Furnishing by a brewer or brewpub of fermented malt beverages to workmen employed in the brewery or brewpub for consumption on the brewery premises or brewpub premises without charge.
Manufacture or sale of any beverage containing less than one-half of one percent of alcohol by volume.
Sale or shipment of fermented malt beverages by a brewer to a bottler or of intoxicating liquor in bulk between manufacturers, rectifiers and wineries.
Sale, possession or removal of fermented malt beverages or intoxicating liquor for shipment in interstate or foreign commerce.
Sale and use of wine for sacramental purposes.
Sale of alcohol to industrial permittees to be used for industrial purposes.
Sale of fermented malt beverages to industrial permittees to be used for industrial purposes.
Sale of alcohol to medicinal permittees to be used for hospital or medicinal purposes.
Sale of wine to industrial wine permittees to be used for industrial purposes.
See also ss. Tax 8.31
, Wis. adm. code.
The term “levied" in this section does not mean that tax liability arises but collection is delayed. This section by all appearances is a list of complete, and not delayed, exclusions. Arty's, LLC v. DOR, 2018 WI App 64
, 384 Wis. 2d 320
, 919 N.W.2d 590
The plaintiff in this case bought various distilled spirits in bulk from a distillery and mixed the distilled spirits with soda, water, and various flavorings to produce bottles of premixed cocktails that the plaintiff sold to liquor wholesalers, who sold them to retailers. In this case, the first taxable sales of intoxicating liquors under s. 139.06 (1) (b) were sales by the plaintiff of its bottled mixtures to the plaintiff's wholesaler customers. Sub. (4) excludes from consideration all transactions between the plaintiff and its distiller. Arty's, LLC v. DOR, 2018 WI App 64
, 384 Wis. 2d 320
, 919 N.W.2d 590
Payment of malt beverages tax. 139.05(1)(1)
The tax imposed in s. 139.02
shall be paid on or before the 15th day of the month following the month in which such malt beverages are first sold in this state or shipped into this state.
Each brewer, brewpub, and bottler in this state and each wholesaler of malt beverages within this state to whom malt beverages are shipped from outside this state shall on or before the fifteenth day of each month file with the secretary on forms prescribed by the secretary a verified return containing such information as may be required to compute and show the amount of occupational tax payable by the brewer, brewpub, bottler, or wholesaler or by the shipper for the next preceding calendar month on malt beverages.
The payments and returns under subs. (1)
that are mailed are furnished, filed or made on time, and payments therein referred to are timely, if mailed in a properly addressed envelope, with postage duly prepaid, which envelope is officially postmarked, or marked or recorded electronically as provided under section 7502
(f) (2) (c) of the Internal Revenue Code, before midnight on the date prescribed for such furnishing, filing or making of such payment, provided such statement, return or payment is actually received by the secretary of revenue or at the destination that the department prescribes within 5 days of the prescribed date. Payments and returns that are not mailed are timely if they are 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.
The amount of the occupational tax disclosed by the return shall accompany the return and shall be paid to the department.
In order to ensure the payment of the tax under s. 139.02
together with all interest and penalties thereon, all persons required to make returns and payment of such tax shall first either deposit with the secretary security in the amount, and of a type, determined by the secretary or enter into a surety bond with corporate surety, both bond and surety to be approved by the secretary. The secretary shall require a bond in total amount equal to twice the taxpayer's estimated maximum monthly tax, ascertained in such manner as the secretary deems proper, and the secretary may increase or reduce the amount of the bond, except that the amount of such bond required of any one taxpayer shall not be less than $1,000 nor more than $100,000. These bonds shall be filed. The state shall not pay interest on security placed with the secretary.
If any present or future law or regulation effective in any state prohibits a person from shipping into such state a fermented malt beverage produced outside thereof except upon condition that the person shipping such fermented malt beverage into such state first obtain a license therefor from such state and if such license or a renewal thereof may be refused for violation of any law of such state relating to fermented malt beverages, it is unlawful to ship into this state or to purchase or sell within this state any fermented malt beverage produced in such state, unless and until the brewer or brewpub thereof is the holder of a valid subsisting license as provided in this subsection.
Such license shall be issued by the secretary to persons who hold a valid certificate issued under s. 73.03 (50)
. The application for such license shall be verified and shall contain an agreement on the part of the brewer or brewpub that the brewer or brewpub shall observe all laws of this state relating to fermented malt beverages, and such other information and statements as the secretary may require. Any such brewer or brewpub who has, directly or indirectly, violated any law of this state relating to fermented malt beverages shall not be entitled to such a license. The secretary may require the applicant to furnish a bond payable to the state in an amount not less than $1,000 nor more than $5,000 conditioned upon the faithful compliance by the applicant with the undertakings set forth in the application for the license.
