Chapter 77

77.54(67)(a)12.m. m. Waders.

77.54(67)(a)12.n. n. Wetsuits and fins.

77.54(67)(b) (b) For the period beginning on the first in August and ending on the following Sunday, the sales price from the sale of and the storage, use, or other consumption of the following:

77.54(67)(b)1. 1. Clothing, if the sales price of any single item is no more than $75.

77.54(67)(b)2. 2. A computer purchased by the consumer for the consumer’s personal use, if the sales price of the computer is no more than $750.

77.54(67)(b)3. 3. School computer supplies purchased by the consumer for the consumer’s personal use, if the sales price of any single item is no more than $250.

77.54(67)(b)4. 4. School supplies, if the sales price of any single item is no more than $75.

77.54(67)(c) (c) The exemption under this subsection shall be administered as follows:

77.54(67)(c)1. 1. A sale of eligible property under a layaway sale qualifies for exemption if either of the following applies:

77.54(67)(c)1.a. a. Final payment on a layaway order is made by, and the property is given to, the purchaser during the exemption period.

77.54(67)(c)1.b. b. The purchaser selects the property and the retailer accepts the order for the item during the exemption period, for immediate delivery upon full payment, even if delivery is made after the exemption period.

77.54(67)(c)2. 2. The bundled transaction provisions under subs. (51) and (52) and ss. 77.51 (1f) and (3pf) and 77.52 (20), (21), (22), and (23) apply in the same manner during the exemption period under this subsection as they apply in other periods.

77.54(67)(c)3. 3. A discount by the seller reduces the sales price of the property and the discounted sales price determines whether the sales price is within the price threshold in par. (b). A coupon that reduces the sales price is treated as a discount if the seller is not reimbursed for the coupon amount by a 3rd party. If a discount applies to the total amount paid by a purchaser rather than to the sales price of a particular item and the purchaser has purchased both eligible property and taxable property, the seller shall allocate the discount based on the total sales prices of the taxable property compared to the total sales prices of all property sold in that same transaction.

77.54(67)(c)4. 4. Products that are normally sold as a single unit shall be sold in that manner and may not be divided into multiple units and sold as individual items in order to obtain the exemption under this subsection.

77.54(67)(c)5. 5. Eligible property that is purchased during the exemption period with the use of a rain check qualifies for the exemption regardless of when the rain check was issued. Items purchased after the exemption period with the use of a rain check are not eligible property under this subsection even if the rain check was issued during the exemption period.

77.54(67)(c)6. 6. The procedure for an exchange with regard to the exemption under this subsection is as follows:

77.54(67)(c)6.a. a. If a purchaser purchases an item of eligible property during the exemption period but later exchanges the item for a similar item of eligible property, even if different in size, color, or another feature, no additional tax is due even if the exchange is made after the exemption period.

77.54(67)(c)6.b. b. If a purchaser purchases an item of eligible property during the exemption period, but after the exemption period has ended, the purchaser returns the item and receives credit on the purchase of a different item, the appropriate sales tax is due on the sale of the different item.

77.54(67)(c)6.c. c. If a purchaser purchases an item of eligible property before the exemption period, but during the exemption period the purchaser returns the item and receives credit on the purchase of a different item of eligible property, no sales tax is due on the sale of the new item if the new item is purchased during the exemption period.

77.54(67)(c)7. 7. Delivery charges, including shipping, handling, and service charges, are part of the sales price of eligible property. For the purpose of determining the price threshold under par. (b), if all the property in a shipment qualifies as eligible property and the sales price for each item in the shipment is within the price threshold under par. (b), the shipment is considered a sale of eligible property and the seller does not have to allocate the delivery, handling, or service charge to determine if the price threshold under par. (b) is exceeded. If the shipment includes eligible property and taxable property, including an item of eligible property with a sales price in excess of the price threshold, the seller shall allocate the delivery, handling, and service charge by using one of the following methods and shall apply the tax to the percentage of the delivery, handling, and service charge allocated to the taxable property:

77.54(67)(c)7.a. a. A percentage based on the total sales price of the taxable property compared to the total sales price of all property in the shipment.

77.54(67)(c)7.b. b. A percentage based on the total weight of the taxable property compared to the total weight of all property in the shipment.

77.54(67)(c)8. 8. Eligible property qualifies for exemption under this subsection if either of the following applies:

77.54(67)(c)8.a. a. The item is both delivered to and paid for by the customer during the exemption period.

