139.43 History History: 1993 a. 213; 1995 a. 225.
139.43 Annotation The state regulatory scheme for tobacco sales preempts municipalities from adopting regulations that are not in strict conformity with those of the state. U.S. Oil, Inc. v. City of Fond du Lac, 199 Wis. 2d 333, 544 N.W.2d 589 (Ct. App. 1995), 95-0213.
139.44 139.44 Interest and penalties.
139.44(1)(1)Any person who falsely or fraudulently makes, alters or counterfeits any stamp or procures or causes the same to be done, or who knowingly utters, publishes, passes or tenders as true any false, altered or counterfeit stamp, or who affixes the same to any package or container of cigarettes, or who possesses with the intent to sell any cigarettes in containers to which false, altered or counterfeit stamps have been affixed is guilty of a Class G felony.
139.44(1m) (1m)Any person who falsely or fraudulently tampers with a cigarette meter in order to evade the tax under s. 139.31 is guilty of a Class G felony.
139.44(2) (2)Any person who makes or signs any false or fraudulent report or who attempts to evade the tax imposed by s. 139.31 or 139.76, or who aids in or abets the evasion or attempted evasion of that tax may be fined not more than $10,000 or imprisoned for not more than 9 months or both.
139.44(3) (3)Any permittee who fails to keep the records required by ss. 139.30 to 139.42 or 139.77 to 139.82 shall be fined not less than $100 nor more than $500 or imprisoned not more than 6 months or both.
139.44(4) (4)Any person who refuses to permit the examination or inspection authorized in s. 139.39 (2) or 139.83 may be fined not more than $500 or imprisoned not more than 90 days or both. Such refusal shall be cause for immediate suspension or revocation of permit by the secretary.
139.44(5) (5)Any person who violates any of the provisions of ss. 139.30 to 139.41 or 139.75 to 139.83 for which no other penalty is prescribed shall be fined not less than $100 nor more than $1,000 or imprisoned not less than 10 days nor more than 90 days or both.
139.44(6) (6)Any person who violates any of the rules of the department shall be fined not less than $100 nor more than $500 or be imprisoned not more than 6 months or both.
139.44(7) (7)In addition to the penalties imposed for violation of ss. 139.30 to 139.41 or 139.75 to 139.83 or any of the rules of the department, the permit of any person convicted shall be automatically revoked and he or she shall not be granted another permit for a period of 2 years following such revocation.
139.44(8) (8)Penalties for violation of s. 139.321 (1) shall be as follows:
139.44(8)(a) (a) If the number of cigarettes does not exceed 6,000, a fine of not more than $200 or imprisonment for not more than 6 months or both.
139.44(8)(b) (b) If the number of cigarettes exceeds 6,000 but does not exceed 36,000, a fine of not more than $1,000 or imprisonment for not more than one year in the county jail or both.
139.44(8)(c) (c) If the number of cigarettes exceeds 36,000, the person is guilty of a Class I felony.
139.44(9) (9)Unpaid taxes bear interest at the rate of 12 percent per year from the due date of the return until paid or deposited with the department, and all refunded taxes bear interest at the rate of 3 percent per year from the due date of the return to the date on which the refund is certified on the refund rolls.
139.44(10) (10)All nondelinquent payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.
139.44(11) (11)Delinquent cigarette taxes bear interest at the rate of 1.5 percent per month until paid. The taxes imposed by this subchapter shall become delinquent if not paid:
139.44(11)(a) (a) In the case of a timely filed return, no return filed or a late return, on or before the due date of the return; or
139.44(11)(b) (b) In the case of a deficiency determination of taxes, within 2 months after the date of demand.
139.44(12) (12)If due to neglect an incorrect return is filed, the entire tax finally determined is subject to a penalty of 25 percent of the tax exclusive of interest or other penalty. A person filing an incorrect return has the burden of proving that the error or errors were due to good cause and not due to neglect.
139.45 139.45 Prosecutions by attorney general. Upon request by the secretary of revenue, the attorney general may represent this state or assist a district attorney in prosecuting any case arising under this subchapter or under ss. 134.65 and 134.66. The attorney general may take any action necessary to enforce s. 139.345.
139.45 History History: 1985 a. 302; 2005 a. 25.
139.46 139.46 Lists. The department shall compile and maintain a list of direct marketers who have complied with the requirements of s. 139.345 and a list of direct marketers who the department knows have not complied with such requirements. The department shall provide copies of the lists described under this section to the attorney general and to each person who delivers cigarettes to consumers in this state that are sold by direct marketing under s. 139.345.
