For purposes of par. (a) 12.
“cable television system" means any facility which, for a fee, regularly amplifies and transmits by wire, coaxial cable, lightwave or microwave, simultaneously to 50 or more subscribers, programs broadcast by television or radio stations or originated by themselves or any other party. “Cable television system" does not include a master antenna system which serves one residential, commercial or government building or complex of buildings under common ownership or control if that facility does not provide any broadcast signals other than those which may be viewed in that facility.
With respect to the services subject to tax under sub. (2)
, no part of the charge for the service may be deemed a sale or rental of tangible personal property or items, property, or goods under sub. (1) (b)
, or (d)
if the property, items, or goods transferred by the service provider are incidental to the selling, performing or furnishing of the service, except as provided in par. (b)
A person selling, performing, or furnishing any service in sub. (2) (a) 1.
, regardless of whether the selling, performing, or furnishing of the service is a retail sale, is the consumer of any services under sub. (2) (a) 5.
purchased by the person for the person's use or for the use of the person's customers.
With respect to the services subject to tax under sub. (2) (a) 7.
, and 20.
and except as provided in s. 77.54 (60) (b)
and (bm) 2.
, all tangible personal property or items, property, or goods under s. 77.52 (1) (b)
, or (d)
physically transferred, or transferred electronically, to the customer in conjunction with the selling, performing, or furnishing of the service is a sale of tangible personal property or items, property, or goods under s. 77.52 (1) (b)
, or (d)
separate from the selling, performing, or furnishing of the service.
The selling, licensing, performing, or furnishing of the services described under sub. (2) (a)
at retail in this state, as determined under s. 77.522
, is subject to the tax imposed under sub. (2)
unless an exemption in this subchapter applies.
The taxes imposed by this section may be collected from the consumer or user.
Except as provided in par. (b)
, a marketplace provider is liable for the tax imposed under this section on the entire sales price charged to the purchaser, including any amount charged by the marketplace provider for facilitating the sale, from the sale, license, lease, or rental of tangible personal property, or items, property, or goods under sub. (1) (b)
, or (d)
, or services under sub. (2)
A marketplace provider whose only activities are facilitating sales of tangible personal property or services described in sub. (2) (a) 1.
on behalf of marketplace sellers operating under a hotel, motel, or restaurant brand name shared with the marketplace provider may submit an application to the department to request a waiver from collecting and remitting tax on sales facilitated on behalf of marketplace sellers. The application shall include the name and address of all marketplace sellers selling or furnishing such tangible personal property or services in this state, the marketplace seller's sales or use tax permit number obtained under sub. (7)
or s. 77.53 (9)
, and any other information the department requires. The department may grant the waiver if it is satisfied that the tax due under this chapter is collected and remitted by the marketplace sellers. A marketplace provider that is granted the waiver must, within 60 days from a written request by the department, provide the name and address of all marketplace sellers selling or furnishing such tangible personal property or services in this state, the marketplace seller's sales or use tax permit number obtained under sub. (7)
or s. 77.53 (9)
, and any other information the department requires.
The department may grant waivers under par. (b)
for other types of marketplace providers if there is evidence that the marketplace sellers have a history of reliably collecting and remitting to the department the tax on sales or there is other evidence that the marketplace sellers will reliably collect and remit to the department the tax on sales.
The department may by rule provide that the amount collected by the retailer from the consumer or user in reimbursement of the retailer's tax be displayed separately from the list price, the price advertised in the premises, the marked price, or other price on the sales check or other proof of sale.
Except as provided in par. (b)
, every person desiring to operate as a seller within this state who holds a valid certificate under s. 73.03 (50)
shall file with the department an application for a permit for each place of operations. Every application for a permit shall be made upon a form prescribed by the department and shall set forth the name under which the applicant intends to operate, the location of the applicant's place of operations, and the other information that the department requires. If an owner elects under s. 77.58 (3) (a)
to file a separate electronic return for each of the owner's disregarded entities, each disregarded entity is an applicant under this subsection. Except as provided in sub. (7b)
, the application shall be signed by the owner if a sole proprietor; in the case of sellers other than sole proprietors, the application shall be signed by the person authorized to act on behalf of such sellers. A nonprofit organization that has a sales price taxable under s. 77.54 (7m)
shall obtain a seller's permit and pay taxes under this subchapter on all taxable sales prices received after it is required to obtain that permit. If that organization becomes eligible later for the exemption under s. 77.54 (7m)
except for its possession of a seller's permit, it may surrender that permit.
