Chapter 78

78.13 History History: 1973 c. 333; 1975 c. 180, 421; 1981 c. 20; 1987 a. 399; 1991 a. 189; 1993 a. 16.

78.15 78.15 Theft of tax moneys. If any licensee sells any motor vehicle fuel upon which the tax imposed by this subchapter has become due and has not been paid, all motor vehicle fuel tax moneys received by that licensee because of that sale are trust funds in that licensee’s hands and the property of this state. Any licensee who fails or refuses to pay over to the state the tax on motor vehicle fuel at the time required under s. 78.12 (5) or who fraudulently withholds or appropriates or otherwise uses such moneys or any portion thereof belonging to this state is guilty of theft and shall be punished as provided by law for the crime of theft, irrespective of whether or not that licensee has or claims to have any interest in the moneys so received by that licensee.

78.15 History History: 1991 a. 316; 1993 a. 16.

78.155 78.155 Penalties for misuse of dyed diesel fuel.

78.155(1) (1) Any person who sells dyed diesel fuel to a buyer who the person knows or has reason to know will use the dyed diesel fuel for a purpose that is taxable under this subchapter shall pay to the department a penalty of $1,000 or twice the amount of tax that should have been paid on the dyed diesel fuel, whichever is greater.

78.155(2) (2) Any person who knows or has reason to know that he or she used dyed diesel fuel for a purpose that is taxable under this subchapter shall pay to the department a penalty of $1,000 or twice the amount of tax that should have been paid on the dyed diesel fuel, whichever is greater.

78.155(3) (3) Any retailer who does not conspicuously label a fuel pump, or other delivery facility, that dispenses dyed diesel fuel so as to notify customers that it contains dyed diesel fuel shall pay to the department a penalty of $1,000.

78.155 History History: 1993 a. 437.

78.19 78.19 Refund for fuel destroyed. If any motor vehicle fuel in the possession of a licensee is destroyed by fire, lightning, storm, flood or accident not caused by the willful act of that licensee or any employee thereof, before it is sold or used by that licensee, and if the licensee applies to the department and proves the destruction or loss satisfactorily to the department, the department shall authorize a tax credit or shall refund the amount of tax paid thereon. Such application or claim shall be filed with the department within 15 days after the motor vehicle fuel is destroyed or lost or the tax credit or refund will not be allowed.

78.19 History History: 1991 a. 316; 1993 a. 16.

78.21 78.21 Seizure and sale.

78.21(1) (1) The department may seize, the department of transportation may seize and the department of transportation may request any police officer to seize, any motor vehicle fuel and the vehicle or other means of transporting it if the person who possesses the motor vehicle fuel does any of the following:

78.21(1)(a) (a) Imports, sells, uses, delivers or stores in this state motor vehicle fuel if the tax on the motor vehicle fuel has not been paid, dye has been added to the motor vehicle fuel or liability for the tax has not been incurred by the holder of an unrevoked supplier license, unless a supplier possesses the motor vehicle fuel and the motor vehicle fuel is manufactured in this state or imported by pipeline or barge and stored in this state and unless an alcohol supplier possesses the motor vehicle fuel and has imported it by barge, railcar or transport truck into a terminal in this state or unless an agricultural user possesses the motor vehicle fuel and that motor vehicle fuel is dyed.

78.21(1)(b) (b) Exports motor vehicle fuel unless the person has an export license or a supplier’s license or has paid the motor vehicle fuel tax of the destination state to the supplier and has a bill of lading that proves the export.

78.21(1)(c) (c) Operates or maintains a motor vehicle on any highway in this state with dyed fuel, unless the vehicle is a truck that is used principally for agricultural purposes and is marked with an agricultural use plate or tag or unless the motor vehicle is a truck that has received the fuel in a jurisdiction that permits the introduction of dyed fuel of that color and type into the motor vehicle fuel tank of highway vehicles.

78.21(1)(d) (d) Engages in a business for which a license is required under s. 78.09 and does not have that license.

78.21(1)(e) (e) Operates a transport truck to ship diesel fuel on the highways of the state, destined for delivery in this state, as shown on the shipping papers and does not have on board a shipping paper that sets out on its face a notation that the load is exempt if it is exempt or taxable if it is taxable.

78.21(2) (2) The department of transportation may promulgate rules to interpret sub. (1).

78.21 History History: 1993 a. 16.

78.215 78.215 Separate fuel supply tanks required. Every motor vehicle operated by diesel fuel shall be equipped with a diesel fuel supply tank separate from and in no way connected to any cargo tank on or attached to that motor vehicle.

78.215 History History: 1993 a. 16.

78.22 78.22 Motor vehicle fuel floor tax.

