Chapter 78

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.

78.09(6) (6) Subject to conditions established by the department, the department shall provide for the payment of the tax imposed by this subchapter by a person importing motor vehicle fuel from a bulk plant located outside of this state.

78.09(7) (7) Subject to conditions established by the department, the department shall provide for export by and the certification for exemption from the tax imposed by this subchapter to a wholesale distributor exporting motor vehicle fuel out of a bulk plant to a destination outside of this state.

78.09 History History: 1991 a. 316; 1993 a. 16; 1995 a. 27; 1997 a. 27; 2013 a. 54.

78.10 78.10 Licensing process.

78.10(1) (1) Application. Application for a license to receive motor vehicle fuel under s. 78.07 shall be made upon a form prepared and furnished by the department and, in the case of a supplier, the form shall be accompanied by a copy of the applicant’s license under 26 USC 4101. The application shall be subscribed by the applicant and shall contain the information that the department reasonably requires for the administration of this subchapter. Only a person who holds a valid certificate under s. 73.03 (50) may apply for a license under this subsection.

78.10(2) (2) Investigation. The department shall investigate each applicant under sub. (1). No license shall be issued if the department deems that the applicant does not hold a valid certificate under s. 73.03 (50), the application is not filed in good faith, the applicant is not the real party in interest and the license of the real party in interest has been revoked for cause, or other reasonable cause for nonissuance exists.

78.10(3) (3) Hearing. Before refusing to issue a license, the department shall grant the applicant a hearing, of which the applicant shall be given at least 5 days’ written notice.

78.10(4) (4) Issue. If the application and the bond under s. 78.11, if that bond is required, are approved, the department shall issue a license.

78.10(6) (6) Transfer forbidden. A license under this section is not transferable to another person.

78.10(7) (7) Display of license. Each license shall be preserved and conspicuously displayed at the place of business for which issued.

78.10 History History: 1991 a. 316; 1993 a. 16; 1995 a. 27; 1997 a. 27.

78.10 Cross-reference Cross-reference: See also s. Tax 4.55, Wis. adm. code.

78.11 78.11 Bond.

78.11(1) (1) Amount.

78.11(1)(a) (a) To protect the revenues of this state, the department may require any person liable to the department for the tax imposed by this subchapter to place with it, either before or after a license under s. 78.09 is issued, security in the amount which the department determines. The amount of security required may be increased or decreased as the department deems necessary, but shall not exceed 3 times the licensee’s average monthly liability for taxes under this subchapter, as estimated by the department. If any applicant or licensee fails or refuses to place such security, the department may refuse to issue or may revoke the license. If any taxpayer is delinquent in the payment of taxes imposed by this subchapter, the department may, upon 10 days’ notice, recover the taxes, interest, penalties, costs and disbursements from the taxpayer’s security placed with the department. No interest shall be paid or allowed by the state to any person for the deposit of the security.

78.11(1)(b) (b) The security required by this subsection may be in the form of a surety bond furnished to the department payable to the state to secure payment of any motor vehicle fuel taxes, interest and penalties accrued under this subchapter, together with the costs and disbursements incurred in the collection thereof. The department shall prescribe the form and contents of the bond.

78.11(2) (2) Release of surety. The surety upon a bond required under sub. (1) may elect to conditionally cancel the bond at any time by filing with the licensee and the department written notice of such conditional cancellation. The surety so filing shall not be discharged from any liability already accrued or which may accrue under the bond before the expiration of 60 days after the filing of said notice. If the licensee does not within 60 days after receiving such notice file a new bond satisfactory to the department with the department, the licensee’s license shall be automatically revoked. If a new bond is furnished by a licensee, the department shall cancel and surrender the old bond of the licensee as soon as it is satisfied that all liability under the old bond has been fully discharged.

78.11(3) (3) Additional bond; when required. If liability upon the bond filed by any licensee is discharged or reduced by judgment rendered, payment made or otherwise, or if in the opinion of the department, the bond of any licensee has become insufficient by the subsequent insolvency, death or removal of the sureties or any of them, or if for any cause any such bond is deemed insufficient as to sureties or amount, the department shall require any such licensee to give and file additional surety or new bonds in the same manner and form and with sureties satisfactory to the department. If any such licensee fails to file such additional bond within 5 days after written notice from the department, then that licensee’s license shall be automatically revoked.

78.11(4) (4) Liability on bond continues. The validity of any bond shall not be affected by the suspension, revocation or cancellation of any license under s. 78.09 or by partial recovery upon the bond or by the execution of any new bond.

78.11 History History: 1973 c. 90; 1991 a. 316; 1993 a. 16.

78.11 Cross-reference Cross-reference: See also s. Tax 4.54, Wis. adm. code.

78.12 78.12 Reports to department; computation of tax.

78.12(1) (1) Gallons to be reported. For the purpose of the administration of this section, each receipt, shipment or delivery of motor vehicle fuel shall be reported in U.S. standard liquid gallons (231 cubic inches).

78.12(2) (2) Reports of licensees. Each licensee shall, not later than the last day of each month, file a report for the month before the month during which the report is due.

