In the case of a timely filed return, no return or a late return, on or before the due date of the return; or
In the case of a deficiency determination of taxes, within 2 months after the date of demand.
If an incorrect return is filed and upon a showing by the department under s. 73.16 (4)
, 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.
Failure to file return.
In case of failure to file any return required under s. 139.05
by the due date, and upon a showing by the department under s. 73.16 (4)
, there shall be added to the amount required to be shown as tax on that return 5 percent of the amount of that tax if the failure is for not more than one month, and an additional 5 percent of the tax for each additional month or fraction thereof during which that failure continues, not exceeding 25 percent of the tax in the aggregate. For purposes of this subsection, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the due date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return.
False or fraudulent return.
If a person fails to file a return when due or files a false or fraudulent return with intent in either case to defeat or evade the tax imposed by this subchapter, a penalty of 50 percent of the tax shall be added to the tax required to be paid, exclusive of interest and other penalties.
Furnish data or return.
Any person who fails to furnish any return required to be made or who fails to furnish any data required by the department may be fined not more than $500 or imprisoned for not more than 30 days or both.
Report or return verification.
Any person, including an officer of a corporation, who is required to make, render, sign or verify any report or return required by this subchapter and who makes a false or fraudulent report or return or who fails to furnish a report or return when due with the intent, in either case, to defeat or evade the tax imposed by this subchapter may be fined not more than $500 or imprisoned for not more than 30 days or both.
Assisting false or fraudulent return.
No person may aid, abet or assist another in making any false or fraudulent return or false statement in any return required by this subchapter, with intent to defraud the state or evade payment of the tax, or any part thereof, imposed by this subchapter. Anyone who violates this subsection may be fined not more than $500 or imprisoned for not more than 30 days or both.
Failure to keep records.
Failure to comply with s. 139.11 (1)
shall carry a penalty of revocation by the secretary of revenue of the license or permit.
Any person who violates any provision of ss. 139.01
for which specific penalty is not provided shall be fined not more than $500 nor less than $50, or imprisoned not more than 90 days nor less than 10 days or both, and any license or permit issued to that person shall be subject to revocation. The license or permit of any licensee or permittee convicted of evading payment of the tax on intoxicating liquor, or any attempt to evade payment of such tax, shall be deemed forfeited immediately upon conviction.
Any person convicted of a 2nd offense under the provisions of ss. 139.01
shall, in addition to the penalties provided in this section, forfeit all rights conferred upon him or her by any license issued to him or her by any city, village or town, without notice.
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.
History: 1985 a. 302
Subch. II of ch. 139 Cross-reference
See also ch. Tax 9
, Wis. adm. code.
Cigarette tax; definitions.
In ss. 139.30
, unless the context otherwise requires:
“Bonded direct marketer" means any person who acquires unstamped cigarettes from the manufacturer thereof, affixes stamps to the packages or other containers, stores them and sells them by direct marketing to consumers for their own personal use and who may also acquire stamped cigarettes from manufacturers or distributors for such sales.
“Cigarette" means any roll of tobacco wrapped in paper or any substance other than tobacco.
“Consumer" means any individual who receives cigarettes for his or her personal use or consumption or any individual who has title to or possession of cigarettes for any purpose other than for sale or resale.
“Department" means the department of revenue.
“Direct marketer" means a bonded direct marketer or a nonbonded direct marketer.
“Direct marketing" means publishing or making accessible an offer for the sale of cigarettes to consumers in this state, or selling cigarettes to consumers in this state, using any means by which the consumer is not physically present at the time of sale on a premise that sells cigarettes.
“Distributor" means any person who acquires unstamped cigarettes from the manufacturer thereof, affixes stamps to the packages or other containers, stores them and sells them to other permittees or to retailers for resale or who acquires stamped cigarettes from another permittee for such sales.
“Enrolled member" means a person whose name appears on the tribal role of an Indian tribe or whose status as an enrolled member of a tribe is recognized by the tribal council of that tribe.
“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.
“Government issued identification" includes a valid driver's license, state identification card, passport, or military identification.
“Indian tribe" means a federally recognized American Indian tribe or band in this state.
“Jobber" means any person who acquires stamped cigarettes from manufacturers or distributors, stores them and sells them to retailers for resale.
“Manufacturer" means any person who manufactures cigarettes for the purpose of sale, including the authorized agent of a person who manufactures cigarettes for the purpose of sale. “Manufacturer" includes a person who owns an automated roll-your-own machine that is used to make cigarettes, but does not include an individual who owns a roll-your-own machine and uses the machine in his or her home solely to make cigarettes for his or her personal use or for the use of other individuals who live in his or her home.
