Chapter 77

77.51(14g)(cm) (cm) The transfer of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a limited liability company, solely in consideration for a membership interest, pursuant to a merger;

77.51(14g)(d) (d) The distribution of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) by a corporation to its stockholders as a dividend or in whole or partial liquidation;

77.51(14g)(e) (e) The distribution of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) by a partnership to its partners in whole or partial liquidation;

77.51(14g)(em) (em) The distribution of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) by a limited liability company to its members in whole or partial liquidation;

77.51(14g)(f) (f) Repossession of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) by the seller from the purchaser when the only consideration is cancellation of the purchaser’s obligation to pay the remaining balance of the purchase price;

77.51(14g)(fm) (fm) The transfer of transmission facilities, as defined in s. 196.485 (1) (h), to a transmission company, as defined in s. 196.485 (1) (ge), after the organizational start-up date, as defined in s. 196.485 (1) (dv), of such company in exchange for securities, as defined in s. 196.485 (1) (fe);

77.51(14g)(g) (g) The transfer of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) in a reorganization as defined in section 368 of the internal revenue code in which no gain or loss is recognized for franchise or income tax purposes; or

77.51(14g)(h) (h) Any transfer of all or substantially all the property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) held or used by a person in the course of an activity requiring the holding of a seller’s permit, if after the transfer the real or ultimate ownership of the property, items, or goods is substantially similar to that which existed before the transfer. For the purposes of this section, stockholders, bondholders, partners, members or other persons holding an interest in a corporation or other entity are regarded as having the real or ultimate ownership of the property, items, or goods of the corporation or other entity. In this paragraph, “substantially similar” means 80 percent or more of ownership.

77.51(15a) (15a) 

77.51(15a)(a) (a) “Sales, lease, or rental for resale, sublease, or subrent” includes transfers of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a service provider that the service provider transfers in conjunction with but not incidental to the selling, performing, or furnishing of any service, and transfers of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a service provider that the service provider physically transfers in conjunction with the selling, performing, or furnishing services under s. 77.52 (2) (a) 7., 10., 11., or 20. This paragraph does not apply to sub. (2).

77.51(15a)(b) (b) “Sales, lease, or rental for resale, sublease, or subrent” does not include any of the following:

77.51(15a)(b)1. 1. The sale of building materials, supplies, and equipment to owners, contractors, subcontractors, or builders for use in real property construction activities or the alteration, repair, or improvement of real property, regardless of the quantity of such materials, supplies, and equipment sold.

77.51(15a)(b)2. 2. Any sale of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a purchaser even though such property, items, or goods may be used or consumed by some other person to whom such purchaser transfers the property, items, or goods without valuable consideration, such as gifts, and advertising specialties distributed at no charge and apart from the sale of other tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d) or service.

77.51(15a)(b)3. 3. Transfers of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a service provider that the service provider transfers in conjunction with the selling, performing, or furnishing of any service, if the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) are incidental to the service, unless the service provider is selling, performing, or furnishing services under s. 77.52 (2) (a) 7., 10., 11., or 20.

77.51(15a)(b)4. 4. A sale of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a contractor or subcontractor for use in the performance of contracts with the United States or its instrumentalities for the construction of improvements on or to real property.

77.51(15b) (15b) 

77.51(15b)(a) (a) “Sales price” means the total amount of consideration, including cash, credit, property, and services, for which tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d) or services are sold, licensed, leased, or rented, valued in money, whether received in money or otherwise, without any deduction for the following:

77.51(15b)(a)1. 1. The seller’s cost of the property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) sold.

77.51(15b)(a)2. 2. The cost of materials used, labor or service cost, interest, losses, all costs of transportation to the seller, all taxes imposed on the seller, except as provided in par. (b) 3m. and 3s., and any other expense of the seller.

77.51(15b)(a)3. 3. Charges by the seller for any services necessary to complete a sale, not including delivery and installation charges.

77.51(15b)(a)4. 4.

77.51(15b)(a)4.a. a. Delivery charges, except as provided in par. (b) 4.

77.51(15b)(a)4.b. b. If a shipment includes property or items that are subject to tax under this subchapter and property or items that are not subject to tax under this subchapter, the amount of the delivery charge that the seller allocates to the property and items that are subject to tax under this subchapter is based either on the total sales price of the property and items that are subject to tax under this subchapter as compared to the total sales price of all the property and items or on the total weight of the property and items that are subject to tax under this subchapter as compared to the total weight of all the property and items.

77.51(15b)(a)5. 5. Installation charges.