77.54(67)(c)8.b. b. The purchaser orders and pays for the item and the seller accepts the order during the exemption period for immediate shipment, even if delivery is made after the exemption period. For purposes of this subd. 8. b., the seller accepts an order when the seller has taken action to fill the order for immediate shipment. Actions to fill an order include placement of an in-date stamp on a mail order or assignment of an order number to a telephone order. For purposes of this subd. 8. b., an order is for immediate shipment when the customer does not request delayed shipment and regardless of whether the shipment is delayed because of a backlog of orders or because stock is currently unavailable, or on back order, by the seller.

77.54(67)(c)9. 9. For a 60-day period immediately after the exemption period under this subsection, when a purchaser returns an item that would qualify for the exemption, no credit for or refund of sales tax shall be given unless the purchaser provides a receipt or invoice that shows tax was paid or the seller has sufficient documentation to show that tax was paid on the specific item.

77.54(67)(c)10. 10. The time zone of the seller’s location determines the authorized period for the exemption under this subsection when the retailer and purchaser are located in different time zones.

77.54(67)(d) (d) This subsection does not apply in 2019 or in any year thereafter.

77.54(68) (68) 

77.54(68)(a) (a) The sales price from the sale of and the use or other consumption of a service provided by an electric cooperative to another electric cooperative, or by a telecommunications utility to another telecommunications utility, for disaster relief work performed during a disaster period.

77.54(68)(b) (b) In this subsection:

77.54(68)(b)2. 2. “Disaster period” means the time that begins 10 days before a state of emergency and ends 60 days after the state of emergency ends.

77.54(68)(b)3. 3. “Disaster relief work” means work, including repairing, renovating, installing, building, or performing other services or activities, relating to infrastructure in this state that has been damaged, impaired, or destroyed in connection with a state of emergency.

77.54(68)(b)4. 4. “Electric cooperative” has the meaning given in s. 76.48 (1g) (c).

77.54(68)(b)4m. 4m. “State of emergency” means the time when an electric cooperative wishing to receive services from another electric cooperative or a telecommunications utility wishing to receive services from another telecommunications utility invokes a mutual aid agreement and at least 20 percent of the electrical or telecommunications system is nonoperational.

77.54(68)(b)5. 5. “Telecommunications utility” has the meaning given in s. 196.01 (10).

77.54(69) (69) 

77.54(69)(a) (a) The sales price from the sale of tangible personal property that is stored in this state for not more than 120 days, if the property is to be used in fulfillment of a real property construction activity that occurs solely outside of this state at a nonprofit organization, a public school district, or a business district where business tax incentives have been granted and is used by a person engaged in an activity classified as construction under sector 23 of the North American Industry Classification System, 2017 edition, published by the federal office of management and budget, including property that is altered by converting, fabricating, manufacturing, printing, processing, or shaping before its use outside of this state.

77.54(69)(b) (b) The exemption under this subsection does not apply to tangible personal property that is stored in this state, leaves this state, and then is subsequently returned to this state.

77.54(70) (70) 

77.54(70)(a) (a) The sales price from the sale of and the storage, use, or other consumption of tangible personal property, regardless of whether the property is affixed to or incorporated into real property, and property under s. 77.52 (1) (c), used exclusively for the development, construction, renovation, expansion, replacement, repair, or operation of a qualified data center, as defined in s. 238.40 (1) (b), and used solely at the qualified data center, including computer server equipment and the chassis for such equipment; networking equipment; switches; racks; fiber-optic cabling, copper cabling, and other cabling, including cabling used to connect one or more qualified data centers; trays; conduit; substations; uninterruptible energy equipment; supplies; fuel piping and storage; duct banks; switches; switchboards; batteries; testing equipment; backup generation equipment; modular data centers and preassembled components; monitoring equipment; security systems; and electricity.

77.54(70)(b) (b) The sales price from the sales of and the storage, use, or other consumption of tangible personal property or property under s. 77.52 (1) (c) used in the development, construction, renovation, expansion, replacement, or repair of a water cooling or conservation system used exclusively to cool or conserve water for one or more qualified data centers, as defined in s. 238.40 (1) (b), including chillers, mechanical equipment, refrigerant piping, fuel piping and storage, adiabatic and free cooling systems, cooling towers, water softeners, air handling units, indoor direct exchange units, fans, ducting, and filters.

