Current law, under
2017 Wisconsin Act 369, provides that the legislature may
intervene as a matter of right in an action when a party to the action, as part of a
claim or affirmative defense, challenges in state or federal court the constitutionality
of a statute, facially or as applied, challenges a statute as violating or preempted by
federal law, or otherwise challenges the construction or validity of a statute. Act 369
also provides that the legislature must be served with a copy of the proceedings in
all such actions, regardless of whether the legislature intervenes. This bill repeals
those provisions.
2. Retention of legal counsel by the legislature
Prior to
2017 Wisconsin Act 369, representatives to the assembly and senators,
as well as legislative employees, could receive legal representation from DOJ in most
legal proceedings. Assembly and senate policies and practices also allowed
legislators and legislative employees to retain outside legal counsel in some
instances.
Act 369 provided all of the following:
a. With respect to the assembly, that the speaker of the assembly may authorize
a representative to the assembly or assembly employee who requires legal
representation to obtain outside legal counsel if the acts or allegations underlying
the action are arguably within the scope of the representative's or employee's duties;
and that the speaker may obtain outside legal counsel in any action in which the
assembly is a party or in which the interests of the assembly are affected, as
determined by the speaker.
b. With respect to the senate, that the senate majority leader may authorize
a senator or senate employee who requires legal representation to obtain outside
legal counsel if the acts or allegations underlying the action are arguably within the
scope of the senator's or employee's duties; and that the majority leader may obtain
outside legal counsel in any action in which the senate is a party or in which the
interests of the senate are affected, as determined by the majority leader.
c. That the cochairpersons of the Joint Committee on Legislative Organization
may authorize a legislative service agency employee who requires legal
representation to obtain outside legal counsel if the acts or allegations underlying
the action are arguably within the scope of the employee's duties; and that the
cochairpersons may obtain outside legal counsel in any action in which the
legislature is a party or in which the interests of the legislature are affected, as
determined by the cochairpersons.
This bill eliminates those provisions, restoring previous law with respect to the
legislature's retention of legal counsel.
3. Capitol security
Under Act 369, DOA is required to submit any proposed changes to security at
the capitol, including the posting of a firearm restriction, to the JCLO for approval
under passive review. This bill eliminates that requirement.
4. Advice and consent of the senate
Under Act 369, any individual nominated by the governor or another state
officer or agency, and with the advice and consent of the senate appointed, to any
office or position may not hold the office or position, be nominated again for the office
or position, or perform any duties of the office or position during the legislative
session biennium if the individual's confirmation for the office or position is rejected
by the senate. This bill eliminates that restriction.
Administrative rules; guidance documents
Deference to agency interpretations of law
Prior to
2017 Wisconsin Act 369, the statutes did not prohibit courts from
according deference to agency interpretations of law in most circumstances. Under
Act 369, a court may not accord deference to agency interpretations of law and an
agency may not seek such deference from a court.
This bill restores the state of the law prior to Act 369 concerning deference to
agency interpretations of law.
2. Suspension of administrative rules
Prior to
2017 Wisconsin Act 369, administrative rules that were in effect could
be temporarily suspended by the Joint Committee for Review of Administrative
Rules. If JCRAR suspended a rule, JCRAR was required to introduce bills in each
house of the legislature to make the suspension permanent. If neither bill to support
the suspension was ultimately enacted, the rule would remain in effect and JCRAR
could not suspend the rule again. Under current law as established in Act 369,
JCRAR may suspend a rule multiple times.
This bill restores the prior law limitations on JCRAR's ability to suspend a rule.
3. Agency rule-making authority
Under
2017 Wisconsin Act 369, a settlement agreement, consent decree, or
court order does not confer rule-making authority and cannot be used by an agency
as authority to promulgate rules. Additionally, no agency may agree to promulgate
a rule as a term in any settlement agreement, consent decree, or stipulated order of
a court unless the agency has explicit statutory authority to promulgate the rule at
the time the settlement agreement, consent decree, or stipulated order of a court is
executed.