“Multiple retailer" means any person who acquires stamped cigarettes from manufacturers or permittees, stores them and sells them to consumers through 10 or more retail outlets which he or she owns and operates within or without this state.
“Nonbonded direct marketer" means any person who acquires stamped cigarettes from the manufacturers or distributors, stores them, and sells them by direct marketing to consumers for their own personal use.
“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.
“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.
“Reservation" means all land within the boundaries of the Bad River, Forest County Potawatomi, Lac Courte Oreilles, Lac du Flambeau, Menominee, Mole Lake, Oneida, Red Cliff, St. Croix and Stockbridge-Munsee reservations and the Winnebago Indian communities.
“Secretary" means the secretary of revenue.
“Sell" or “sale" includes the transfer, gift, barter, trade or exchange or any shift, device, scheme or transaction whereby cigarettes may be obtained and the solicitation of orders for, or the sale for, future delivery of cigarettes.
“Sign" means write one's signature or, if the department prescribes another method of authenticating, use that other method.
“Stamp" means the authorized indicia of cigarette tax payment including water transfer stamps and heat applied stamps.
“Trust lands" means any lands in this state held in trust by the U. S. government for the benefit of a tribe or a member of a tribe.
“Vending machine" is any mechanical device which automatically dispenses cigarettes upon the deposit therein of specified coins in payment for such cigarettes.
“Vending machine operator" means a person who acquires stamped cigarettes from manufacturers or permittees, stores them and sells them through the medium of vending machines which he or she owns, operates or services and which are located on premises which are owned or under the control of other persons.
“Warehouse" means the premises where any person is lawfully engaged in the business of storing cigarettes for profit but shall not include the premises where common carriers store cigarettes which are received by them as common carriers and are in transit in interstate commerce.
Tax imposed; exceptions. 139.31(1)(1)
An excise tax is imposed on the sale, offering or exposing for sale, possession with intent to sell or removal for consumption or sale of cigarettes or other disposition for any purpose whatsoever. The tax is imposed at the time and place of the first taxable event occurring in this state. The tax shall be passed on to the ultimate consumer of the cigarettes. All cigarettes received in this state for sale or distribution within this state, except cigarettes actually sold as provided in sub. (3)
, shall be subject to such tax. Any person licensed under ch. 100
and this chapter to have untaxed cigarettes in his or her possession which are lost, stolen, destroyed or which have mysteriously disappeared shall be liable for and shall pay the tax thereon. The tax shall be at the following rates:
On cigarettes weighing not more than 3 pounds per thousand, 126 mills on each cigarette.
On cigarettes weighing more than 3 pounds per thousand, 252 mills on each cigarette.
In addition to the rate under par. (a)
, on cigarettes weighing not more than 3 pounds per thousand, on each cigarette 8 mills minus the tax imposed on that cigarette under 26 USC 5701
, but not less than zero.
In addition to the rate under par. (b)
, on cigarettes weighing more than 3 pounds per thousand, on each cigarette, 16.8 mills minus the tax imposed on that cigarette under 26 USC 5701
, except that if the cigarette is more than 6.5 inches in length it shall be taxed at the rate under par. (c)
rather than at the rate under this paragraph, counting each 2.75 inches or fraction thereof of the length as one cigarette. The amount under this paragraph shall not be less than zero.
Cigarettes sold to post exchanges of the armed forces of the United States and to federally operated veterans hospitals in this state and cigarettes sold to an interstate carrier of passengers for hire to be resold to bona fide passengers actually being transported and cigarettes sold for shipment outside this state in interstate commerce are not subject to the tax.
No person may sell or distribute in this state, acquire, store, possess, or transport for sale or distribution in this state, import or cause to be imported into this state for sale or distribution in this state, or affix stamps as described under s. 139.32
to, any of the following:
A cigarette package on which a statement, label, stamp, sticker, or notice indicates that the manufacturer did not intend the cigarettes in the package to be sold, distributed, or used in the United States, including labels stating “for export only," “U.S. tax exempt," “for use outside U.S.," or similar wording.
A cigarette package that has been altered as described in sub. (5)
Any cigarettes that are imported into the United States in violation of federal law.
No person may alter a cigarette package before the sale or distribution to the ultimate consumer so as to remove, conceal, or obscure any of the following:
Any health warning that is not specified in or that does not conform with the requirements under 15 USC 1333
No person may affix stamps, as described in s. 139.32
, to any cigarette package that is altered as described in par. (a)
do not apply to cigarettes that may be brought into the United States for personal use and cigarettes that are sold or intended for sale by a duty-free enterprise, as provided under 19 USC 1555
, not including cigarettes that are brought into a customs territory, as defined under 19 USC 1555
(2) (b) (C), for resale within the customs territory.