77.54(70)(c) (c) The sales price from the sale of and the storage, use, or other consumption of tangible personal property or property under s. 77.52 (1) (c) sold to a construction contractor that, in fulfillment of a real property construction activity, transfers the tangible personal property or property under s. 77.52 (1) (c) to a qualified data center, as defined in s. 238.40 (1) (b), if such tangible personal property or property under s. 77.52 (1) (c) becomes a component of the qualified data center.

77.54(71) (71) 

77.54(71)(a) (a) The sales price from the sale of electricity delivered or placed by a Level 3 charger of an electric vehicle charging station, as defined in s. 77.997 (1), into the battery or other energy storage device of an electric vehicle.

77.54(71)(b) (b) The sales price from the sale of electricity delivered or placed by a Level 1 charger or a Level 2 charger installed on or after March 22, 2024, of an electric vehicle charging station, as defined in s. 77.997 (1), into the battery or other energy storage device of an electric vehicle.

Effective date note NOTE: Sub. (71) is created eff. 1-1-25 by 2023 Wis. Act 121.

77.54(72) (72) The sales price from the sale of and the storage, use, or other consumption of a membership sold to a real estate broker licensed under ch. 452 who, pursuant to the broker’s membership agreement, offers to compensate and cooperate with other real estate brokers in brokering sales of properties and who obtains access to information about real estate listings and compensation offers from other real estate brokers.

77.54 Note NOTE: Sub. (72) was created as sub. (71) by 2023 Wis. Act 141 and renumbered to sub. (72) by the legislative reference bureau under s. 13.92 (1) (bm) 2.

77.54(73) (73) The sales price from the sale of and the storage, use, or other consumption of portable machinery and equipment, including accessories, attachments, parts, and supplies for such machinery and equipment, used primarily to crush, mill, produce, or pulverize asphalt, concrete, gravel, rock, or aggregate base for road or commercial surface lot construction or resurfacing.

77.54 Note NOTE: Sub. (73) was created as sub. (71) by 2023 Wis. Act 146 and renumbered to sub. (73) by the legislative reference bureau under s. 13.92 (1) (bm) 2.

77.54(74) (74) 

77.54(74)(a) (a) The sales price from the sale of and the use or other consumption of precious metal bullion. For purposes of this subsection, “precious metal bullion” means coins, bars, rounds, or sheets that contain at least 35 percent gold, silver, copper, platinum, or palladium and that are marked with weight, purity, and content or that a government authority minted on the basis of weight, purity, and content.

77.54(74)(b) (b) This subsection does not apply to any other tangible personal property that contains, in whole or in part, precious metal bullion, such as jewelry, works of art, scrap metal, or electronics.

77.54 Note NOTE: Sub. (74) was created as sub. (71) by 2023 Wis. Act 149 and renumbered to sub. (74) by the legislative reference bureau under s. 13.92 (1) (bm) 2.

77.54 History History: 1971 c. 64, 154, 215, 311; 1973 c. 90, 156, 240; 1975 c. 39, 96, 102, 146, 200; 1977 c. 29; 1977 c. 83 ss. 13, 26; 1977 c. 250, 368, 418; 1979 c. 1, 34, 87, 174; 1981 c. 20; 1981 c. 79 s. 18; 1981 c. 96 s. 67; 1981 c. 264; 1981 c. 282 s. 47; 1981 c. 317; 1983 a. 27 ss. 1284d to 1284np, 2202 (38); 1983 a. 189 ss. 101, 106, 329 (5), (12), (13); 1983 a. 192, 287, 405, 426, 498, 510, 538, 544; 1985 a. 29, 149, 332; 1987 a. 27; 1987 a. 312 s. 17; 1987 a. 399; 1989 a. 31, 238, 270, 335, 359; 1991 a. 37, 39, 269, 316; 1993 a. 16, 263, 332; 1995 a. 27, 125, 225, 227; 1997 a. 27, 35, 41, 184, 237, 291; 1999 a. 9, 65, 83; 1999 a. 150 s. 672; 1999 a. 167; 2001 a. 16, 103, 109; 2003 a. 99, 128; 2005 a. 25, 74, 141, 149, 335, 366, 479; 2007 a. 11, 19, 20, 97, 130; 2009 a. 2, 28, 185, 204, 330; 2011 a. 7, 10, 32, 208, 260; 2013 a. 20, 145, 185, 324, 346; 2015 a. 55, 60, 126, 216, 251, 364; 2017 a. 17, 58, 59, 190, 231, 290; 2017 a. 364 ss. 20, 48; 2017 a. 365 s. 111; 2017 a. 366 s. 99; 2017 a. 367; 2019 a. 181; 2021 a. 1, 130, 167; 2021 a. 238 ss. 17, 45; 2023 a. 12, 19, 40, 88, 121, 138, 141, 146, 149; s. 13.92 (1) (bm) 2.

