Chapter 139

139.39 History History: 1975 c. 39, 199; 1979 c. 34; 1981 c. 20; 1985 a. 135 s. 83 (5); 1989 a. 31, 122, 359; 1991 a. 39; 1995 a. 233, 408; 1997 a. 35, 237; 2001 a. 16; 2003 a. 33.

139.39 Cross-reference Cross-reference: See also s. Tax 9.36, Wis. adm. code.

139.395 139.395 Theft of tax moneys. All cigarette tax moneys received by a distributor, bonded direct marketer, or manufacturer for the sale of cigarettes on which the tax under this subchapter has become due and has not been paid are trust funds in the hands of the distributor, bonded direct marketer, or manufacturer and are the property of this state. Any distributor, bonded direct marketer, or manufacturer who fraudulently withholds, appropriates or otherwise uses cigarette tax moneys that are the property of this state is guilty of theft under s. 943.20 (1), whether or not the distributor, bonded direct marketer, or manufacturer has or claims to have an interest in those moneys.

139.395 History History: 1993 a. 16; 2005 a. 25.

139.40 139.40 Seizure and confiscation.

139.40(1) (1) All cigarettes acquired, owned, imported, possessed, kept, stored, made, sold, distributed or transported in violation of this chapter, and all personal property used in connection therewith is unlawful property and subject to seizure by the secretary or any peace officer. All cigarettes seized for violating s. 139.31 (4) or (5) shall be destroyed.

139.40(2) (2) If cigarettes which do not bear the proper tax stamps or on which the tax has not been paid are so seized they may be given to law enforcement officers to use in criminal investigations or sold to qualified buyers by the secretary, without notice. If the cigarettes are sold, after deducting the costs of the sale and the keeping of the property, the proceeds of the sale shall be paid into the state treasury. If the secretary finds that such cigarettes may deteriorate or become unfit for use in criminal investigations or for sale or that those uses would otherwise be impractical, the secretary may order them destroyed or give them to a charitable or penal institution for free distribution to patients or inmates.

139.40(3) (3) If cigarettes on which the tax has been paid and which bear the proper tax stamps are seized they shall be returned to the true owner if ownership can be ascertained and such owner or the owner’s agent is not involved in the violation resulting in such seizure. If such ownership cannot be ascertained or if the owner or the owner’s agent was guilty of a violation of any of the provisions of ss. 139.30 to 139.44, which resulted in the seizure of such cigarettes, they may be sold or otherwise disposed of as provided in sub. (2).

139.40(4) (4) If personal property other than cigarettes is so seized the secretary shall advertise the same for sale by publication of a class 2 notice under ch. 985. If no claimant, either of lien or ownership, has notified the secretary within 10 days after last insertion of such notice, the property shall be sold. If such sale is not practical the property may be destroyed. If a claimant of a lien or ownership notifies the secretary within the prescribed time, the secretary may apply to a court of record in the county where the property was seized for an order directing disposition of said property or the proceeds thereof. If a sale of such seized property is ordered, all liens, if any, may be transferred from the property to the proceeds of such sale. Neither the property seized nor the proceeds from the sale thereof shall be turned over to any claimant of lien or ownership unless such claimant first establishes that the property was not used in connection with any violation of ss. 139.30 to 139.44 or that, if so used, it was done without the claimant’s knowledge or consent and without the claimant’s knowledge of such facts as should have given the claimant reason to believe it would be put to such use. If no claim of lien or ownership is so established the property may be ordered destroyed. In case of sale, the net proceeds after deducting costs, expenses and established claims shall be paid into the state treasury.

139.40 History History: 1993 a. 482; 1997 a. 291; 2001 a. 16.

139.41 139.41 Place to place delivery. No person shall peddle any cigarettes from house to house, where the sale is consummated and delivery made concurrently.

139.42 139.42 Nuisance. Any building or place of any kind where cigarettes are sold, possessed, stored or manufactured without a lawful permit in violation of ss. 139.30 to 139.41 is declared a public nuisance and may be closed and abated as such.

139.43 139.43 Statewide concern. Sections 139.30 to 139.44 shall be construed as an enactment of statewide concern for the purpose of providing a uniform regulation of the sale of cigarettes.

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 may be fined not more than $10,000 or imprisoned for not more than 9 months or both.

