Chapter 78

78.70   Actions to collect tax and penalties.

78.71   Motor vehicle fuel, general aviation fuel and alternate fuels taxes are preferred claims.

78.72   Preference given actions to enforce this chapter.

78.73   Criminal penalties.

78.74   Remedies and penalties are cumulative.

78.75   Refund; procedure; claim unassignable.

78.77   Registration of transporters; records to be kept.

78.78   Reports by transporters; exceptions.

78.79   Duty of department to enforce fuel tax provisions; promulgate rules.

78.80   Departmental examinations; information; penalty.

78.81   Attorney general and district attorney to prosecute; place of trial.

78.82   Municipalities not to tax motor vehicle fuel or alternate fuels.

subch. I of ch. 78 SUBCHAPTER I

MOTOR VEHICLE FUEL TAX

78.005 78.005 Definitions. In this subchapter:

78.005(1) (1) “Alcohol” means fuel ethanol, except denaturant and water, that is at least 98 percent ethanol by volume. “Alcohol” also means ethanol derivative substances that are capable of use as a blendstock, including ethyl tertiary butyl ether, methanol, methanol derivative substances and methyl tertiary butyl ether.

78.005(2) (2) “Blending” means the mixing of one or more petroleum products, with or without another product, and regardless of the original character of the product blended, if the product obtained by the blending is capable of use in the generation of power for the propulsion of a motor vehicle. “Blending” does not include mixing that occurs in refining by the original refiner of crude petroleum nor mixing of lubricating oil in the production of lubricating oils and greases.

78.005(3) (3) “Bulk plant” means a motor vehicle fuel storage facility, other than a terminal, that is primarily used to redistribute motor vehicle fuel by transporting it in vehicles.

78.005(4) (4) “Department” means the department of revenue.

78.005(5) (5) “Diesel fuel” means any liquid fuel capable of use in discrete form or as a blended component in the operation of diesel-type engines in motor vehicles including number one and number 2 fuel oils, except that kerosene is not “diesel fuel” unless it is blended with diesel fuel for use in motor vehicles that have a diesel-type engine.

78.005(6) (6) “Export” means deliver across the boundaries of this state by or for the seller or purchaser from a place of origin in this state.

78.005(6m) (6m) “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.

78.005(7) (7) “Gasoline” means gasoline, casing head or natural gasoline, benzol, benzine, naphtha, and any blend stock or additive that is sold for blending with gasoline other than products typically sold in containers of less than 5 gallons. “Gasoline” includes a liquid prepared, advertised, offered for sale, sold for use as, or used in the generation of power for the propulsion of a motor vehicle, including a product obtained by blending together any one or more products of petroleum, with or without another product, and regardless of the original character of the petroleum products blended, if the product obtained by the blending is capable of use in the generation of power for the propulsion of a motor vehicle. “Gasoline” also includes transmix. “Gasoline” does not include diesel fuel, commercial or industrial naphthas or solvents manufactured, imported, received, stored, distributed or sold for exclusive use other than as a fuel for a motor vehicle.

78.005(8) (8) “Import” means deliver across the boundaries of this state by or for the seller or purchaser from a place of origin outside this state.

78.005(9) (9) “Licensee” means a person who is licensed under s. 78.09.

78.005(10) (10) “Manufacturing” means producing motor vehicle fuel by refining or preparing motor vehicle fuel by any process involving substantially more than the blending of motor vehicle fuel.

78.005(11) (11) “Mobile machinery and equipment” includes a vehicle which is self-propelled by an internal combustion engine or motor but not designed or used primarily for the transportation of persons or property and only incidentally operated or moved over a highway such as farm tractors, ditch digging apparatus, power shovels, drag lines, earth-moving equipment and machinery and road construction and maintenance machinery such as asphalt spreaders, bituminous mixers, bucket loaders, ditchers, leveling graders, finishing machines, motor graders, paving mixers, road rollers, scarifiers and earth-moving scrapers. “Mobile machinery and equipment” does not include dump trucks or self-propelled vehicles originally designed for the transportation of persons or property to which machinery has been attached such as truck-mounted transit mixers, cranes, shovels, welders, air compressors, well-boring apparatus, corn shellers, lime spreaders and feed grinders.

78.005(12) (12) “Motor vehicle” means any automobile, truck, truck-tractor, tractor, bus, vehicle or other conveyance that is self-propelled by an internal combustion engine or motor and licensed for highway use, except that “motor vehicle” does not include mobile machinery and equipment.

78.005(13) (13) “Motor vehicle fuel” means gasoline or diesel fuel.