This bill repeals those limitations on agency rule-making authority.
4. Guidance documents
2017 Wisconsin Act 369 established various requirements with respect to the
adoption and use of guidance documents by state agencies, including requirements
that agencies must satisfy in order to adopt guidance documents.
Under Act 369, each agency must submit each proposed guidance document to
the Legislative Reference Bureau for publication in the Administrative Register and
must provide a period for persons to submit written comments to the agency on the
proposed guidance document. The agency must retain all written comments
submitted during the public comment period and consider those comments in
determining whether to adopt the guidance document as originally proposed, modify
the proposed guidance document, or take any other action. Act 369 also requires each
adopted guidance document, while valid, to remain available on the agency's
Internet site and requires the agency to permit continuing public comment on the
guidance document. Each guidance document must be signed by the head of the
agency below a statement containing certain certifications.
Also, under Act 369, a guidance document does not have the force of law and
does not provide authority for implementing or enforcing a standard, requirement,
or threshold, including as a term or condition of any license. An agency that proposes
to rely on a guidance document to the detriment of a person in any proceeding must
afford the person an adequate opportunity to contest the legality or wisdom of a
position taken in the guidance document, and an agency may not use a guidance
document to foreclose consideration of any issue raised in the guidance document.
This bill eliminates those and related requirements established under Act 369
with respect to agency guidance documents.
5. Informational materials
Under
2017 Wisconsin Act 369, a state agency must provide a statutory or
administrative rule citation for any statement or interpretation of law that the
agency provides in its informational materials. This bill repeals that requirement.
Public utility regulation
Focus on energy spending
The bill allows the PSC to require investor-owned electric and natural gas
public utilities to spend more than 1.2 percent of their annual operating revenues on
certain energy efficiency, conservation, and renewable resource programs, which are
commonly referred to as Focus on Energy programs. Current law limits the PSC's
authority by capping the required spending at 1.2 percent of the revenues on those
programs. The bill requires the PSC to submit to JCF a proposal for requiring the
spending of a greater percentage on the programs. If the cochairpersons of JCF do
not notify the PSC within ten working days after submission of such a proposal that
JCF has scheduled a meeting to review the proposal, the PSC may require that the
utilities spend the greater percentage. If the cochairpersons of JCF do notify the PSC
within ten working days after submission of such a proposal that JCF has scheduled
a meeting to review the proposal, and JCF either approves or does not object to the
proposal within 90 days of providing the notification to the PSC, the PSC may require
that the utilities spend the greater percentage. However, if JCF objects to the
proposal within the 90-day period, the PSC may not require that the utilities spend
the greater percentage.
2. Broadband expansion grants
The bill makes changes to the broadband expansion program administered by
the PSC. Under current law, the PSC makes grants for constructing broadband
infrastructure in “underserved” areas, which are defined as areas of the state served
by fewer than two broadband service providers. The bill revises the definition of
underserved so that it refers instead to an area of the state in which households or
businesses lack access to broadband service of at least 25 megabits per second
download speed and 3 megabits per second upload speed. Current law also specifies
various criteria for the PSC to prioritize grants for certain types of projects. One of
the criteria is to prioritize grants for projects that affect “unserved” areas, which are
defined, in part, as areas with Internet service that does not exceed minimum speeds
based on speeds designated by the Federal Communications Commission. The bill
revises the definition of “unserved” so that it refers instead to areas in which
households or businesses lack access to broadband service of at least 10 megabits per
second download speed and 1 megabit per second upload speed.
The bill provides additional funding for the broadband expansion grant
program by making transfers from moneys received under a federal program for
assisting schools and libraries in obtaining telecommunications services and
Internet access, which is commonly known as the federal e-rate program. The bill
transfers $6,900,000 in fiscal year 2019-20 and $17,300,000 in fiscal year 2020-21.
The bill also appropriates general purpose revenue for the broadband expansion
grant program.
3. State broadband goal
This bill creates a state goal that, no later than January 1, 2025, all businesses
and homes in the state have access to high-speed broadband that provides minimum
download speeds of at least 25 megabits per second and minimum upload speeds of
at least 3 megabits per second.