Any person who may register under sub. (7)
may designate an agent, as defined in s. 77.524 (1) (ag)
, to register with the department under sub. (7)
, in the manner prescribed by the department.
After compliance with sub. (7)
and s. 77.61 (2)
by the applicant, the department shall grant and issue to each applicant a separate permit for each place of operations within the state. A permit is not assignable and is valid only for the person in whose name it is issued and for the transaction of operations at the place designated in it. It shall at all times be conspicuously displayed at the place for which it was issued.
If any person fails to comply with any provision of this subchapter relating to the sales tax or any rule of the department relating to the sales tax adopted under this subchapter, is delinquent in respect to any tax imposed by the department or fails timely to file any return or report in respect to any tax under ch. 71
, or 139
after having been requested to file that return or report, the department upon hearing, after giving the person 10 days' notice in writing specifying the time and place of hearing and requiring the person to show cause why the permit should not be revoked or suspended, may revoke or suspend any one or more of the permits held by the person. The department shall give to the person written notice of the suspension or revocation of any of the permits. The notices required in this subsection may be served as provided in s. 73.03 (73m)
. If the department suspends or revokes a permanent permit under this subsection, the department may grant a temporary permit that is valid for one month and may then grant additional temporary permits if the person pays all amounts owed under this chapter for the month for which the previous temporary permit was issued. A person that receives a temporary permit waives the notice requirement under s. 77.61 (2)
. The department may not issue a new permanent permit after the revocation of a permit unless the department is satisfied that the former holder of the permit will comply with the provisions of this subchapter, the rules of the department relating to the sales tax, and the provisions relating to other taxes administered by the department.
A person who operates as a seller in this state without a permit or after a permit has been suspended or revoked or has expired, unless the person is not required to obtain a permit as provided under sub. (7) (b)
or unless the person has a temporary permit under sub. (11)
, and each officer of any corporation, partnership member, limited liability company member, or other person authorized to act on behalf of a seller who so operates, is guilty of a misdemeanor. Except for a person who is registered in accordance with the agreement, as defined in s. 77.65 (2) (a)
, permits shall be held only by persons actively operating as sellers of tangible personal property, or items, property, or goods under sub. (1) (b)
, or (d)
, or taxable services. Any person not so operating shall forthwith surrender that person's permit to the department for cancellation. The department may revoke the permit of a person found not to be actively operating as a seller of tangible personal property, or items, property, or goods under sub. (1) (b)
, or (d)
, or taxable services.
For the purpose of the proper administration of this section and to prevent evasion of the sales tax it shall be presumed that all receipts are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property, or items, property, or goods under sub. (1) (b)
, or (d)
, or services is not a taxable sale at retail is upon the person who makes the sale unless that person takes from the purchaser an electronic or a paper certificate, in a manner prescribed by the department, to the effect that the property, item, good, or service is purchased for resale or is otherwise exempt, except that no certificate is required for the sale of tangible personal property, or items, property, or goods under sub. (1) (b)
, or (d)
, or services that are exempt under s. 77.54 (5) (a) 3.
, and (67)
The certificate referred to in sub. (13)
relieves the seller of the tax otherwise applicable only if the seller obtains a fully completed exemption certificate, or the information required to prove the exemption, from a purchaser no later than 90 days after the date of the sale of the tangible personal property, or items, property, or goods under sub. (1) (b)
, or (d)
, or services, except as provided in par. (am)
. The certificate under sub. (13)
shall not relieve the seller of the tax otherwise applicable if the seller fraudulently fails to collect sales tax, solicits the purchaser to claim an unlawful exemption, or accepts an exemption certificate from a purchaser who claims to be an entity that is not subject to the taxes imposed under this subchapter, if the subject of the transaction sought to be covered by the exemption certificate is received by the purchaser at a location operated by the seller in this state and the exemption certificate clearly and affirmatively indicates that the claimed exemption is not available in this state. The certificate referred to in sub. (13)
shall provide information that identifies the purchaser and shall indicate the basis for the claimed exemption and a paper certificate shall be signed by the purchaser. The certificate shall be in such form as the department prescribes by rule.
If the seller has not obtained a fully completed exemption certificate or the information required to prove the exemption, as provided in par. (a)
, the seller may, no later than 120 days after the department requests that the seller substantiate the exemption, either provide proof of the exemption to the department by other means or obtain, in good faith, a fully completed exemption certificate from the purchaser.