See also ss. Tax 9.21
, and 9.51
, Wis. adm. code.
State cigarette tax laws do not apply to Indian persons or Indian tribes selling cigarettes on Indian reservations. 68 Atty. Gen. 151.
Cigarette inventory tax imposed; procedures. 139.315(1)(1)
Inventory tax imposed.
On the effective date of any increase in the sum of the rates under s. 139.31 (1) (a)
or in the sum of the rates under s. 139.31 (1) (b)
, an inventory tax is imposed upon cigarettes held in inventory for sale or resale on which the cigarette tax has been paid at the prior rate and upon unaffixed stamps in the possession of distributors. Any person who is in possession of any such cigarettes or unaffixed stamps shall pay the tax imposed under this section. Any person liable for this tax shall determine the number of cigarettes and unaffixed stamps in the person's possession on the effective date of the increase, and by the 30th day after the effective date of the increase the person shall file a return and shall by that date pay the tax due.
Inventory tax computation.
The cigarette inventory tax under this section is computed by multiplying the number of cigarettes held in inventory for sale or resale by the difference between the prior tax rate and the new tax rate and adding to that amount an amount determined by multiplying the number of unaffixed stamps held by the difference between the prior tax rate and the new tax rate.
Sections 71.74 (1)
, 71.75 (4)
, 71.80 (12)
, 71.82 (2)
, 71.83 (2) (b) 3.
, 71.88 (1) (a)
and (2) (a)
, 71.91 (1) (a)
apply to this section.
Late filing fee.
Any person who fails to file a cigarette inventory tax return when due shall pay a late filing fee of $10. A return that is mailed is timely if it is mailed in a properly addressed envelope with postage prepaid, if the envelope is postmarked, or marked or recorded electronically as provided under section 7502
(f) (2) (c) of the Internal Revenue Code, on the due date and if 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.
Interest on delinquent payments.
If any person does not timely pay the tax imposed under this section, that person is liable for interest at the rate of 1.5 percent per month or fraction of a month from the date the tax is due until the date when the tax is paid.
If any person who is liable for the tax under this section files a false or fraudulent return, that person is also liable, in addition to the tax due, for an amount equal to the amount of tax the person evaded or attempted to evade.
Payment of taxes. 139.32(1)(1)
The tax imposed by s. 139.31 (1)
shall be paid. To evidence the payment, the department shall provide stamps. A person who has paid the tax shall affix stamps of the proper denomination to each package in which cigarettes are packed, prior to the first sale within this state. First sale does not include a sale by a manufacturer to a distributor or to a bonded direct marketer or by a distributor to a permittee who has obtained department approval as provided for in s. 139.321 (1) (a) 2.
The tax shall be paid only once on each package or container.
The secretary shall prepare and have available for sale stamps of such denominations and quantities as the secretary considers necessary for the payment of the taxes imposed by s. 139.31
. The stamps shall be of such designs and materials as to make the removal and reuse thereof impossible after being once affixed.
The secretary shall prepare and have available for sale distinctive stamps, which shall be affixed to all packages of cigarettes in respect to which a refund can be made under s. 139.323
and only to those packages.
Stamps shall be affixed in the manner prescribed by the secretary.
In lieu of stamps the secretary may authorize impressions applied by the use of meter machines. The secretary shall prescribe by rule the type of impression and the kind of machines which may be used.
Manufacturers, bonded direct marketers, and distributors who are authorized by the department to purchase tax stamps shall receive a discount of 0.8 percent of the tax paid on stamp purchases.
Distributors, bonded direct marketers, and manufacturers shall pay to the department the cost of printing and shipping those stamps.
Manufacturers, bonded direct marketers, and distributors who are authorized by the department to purchase tax stamps may purchase stamps on credit. The secretary may require manufacturers, bonded direct marketers, and distributors who purchase stamps on credit to file under the conditions prescribed by the secretary by rule.
Beginning on September 1, 1993, the cost to print stamps is the actual cost to print stamps, adjusted to reflect the expenses incurred to print stamps during the previous year and the reimbursement received for that purpose during the previous year, as determined by the department. Beginning in 1994, the department shall annually determine that cost and shall make the new cost effective on July 1.
Unlawful possession of cigarettes. 139.321(1)(1)
It is unlawful for any person to possess cigarettes unless the required stamps are properly affixed as provided in ss. 139.32 (1)
and 139.33 (4)