78.12(3) (3) Reports of others. Any person, including a terminal operator, who is not a licensee and who either uses any motor vehicle fuel in this state or who has possession of any motor vehicle fuel (other than that contained in the ordinary fuel tank attached to a motor vehicle) upon which the motor vehicle fuel tax has not been paid or the liability therefor has not been incurred by any licensee in this state shall file a report and pay the tax on that motor vehicle fuel and shall be subject to this subchapter in the same manner as is provided for licensees.

78.12(4) (4) Computation of tax. At the time when the tax is due under sub. (5), the licensee shall compute that tax as follows:

78.12(4)(a) (a) For gasoline:

78.12(4)(a)1. 1. Subtract the number of gallons under s. 78.01 (2r) for the taxable period from the number of gallons received during the taxable period.

78.12(4)(a)2. 2. Subtract from the amount under subd. 1. an amount equal to 0.00625 multiplied by the number of gallons under subd. 1.

78.12(4)(a)3. 3. Subtract from the amount under subd. 2. an amount equal to 0.0005 multiplied by the number of gallons under subd. 1.

78.12(4)(a)4. 4. Multiply the number of gallons under subd. 3. by the rate published under s. 78.015 as increased under s. 78.017.

78.12(4)(a)5. 5. On October 1, 2021, the percentages used to calculate the amounts to be subtracted from the computation of the tax under subds. 2. and 3. are doubled.

78.12(4)(b) (b) For diesel fuel:

78.12(4)(b)1. 1. Subtract the number of gallons under s. 78.01 (2r) for the taxable period from the number of gallons received during the taxable period.

78.12(4)(b)2. 2. Multiply the number of gallons under subd. 1. by the rate published under s. 78.015 as increased under s. 78.017.

78.12(5) (5) Payment of tax. Licensed suppliers shall pay taxes on motor vehicle fuel no later than the 15th day of the month for motor vehicle fuel sold during the previous month. At the option of a wholesaler distributor, a licensed supplier shall allow the wholesaler distributor to delay paying the tax to the licensed supplier until the date that the tax is due to this state. A wholesaler distributor who makes delayed payments shall make the payments by electronic funds transfer. If a wholesaler distributor fails to make timely payments, the licensed supplier may terminate the right of the wholesaler distributor to make delayed payments. Each licensed supplier shall notify the department of each wholesaler distributor who makes delayed payments of the tax. The department may require any wholesaler distributor who makes delayed payments of the tax to furnish the department a surety bond payable to this state in an amount not to exceed 3 times the highest estimated monthly tax owed by the wholesaler distributor. Whenever the wholesaler distributor pays the licensed supplier, the licensed supplier shall credit the wholesaler distributor’s account for the amount of tax reduction that results from the calculation under s. 78.12 (4) (a) 2.

78.12 History History: 1973 c. 333; 1975 c. 180, 421; 1977 c. 418; 1979 c. 221; 1985 a. 153; 1987 a. 399; 1991 a. 39, 316; 1993 a. 16, 437; 1997 a. 27; 2005 a. 85; 2019 a. 9; 2021 a. 58.

78.12 Cross-reference Cross-reference: See also ss. Tax 4.51, 4.52, and 4.75, Wis. adm. code.

78.12 Annotation Sub. (3), when read in conjunction with related statutes, provides that a purchaser of motor vehicle fuel from a licensed supplier is liable to the Department of Revenue for the tax when the purchaser does not pay the tax to the supplier as required by s. 78.01 (1) but does collect the tax from the customers to whom the purchaser sells the fuel and when the department gives a credit to the supplier for the tax it paid as authorized by s. 78.01 (2s). Bender v. DOR, 2005 WI App 31, 278 Wis. 2d 731, 693 N.W.2d 311, 04-0766.

78.13 78.13 Notice by licensee of discontinuance, sale or transfer of business; final report.

78.13(1) (1) Notice required. Whenever any licensee doing business under this subchapter ceases to do business, that licensee shall notify the department in writing immediately. That notice shall specify the date when the licensee ceases doing business and, in the event of the sale or transfer of the business, the name and address of the purchaser or transferee thereof.

78.13(2) (2) Final reports. Every licensee shall, upon the cessation of business or upon the cancellation or revocation of a license, make a report as required under s. 78.12 and pay all motor vehicle fuel taxes, interest and penalties due the state. Such payment shall be made under s. 78.12 (5).

78.13 History History: 1973 c. 333; 1975 c. 180, 421; 1981 c. 20; 1987 a. 399; 1991 a. 189; 1993 a. 16.

78.15 78.15 Theft of tax moneys. If any licensee sells any motor vehicle fuel upon which the tax imposed by this subchapter has become due and has not been paid, all motor vehicle fuel tax moneys received by that licensee because of that sale are trust funds in that licensee’s hands and the property of this state. Any licensee who fails or refuses to pay over to the state the tax on motor vehicle fuel at the time required under s. 78.12 (5) or who fraudulently withholds or appropriates or otherwise uses such moneys or any portion thereof belonging to this state is guilty of theft and shall be punished as provided by law for the crime of theft, irrespective of whether or not that licensee has or claims to have any interest in the moneys so received by that licensee.

78.15 History History: 1991 a. 316; 1993 a. 16.

78.155 78.155 Penalties for misuse of dyed diesel fuel.