An exemption certificate is received by the seller in good faith if the certificate claims an exemption for which all of the following apply:
It was an exemption authorized by law on the date of the transaction in the jurisdiction where the transaction is sourced.
It could be applicable to the property, item, good, or service being purchased.
If the seller obtains the information described in subd. 2.
, the seller is relieved of any liability for the tax on the transaction unless it is discovered through the audit process that the seller had knowledge, or had reason to know, at the time such information was provided that the information relating to the exemption claimed was materially false or the seller otherwise knowingly participated in activity intended to purposefully evade the tax that is properly due on the transaction. In order to enforce this subdivision, the state must establish that the seller had knowledge, or had reason to know, at the time the information was provided that the information was materially false.
A certified service provider is relieved from liability for the tax otherwise applicable to the same extent as the seller, who is the certified service provider's client, is relieved from liability for the tax otherwise applicable under par. (a)
A marketplace provider shall obtain and maintain each exemption certificate from a purchaser claiming an exemption for a sale facilitated by the marketplace provider on behalf of a marketplace seller.
If a purchaser who purchases tangible personal property, or items, property, or goods under s. 77.52 (1) (b)
, or (d)
, or taxable services without paying a sales tax or use tax on such purchase because such property, items, goods, or services were for resale makes any use of the property, items, goods, or services other than retention, demonstration or display while holding the property, items, goods, or services for sale, lease or rental in the regular course of the purchaser's operations, the use shall be taxable to the purchaser under s. 77.53
as of the time that the property, items, goods, or services are first used by the purchaser, and the purchase price of the property, items, goods, or services to the purchaser shall be the measure of the tax.
Any person who gives a resale certificate for property, or items, property, or goods under sub. (1) (b)
, or (d)
, or services which that person knows at the time of purchase is not to be resold by that person in the regular course of that person's operations as a seller for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction is guilty of a misdemeanor. Any person certifying to the seller that the sale of property, or items, property, or goods under sub. (1) (b)
, or (d)
, or taxable service is exempt, knowing at the time of purchase that it is not exempt, for the purpose of evading payment to the seller of the amount of the tax applicable to the transaction, is guilty of a misdemeanor.
If a purchaser gives a certificate with respect to the purchase of fungible goods and thereafter commingles these goods with other fungible goods not so purchased but of such similarity that the identity of the constituent goods in the commingled mass cannot be determined, sales from the mass of commingled goods shall be deemed to be sales of the goods so purchased until a quantity of commingled goods equal to the quantity of purchased goods so commingled has been sold.
A person who holds a valid certificate issued under s. 73.03 (50)
may apply for a direct pay permit by filing a completed form that the department prescribes.
The department shall issue a direct pay permit, at the beginning of a taxpayer's taxable year, if the following requirements are fulfilled:
Because of the nature of the applicant's business, issuing the permit will significantly reduce the work of administering the taxes under this subchapter.
The applicant's accounting system will clearly indicate the amount of tax that the applicant owes under this subchapter.
The applicant makes enough purchases that are taxable under this subchapter to justify the expense of regular audits by the department.
The applicant is not liable for delinquent taxes; including costs, penalties, surcharges and interest; under ch. 71
or this chapter of $400 or more if any part of the tax is delinquent for at least 5 months.
It is in this state's best interests to issue the permit.
The applicant purchases enough tangible personal property or items, property, or goods under s. 77.52 (1) (b)
, or (d)
under circumstances that make it difficult to determine whether the property, items, or goods will be subject to a tax under this subchapter.
A holder of a permit that is issued under par. (b)
may not transfer or assign it.
The department may revoke a permit that is issued under par. (b)
if the holder misuses it or the department determines that revocation is in this state's best interests.
A retailer may not collect a tax under this subchapter, and is not liable for a tax under this subchapter, on any sale, except those of a type specified as ineligible for an exemption under this paragraph by a rule promulgated by the department, for which the buyer furnishes to the retailer a copy of the permit that is issued under par. (b)
or a statement that the buyer holds such a permit, a statement of that permit's number and a statement of the date that the permit was issued.
A person who holds a permit that is issued under par. (b)
shall keep a record of all retailers from whom the person made a purchase for which the person used a permit that is issued under par. (b)
and shall do one of the following:
Fulfill the requirements for an exempt sale under par. (e)
for every purchase that the person makes that may be exempt under that paragraph and pay the tax under s. 77.53 (1)
to the department on all of those purchases for which the tax is due.