77.51(15b)(b) (b) “Sales price” does not include:

77.51(15b)(b)1. 1. Discounts, including cash, terms, or coupons, that are not reimbursed by a 3rd party, except as provided in par. (c); that are allowed by a seller; and that are taken by a purchaser on a sale.

77.51(15b)(b)2. 2. Interest, financing, and carrying charges from credit that is extended on a sale of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services, if the amount of the interest, financing, or carrying charges is separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser.

77.51(15b)(b)3. 3. Any taxes legally imposed directly on the purchaser that are separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser.

77.51(15b)(b)3m. 3m. Taxes imposed on the seller that are separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser if the law imposing or authorizing the tax provides that the seller may, but is not required to, pass on to and collect the tax from the user or consumer.

77.51(15b)(b)3s. 3s. The federal tax imposed on the seller in a retail sale of a heavy truck or trailer under section 4051 of the Internal Revenue Code that is separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser.

77.51(15b)(b)4. 4. Delivery charges for direct mail, if the delivery charges for direct mail are separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser.

77.51(15b)(b)5. 5. In all transactions in which an article of tangible personal property, an item under s. 77.52 (1) (b), property under s. 77.52 (1) (c), or a good under s. 77.52 (1) (d) is traded toward the purchase of an article, item, property, or good of greater value, the amount of the sales price that represents the amount allowed for the article, item, property, or good traded, except that this subdivision does not apply to any transaction to which subd. 7. or 8. applies.

77.51(15b)(b)6. 6. If a person who purchases a motor vehicle presents a statement issued under s. 218.0171 (2) (cq) to the seller at the time of purchase, and the person presents the statement to the seller within 60 days from the date of receiving a refund under s. 218.0171 (2) (b) 2. b., the trade-in amount specified in the statement issued under s. 218.0171 (2) (cq), but not to exceed the sales price from the sale of the motor vehicle. This subdivision applies only to the first motor vehicle purchased by a person after receiving a refund under s. 218.0171 (2) (b) 2. b.

77.51(15b)(b)7. 7. Thirty-five percent of the sales price, excluding trade-ins, of a new manufactured home, as defined in s. 101.91 (11). This subdivision does not apply to a lease or rental.

77.51(15b)(b)8. 8. At the retailer’s option; except that after the retailer chooses an option the retailer may not use the other option for other sales without the department’s written approval; either 35 percent of the sales price of a modular home, as defined in s. 101.71 (6), or an amount equal to the sales price of the home minus the cost of materials that become an ingredient or component part of the home.

77.51(15b)(c) (c) “Sales price” includes consideration received by the seller from a 3rd party, if:

77.51(15b)(c)1. 1. The seller actually receives consideration from a 3rd party, other than the purchaser, and the consideration is directly related to a price reduction or discount on a sale.

77.51(15b)(c)2. 2. The seller is obliged to pass the price reduction or discount to the purchaser.

77.51(15b)(c)3. 3. The amount of the consideration that is attributable to the sale is a fixed amount and the seller is able to determine that amount at the time of the sale to the purchaser.

77.51(15b)(c)4. 4. One of the following also applies:

77.51(15b)(c)4.a. a. The purchaser presents a coupon, certificate, or other documentation to the seller to claim the price reduction or discount, if the coupon, certificate, or other documentation is authorized, distributed, or granted by the 3rd party with the understanding that the 3rd party will reimburse the seller for the amount of the price reduction or discount.

77.51(15b)(c)4.b. b. The purchaser identifies himself or herself to the seller as a member of a group or organization that may claim the price reduction or discount.

77.51(15b)(c)4.c. c. The seller provides an invoice to the purchaser, or the purchaser presents a coupon, certificate, or other documentation to the seller, that identifies the price reduction or discount as a 3rd-party price reduction or discount.

77.51(16) (16) “Sales tax” means the tax imposed by s. 77.52.

77.51(17) (17) “Seller” includes every person selling, licensing, leasing, or renting tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) or selling, performing, or furnishing services of a kind the sales price from the sale, license, lease, rental, performance, or furnishing of which is required to be included in the measure of the sales tax, regardless of all of the following:

77.51(17)(a) (a) Whether the transaction is mercantile in nature.

77.51(17)(b) (b) Whether the seller sells smaller quantities from inventory.

77.51(17)(c) (c) Whether the seller makes or intends to make a profit on the sale.

77.51(17)(d) (d) Whether the seller or the buyer receives a benefit the seller or buyer bargained for.