139.44(2m) (2m) Any person who evades or attempts to evade, or who aids or abets the evasion or attempted evasion of, a tax imposed under s. 139.31 or 139.76 is guilty of the following:

139.44(2m)(a) (a) A Class A misdemeanor if the amount of the tax is no more than $2,500.

139.44(2m)(b) (b) A Class I felony if the amount of the tax is more than $2,500, but no more than $5,000.

139.44(2m)(c) (c) A Class H felony if the amount of the tax is more than $5,000, but no more than $10,000.

139.44(2m)(d) (d) A Class G felony if the amount of the tax is more than $10,000, but no more than $100,000.

139.44(2m)(e) (e) A Class F felony if the amount of the tax is more than $100,000.

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 200, the person may be fined not more than $200 or imprisoned for not more than 6 months or both.

139.44(8)(am) (am) If the number of cigarettes exceeds 200 but does not exceed 3,000, the person may be fined not more than $1,000 or imprisoned for not more than one year or both.

139.44(8)(b) (b) If the number of cigarettes exceeds 3,000 but does not exceed 5,000, the person is guilty of a Class I felony.

139.44(8)(c) (c) If the number of cigarettes exceeds 5,000 but does not exceed 10,000, the person is guilty of a Class H felony.

139.44(8)(d) (d) If the number of cigarettes exceeds 10,000, the person is guilty of a Class F 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.

139.44 History History: 1981 c. 20; 1983 a. 63; 1985 a. 302; 1987 a. 399; 1989 a. 31; 1993 a. 16; 1997 a. 27, 283; 2001 a. 109; 2013 a. 20; 2023 a. 73.

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.

Effective date note NOTE: Sub. (1) is renumbered to sub. (1h) eff. 1-1-25 by 2023 Wis. Act 150.

139.75(1d) (1d) “Actual cost” means the total price of cigars or pipe tobacco charged by the manufacturer or other seller to an unrelated distributor or remote retail seller. The total price includes all charges by the manufacturer or other seller that are necessary to complete the sale. The total price does not include a reduction for any cost or expense, regardless of whether the cost or expense is separately stated on an invoice, that is incurred by the manufacturer or other seller, including fees, delivery, freight, transportation, packaging, handling, or marketing costs, federal excise taxes, import fees, or duties. The total price does not include a reduction for the value or cost of discounts or free promotional or sample products. For purposes of this subsection, a manufacturer or other seller is related to a distributor or remote retail seller if the 2 parties have significant common purposes and substantial common membership or, directly or indirectly, substantial common direction or control.

Effective date note NOTE: Sub. (1d) is created eff. 1-1-25 by 2023 Wis. Act 150.

139.75(1h) (1h) “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.

Effective date note NOTE: Sub. (1h) is shown as renumbered from sub. (1) eff. 1-1-25 by 2023 Wis. Act 150.

139.75(1p) (1p) “Cigar” means any roll of tobacco wrapped in leaf tobacco or in any substance containing tobacco but does not include a cigarette.

Effective date note NOTE: Sub. (1p) is created eff. 1-1-25 by 2023 Wis. Act 150.

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 or vapor 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(5u) (5u) “Pipe tobacco” means any tobacco that, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to or purchased by consumers as tobacco to be smoked in a pipe.

Effective date note NOTE: Sub. (5u) is created eff. 1-1-25 by 2023 Wis. Act 150.

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(6c) (6c) “Remote retail sale” means any sale of cigars or pipe tobacco to a consumer that satisfies any of the following:

139.75(6c)(a) (a) The consumer submits the order for the sale by telephone, a method of voice transmission, mail, or the Internet or other online service, or the seller is otherwise not in the physical presence of the consumer when the order or request for purchase is made.

139.75(6c)(b) (b) The cigars or pipe tobacco are delivered to the consumer by common carrier, private delivery service, or other method of remote delivery, or the seller is not in the physical presence of the consumer when the consumer obtains possession of the cigars or pipe tobacco.

Effective date note NOTE: Sub. (6c) is created eff. 1-1-25 by 2023 Wis. Act 150.

139.75(6g) (6g) “Remote retail seller” means a person located inside or outside of this state who makes remote retail sales.

Effective date note NOTE: Sub. (6g) is created eff. 1-1-25 by 2023 Wis. Act 150.

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; pipe tobacco; 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).