Maintain accounting records that show the tax under ss. 77.52 (1)
and 77.53 (3)
paid on each purchase during each reporting period under s. 77.58
and the total tax paid during each reporting period, pay the tax under ss. 77.52 (1)
and 77.53 (3)
on either all or none of the purchases made from each retailer during each reporting period and pay the tax under s. 77.53 (1)
to the department on all of the purchases for which the tax is due.
If any retailer liable for any amount of tax under this subchapter sells out the retailer's business or stock of goods or quits the business, the retailer's successors or assigns shall withhold sufficient of the purchase price to cover such amount until the former owner produces a receipt from the department that it has been paid or a certificate stating that no amount is due.
If the purchaser of a stock of goods fails to withhold from the purchase price as required, the purchaser becomes personally liable for the payment of the amount required to be withheld by the purchaser to the extent of the purchase price valued in money. Within 60 days after receiving a written request from the purchaser for a certificate, or within 60 days from the date the former owner's records are made available for audit, whichever period expires later, but in any event not later than 90 days after receiving the request, the department shall either issue the certificate or send notice to the purchaser at the purchaser's address as it appears on the records of the department of the amount that must be paid as a condition of issuing the certificate. Failure of the department to send the notice releases the purchaser from any further obligation to withhold the purchase price as above provided. The obligation of the successor may be enforced within 4 years of the time the retailer sells out the retailer's business or stock of goods or at the time that the determination against the retailer becomes final, whichever event occurs later.
The department shall by rule provide for the efficient collection of the taxes imposed by this subchapter on sales of tangible personal property, or items, property, or goods under sub. (1) (b)
, or (d)
, or services by persons not regularly engaged in selling at retail in this state or not having a permanent place of business, but who are temporarily engaged in selling from trucks, portable roadside stands, concessions at fairs and carnivals, and the like. The department may authorize such persons to sell property or items, property or goods under sub. (1) (b)
, or (d)
or sell, perform, or furnish services on a permit or nonpermit basis as the department by rule prescribes and failure of any person to comply with such rules constitutes a misdemeanor.
Except as provided in par. (b)
, the entire sales price of a bundled transaction is subject to the tax imposed under this subchapter.
At the retailer's option, if the retailer can identify, by reasonable and verifiable standards from the retailer's books and records that are kept in the ordinary course of its business for other purposes, including purposes unrelated to taxes, the portion of the price that is attributable to products that are not subject to the tax imposed under this subchapter, that portion of the sales price is not taxable under this subchapter. This paragraph does not apply to a bundled transaction that contains food and food ingredients, drugs, durable medical equipment, mobility enhancing equipment, prosthetic devices, or medical supplies.
Except as provided in par. (b)
, a person who provides a product that is not distinct and identifiable because it is provided free of charge, as provided in s. 77.51 (3pf) (b)
, is the consumer of the product that is provided free of charge and shall pay the tax imposed under this subchapter on the purchase price of that product.
Except as provided in sub. (2m) (a)
, a person who provides a product that is not distinct and identifiable because it is provided free of charge to a purchaser who must also purchase another product that is subject to the tax imposed under this subchapter from that person in the same transaction may purchase the product provided free of charge without tax, for resale.
With regard to transactions described in s. 77.51 (1f) (b)
, the service provider is the consumer of the tangible personal property or items, property, or goods under sub. (1) (b)
, or (d)
and shall pay the tax imposed under this subchapter on the purchase price of the property, items, or goods.
With regard to transactions described in s. 77.51 (1f) (c)
, the service provider is the consumer of the service that is essential to the use or receipt of the other service and shall pay the tax imposed under this subchapter on the purchase price of the service that is essential to the use or receipt of the other service.
History: 1973 c. 156
; 1975 c. 39
; 1977 c. 29
; 1979 c. 174
; 1981 c. 20
; 1983 a. 2
; 1983 a. 189
, 329 (12)
; 1983 a. 341
; 1985 a. 29
; 1987 a. 27
; 1989 a. 31
; 1991 a. 39
; 1993 a. 112
; 1995 a. 27
; 1997 a. 27
; 1999 a. 9
; 1999 a. 150
; 2001 a. 16
; 2003 a. 33
; 2005 a. 149
; 2007 a. 11
; 2009 a. 2
; 2011 a. 18
; 2013 a. 20
; 2015 a. 84
; 2017 a. 17
; 2019 a. 10
; s. 35.17 correction in (3m) (a).