78.005(13b) (13b) “Pay” means mail or deliver funds to the department or, if the department prescribes another method of payment or another destination, use that other method or submit to that other destination.

78.005(13d) (13d) “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.

78.005(13g) (13g) “Recreational motorboat” means a motorboat used predominantly for the entertainment, amusement or recreation of the owner of the motorboat, whether or not it is used in a trade or business.

78.005(13j) (13j) “Renewable fuel” means fuel that is produced from renewable biomass and that is used to replace or reduce the quantity of fossil fuel used in motor vehicle fuel. “Renewable fuel” includes biodiesel fuel, as defined in s. 168.14 (2m).

78.005(13m) (13m) “Retail dealer” means a person, other than a wholesaler distributor, who engages in the business of selling or distributing motor vehicle fuel to the end user in this state.

78.005(13r) (13r) “Sign” means write one’s signature or, if the department prescribes another method of authenticating, use that other method.

78.005(14) (14) “Supplier” includes a person who imports, or acquires immediately upon import, motor vehicle fuel by pipeline or marine vessel from a state, territory or possession of the United States or from a foreign country into a terminal and who is registered under 26 USC 4101 for tax-free transactions in gasoline. “Supplier” also includes a person who produces in this state; or imports into a terminal or bulk plant; or acquires immediately upon import by truck, railcar or barge into a terminal; alcohol or alcohol derivative substances. “Supplier” also includes a person who produces, manufactures or refines motor vehicle fuel in this state. “Supplier” also includes a person who acquires motor vehicle fuel pursuant to an industry terminal exchange agreement or by a 2-party exchange under section 4105 of the Internal Revenue Code. “Supplier” does not include a retail dealer or wholesaler who merely blends alcohol with gasoline before the sale or distribution of the product. “Supplier” does not include a terminal operator who merely handles in a terminal motor vehicle fuel consigned to the terminal operator.

78.005(15) (15) “Terminal” means a motor vehicle fuel storage and distribution facility that is supplied by a pipeline or a marine vessel and from which motor vehicle fuel may be removed at a rack. “Terminal” does not include any facility at which motor vehicle fuel blend stocks and additives are used in the manufacture of products other than motor vehicle fuel and from which no motor vehicle fuel is removed.

78.005(16) (16) “Terminal operator” means the person who by ownership or contractual agreement is charged with the responsibility for, or physical control over, and operation of a terminal. If co-venturers own a terminal, “terminal operator” means the person who is appointed to exercise the responsibility for, or physical control over, and operation of the terminal.

78.005(17) (17) “Transmix” means the buffer between 2 different products in a pipeline shipment, or a mix of 2 different products in a refinery or terminal, that results in an off-grade mixture.

78.005(18) (18) “Wholesaler distributor” means a person who acquires motor vehicle fuel from a supplier or from another wholesaler distributor for subsequent sale at wholesale and distribution by tank cars or tank trucks or both.

78.005 History History: 1993 a. 16 ss. 1829 to 1845, 1860, 1862, 1863, 1867; 1993 a. 437; 1995 a. 113; 1997 a. 27, 35; 2005 a. 25; 2009 a. 401; 2013 a. 54; 2015 a. 216.

78.01 78.01 Tax imposed; collected; exceptions.

78.01(1) (1) Imposition of tax and by whom paid. An excise tax at the rate determined under ss. 78.015 and 78.017 is imposed on all motor vehicle fuel received by a supplier for sale in this state, for sale for export to this state or for export to this state except as otherwise provided in this chapter. The motor vehicle fuel tax is to be computed and paid as provided in this chapter. Except as otherwise provided in this chapter, a person who receives motor vehicle fuel under s. 78.07 shall collect from the purchaser of the motor vehicle fuel that is received, and the purchaser shall pay to the person who receives the motor vehicle fuel under s. 78.07, the tax imposed by this section on each sale of motor vehicle fuel at the time of the sale, irrespective of whether the sale is for cash or on credit. In each subsequent sale or distribution of motor vehicle fuel on which the tax has been collected as provided in this subsection, the tax collected shall be added to the selling price so that the tax is paid ultimately by the user of the motor vehicle fuel.

78.01(2) (2) Gasoline exemptions. No tax is hereby imposed upon or with respect to the following:

78.01(2)(a) (a) Gasoline exported by a person licensed to export. Gasoline carried out of this state in the ordinary fuel tank of a motor vehicle is not gasoline exported.

78.01(2)(b) (b) Gasoline sold to and used by the United States or its agencies if that sale is evidenced by proper documentation.