77.54 Annotation A taxpayer in the business of processing scrap metal is engaged in manufacturing under s. 77.51 (27) [now sub. (6m)]. H. Samuels Co. v. DOR, 70 Wis. 2d 1076, 236 N.W.2d 250 (1975).

77.54 Annotation A carrier’s contract status is established under the “primary business test” if the carrier’s primary occupation is the supplying of transportation for compensation, even though the operator owns the goods at the time of transport and carries them for the purpose of sale. If, however, the operator’s primary business is manufacturing or another noncarrier commercial enterprise, a determination must be made as to whether the motor operations are in furtherance of the primary business or are conducted as a related enterprise with the purpose of profiting from the transportation. Gensler v. DOR, 70 Wis. 2d 1108, 236 N.W.2d 648 (1975).

77.54 Annotation The sale of a supper club’s furnishings and equipment was an “occasional sale” under sub. (7). Three Lions Supper Club, Ltd. v. DOR, 72 Wis. 2d 546, 241 N.W.2d 190 (1976).

77.54 Annotation Consumption of gas at interstate pipeline compressor stations in Wisconsin is protected from state use tax by the commerce clause. Midwestern Gas Transmission Co. v. DOR, 84 Wis. 2d 261, 267 N.W.2d 253 (1978).

77.54 Annotation To satisfy s. 77.51 (27) [now sub. (7h)], a change in name must be attributable to a change in the nature, purpose, and function of the article. DOR v. Bailey-Bohrman Steel Corp., 93 Wis. 2d 602, 287 N.W.2d 715 (1980).

77.54 Annotation Semitrailers are “truck bodies” under sub. (5) (a). DOR v. Trudell Trailer Sales, Inc., 104 Wis. 2d 39, 310 N.W.2d 612 (1981).

77.54 Annotation A vending machine company, which placed machines in schools and hospitals, was the “seller” of the products dispensed by its machines. Servomation Corp. v. DOR, 106 Wis. 2d 616, 317 N.W.2d 464 (1982).

77.54 Annotation Under the “use or function” test, a greenhouse was a “machine” used in floriculture under sub. (3). DOR v. Greiling, 112 Wis. 2d 602, 334 N.W.2d 118 (1983).

77.54 Annotation The exemption under sub. (9a) (f) is limited to services used by tax-exempt organizations and does not extend to services by those foundations. DOR v. EAA Aviation Foundation, Inc., 143 Wis. 2d 681, 422 N.W.2d 458 (Ct. App. 1988).

77.54 Annotation Calf hutches are not “machines” exempt from sales tax under sub. (3). L.T. Hampel Corp. v. DOR, 157 Wis. 2d 422, 459 N.W.2d 598 (Ct. App. 1990).

77.54 Annotation Motor vehicles and machinery used with motor vehicles are not used “directly” in recycling activities and are not exempt under sub. (26m). DOR v. Parks-Pioneer Corp., 170 Wis. 2d 44, 487 N.W.2d 63 (Ct. App. 1992).

77.54 Annotation The exemption for occasional sales under sub. (7) cannot apply to a seller who continues to make sales in a business after the business was sold and surrender of the sales tax permit was attempted. Carrion Corp. v. DOR, 179 Wis. 2d 254, 507 N.W.2d 356 (Ct. App. 1993).

77.54 Annotation “Merchandise” as used in sub. (6) (b) denotes commodities that are bought and sold. Luetzow Industries v. DOR, 197 Wis. 2d 916, 541 N.W.2d 810 (Ct. App. 1995).

77.54 Annotation A Mississippi River excursion boat that embarked from a Wisconsin port, crossed into out-of-state water without landing in that state, then disembarked in Wisconsin was not engaged in “interstate commerce” under sub. (13). LaCrosse Queen, Inc. v. DOR, 208 Wis. 2d 439, 561 N.W.2d 686 (1997), 95-2754.

77.54 Annotation Newspaper carriers were found not to be customers of a publisher. The sub. (6) (b) exemption for packing material was not applicable to materials used to package newspapers for delivery to the carriers. Madison Newspapers, Inc. v. DOR, 228 Wis. 2d 745, 599 N.W.2d 51 (Ct. App. 1999), 98-2980.