Meals served by a religious order in carrying out its religious work were not subject to sales tax for that portion of charges made to guests for lodging, food, and use of the order's facilities. Kollasch v. Adamany, 104 Wis. 2d 552
, 313 N.W.2d 47
Sub. (18) provides no relief from successor liability when the entire purchase price is paid to a secured creditor. Kastengren v. DOR, 179 Wis. 2d 587
, 508 N.W.2d 431
(Ct. App. 1993).
Contractors are considered to be the consumers of personal property used by them in real property construction and are subject to sales tax. Performing a real property construction activity for an exempt entity does not make a contractor exempt. Zignego Co., Inc. v. DOR, 211 Wis. 2d 819
, 565 N.W.2d 590
(Ct. App. 1997), 96-1965
A resort's sale of flexible time-share interests in condominiums was subject to sales tax. Sub. (2) (a) 1., as applied to sales of flexible time-shares, does not violate the Art. VIII, s.1,“uniformity clause," nor does it violate guarantees of equal protection. Telemark Development, Inc. v. DOR, 218 Wis. 2d 809
, 581 N.W.2d 585
(Ct. App. 1998), 97-3133
A communications tower constructed on leased land was properly deemed “personal property." The owner of the tower was liable for sales tax on proceeds from renting or leasing space on the tower, and a renter of space on the tower was liable for use tax on its rental of space on the tower. All City Communication Company, Inc. v. DOR, 2003 WI App 77
, 263 Wis. 2d 394
, 661 N.W.2d 845
Whether Milwaukee Symphony Orchestra concerts were entertainment events, ticket sales to which are subject to sales tax under sub. (2) (a) 2., depends on the “primary purpose" of the event. The determination is a holistic one that looks to the motivation, mission, or purpose of the sponsoring organization, as well as any evidence of the motivation and reaction of those paying admission and ultimately the nature of the place or event itself. If the primary purpose of an event or place is 50 percent or more “amusement, athletic, entertainment or recreational," then admission to the event or place is taxable under this provision of the statute. Milwaukee Symphony Orchestra v. DOR, 2010 WI 33
, 324 Wis. 2d 68
, 781 N.W.2d 674
Sub. (2) (a) 1. does not impose a sales tax on those selling the service of making reservations on behalf of members of the public with those who furnish rooms or lodging. The omission of the words “the sale of" in sub. (2) (a) 1. indicates that the legislature did not intend to impose a tax on those selling the services of making hotel reservations but not actually furnishing the accommodations. DOR v. Orbitz, L.L.C. 2016 WI App 22
, 367 Wis. 2d 593
, 877 N.W.2d 372
The term “processing” in sub. (2) (a) 11. encompasses the performance of a mechanical or chemical operation on tangible personal property, a task that can be completed without transforming the property into a new product or adding anything to it that was not already there. Processing includes the separation of river sediment into its component parts. Tetra Tech EC, Inc. v. DOR, 2018 WI 75
, 382 Wis. 2d 496
, 914 N.W.2d 21
The term “laundry services" in sub. (2) (a) 6. means work done for another to wash soiled clothes and linens. The undisputed facts of this case plainly show that, in exchange for a fee, the petitioner washed its clients' soiled clothes and linens. The primary purpose of the petitioner's contracts with its clients was not to have the petitioner merely provide a laundry department manager or the attendant managerial and administrative functions; it was for the client to obtain laundry services. The petitioner could not evade tax on laundry services simply by calling its services departmental or managerial, when the essence of those services was to clean its clients' laundry. Healthcare Services Group, Inc. v. DOR, 2018 WI App 48
, 383 Wis. 2d 699
, 916 N.W.2d 635
A state may tax exclusively interstate commerce so long as the tax does not create any effect forbidden by the commerce clause. A court will sustain a tax so long as it: 1) applies to an activity with a substantial nexus with the taxing state; 2) is fairly apportioned; 3) does not discriminate against interstate commerce; and 4) is fairly related to the services the state provides. An out-of-state seller's liability to collect and remit sales taxes to the consumer's state does not depend on whether the seller has a physical presence in that state. Physical presence is not necessary to create a substantial nexus. South Dakota v. Wayfair, Inc., 585 U.S. ___, 138 S. Ct. 2080
, 201 L. Ed. 2d 403
Changes on the Horizon: Sales and Use Tax in the E-Commerce Era. Pascaly. Wis. Law. Oct. 2015.