4. Broadband report
This bill requires the PSC and DOA to jointly submit a report to the governor
and the legislature no later than June 30, 2020, that provides a) updates on emerging
broadband technologies, b) recommendations for incentives to broadband providers
to serve unserved or underserved areas of the state, and c) proposals for leveraging
existing state agency technology, resources, or a combination of technology and
resources to serve those areas of the state.
5. Carbon-free electricity
The bill specifies a state goal that all electricity produced within the state is 100
percent carbon-free by January 1, 2050.
6. Ratepayer advocate grants
The bill increases from $300,000 to $500,000 the total annual grants PSC is
allowed to make to nonprofit corporations that advocate at PSC on behalf of public
utility ratepayers.
7. High-voltage transmission line fees
The bill requires the PSC to administer annual impact and onetime
environmental impact fees paid under current law by persons granted certificates of
public convenience and necessity by the PSC for high-voltage transmission lines.
Under cur rent law, DOA administers the fees.
taxation
Income taxation
Lowest bracket rate reduction
This bill modifies the requirement that individual income tax rates for the
taxable year ending on December 31, 2019, be decreased in proportion to the increase
in sales and use tax collections from October 1, 2018, to September 30, 2019, due to
the expansion of the state's authority to collect sales and use taxes from out-of-state
retailers, pursuant to the U.S. Supreme Court decision, South Dakota v. Wayfair,
Inc., 585 U.S. ___ (2018). The bill uses the increase in sales and use tax revenue to
decrease the rate of the lowest tax bracket rather than the rate of all tax brackets.
2. Manufacturing and agriculture credit limitation
Currently, a person may claim a tax credit on the basis of the person's income
from manufacturing or agriculture. This bill limits to $300,000 the amount of income
from manufacturing that a person may use as the basis for claiming the credit.
3. Tax-advantaged first-time home buyer accounts
This bill creates a tax-advantaged first-time home buyers savings account.
Under the bill, an individual may create the account and must designate a
beneficiary of the account, which may be the account holder. The beneficiary must
be an individual who is a first-time home buyer, which is defined as someone who
resides in this state and has not owned or purchased a single-family residence
during the 36 months before the month in which the individual purchases the
residence in this state. An account holder may withdraw funds from the account to
pay the down payment and eligible closing costs for the purchase of a single-family
residence in this state by the beneficiary or to reimburse the beneficiary for eligible
costs. The account holder may not use funds from the account to pay any expenses
he or she incurs in administering the account, although the financial institution may
deduct a service fee from the account.
Beginning in taxable year 2020, annually, an account holder may subtract from
his or her federal adjusted gross income (FAGI) up to $5,000, or $10,000 if the account
holder files a joint income tax return, of the amount he or she contributes to an
account, as well as any gain that is redeposited into the account. An account holder
may not claim a subtraction for more than a total of $50,000 of deposits into an
account for each beneficiary.
4. Increase the earned income tax credit
Under this bill, for taxable years beginning after 2018, an individual who is
eligible to claim the federal earned income tax credit may claim as a credit against
Wisconsin taxes due 11 percent of the amount that the claimant may claim under the
federal credit if the claimant has one qualifying child with the same residence, 14
percent if the claimant has two such qualifying children, and 34 percent if the
claimant has three or more such qualifying children. Currently, the percentage of
the federal credit that an individual may claim for Wisconsin purposes is 4 if the
claimant has one qualifying child with the same residence, 11 if the claimant has two
such qualifying children, and 34 if the claimant has three or more such qualifying
children. The credit is refundable, which means that, if the amount of credit due the
claimant exceeds his or her tax liability, the difference is refunded to the claimant
by check.
5. Homestead tax credit changes to indexing provisions and increasing the
maximum income
Under current law, the homestead income tax credit is not allowed to claimants
whose household income exceeds $24,680. Under this bill, that maximum income
threshold is increased to $30,000 for claims filed in 2020 and thereafter.