The secretary may suspend or revoke any such license for any false statement made in the application therefor and for any prior or subsequent violation by the licensee, directly or indirectly, or by any person affiliated with or in any way subject to the direction or control of the licensee, of any of the laws of this state relating to fermented malt beverages.
Any such brewer and any other person who ships or causes or permits to be shipped into this state any such fermented malt beverage, and any person who knowingly receives within this state from outside this state any such fermented malt beverage, at a time when the brewer thereof is not the holder of a valid and subsisting license as herein provided, is guilty of a misdemeanor.
The conditions and requirements of this subsection are in addition to, and not in lieu of, the conditions and requirements of subs. (1)
If any law or regulation of any state specifies uniform or substantially uniform requirements with respect to any ingredient of fermented malt beverages produced in such state and fermented malt beverages produced outside thereof but sold within such state and if such state or its officials or agencies enforce or give effect to such provisions as against any malt beverage produced outside of such state without concurrently and to the same extent enforcing and giving effect to such provisions as against all malt beverages produced and sold within such state, and if the foregoing is found and determined by the secretary after a public hearing, it shall thereafter be a misdemeanor for any person with knowledge of such finding and determination to ship into or receive or sell within this state any malt beverage produced in such state unless and until the secretary finds and determines, after a public hearing, that such discriminatory treatment has been discontinued.
Liquor tax returns; exceptions. 139.06(1)(a)
The taxes imposed under s. 139.03 (intro.)
on intoxicating liquor at the rates under s. 139.03 (2m)
shall be paid to, and a monthly return filed with, the department of revenue on or before the 15th of the month following the month in which the tax liability is incurred. An administrative fee of 11 cents per gallon on intoxicating liquor taxed at the rates under s. 139.03 (2m)
is imposed, shall be paid along with the taxes and shall be deposited in the appropriation under s. 20.566 (1) (ha)
Liability for taxes at the rates under s. 139.03 (2m)
on intoxicating liquor is incurred by a shipper when intoxicating liquor is shipped into this state, except that liability on liquor produced or bottled in this state or imported directly from a foreign country into this state by a Wisconsin permittee is incurred at the time of the first sale in this state and except that liability for liquor under sub. (3)
is incurred when a Wisconsin permittee receives that liquor.
Each person subject to the tax under s. 139.03
shall file an information report on the dates prescribed by the secretary.
The taxes on wine containing not in excess of 21 percent of alcohol by volume shall be paid to and a monthly return filed on or before the 15th of the month following the month in which tax liability is incurred. Tax liability is incurred by the shipper when wine is shipped into the state. In the case of wine produced or bottled within the state and wine imported directly from a foreign country into the state by a Wisconsin permittee or winery licensee, tax liability is incurred by the permittee or winery licensee at the time of first sale within the state.
All persons required to file a return and pay intoxicating liquor taxes shall first provide security in the amount, at the time and of the type required by the department or enter into a surety bond with a corporate surety to secure payment of the tax with bond and surety to be approved by the department. Such bond shall be twice the department's estimate of the taxpayer's maximum monthly tax liability but shall not be less than $1,000 nor more than $100,000. The bonds shall be filed.
Further to secure the payment of the taxes at the rates under s. 139.03 (2m)
on intoxicating liquor, the department shall require all persons liable for the return and payment of such taxes in either of the 2 previous fiscal years to maintain a deposit of the department's estimate of tax liabilities in an amount equal to 20 percent of the estimated tax liability for fiscal year 1985-86 or an amount specified by the department. Such deposit payment shall be paid to the department on July 15, 1986, or according to an arrangement specified by the department. This deposit shall be deposited in the general fund. On August 15, 1987, the department shall credit 25 percent of the deposit against taxes due for the quarter beginning on the first day of the month before the month when the taxes are due or a later quarter. At the end of each succeeding 12-month period the department shall credit 25 percent of the original deposit until 100 percent of each deposit has been refunded. If any permittee has an unpaid tax liability at the time that a credit would be allowed the permittee, the department shall not allow the credit until the liability is paid in full.
In shipping intoxicating liquor in bulk for the purpose of bottling or rectifying to a rectifier located within the state, the manufacturer shall securely affix thereto a label or statement, in such form as is prescribed by the secretary, reciting that the shipment is made for the purpose of bottling or rectifying. Each manufacturer making such shipments shall file an information report that shows the dates and quantities of shipments and the name and address of each consignee.
When intoxicating liquor is stored in an alcohol beverage warehouse for which a permit has been issued under s. 125.19
, by a manufacturer or rectifier holding a permit under s. 125.52
as a pledge for the loan of money, it is not necessary to affix front labels to the containers until the liquor is sold or removed from the warehouse. When it becomes necessary for a pledgee to sell such intoxicating liquor in good faith pursuant to the terms of the pledge, and not for the purpose of avoiding ss. 139.01
or ch. 125
, it shall be sold to a manufacturer, rectifier or wholesaler holding a permit under s. 125.52
for the purpose of affixing front labels. All such sales shall be reported to the secretary by the pledgee.