78.22(1) (1) Floor tax imposed. On the date any motor vehicle fuel tax rate change becomes effective under s. 78.01, a floor tax is hereby imposed upon every person who is in possession of any motor vehicle fuel held for sale or resale and on which the motor vehicle fuel tax already has been imposed. The person shall determine the volume of motor vehicle fuel and shall file by the 15th day of the month in which the new tax rate becomes effective a return, together with any tax due on it, determined in accordance with sub. (2).

78.22(2) (2) Floor tax or refund computation. The amount of any motor vehicle fuel floor tax or refund shall be computed by multiplying the number of gallons of motor vehicle fuel held in inventory as determined under sub. (1) by the difference between the tax rate already paid and the new tax rate, and the resulting figure shall be expressed in dollars.

78.22(3) (3) Administration. Sections 71.74 (1), (2), (10), (11), (13) and (14), 71.75 (4) to (7), 71.82 (2) (a) and (b), 71.83 (2) (b) 3., 71.88 (1) (a) and (2) (a), 71.89 to 71.91, 71.92, 73.01 and 73.015 apply to the administration of this section.

78.22(4) (4) Late filing fee. Any person who fails to file a motor vehicle fuel floor tax return when due shall pay a late filing fee of $10. A return that is mailed is filed in time if it is mailed in a properly addressed envelope with postage duly prepaid and the envelope is officially postmarked, or marked or recorded electronically as provided under section 7502 (f) (2) (c) of the Internal Revenue Code, on the date due and the return is actually received by the department or at the destination that the department prescribes within 5 days of the due date. A return that is not mailed is timely if it is received on or before the due date by the department or at the destination that the department prescribes. For purposes of this subsection, “mailed” includes delivery by a delivery service designated under section 7502 (f) of the Internal Revenue Code.

78.22(5) (5) Delinquent interest. If the tax imposed in this section is not paid when due, interest at the rate of 1.5 percent per month accrues from the date the tax became due until paid.

78.22(6) (6) Penalty. If any person liable for the tax files a false or fraudulent return, there shall be added to the tax an amount equal to the tax the person evaded or attempted to evade.

78.22 History History: 1981 c. 20; 1987 a. 312 s. 17; 1993 a. 16; 1997 a. 27; 2005 a. 49.

subch. II of ch. 78 SUBCHAPTER II

ALTERNATE FUELS TAX

78.39 78.39 Definitions. In this subchapter:

78.39(1) (1) “Alternate fuels” means all combustible gases and liquids suitable for generation of power for propulsion of motor vehicles, except that “alternate fuels” does not include motor vehicle fuel, as defined in s. 78.005 (13), or general aviation fuel, as defined in s. 78.55 (3).

78.39(2) (2) “Alternate fuels dealer” means any person, including the state and any political subdivision of the state, but not including the United States or its agencies except to the extent now or hereafter permitted by the constitution and laws of the United States, in the business of handling alternate fuels who delivers any part of the alternate fuels into the fuel supply tank or tanks of a motor vehicle not then owned or controlled by that person or to a retailer or user if the supplier reports and pays the tax under s. 78.40 (1).

78.39(3) (3) “Alternate fuels user” means the owner or other person, including the state and any political subdivision of the state, but not including the United States or its agencies except to the extent now or hereafter permitted by the constitution and laws of the United States, responsible for the operation of a motor vehicle at the time an alternate fuel is placed in the fuel supply tank or tanks of the motor vehicle while the vehicle is within this state.

78.39(4) (4) “Department” means the department of revenue.

78.39(4m) (4m) “File” means mail or deliver a document that the department prescribes to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.

78.39(5) (5) “Motor vehicle” has the meaning given in s. 78.005 (12).

78.39(5d) (5d) “Pay” has the meaning given in s. 78.005 (13b).

78.39(5f) (5f) “Person” includes any individual, sole proprietorship, partnership, limited liability company, corporation, or association. A single-owner entity that is disregarded as a separate entity under ch. 71 is disregarded as a separate entity for purposes of this subchapter.

78.39(5m) (5m) “Sign” has the meaning given in s. 78.005 (13r).

78.39(6) (6) “Supplier” has the meaning given in s. 78.005 (14).

78.39(7) (7) “Use” means the receipt, delivery, or placing of alternate fuels into the fuel supply tank of a motor vehicle in this state, by an alternate fuels user and the delivery to a retailer or user if the supplier reports and pays the tax under s. 78.40 (1).

78.39 History History: 1993 a. 16 ss. 1907, 1918, 1920; 1997 a. 27; 1999 a. 83; 2005 a. 49; 2015 a. 216.

78.40 78.40 Tax imposed; collected; exceptions.