Under current law, the homestead tax credit formula factors, which are
maximum income, maximum property taxes, and income threshold, are not indexed
for inflation. This bill amends those provisions and restores the indexing provisions
of the former law. Under the bill, the homestead tax credit formula factors would be
indexed for inflation for taxable year 2020 and beyond, except that the maximum
income will not be indexed for taxable year 2020.
6. Repeal of the private school tuition subtraction
The bill repeals the subtraction for private school tuition expenses that an
individual may claim when determining his or her income for income tax purposes.
7. Child and dependent care tax credit
This bill creates a nonrefundable individual income tax credit based on the
federal tax credit for expenses for household and dependent care services necessary
for gainful employment. Under the bill, an individual who is eligible for and claims
the federal tax credit for expenses for household and dependent care services may
claim 50 percent of the same amount as a nonrefundable credit on his or her
Wisconsin income tax return. Under the bill, the Wisconsin credit may not be
claimed by a part-year resident or nonresident of this state.
This bill also sunsets the current law individual income tax subtract
modification that allows a taxpayer a deduction for the same expenses for which the
credit may be claimed.
Generally, the federal credit is a nonrefundable individual income tax credit
that may be claimed by an individual for employment-related expenses for
household services and dependent care services for a qualifying individual. Because
the credit is nonrefundable, it may be claimed only up to the amount of a taxpayer's
tax liability. Under federal law, a qualifying individual is someone who has the same
principal place of abode as the claimant for more than one-half the year, is the
claimant's dependent, and is a) a child 12 or under; b) a child 13 or older who is
incapable of self-care; or c) the claimant's spouse who is incapable of self-care.
The federal credit may be claimed for expenses to enable the claimant to be
gainfully employed or actively search for gainful employment. Generally, allowable
expenses for a qualifying individual under federal law include costs for in-home care
or daycare, nursery school or preschool programs, and before-school and
after-school care for school-age children. Depending on the claimant's adjusted
gross income, the credit may be worth between 20 percent and 35 percent of the
claimant's allowable expenses, up to a maximum annual amount of $3,000 if there
is one qualifying individual and up to $6,000 if there are two or more qualifying
individuals.
8. Moving expense deduction
Under current law, a business may deduct from its income or franchise tax
liability all expenses that the business paid to move its operations from one location
to another, including expenses paid to relocate outside the state. Under this bill, a
business may not deduct expenses paid to move outside the state or outside the
United States.
9. Research credit
Current law allows a person to claim a tax credit equal to a percentage of the
person's expenses to conduct research in this state. For example, a person may claim
11.5 percent of the amount of the expenses that exceed 50 percent of the person's
average research expenses for the previous three years on research involving
engines or hybrid-electric vehicles. The credit is partially refundable. If the credit
exceeds the amount of the person's tax liability, the person receives a refund in an
amount not exceeding 10 percent of the person's claim. Any amount not used to offset
the person's tax liability or paid as a refund may be claimed as a credit against the
person's tax liability in subsequent years.
This bill increases the amount that a person may receive as a refund. Under
the bill, a person may receive a refund in an amount not exceeding 20 percent of the
person's claim. However, the bill prohibits a person certified to claim the electronics
and information technology manufacturing zone credit from receiving the refund.
10. Historical rehabilitation credit
Current law authorizes WEDC to certify a person to receive a tax credit equal
to 20 percent of the qualified rehabilitation expenses, as defined under the federal
Internal Revenue Code, for certified historic structures on property located in this
state. WEDC may also certify a person to receive a similar credit for the
rehabilitation expenses for qualified rehabilitated buildings, as defined under the
federal Internal Revenue Code, that are not certified historic structures. Finally,
current law prohibits WEDC from certifying persons to claim more than $3,500,000
in all such credits for all projects undertaken on the same parcel.
This bill eliminates the credit for qualified rehabilitated buildings and
prohibits WEDC from certifying persons to claim more than $3,500,000 in tax credits
for any project involving the rehabilitation of certified historic structures, regardless
of the number of parcels on which the project is undertaken.