See also s. Tax 8.01
, Wis. adm. code.
The plaintiff in this case bought various distilled spirits in bulk from a distillery and mixed the distilled spirits with soda, water, and various flavorings to produce bottles of premixed cocktails that the plaintiff sold to liquor wholesalers, who sold them to retailers. In this case, the first taxable sales of intoxicating liquors under sub. (1) (b) were sales by the plaintiff of its bottled mixtures to the plaintiff's wholesaler customers. Section 139.04 (4) excludes from consideration all transactions between the plaintiff and its distiller. Also, the entire volume of each bottle was an intoxicating liquor, each liter of which was subject to the intoxicating liquor occupational tax. Arty's, LLC v. DOR, 2018 WI App 64
, 384 Wis. 2d 320
, 919 N.W.2d 590
Powers and duties of the secretary of revenue. 139.08(1)(1)
The secretary of revenue shall administer ss. 139.01
and collect and keep a record of all taxes collected.
The secretary of revenue shall adopt rules necessary to carry out the secretary's duties under this chapter.
(3) Police powers.
The department of revenue shall enforce and the duly authorized employees of the department shall have all necessary police powers to prevent violations of s. 134.65
, this subchapter and ch. 125
(4) Inspection for enforcement.
Duly authorized employees of the department of justice and the department of revenue and any sheriff, police officer, marshal, or constable, within their respective jurisdictions, may at all reasonable hours enter any licensed premises, and examine the books, papers, and records of any brewer, brewpub, manufacturer, bottler, rectifier, wholesaler, or retailer, for the purpose of inspecting the same and determining whether the tax and fee imposed by ss. 139.01
have been fully paid, and may inspect and examine, according to law, any premises where fermented malt beverages or intoxicating liquors are manufactured, sold, exposed for sale, possessed, or stored, for the purpose of inspecting the same and determining whether the tax imposed by ss. 139.01
has been fully paid, and whether ss. 139.01
and ch. 125
are being complied with. Any refusal to permit such examination of such premises is sufficient grounds under s. 125.12
for revocation or suspension of any license or permit granted for the sale of any fermented malt beverages or intoxicating liquors and is punishable under s. 139.25 (10)
Every brewer, brewpub, bottler, manufacturer, rectifier, wholesaler, or retailer liable for payment of the occupational tax imposed in ss. 139.01
shall hold a valid certificate under s. 73.03 (50)
. The secretary shall assign the person a registration number.
Audits; additional assessments; refunds.
Sections 71.74 (1)
, 71.75 (2)
and 71.80 (12)
as they apply to the taxes under ch. 71
apply to the taxes under this subchapter, except that the period during which notice of an additional assessment shall be given begins on the due date of the report under this subchapter.
History: 1985 a. 120
; 1991 a. 39
Failure to file.
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 file a return.
Refunds by secretary of administration. 139.10(1)(1)
On the certificate of the secretary, the secretary of administration shall refund to any purchaser or any banking institution in Wisconsin the tax paid on intoxicating liquor or on whole cases or full kegs of fermented malt beverages which are spoiled or unfit to drink and the tax paid on fermented malt beverages sold to the U.S. armed forces or the secretary may make allowance of the amount of the tax.
When the tax has been paid on intoxicating liquor supplied to hospitals for hospital or medicinal purposes, or on alcohol supplied to institutions of learning or museums for nonbeverage purposes, the purchaser shall, upon application to the secretary, be entitled to a refund of the tax.
The secretary shall prescribe the method of proof and the forms of application for refund or allowance.
See also ss. Tax 7.01
, Wis. adm. code.
Records and reports. 139.11(1)(1)
Preservation of records.
Every person who manufactures, rectifies, distributes, imports, transports, stores, warehouses, or sells intoxicating liquor or fermented malt beverages shall keep complete and accurate records of all such liquor or malt beverages purchased, sold, manufactured, rectified, brewed, fermented, distilled, produced, stored, warehoused, imported, or transported within this state. Such records shall be of a kind and in the form prescribed by the secretary and shall be safely preserved to ensure accessibility for inspection by the secretary. A person required to keep records under this subsection may keep such records in electronic form only.
Each brewer, brewpub, bottler, manufacturer, rectifier, and wholesaler shall on or before the 15th day of each calendar month or the dates prescribed by the secretary file a verified report of all fermented malt beverages or intoxicating liquor manufactured, received, sold, delivered, or shipped by him or her during the preceding calendar month, except that the department may allow wholesale, winery, and out-of-state shipper permittees whose tax liability is less than $500 per quarter to file on a quarterly basis. Quarterly reports shall be filed on or before the 15th of the next month following the close of the calendar quarter.