78.40(1) (1) Imposition of tax and by whom paid. An excise tax at the rate determined under ss. 78.405 and 78.407 is imposed on the use of alternate fuels. The tax, with respect to all alternate fuel delivered by an alternate fuel dealer into supply tanks of motor vehicles in this state, attaches at the time of delivery and shall be collected by the dealer from the alternate fuels user and shall be paid to the department. The tax, with respect to alternate fuels acquired by any alternate fuels user other than by delivery by an alternate fuel dealer into a fuel supply tank of a motor vehicle, of a snowmobile, of a limited use off-highway motorcycle that is not registered for private use under s. 23.335 (3) (a), of an all-terrain vehicle or utility terrain vehicle that is not registered for private use under s. 23.33 (2) (d) or (2g), or of a recreational motorboat, attaches at the time of the use of the fuel and shall be paid to the department by the user. The department may permit any supplier of alternate fuels to report and pay to the department the tax on alternate fuels delivered into the storage facility of an alternate fuels user or retailer which will be consumed for alternate fuels tax purposes or sold at retail.

78.40(2) (2) Exceptions. No tax is hereby imposed upon or with respect to the following:

78.40(2)(a) (a) Alternate fuels used by the United States or its agencies where such use is evidenced by an exemption certificate executed by an authorized representative of the U.S. government or agency thereof certifying that the fuel used is for the exclusive consumption by the U.S. government or its agencies.

78.40(2)(c) (c) Alternate fuels used by a common motor carrier as defined in ch. 194, if the carrier certifies to the department that the fuel is for use in the operation of a motor vehicle for the urban mass transportation of passengers as defined in s. 71.38.

78.40 History History: 1979 c. 11, 221; 1981 c. 20; 1983 a. 27; 1985 a. 302; 1987 a. 27; 1987 a. 312 s. 17; 1991 a. 39; 1993 a. 16; 1995 a. 113; 1997 a. 27; 2011 a. 208; 2015 a. 170.

78.40 Cross-reference Cross-reference: See also s. Tax 4.53, Wis. adm. code.

78.405 78.405 Annual adjustment of the tax rate.

78.405(1) (1) Before April 1, the department annually shall calculate the rate for the tax under s. 78.40 as follows:

78.405(1)(a) (a) Determine the standard number of British thermal units per gallon generated by gasoline.

78.405(1)(b) (b) Determine the standard number of British thermal units per gallon generated by each kind of alternate fuel that is sold in this state.

78.405(1)(c) (c) For each kind of alternate fuel sold in this state, divide the result under par. (b) by the result under par. (a).

78.405(1)(d) (d) For each kind of alternate fuel sold in this state, multiply the result under par. (c), expressed as a decimal, by the rate for the tax under s. 78.01 as adjusted for the current year under s. 78.015.

78.405(2) (2) The rates determined under sub. (1) are effective on the April 1 after they are calculated.

78.405 History History: 1983 a. 27; 1991 a. 39; 1997 a. 27.

78.407 78.407 Adjustment in 1997. On November 1, 1997, the rate of the tax imposed under s. 78.40 (1) is increased by one cent.

78.407 History History: 1997 a. 27.

78.47 78.47 Alternate fuels license. No person may act as an alternate fuels dealer in this state unless the person holds a valid alternate fuels license issued by the department and a valid certificate under s. 73.03 (50). Except for alternate fuel which is delivered by an alternate fuels dealer into a fuel supply tank of any motor vehicle in this state, no person may use an alternate fuel in this state unless the person holds a valid alternate fuel license issued by the department or unless the alternate fuel has been delivered by a supplier who is authorized under s. 78.40 (1) to report and pay the tax on behalf of the user or retailer.

78.47 History History: 1979 c. 11; 1985 a. 302; 1993 a. 16; 1997 a. 27.

78.47 Cross-reference Cross-reference: See also s. Tax 4.53, Wis. adm. code.

78.48 78.48 Application; form; investigation; bond; issue.

78.48(1) (1) Application. Application for an alternate fuels license shall be made upon a form prepared and furnished by the department. It shall be subscribed by the applicant and shall contain the information that the department reasonably requires for the administration of this subchapter. Only a person who holds a valid certificate under s. 73.03 (50) may apply for a license under this subsection.

78.48(2) (2) Investigation. The department shall investigate each applicant under sub. (1). No license may be issued if the department deems that the applicant does not hold a valid certificate under s. 73.03 (50), the application is not filed in good faith, the applicant is not the real party in interest and the license of the real party in interest has been revoked for cause, or other reasonable cause for nonissuance exists.

78.48(3) (3) Hearing. Before refusing to issue a license, the department shall grant the applicant a hearing, of which the applicant shall be given at least 5 days’ written notice.