77.51(17)(e) (e) The percentage of the seller’s total sales that the sale represents.

77.51(17)(f) (f) Any activities other than those described in sub. (13) (a) to (o) in which the seller is engaged.

77.51(17)(g) (g) Whether the seller sells on the seller’s own behalf or on behalf of another person.

77.51(17m) (17m) “Service address” means any of the following:

77.51(17m)(a) (a) The location of the telecommunications equipment to which a customer’s telecommunications service is charged and from which the telecommunications service originates or terminates, regardless of where the telecommunications service is billed or paid.

77.51(17m)(b) (b) If the location described under par. (a) is not known by the seller who sells the telecommunications service, the location where the signal of the telecommunications service originates, as identified by the seller’s telecommunications system or, if the signal is not transmitted by the seller’s telecommunications system, by information that the seller received from the seller’s service provider.

77.51(17m)(c) (c) If the locations described under pars. (a) and (b) are not known by the seller who sells the telecommunications service, the customer’s place of primary use.

77.51(17r) (17r) “Sign” means write one’s signature or, if the department prescribes another method of authenticating, use that other method.

77.51(17w) (17w) “Soft drink” means a beverage that contains less than 0.5 percent of alcohol and that contains natural or artificial sweeteners. “Soft drink” does not include a beverage that contains milk or milk products; soy, rice, or similar milk substitutes; or more than 50 percent vegetable or fruit juice by volume.

77.51(17x) (17x) “Specified digital goods” means digital audio works, digital audiovisual works, and digital books. For purposes of this subchapter, the sale, license, lease, or rental of or the storage, use, or other consumption of a digital code is treated the same as the sale, license, lease, or rental of or the storage, use, or other consumption of any specified digital goods for which the digital code relates.

77.51(18) (18) “Storage” includes any keeping or retention in this state of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) purchased from a retailer for any purpose except sale in the regular course of business.

77.51(20) (20) “Tangible personal property” means personal property that can be seen, weighed, measured, felt, or touched, or that is in any other manner perceptible to the senses, and includes electricity, gas, steam, water, and prewritten computer software, regardless of how it is delivered to the purchaser.

77.51(21) (21) “Taxpayer” means the person who is required to pay, collect, or account for or who is otherwise directly interested in the taxes imposed by this subchapter, including a certified service provider.

77.51(21n) (21n) “Telecommunications services” means electronically transmitting, conveying, or routing voice, data, audio, video, or other information or signals to a point or between or among points. “Telecommunications services” includes the transmission, conveyance, or routing of such information or signals in which computer processing applications are used to act on the content’s form, code, or protocol for transmission, conveyance, or routing purposes, regardless of whether the service is referred to as a voice over Internet protocol service or classified by the federal communications commission as an enhanced or value-added nonvoice data service. “Telecommunications services” does not include any of the following:

77.51(21n)(a) (a) Data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered to a purchaser by an electronic transmission, if the purchaser’s primary purpose for the underlying transaction is the processed data.

77.51(21n)(b) (b) Installing or maintaining wiring or equipment on a customer’s premises.

77.51(21n)(c) (c) Tangible personal property.

77.51(21n)(d) (d) Advertising, including directory advertising.

77.51(21n)(e) (e) Billing and collection services provided to 3rd parties.

77.51(21n)(f) (f) Internet access services.

77.51(21n)(g) (g) Radio and television audio and video programming services, regardless of the medium in which the services are provided, including cable service, as defined in 47 USC 522 (6), audio and video programming services delivered by commercial mobile radio service providers, as defined in 47 CFR 20.3, and the transmitting, conveying, or routing of such services by the programming service provider.

77.51(21n)(h) (h) Ancillary services.

77.51(21n)(i) (i) Digital products delivered electronically, including software, music, video, reading materials, or ringtones.

77.51(21p) (21p) “Tobacco” means cigarettes, cigars, chewing tobacco, pipe tobacco, and any other item that contains tobacco.

77.51(21q) (21q) “Transferred electronically” means accessed or obtained by the purchaser by means other than tangible storage media.

77.51(22) (22) 

77.51(22)(a) (a) “Use” includes the exercise of any right or power over tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services incident to the ownership, possession or enjoyment of the property, items, goods, or services, or the results produced by the services, including installation or affixation to real property and including the possession of, or the exercise of any right or power over tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), by a lessee under a lease, except that “use” does not include the activities under sub. (18).