78.01(2)(d) (d) Gasoline sold to a common motor carrier as defined in ch. 194, if that carrier certifies to the department that the gasoline is for use in the operation of a motor vehicle for the urban mass transportation of passengers as defined in s. 71.38.

78.01(2)(e) (e) Gasoline sold for nonhighway use in mobile machinery and equipment; other than use in a snowmobile, a limited use off-highway motorcycle that is not registered for private use under s. 23.335 (3) (a), an all-terrain vehicle or utility terrain vehicle that is not registered for private use under s. 23.33 (2) (d), or a recreational motorboat; and delivered directly into the consumer’s storage tank in an amount of not less than 100 gallons.

78.01(2)(f) (f) Gasoline sold to a general aviation fuel dealer licensed under s. 78.56 for use in an aircraft, as defined in s. 78.55 (2), and delivered directly into the dealer’s storage tank in a volume of at least 100 gallons.

78.01(2m) (2m) Diesel fuel exemptions. No tax is imposed under sub. (1), and no supplier, wholesaler or retail dealer may collect a tax, on diesel fuel that is purchased by an end user if that fuel fulfills the requirements under sub. (2p) or fulfills one of the following conditions:

78.01(2m)(a) (a) It is exported by a person who is licensed to export.

78.01(2m)(b) (b) It is sold to and used by the United States or one of its agencies and that sale is evidenced by proper documentation.

78.01(2m)(c) (c) It is sold for use as a heating oil.

78.01(2m)(d) (d) It is sold for use in trains.

78.01(2m)(e) (e) It is sold to a common motor carrier, as defined in s. 194.01 (1), if that carrier certifies to the department that the diesel fuel is to be used in the operation of a motor vehicle for the urban mass transportation of passengers, as defined in s. 71.38.

78.01(2m)(f) (f) It is dyed diesel fuel and is sold for off-highway use other than use in a snowmobile, in a limited use off-highway motorcycle that is not registered for private use under s. 23.335 (3) (a), in an all-terrain vehicle or utility terrain vehicle that is not registered for private use under s. 23.33 (2) (d) or (2g), or in a recreational motorboat or if no claim for a refund for the tax on the diesel fuel may be made under s. 78.75 (1m) (a) 3.

78.01(2m)(g) (g) It is exported by an unlicensed person who has paid the tax on it to the state of destination, as evidenced by a bill of lading.

78.01(2n) (2n) Personal renewable fuel producer exemption. No tax is imposed under sub. (1) on the first 1,000 gallons of renewable fuel produced or converted from another purpose each year by an individual and used by that individual in his or her personal motor vehicle, if the individual does not sell any such renewable fuel during that year.

78.01(2p) (2p) Dyed fuel. If indelible dye has been added to diesel fuel before or upon withdrawal at a terminal or refinery rack, that fuel may be used only for an exempt purpose. At the option of the supplier, the dye may be either dye required to be added under federal environmental protection agency requirements or dye that meets specifications of, and is in an amount required by, the department.

78.01(2r) (2r) Refunds for exempt transactions.

78.01(2r)(a) (a) The ultimate consumer shall assign his or her claim for a refund on undyed exempt diesel fuel and on all exempt gasoline to the person from whom the ultimate consumer purchased the fuel.

78.01(2r)(b) (b) A licensed exporter who has purchased diesel fuel from a supplier, paid the tax on it, removed it from a terminal or a refinery for delivery in this state and exported it may claim a refund for that tax by presenting to the department within 3 years after the date of purchase a written statement, under the penalties for perjury, that lists the amount of diesel fuel purchased and exported and that indicates that the purchase price and the tax have been paid.

78.01(2s) (2s) Liability precluded. A licensed supplier who is unable to recover the tax from a purchaser is not liable for the tax and, with proper documentation, may credit the amount of tax against a later remittance of taxes. A wholesaler distributor who is unable to recover the tax from another wholesaler distributor or from a retail dealer is not liable for the tax and, by supplying proper documentation, may apply to the department for a refund.

78.01(2t) (2t) Exemption certificates. Exemption certificates used to claim the exemptions under subs. (2) and (2m) are valid for 3 years unless cancelled by the department or the person claiming the exemption.

78.01 History History: 1979 c. 221; 1981 c. 20; 1983 a. 27; 1985 a. 153; 1987 a. 27; 1987 a. 312 s. 17; 1987 a. 399; 1989 a. 31; 1991 a. 39, 316; 1993 a. 16, 437; 1995 a. 113; 1997 a. 27, 237; 2009 a. 401; 2011 a. 208; 2013 a. 204; 2015 a. 170.

78.01 Cross-reference Cross-reference: See also ss. Tax 4.11, 4.12, and 4.65, Wis. adm. code.

78.015 78.015 Annual adjustment of tax rate.