139.46 History History: 2005 a. 25.
subch. III of ch. 139 SUBCHAPTER III
TOBACCO PRODUCTS TAX
Subch. III of ch. 139 Cross-reference Cross-reference: See also s. Tax 9.69, Wis. adm. code.
139.75 139.75 Definitions. In this subchapter:
139.75(1) (1)“Business" means any trade, occupation, activity or enterprise engaged in for the purpose of selling or distributing tobacco products or vapor products in this state.
139.75(2) (2)“Consumer" means any person who has title to or possession of tobacco products or vapor products in storage for use or other consumption in this state.
139.75(3) (3)“Department" means the department of revenue.
139.75(4) (4)“Distributor" means:
139.75(4)(a) (a) Any person engaged in the business of selling tobacco products or vapor products in this state who brings, or causes to be brought, into this state from outside the state any tobacco products or vapor products for sale;
139.75(4)(b) (b) Any person who makes, manufactures or fabricates tobacco products or vapor products in this state for sale in this state; or
139.75(4)(c) (c) Any person engaged in the business of selling tobacco products or vapor products outside this state who ships or transports tobacco products to retailers in this state to be sold by those retailers.
139.75(4d) (4d)“Enrolled member" has the meaning given in s. 139.30 (4).
139.75(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.
139.75(4p) (4p)“Indian tribe" has the meaning given in s. 139.30 (5).
139.75(5) (5)“Manufacturer" means any person who manufactures and sells tobacco products or vapor products.
139.75(5d) (5d)“Moist snuff" means any finely cut, ground, or powdered smokeless tobacco that is intended to be placed or dipped in the mouth.
139.75(5m) (5m)“Pay" means mail or deliver funds 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.
139.75(5p) (5p)“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.
139.75(6) (6)“Place of business" means any place where tobacco products or vapor products are sold, manufactured, stored or kept for the purpose of sale or consumption, including any vessel, vehicle, airplane, train or vending machine.
139.75(6m) (6m)“Reservation" has the meaning given in s. 139.30 (9).
139.75(7) (7)“Retail outlet" means each place of business from which tobacco products or vapor products are sold to consumers.
139.75(8) (8)“Retailer" means any person engaged in the business of selling tobacco products or vapor products to ultimate consumers.
139.75(9) (9)“Sale" means any transfer, exchange or barter for a consideration. It includes a gift by a person engaged in the business of selling tobacco products or vapor products for advertising or as a means of evading this subchapter or for any other purpose, and it includes solicitation of orders for, and the sale for, future delivery.
139.75(9m) (9m)“Sign" has the meaning given in s. 139.01 (9m).
139.75(10) (10)“Storage" means any keeping or retention of tobacco products or vapor products for use or consumption in this state.
139.75(11) (11)“Subjobber" means any person, other than a manufacturer or distributor, who buys tobacco products or vapor products from a distributor and sells them to persons other than the ultimate consumers.
139.75(12) (12)“Tobacco products" means cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready-rubbed and other smoking tobacco; snuff, including moist snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking; but “tobacco products" does not include cigarettes, as defined under s. 139.30 (1m).
139.75(12m) (12m)“Trust lands" has the meaning given in s. 139.30 (13m).
139.75(13) (13)“Use" means the exercise of any right or power incidental to the ownership of tobacco products or vapor products.
139.75(14) (14)“Vapor product” means a noncombustible product that produces vapor or aerosol for inhalation from the application of a heating element, regardless of whether the liquid or other substance contains nicotine.
139.76 139.76 Imposition; exceptions.
139.76(1)(1)An excise tax is imposed upon the sale, offering or exposing for sale, possession with intent to sell or removal for consumption or sale or other disposition for any purpose of tobacco products by any person engaged as a distributor of them at the rate, for tobacco products, not including moist snuff and vapor products, of 71 percent of the manufacturer's established list price to distributors without diminution by volume or other discounts on domestic products and, for moist snuff, at the rate of 100 percent of the manufacturer's established list price to distributors without diminution by volume or other discounts on domestic products. The tax imposed under this subsection on cigars shall not exceed an amount equal to 50 cents for each cigar. On products imported from another country, not including moist snuff and vapor products, the rate of tax is 71 percent of the amount obtained by adding the manufacturer's list price to the federal tax, duties and transportation costs to the United States. On moist snuff imported from another country, the rate of the tax is 100 percent of the amount obtained by adding the manufacturer's list price to the federal tax, duties, and transportation costs to the United States. The tax attaches at the time the tobacco products are received by the distributor in this state. The tax shall be passed on to the ultimate consumer of the tobacco products. All tobacco products received in this state for sale or distribution within this state, except tobacco products actually sold as provided in sub. (2), shall be subject to such tax.
