1) and (2). No marital property agreement or unilateral statement under ch. 766 affects claims for refund or credit under this section.

71.75(7) (7) The department shall act on any claim for refund or credit within one year after receipt and failure to act shall have the effect of allowing the claim and the department shall certify the refund or credit unless the taxpayer has consented in writing to an extension of the one-year time period prior to its expiration.

71.75(7m) (7m) The department shall not issue a refund to an employed individual before March 1 unless both the individual and the individual’s employer have filed all required returns and forms with the department for the taxable year for which the individual claims a refund.

71.75(8) (8) A refund payable on the basis of a separate return shall be issued to the person who filed the return. A refund payable on the basis of a joint return shall be issued jointly to the persons who filed the return, except that, if a judgment of divorce under ch. 767 apportions any refund that may be due the formerly married persons to one of the former spouses, or between the spouses, and if they include with their income tax return a copy of that portion of the judgment of divorce that relates to the apportionment of their tax refund, the department shall issue the refund to the person to whom the refund is awarded under the terms of the judgment of divorce or the department shall issue one check to each of the former spouses according to the apportionment terms of the judgment.

71.75(9) (9) All refunds, overpayments, or refundable credits under this chapter are subject to attachment under ss. 49.855, 71.93 and 71.935, and no taxpayer has any right to, or interest in, any refund, overpayment, or refundable credit under this chapter until setoff under ss. 49.855, 71.93, and 71.935 has been completed.

71.75(10) (10) If an income tax refund or tax credit check is payable to a person who dies, the department shall pay the refund or credit check to the decedent’s personal representative. If there is no personal representative, the department shall pay the refund or credit check either to a surviving relative, giving preference to relatives in the following order: surviving spouse, child, parent, brother or sister, or to a creditor of the decedent, as determined by the department.

71.75 Cross-reference Cross-reference: See also s. Tax 2.085, Wis. adm. code.

71.75 History History: 1987 a. 312; 1987 a. 411 ss. 96, 187; 1989 a. 31; 1991 a. 39; 1993 a. 205; 1995 a. 27, 404; 1997 a. 27; 1999 a. 9; 2015 a. 55; 2017 a. 59.

71.75 Cross-reference Cross-reference: See also s. Tax 2.12, Wis. adm. code.

71.75 Annotation A party challenging the administration of taxing statutes must exhaust state administrative remedies before commencing an action in state courts under 42 USC 1983. Hogan v. Musolf, 163 Wis. 2d 1, 471 N.W.2d 216 (1991).

71.75 Annotation Administrative remedies must be timely pursued in connection with all claims, including claims that a state taxing statute is unconstitutional. Gilbert v. DOR, 2001 WI App 153, 246 Wis. 2d 734, 633 N.W.2d 218, 00-2154.

71.76 71.76 Internal revenue service and other state adjustments.

71.76(1) (1) If for any year the amount of federal net income tax payable, of a credit claimed or carried forward, of a net operating loss carried forward or of a capital loss carried forward of any taxpayer as reported to the internal revenue service is changed or corrected by the internal revenue service or other officer of the United States, such taxpayer shall report such changes or corrections to the department within 180 days after its final determination and shall concede the accuracy of such determination or state how the determination is erroneous. Such changes or corrections need not be reported unless they affect the amount of net tax payable under this chapter, of a credit calculated under this chapter, of a Wisconsin net operating loss carried forward, of a Wisconsin net business loss carried forward or of a capital loss carried forward under this chapter. Any taxpayer submitting an amended return to the internal revenue service, or to another state if there has been allowed a credit against Wisconsin taxes for taxes paid to that state, shall also file, within 180 days of such filing date, an amended return if any information contained on the amended return affects the amount of net tax payable under this chapter of a credit calculated under this chapter, of a Wisconsin net operating loss carried forward, of a Wisconsin net business loss carried forward or of a capital loss carried forward under this chapter.

71.76(2) (2) 

71.76(2)(a) (a) Except as approved in par. (b), in the case of any partnership adjustments, as defined under section 6241 of the Internal Revenue Code and including adjustments under section 6225 of the Internal Revenue Code, the partnership and its partners shall report such changes or corrections to the department within 180 days after the final determination by the internal revenue service and shall concede the accuracy of such determination or state how the determination is erroneous. The partnership and its partners are not required to report such changes or corrections unless the changes or corrections affect the amount of net tax payable under this chapter, of a credit calculated under this chapter, of a Wisconsin net operating loss carried forward under this chapter, of a Wisconsin net business loss carried forward under this chapter, or of a capital loss carried forward under this chapter. The partnership and its partners shall submit amended returns, as applicable, for each reviewed year, as defined under section 6225 of the Internal Revenue Code, to which such partnership adjustments relate.