78.015(1) (1) Before April 1 the department shall recompute and publish the rate for the tax imposed under s. 78.01 (1). The new rate per gallon shall be calculated by multiplying the rate in effect at the time of the calculation by the amount obtained under sub. (2). After the calculation of the rate that takes effect on April 1, 2006, the department shall make no further calculation under this subsection and sub. (2).

78.015(2) (2) Divide the annual average U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the previous year by that annual average for the year before the previous year.

78.015(4) (4) The rate calculated under this section shall be rounded to the nearest 0.1 cent.

78.015(5) (5) The rate calculated under this section is effective on the April 1 after the calculation.

78.015 History History: 1983 a. 27; 1991 a. 39; 1993 a. 16, 437; 1997 a. 27; 2005 a. 85.

78.017 78.017 Adjustment in 1997. On November 1, 1997, the rate of the tax imposed under s. 78.01 (1) is increased by one cent.

78.017 History History: 1997 a. 27.

78.07 78.07 Motor vehicle fuel received.

78.07(1) (1) Except as provided in subs. (1a) and (3), motor vehicle fuel that is produced, refined, blended or manufactured, or imported for manufacturing, by any person at a refinery, marine terminal, pipeline terminal, pipeline tank farm or place of manufacture is received by a supplier when the motor vehicle fuel is removed from a refinery, marine terminal, pipeline terminal, pipeline tank farm or place of manufacture and placed in tank cars, tank trucks, tank wagons or other types of transportation equipment, containers or facilities at such refinery, marine terminal, pipeline terminal, pipeline tank farm or place of manufacture or when the motor vehicle fuel is placed in any tank or other container from which sales or deliveries not involving transportation of the motor vehicle fuel are made directly.

78.07(1a) (1a) Motor vehicle fuel shipped by pipeline spur to an airport hydrant system is received when the motor vehicle fuel is received from the main pipeline into the initial or primary storage facility or holding terminal by the owner of the storage facility or holding terminal.

78.07(3) (3) Except as provided in subs. (1) and (1a), motor vehicle fuel imported is received at the time and place of unloading by the person for whose account that shipment or delivery is made.

78.07(4) (4) Any product that is not motor vehicle fuel and that is blended as a component part of motor vehicle fuel other than at a refinery, marine terminal, pipe line terminal, pipe line tank farm or place of manufacture is received by such person who is the owner of that product at the time and place the blending is completed.

78.07(5) (5) Renewable fuel exempt under s. 78.01 (2n) from the tax under s. 78.01 (1) is not received for the purposes of this section.

78.07 History History: 1983 a. 27, 37; 1991 a. 316; 1993 a. 16; 2009 a. 401; 2013 a. 20.

78.07 Cross-reference Cross-reference: See also s. Tax 4.10, Wis. adm. code.

78.09 78.09 Supplier and exporter licenses.

78.09(1) (1) No person may import motor vehicle fuel into; or sell, use, transport or store motor vehicle fuel in; this state, unless the tax on that motor vehicle fuel has been paid to, or tax liability accrued by, a holder of an unrevoked supplier license issued by the department, except that a supplier is exempt from that requirement for motor vehicle fuel manufactured in this state or imported by pipeline or marine barge and stored in a terminal in this state, and except that a supplier of alcohol is exempt from that requirement for alcohol imported by barge, railcar or transport truck. A supplier who does not transact business in this state and who has no contacts with this state except sales to wholesaler distributors or retail dealers in another state who ship motor vehicle fuel into this state may apply for, and may be given, a supplier’s license under this subsection and thereby submit to the jurisdiction of this state for purposes of this subchapter.

78.09(2) (2) To procure a license, a supplier who holds a valid certificate issued under s. 73.03 (50) shall file with the department an application signed by the owner of the business if the owner is an individual, partnership or unincorporated association or by the president and secretary if the owner is a corporation.

78.09(3) (3) No person may export motor vehicle fuel unless that person has obtained an export license or a supplier license or has paid the destination state motor vehicle fuel tax to the supplier and can demonstrate proof of export in the form of a destination state bill of lading.

78.09(4) (4) In order to obtain a license to export motor vehicle fuel to another specified state, a person shall be licensed either to collect and remit motor vehicle fuel taxes or to deal in tax-free motor vehicle fuel in that other specified state of destination.

78.09(5) (5) To procure an export license, an exporter who holds a valid certificate issued under s. 73.03 (50) shall file with the department an application signed by the owner of the business if the owner is an individual, partnership or unincorporated association or by the president and secretary if the owner is a corporation.