139.76(1m) (1m)An excise tax is imposed upon the sale, offering or exposing for sale, possession with intent to sell or removal for consumption or sale or other disposition for any purpose of vapor products by any person engaged as a distributor of them at the rate of 5 cents per milliliter of the liquid or other substance based on the volume as listed by the manufacturer and at a proportionate rate for any other quantity or fractional part thereof. The tax attaches at the time the vapor products are received by the distributor in this state. The tax shall be passed on to the ultimate consumer of the vapor products. All vapor products received in this state for sale or distribution within this state, except those actually sold as provided in sub. (2), shall be subject to such tax.
139.76(2) (2)Tobacco products and vapor products sold to or by post exchanges of the U.S. armed forces, to or by federally operated veterans hospitals in this state, and tobacco products and vapor products sold to an interstate carrier of passengers for hire to be resold to bona fide passengers actually being transported and tobacco products and vapor products sold for shipment outside this state in interstate commerce are not subject to the tax.
139.76 Cross-reference Cross-reference: See also ch. Tax 9, Wis. adm. code.
139.77 139.77 Distributors, monthly returns.
139.77(1)(1)On or before the 15th day of each month, every distributor with a place of business in this state shall file a return showing the quantity, including milliliters in the case of a vapor product, and taxable price of each tobacco product or vapor product brought, or caused to be brought, into this state for sale; or made, manufactured or fabricated in this state for sale in this state, during the preceding month. Every distributor outside this state shall file a return showing the quantity, including milliliters in the case of a vapor product, and taxable price of each tobacco product or vapor product shipped or transported to retailers in this state to be sold by those retailers during the preceding month. At the time that the return is filed, the distributor shall pay the tax.
139.77(2) (2)As soon as practicable after any return is filed, the department shall examine each return and correct it, if necessary, according to its best judgment and information. If the department finds that any amount of tax is due from the taxpayer and unpaid, it shall notify the taxpayer of the deficiency, stating that it proposes to assess the amount due together with interest and penalties. If a deficiency disclosed by the department's examination cannot be allocated to one or more particular months, the department shall notify the taxpayer of the deficiency, stating its intention to assess the amount due for a given period without allocating it to any particular months.
139.77(3) (3)If, within 60 days after the department sends notice of the proposed assessment, the taxpayer files a protest to the proposed assessment and requests a hearing on it, the department shall give notice to the taxpayer of the time and place fixed for the hearing, shall hold a hearing on the protest, and shall issue a final assessment to the taxpayer for the amount found to be due as a result of the hearing. If the taxpayer does not file a protest within 60 days, the department shall issue a final assessment to the taxpayer. In any action or proceeding in respect to the proposed assessment, the taxpayer has the burden of establishing the incorrectness or invalidity of any final assessment made by the department.
139.77(4) (4)If any taxpayer required to file any return fails to do so within the time prescribed, the taxpayer shall, on the written demand of the department, file the return within 20 days after the department sends the demand and at the same time pay the tax due on its basis. If the taxpayer fails within that time to file the return, the department shall prepare the return from the department's own knowledge and from the information that the department obtains and on that basis shall assess a tax that the taxpayer shall pay within 10 days after the department sends to the taxpayer a written notice of the amount and a demand for its payment. In any action or proceeding in respect to the assessment, the taxpayer has the burden of establishing the incorrectness or invalidity of any return or assessment made by the department because of the failure of the taxpayer to make a return.
139.77(5) (5)All taxes are due not later than the 15th day of the month following the calendar month in which they were incurred.
139.77(7) (7)The department may recover the amount of any tax due and unpaid, interest and any penalty in a civil action. The collection of the tax, interest or penalty is not a bar to any prosecution under s. 139.85 (1).
139.78 139.78 Use tax.