(2m) Timely filing.
The provisions on timely filing under s. 71.80 (18)
apply to the tax under this subchapter.
(3) Secretary's powers.
When the secretary finds that the records kept by any brewer, brewpub, bottler, manufacturer, rectifier, wholesaler, or retailer are in such condition that an unusual amount of time is required to determine therefrom the amount of tax due, the secretary may give notice of such fact to such person and may require the records to be kept in such form as the secretary prescribes. If such requirements are not complied with within 30 days after the date of the notice, the brewer, brewpub, bottler, manufacturer, rectifier, wholesaler, or retailer shall pay the expenses reasonably attributable to the determination of tax at the rate of $30 per day for each auditor. The secretary shall render a bill therefor by registered mail to the person charged with payment at the conclusion of the audit, which bill shall constitute notice of assessment and demand of payment thereof. The brewer, brewpub, bottler, manufacturer, rectifier, wholesaler, or retailer shall, within 10 days after the mailing of the bill, pay its amount, and such payment shall be credited to the appropriation made in s. 20.566 (1) (a)
(4) Confidentiality and publications. 139.11(4)(a)(a)
Sections 71.78 (1)
, and (4)
and 71.83 (2) (a) 3.
, relating to confidentiality of income and franchise tax returns, apply to any information obtained from any person on a fermented malt beverage tax return, report, schedule, exhibit, or other document or from an audit report relating to any of those documents, except that the department of revenue shall publish the following:
A current list, available on paper and on the department's Internet site, providing detailed information regarding every person issued a wholesalers permit under s. 125.28
, brewers permit under s. 125.29
, brewpub permit under s. 125.295
, or out-of-state shippers permit under s. 125.30
. The information provided under this subdivision shall include the name and address of the permit holder and the date on which the department issued the permit.
Sections 71.78 (1)
and 71.83 (2) (a) 3.
, relating to confidentiality of income and franchise tax returns, do not apply to any information obtained from any person on an intoxicating liquor tax return, report, schedule, exhibit, or other document or from an audit report relating to any of those documents. With the information provided to the department by any person, the department of revenue shall publish at least once each month:
Statistics on the total number of liters of the types and brands of intoxicating liquor sold in this state.
A current and regularly updated list, made available on paper and on the department's Internet website, of permit holders that minimally includes detailed information on the name, address, contact person, and date of permit issuance for every manufacturer's and rectifier's permit issued under s. 125.52
, winery permit issued under s. 125.53
, direct wine shipper's permit issued under s. 125.535
, wholesaler's permit issued under s. 125.54
, and out-of-state shipper's permit issued under s. 125.58
A report summarizing the identity, quantity, and price of all products sold under each winery permit issued under s. 125.53
and each direct wine shipper's permit issued under s. 125.535
A report summarizing the sales quantity and product data available for all products sold under each wholesaler's permit issued under s. 125.54
See also ss. Tax 7.01
, and 8.81
, Wis. adm. code.
History: 1991 a. 39
Presumptions from possession. 139.18(1)(1)
The possession of any fermented malt beverages on any licensed premises, other than upon the premises of a brewer, brewpub, or bottler, shall be deemed prima facie evidence that such products are kept with intent to sell and that such products are subject to the tax herein imposed.
The possession of intoxicating liquor on which a tax has not been paid except upon the premises of a manufacturer, rectifier or wholesaler, or any licensed public warehouse shall be deemed prima facie evidence that such liquor is possessed with the intent to sell it contrary to law.
History: 1985 a. 120
; 2007 a. 20
Compulsory testimony. 139.20(1)(1)
Any person may be compelled to testify in regard to any violation of this chapter of which the person may have knowledge, even though such testimony may tend to incriminate the person, upon being granted immunity from prosecution in connection therewith, and upon the giving of such testimony, such person shall not be prosecuted for or because of the violation relative to which the person has testified.
The immunity provided under sub. (1)
is subject to the restrictions under s. 972.085
History: 1989 a. 122
If a duly authorized employee of the department of revenue or the department of justice or any sheriff, police officer, marshal, or constable, within his or her respective jurisdiction, discovers any fermented malt beverages upon any premises other than the premises of a brewer, brewpub, or bottler, or any intoxicating liquor upon any premises other than the premises of a manufacturer, rectifier, winery, or wholesaler, and upon which the tax has not been paid or which was possessed, kept, stored, manufactured, sold, distributed, or transported in violation of ss. 139.01
and ch. 125
, the employee or any such officer may immediately seize the fermented malt beverages or intoxicating liquors. Any such fermented malt beverages or intoxicating liquors so seized shall be held by the department of revenue and disposed of under s. 125.14 (2) (e)