11. Repeal of net operating loss carryback
This bill repeals the provision under which an individual may carry back a net
operating loss to the two prior taxable years in order to reduce the amount of income
subject to tax in those years.
12. Broadcaster's income apportionment
Under current law, a broadcaster's gross royalties and other gross receipts
received for the use or license of intangible property are apportioned to this state for
income and franchise tax purposes only if the commercial domicile of the purchaser
or licensee is in this state and the purchaser or licensee has a direct connection or
relationship with the broadcaster pursuant to a contract under which the royalties
or receipts are derived. This bill eliminates that provision. As a result, a
broadcaster's gross royalties and other gross receipts received for the use or license
of intangible property are apportioned in the same manner as those of other
taxpayers. In general, such royalties and receipts are apportioned to this state if the
purchaser or licensee uses the property at a location in this state, is billed for the
purchase or license at a location in this state, or has its commercial domicile in this
state.
13. Addition of low-income housing tax credit to income
Under this bill, a business that claims the low-income housing credit must
include the amount of the credit in income when computing its income or franchise
tax liability.
14. Modification to medical care insurance subtraction
This bill changes how nonresidents and part-year residents calculate the
subtraction for medical care insurance premiums that self-employed individuals
may claim for income tax purposes. Under current law, the subtraction is prorated
based on the individual's share of income earned from a trade or business that is
taxable in Wisconsin. Under the bill, the subtraction is prorated based on the
individual's share of total income that is taxable in Wisconsin, not just the earnings
from a trade or business. The bill also repeals several provisions that provided a
subtraction for medical care insurance premiums but are no longer operable.
15. Family and individual reinvestment income tax credit
This bill creates a new family and individual reinvestment income tax credit for
taxable years beginning in 2019. The credit is nonrefundable and may be claimed
only up to the amount of the taxpayer's income tax liability. Under the bill, for a
single individual or an individual who files as a head of household whose adjusted
gross income is less than $80,000, for a married couple filing jointly whose combined
AGI is less than $125,000, or for a married individual filing separately whose AGI
is less than $62,500, the credit is equal to 10 percent of the claimant's net tax liability
or $100 ($50 for married separate filers), whichever is greater. Net tax liability is a
claimant's income tax liability after the application of most nonrefundable income
tax credits. Under the bill, the credit phases out to zero as a single individual or head
of household filer's AGI increases from $80,000 to $100,000. A similar phaseout
occurs for a married joint filer whose combined AGI increases from $125,000 to
$150,000 and a married separate filer whose AGI increases from $62,500 to $75,000.
Also, under the bill, no new claims for the working families tax credit may be filed
for a taxable year that begins after December 31, 2018.
16. Capital gains exclusion limitation
Under current law, there is an income tax exclusion for individuals, fiduciaries,
members of limited liability companies and partnerships, and shareholders of
tax-option corporations for 30 percent of the net long-term capital gains realized
from the sale of assets held more than one year and the sale of all assets acquired
from a decedent, and an exclusion for 60 percent of such gains realized from the sale
of farm assets held more than one year and the sale of all farm assets acquired from
a decedent.
Under this bill, for individuals, the exclusion of 30 percent of such net
long-term capital gains, and all assets acquired from a decedent, does not apply to
taxable years beginning after December 31, 2018, if the taxpayer's federal adjusted
gross income exceeds specified threshold amounts. These amounts are $100,000 for
a single individual or head of household filer; $150,000 for a married couple who files
jointly; and $75,000 for a married individual who files separately. The bill also
provides that for a taxpayer whose FAGI, before adjustment for net capital gains, is
below the specified threshold amounts, such a taxpayer may claim the current law
capital gains exclusion for nonfarm assets to the extent that the sum of the taxpayer's
noncapital gains adjusted FAGI and the taxpayer's net federal capital gains does not
exceed the threshold amount. The bill does not affect the exclusion of the gains
realized from the sale of farm assets held more than one year and the sale of farm
assets acquired from a decedent.
17. WHEFA bonds exemption