71.76(2)(b) (b) In the case of any partnership adjustments, as defined under section 6241 of the Internal Revenue Code and including adjustments under section 6225 of the Internal Revenue Code, the partnership may submit a request to the department, in a manner prescribed by the department, within 60 days after the final determination by the internal revenue service to amend the partnership returns and pay tax on behalf of the partners at the highest tax rate computed under s. 71.745 (1) (a) [s. 71.745 (2) (a)] for each reviewed year, as defined under section 6225 of the Internal Revenue Code, to which such partnership adjustments relate. The partnership and its partners shall report such changes or corrections to the department within 180 days after the receipt of the notice of approval from the department and shall concede the accuracy of such determination or state how the determination is erroneous. The partnership and its partners shall report changes and corrections as provided under par. (a) within 180 days after the receipt of the notice of denial from the department. The partnership and its partners are not required to report such changes or corrections unless the changes or corrections affect the amount of net tax payable under this chapter, of a credit calculated under this chapter, of a Wisconsin net operating loss carried forward under this chapter, of a Wisconsin net business loss carried forward under this chapter, or of a capital loss carried forward under this chapter.

71.76 Note NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.

71.76 History History: 1987 a. 312; 1991 a. 39; 1997 a. 27; 2021 a. 1, 262; s. 35.17 correction in (2) (a), (b).

71.76 Cross-reference Cross-reference: See also s. Tax 2.105, Wis. adm. code.

71.77 71.77 Statutes of limitations, assessments and refunds; when permitted.

71.77(1) (1) Additional assessments and corrections of assessments by office audit or field investigation may be made of income of any taxpayer if notice under s. 71.74 (11) is given within the time specified in this section.

71.77(2) (2) With respect to assessments of a tax or an assessment to recover all or part of any tax credit under this chapter in any calendar year or corresponding fiscal year, notice shall be given within 4 years of the date the income tax or franchise tax return was filed.

71.77(2m) (2m) Notwithstanding sub. (2), the department of revenue may assess a deficiency related to a contribution to the capital of the taxpayer, as defined in section 118 (c) of the Internal Revenue Code, within 4 years after the department receives notice by the taxpayer, in the manner that the department prescribes, of any of the following:

71.77(2m)(a) (a) The amount of the expenditure under section 118 (c) (2) (A) of the Internal Revenue Code.

71.77(2m)(b) (b) The intent of the person against whom the deficiency is to be assessed not to make the expenditure under section 118 (c) (2) (A) of the Internal Revenue Code.

71.77(2m)(c) (c) Expiration of the time period under section 118 (c) (2) (B) of the Internal Revenue Code and failure of the person against whom the deficiency is to be assessed to make the expenditure under section 118 (c) (2) (B) of the Internal Revenue Code.

71.77(2n) (2n) Notwithstanding sub. (2), the department may make an assessment within one year of receiving notice of revocation from the Wisconsin Economic Development Corporation to recover all or a part of any tax credit claimed by a taxpayer, but revoked by the corporation.

71.77(3) (3) Irrespective of sub. (2), if any person has filed an incorrect income tax or franchise tax return for any year with intent to defeat or evade the income tax or franchise tax assessment provided by law, or has failed to file any income tax or franchise tax return for any of such years, income of any such year may be assessed when discovered. The department of revenue shall assess the taxes owed for taxable years beginning before January 1, 1990, by using the definition of “Internal Revenue Code” that applied to the year for which the assessment was made, as modified by P.L. 104-188 and P.L. 105-34 if P.L. 104-188 or P.L. 105-34 applied for federal purposes for that year.

71.77(4) (4) Irrespective of sub. (3), if additional assessments are made for any period more than 6 years before the year in which the assessment is made, the burden of proof shall rest with the state to prove its case by a preponderance of the evidence.

71.77(5) (5) The limitation periods provided in this section may be extended by written agreement between the taxpayer and the department prior to the expiration of such limitation periods or any extension of such limitation periods. During any such extension period, the department may issue an assessment or a refund, and the taxpayer may file a claim for a refund, relating to the year which the extension covers. Subsection (4) shall not apply to any assessment made in any such extended period. The department of revenue shall assess the taxes owed or compute the refund due for taxable years beginning before January 1, 1990, by using the definition of “Internal Revenue Code” that applied to the year for which the assessment was made, as modified by P.L. 104-188 and P.L. 105-34 if P.L. 104-188 or P.L. 105-34 applied for federal purposes for that year.

71.77(6) (6) Section 990.06 shall have no application to the provisions of this section.

71.77(7) (7) Notwithstanding any other limitations expressed in this chapter, an assessment or refund may be made:

71.77(7)(a) (a) If notice of assessment is given within 6 years after a return was filed and if on that return the taxpayer reported for taxation, or the taxpayers jointly reported for taxation, less than 75 percent of the net income properly assessable, except that no assessment of additional income may be made under this subsection for any year beyond the period specified in sub. (2) unless the aggregate of the taxes on the additional income of such year is in excess of $100 in the case of a return other than a joint return or $200 in the case of a joint return.