77.51(22)(b) (b) In this subsection “enjoyment” includes a purchaser’s right to direct the disposition of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), whether or not the purchaser has possession of the property, items, or goods. “Enjoyment” also includes, but is not limited to, having shipped into this state by an out-of-state supplier printed material which is designed to promote the sale of property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services, or which is otherwise related to the business activities, of the purchaser of the printed material or printing service.

77.51(22)(bm) (bm) In this subsection, “exercise of any right or power over tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services” includes distributing, selecting recipients, determining mailing schedules, or otherwise directing the distribution, dissemination, or disposal of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services, regardless of whether the purchaser of such property, items, goods, or services owns or physically possesses, in this state, the property, items, goods, or services.

77.51(23) (23) “Use tax” means the tax imposed by s. 77.53.

77.51(24) (24) “Value-added nonvoice data service” means a service that otherwise meets the definition of telecommunications services, in which computer processing applications are used to act on the form, content, code, or protocol of the information or data provided by the service and are used primarily for a purpose other than for transmitting, conveying, or routing data.

77.51(25) (25) “Vertical service” means an ancillary service that is provided with one or more telecommunications services and allows customers to identify callers and to manage multiple calls and call connections, including conference bridging services.

77.51(26) (26) “Voice mail service” means an ancillary service that allows a customer to store, send, or receive recorded messages, not including any vertical service that the customer must have to use the voice mail service.

77.51 History History: 1973 c. 333; 1975 c. 39, 41, 99, 224; 1975 c. 413 s. 18; 1977 c. 29, 418; 1979 c. 1 ss. 57 to 59, 61, 62; 1979 c. 174; 1981 c. 20; 1981 c. 79 s. 17; 1983 a. 23, 27; 1983 a. 189 ss. 92 to 108, 329 (12); 1983 a. 510, 538; 1983 a. 544 ss. 13 to 46, 47 (1) (b); 1985 a. 29, 332; 1987 a. 27, 399; 1989 a. 31, 335, 336; 1991 a. 39, 269, 316; 1993 a. 16, 112, 184; 1997 a. 27, 237; 1999 a. 9, 83; 2001 a. 45, 102; 2003 a. 48; 2005 a. 25, 327, 441, 479; 2007 a. 11, 20, 130; 2009 a. 2 ss. 225 to 345, 389; 2009 a. 12 s. 18; 2009 a. 28 ss. 1830b to 1836h, 1844 to 1846; 2009 a. 276, 330; 2011 a. 208; 2013 a. 20 ss. 1475 to 1484, 1489 to 1491; 2015 a. 55, 170, 361; 2017 a. 17, 59, 190, 324; 2017 a. 365 ss. 111, 112; 2017 a. 366, 368; 2019 a. 10; 2021 a. 1, 58; 2023 a. 12, 138.

77.51 Annotation A tax on personal property assets was upheld since the seller had a permit under sub. (10) (a) [now sub. (9) (a) 1.]. Ramrod, Inc. v. DOR, 64 Wis. 2d 499, 219 N.W.2d 604 (1974).

77.51 Annotation Provisions of the Uniform Commercial Code as to the time title passes are inapplicable to sales tax law. Discussing the application of this section. Harold W. Fuchs Agency, Inc. v. DOR, 91 Wis. 2d 283, 282 N.W.2d 625 (Ct. App. 1979).

77.51 Annotation The sale of business assets of a taxpayer who held a seller’s permit was not exempted as an “occasional sale” under sub. (10) (a) [now sub. (9) (a)]. Discussing constitutionality. Midcontinent Broadcasting Co. of Wisconsin, Inc. v. DOR, 98 Wis. 2d 379, 297 N.W.2d 191 (1980).

77.51 Annotation A manhole fabricator was not engaged in real property construction activities under sub. (2) [now sub. (12t)]. Advance Pipe & Supply Co. v. DOR, 128 Wis. 2d 431, 383 N.W.2d 502 (Ct. App. 1986).

77.51 Annotation Photocopying expenses billed to a law firm’s clients are not subject to sales tax. Frisch, Dudek & Slattery, Ltd. v. DOR, 133 Wis. 2d 444, 396 N.W.2d 355 (Ct. App. 1986).

77.51 Annotation Whether articles of personal property are fixtures and thus real estate is determined by the following tests: 1) actual physical annexation to the real estate; 2) application or adaptation to the use or purpose to which the realty is devoted; and 3) an intention on the part of the person making the annexation to make a permanent accession to the freehold. All City Communication Co. v. DOR, 2003 WI App 77, 263 Wis. 2d 394, 661 N.W.2d 845, 02-1201.