139.78(1)(1)A tax is imposed upon the use or storage by consumers of tobacco products in this state at the rate, for tobacco products, not including moist snuff and vapor products, of 71 percent of the cost of the tobacco products and, for moist snuff, at the rate of 100 percent of the manufacturer's established list price to distributors without diminution by volume or other discounts on domestic products. The tax imposed under this subsection on cigars shall not exceed an amount equal to 50 cents for each cigar. The tax does not apply if the tax imposed by s. 139.76 (1) on the tobacco products has been paid or if the tobacco products are exempt from the tobacco products tax under s. 139.76 (2).
139.78(1m) (1m)A tax is imposed upon the use or storage by consumers of vapor products in this state at the rate of 5 cents per milliliter of the liquid or other substance based on the volume as listed by the manufacturer and at a proportionate rate for any other quantity or fractional part thereof. The tax does not apply if the tax imposed by s. 139.76 (1m) on the vapor products has been paid or if the vapor products are exempt from the vapor products tax under s. 139.76 (2).
139.78(2) (2)On or before the 15th day of each month, every consumer who during the preceding month has acquired title to or possession for use or storage in this state of tobacco products or vapor products upon which the tax imposed by s. 139.76 has not been paid shall file a return showing the quantity of tobacco products and vapor products acquired. At the time when the return is filed, the consumer shall pay the tax.
139.78(3) (3)If any return is not filed within the time specified in this section, a penalty of 5 percent of the tax, with an additional 5 percent for each additional 30 days or fraction thereof up to a maximum of 25 percent is imposed, but the penalty for failing to file timely shall not be less than $10. The department may for good cause shown extend the time for filing the return without penalty.
139.78(4) (4)Sections 139.30 to 139.44 relating to enforcement of the excise tax imposed by s. 139.31 apply to enforcement of the use tax imposed by this section.
139.79 139.79 Permits; distributor; subjobber.
139.79(1)(1)No person may engage in the business of a distributor or subjobber of tobacco products or vapor products at any place of business unless that person has filed an application for and obtained a permit from the department to engage in that business at such place.
139.79(2) (2)Section 139.34 (1) (b) to (f), (4) and (9) applies to the permits under this section.
139.79(3) (3)Any person holding a cigarette distributor permit under s. 139.34 may obtain a distributor permit under this section at no charge, and any person holding a cigarette jobber permit under s. 139.34 may obtain a subjobber permit under this section at no charge.
139.80 139.80 Refunds, credits. If tobacco products or vapor products upon which the tax has been reported and paid are shipped or transported by the distributor to consumers to be consumed outside the state or to retailers or subjobbers outside the state to be sold by those retailers or subjobbers outside the state or are returned to the manufacturer by the distributor or destroyed by the distributor, the tax may be refunded or credited to the distributor, as prescribed by the department. Any overpayment of the tax imposed under s. 139.78 may be refunded or credited to the taxpayer, as prescribed by the department.
139.80 History History: 1981 c. 20; 2019 a. 9.
139.801 139.801 Bad debt deductions.
139.801(1)(1)In this section, “bad debt" means an amount that is equal to the purchase price of tobacco products and vapor products, if such amount may be claimed as a deduction under section 166 of the Internal Revenue Code. “Bad debt" does not include financing charges, interest on the wholesale price of tobacco products and vapor products, uncollectible amounts on property that remains in the seller's possession until the full purchase price is paid, expenses incurred in attempting to collect any debt, debts sold or assigned to 3rd parties for collection, and repossessed property.
139.801(2) (2)A distributor who pays the taxes imposed under s. 139.76 may claim as a deduction on a return under s. 139.77 the amount of any such taxes that are attributable to bad debt that the distributor writes off as uncollectible in the distributor's books and records and that is eligible to be deducted as bad debt for federal income tax purposes, regardless of whether the distributor is required to file a federal income tax return. A distributor who claims a deduction under this section shall claim the deduction on the return under s. 139.77 that is submitted for the period in which the distributor writes off the amount of the deduction as uncollectible in the distributor's books and records and in which such amount is eligible to be deducted as bad debt for federal income tax purposes. If the distributor subsequently collects in whole or in part any bad debt for which a deduction is claimed under this section, the distributor shall include the amount collected in the return filed for the period in which the amount is collected and shall pay the tax with the return.
139.801(3) (3)A distributor who claims a deduction under this section shall submit with the return under sub. (2) all of the following:
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 18 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on October 1, 2019. Published and certified under s. 35.18. Changes effective after October 1, 2019, are designated by NOTES. (Published 10-1-19)