78.48(4) (4) Issue. If the application and the bond under sub. (9), if that bond is required, are approved, the department shall issue a license in as many copies as the licensee has places of business for which an alternate fuels license is required.

78.48(6) (6) Transfer forbidden. An alternate fuels license is not transferable to another person or to another place of business.

78.48(7) (7) Display of license. Each license shall be preserved and conspicuously displayed at the place of business for which issued.

78.48(8) (8) Discontinuance. Upon the discontinuance of the business licensed at any place, the copy of the license issued for such place shall be immediately surrendered to the department.

78.48(9) (9) Bond.

78.48(9)(a) (a) To protect the revenues of this state, the department may require any person liable to the department for the tax imposed by this subchapter to place with it, either before or after an alternate fuels license is issued, security in an amount which the department determines. The amount of security required may be increased or decreased as the department deems necessary, but shall not exceed 3 times the licensee’s average monthly liability for taxes under this subchapter, as estimated by the department. If any applicant or licensee fails or refuses to place such security, the department may refuse to issue or may revoke the license. If any taxpayer is delinquent in the payment of taxes imposed by this subchapter, the department may, upon 10 days’ notice, recover the taxes, interest, penalties, cost and disbursements from the taxpayer’s security placed with the department. No interest shall be paid or allowed by the state to any person for the deposit of the security.

78.48(9)(b) (b) The security required by this subsection may be in the form of a surety bond furnished to the department payable to the state to secure payment of alternate fuels taxes, interest and penalties accrued under this subchapter, together with costs and disbursements incurred in the collection thereof. The department shall prescribe the form and contents of the bond.

78.48(9)(c) (c) Section 78.11 (2) to (4), regarding licensees’ bonds, also applies to bonds furnished by alternate fuels applicants and licensees under this subsection.

78.48 History History: 1973 c. 90; 1991 a. 316; 1993 a. 16; 1995 a. 27; 1997 a. 27.

78.48 Cross-reference Cross-reference: See also ss. Tax 4.54 and 4.55, Wis. adm. code.

78.49 78.49 Reports to department; computation of tax.

78.49(1) (1) Reports of alternate fuels licensees.

78.49(1)(a) (a) For the purpose of determining the amount of liability to the state for the tax under this subchapter, except as provided in par. (b), each alternate fuels licensee shall, not later than the last day of each month, file a monthly report for the next preceding month. Such report shall contain a declaration by the licensee that the statements contained therein are accurate and are a true return of the amount of the alternate fuels tax due and shall be signed by the licensee or the licensee’s duly authorized agent.

78.49(1)(b) (b) The department may allow alternate fuels licensees whose tax liability is less than $500 per quarter to file on a quarterly basis. Quarterly reports shall be filed on or before the last day of the next month following the end of each calendar quarter. The report shall contain the declaration, subscription and information specified in par. (a).

78.49(2) (2) Reports of others. Any person who is not an alternate fuels licensee and who uses any alternate fuel in this state upon which the tax under this subchapter has not been paid or the liability therefor has not been incurred by any alternate fuels licensee in this state shall file a report and pay the tax on such fuel and shall be subject to this subchapter in the same manner as are alternate fuels licensees.

78.49(3) (3) Computation of tax. Each alternate fuels licensee at the time of making the monthly or quarterly report shall compute and pay to the department the full amount of the alternate fuels tax for the next preceding month or quarter. The amount of the tax shall be computed as follows: the number of gallons of alternate fuels delivered or placed by the licensee into the fuel supply tanks of motor vehicles or sold to a retailer if the supplier reports and pays the tax under s. 78.40 (1) shall be multiplied by the amount provided in s. 78.40 (1) and the resulting figure shall be the amount of the alternate fuels tax for the next preceding month or quarter.

78.49 History History: 1973 c. 333; 1975 c. 180, 421; 1979 c. 221; 1981 c. 20; 1985 a. 302; 1993 a. 16; 1997 a. 27.

78.49 Cross-reference Cross-reference: See also s. Tax 4.53, Wis. adm. code.

78.50 78.50 Notice by alternate fuels licensee of cessation, sale or transfer of business; final report.

78.50(1) (1) Notice required. Whenever any alternate fuels licensee ceases to perform any of the acts for which an alternate fuels license is required, the licensee shall notify the department in writing. That notice shall give the date of cessation, and in the event of sale or transfer of the business, the name and address of the purchaser or transferee thereof.

78.50(2) (2) Final report. Every alternate fuels licensee shall, upon such cessation, sale or transfer of the business or upon the cancellation or revocation of a license, make a report as required in s. 78.49 and pay all alternate fuels taxes, interest and penalties due the state. Such payment shall be made to the department.