77.54 Annotation A corporation is a “resident of this state” under sub. (5) (a) if it is domiciled in Wisconsin and incorporated under the laws of this state. DOR v. Johnson Welding & Manufacturing Co., 2000 WI App 179, 238 Wis. 2d 243, 617 N.W.2d 193, 99-2429.

77.54 Annotation Under ss. 77.51 (15b) (a) and 77.52 (1) (a), the sales tax applies to the “sales price”—that is, the total amount of consideration paid for a sale, lease, or service, with no deductions for the seller’s or lessor’s costs. The sale of aircraft parts and maintenance, however, is exempt from sales tax under sub. (5) (a) 3. and s. 77.52 (2) (a) 10. When a lessor or lessee buys aircraft repairs or engine maintenance directly, that transaction is tax-exempt. But when a lessor passes those costs along to its lessees as part of the total amount of consideration in a lease, that transaction is taxable. When a lessor leases its aircraft, it is not selling aircraft repairs or engine maintenance. It is leasing an aircraft. Thus, the total lease price is taxable. Citation Partners, LLC v. DOR, 2023 WI 16, 406 Wis. 2d 36, 985 N.W.2d 761, 20-1683.

77.55 77.55 Exemptions from sales tax.

77.55(1) (1) There is exempted from the computation of the amount of the sales tax the sales price from the sale of any tangible personal property, or items or property under s. 77.52 (1) (b) or (c), or services to:

77.55(1)(a) (a) The United States, its unincorporated agencies and instrumentalities.

77.55(1)(b) (b) Any incorporated agency or instrumentality of the United States wholly owned by the United States or by a corporation wholly owned by the United States.

77.55(2) (2) There is exempted from the computation of the amount of the sales tax the sales price from sales of tangible personal property, and items and property under s. 77.52 (1) (b) and (c), to a common or contract carrier, shipped by the seller via the purchasing carrier under a bill of lading whether the freight is paid in advance, or the shipment is made freight charges collect, to a point outside this state and the property or item is actually transported to the out-of-state destination for use by the carrier in the conduct of its business as a carrier.

77.55(2m) (2m) There is exempted from the computation of the amount of sales tax the sales price from sales of railroad crossties to a common or contract carrier, shipped wholly or in part by way of the purchasing carrier under a bill of lading, whether the freight is paid in advance or the shipment is made freight charges collect, to a point outside this state if the property is transported to the out-of-state destination for use by the carrier in the conduct of its business as a carrier. Interruption of the shipment for storage, drying, processing or creosoting of the railroad crossties in this state does not invalidate the exemption under this subsection.

77.55(3) (3) There is exempted from the computation of the amount of the sales tax the sales price from sales of tangible personal property, and items and property under s. 77.52 (1) (b) and (c), purchased for use solely outside this state and delivered to a forwarding agent, export packer, or other person engaged in the business of preparing goods for export or arranging for their exportation, and actually delivered to a port outside the continental limits of the United States prior to making any use thereof.

77.55 History History: 1985 a. 29; 1999 a. 83; 2009 a. 2, 28.

77.56 77.56 Exemptions from use tax.

77.56(1) (1) The storage, use or other consumption in this state of tangible personal property, and items, property, and goods under s. 77.52 (1) (b), (c), and (d), the sales price from the sale of which is reported to the department in the measure of the sales tax, is exempted from the use tax.

77.56(2) (2) The loan by an automobile dealer of a motor vehicle to any school or school district for a driver training educational program conducted by the school or school district is exempt from the use tax.

77.56(3) (3) The donation to an entity specified under s. 77.54 (9a) of property that has been purchased tax-free for resale or upon the presentation of a valid exemption certificate is exempt from the use tax.

77.56 History History: 1989 a. 31; 1995 a. 27; 2009 a. 2, 28.

77.57 77.57 Liability of purchaser. If a purchaser certifies in writing to a seller that the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) purchased will be used in a manner or for a purpose entitling the seller to regard the sales price from the sale as exempted by this subchapter from the computation of the amount of the sales tax and uses the property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) in some other manner or for some other purpose, the purchaser is liable for payment of the sales tax. The tax shall be measured by the sales price of the property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to the purchaser.

77.57 History History: 1983 a. 405; 2009 a. 2.

77.57 Annotation A seller is not relieved of liability if the purchaser’s certificate on its face fails to state a legal basis for exempting the sale. DOR v. Moebius Printing Co., 89 Wis. 2d 610, 279 N.W.2d 213 (1979).