AB1089: Bill Text

AB1089,,1 2023 ASSEMBLY BILL 1089

February 13, 2024 - Introduced by Representative Wittke, cosponsored by Senator Marklein. Referred to Committee on State Affairs.

AB1089,,2 An Act to renumber and amend 77.60 (1) (a) and 77.60 (1) (b); to amend 70.38 (1m), 71.03 (7) (intro.), 71.24 (7) (a), 71.44 (3) (a), 71.775 (4) (bm) 1., 71.775 (4) (bm) 2., 71.775 (4) (em), 71.82 (1), 71.82 (2) (b), 71.82 (2) (d), 71.84 (1), 71.84 (2) (a), 71.84 (2) (b), 71.84 (2) (c), 71.90 (1), 71.91 (6) (e) 3., 71.91 (6) (f) 5., 73.03 (6), 76.075, 76.13 (2), 76.13 (2a), 76.13 (3), 76.22 (2), 76.28 (4) (a), 76.28 (4) (b), 76.28 (11), 76.39 (4) (d), 76.48 (5), 77.59 (6) (c), 77.96 (5), 78.68 (1), 139.25 (1), 139.44 (9), 168.12 (6) (c), 168.12 (6) (d) 2., 168.12 (6) (e) 1. and 168.12 (6) (e) 3.; and to create 77.60 (1) (b) 2. of the statutes; relating to: interest rates on late, nondelinquent taxes and on overpayments.

AB1089,,3 Analysis by the Legislative Reference Bureau

This bill modifies the interest rates applicable to various late, nondelinquent taxes and fees owed to the Department of Revenue and to overpayments for those taxes and fees that are refunded by DOR. Under current law, generally, late, nondelinquent taxes or fees administered by DOR are subject to an interest rate of 12 percent per year, and DOR must pay interest at the rate of 3 percent per year on refunds of overpayments of those taxes or fees. Under the bill, the interest rate for late, nondelinquent taxes or fees administered by DOR is 6 percent per year, and DOR must pay interest at the rate of 6 percent per year on refunds of overpayments. The bill applies to the following taxes and fees: 1) the individual income and corporate income and franchise tax; 2) the withholding; 3) the sales and use tax; 4) taxes paid by utilities and insurers; 5) excises taxes on motor vehicle fuel, alcohol beverages, and cigarettes, tobacco, and vapor products; 6) the economic development surcharge; 7) the petroleum inspection fee; 8) the metalliferous mining tax; and 9) the charge imposed by DOR on a city, village, town, or county for the expenses incurred by DOR in examining city, village, town, or county records regarding the assessment of property upon failure to return information requested by DOR.

Also, current law requires that an interest rate of 12 percent per year apply to delinquent individual income and corporate income and franchise taxes in instances in which the secretary of DOR determines that reduction from an interest rate of 1.5 percent per month for such delinquent taxes is fair and equitable. The bill requires that an interest rate of 6 percent per year apply to such delinquent taxes in instances in which the DOR secretary determines that the reduction is fair and equitable.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

AB1089,,4 The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB1089,1 Section 1. 70.38 (1m) of the statutes is amended to read:

AB1089,,6 70.38 (1m) Estimated liability. Upon written request and for sufficient reason shown, the department shall allow a person subject to the tax under s. 70.375 to file, on or before June 15, a net proceeds tax return and to pay that tax based upon estimated tax liability. On or before September 15, that person shall file a final report and pay any additional tax due along with interest at the rate of 1 0.5 percent per month from June 15 until the date of payment. If the additional tax exceeds 10 percent of the person’s tax under s. 70.375 for the previous year, the penalty and interest under s. 70.39 (1) apply. If the final report indicates that the person overpaid the person’s liability, the department shall refund the overpayment.

AB1089,2 Section 2. 71.03 (7) (intro.) of the statutes is amended to read:

AB1089,,8 71.03 (7) Extension of time to file. (intro.) Returns of natural persons and fiduciaries that require a statement of amounts or information contained or entered on a corresponding return under the internal revenue code shall be filed within the time fixed under that code for filing of the corresponding federal return. Any extension of time granted by law or by the internal revenue service for the filing of that corresponding federal return extends the time for filing under this chapter if a copy of the taxpayer’s application to the internal revenue service requesting the extension is filed with the return under this chapter or if a copy of any request for an extension required by the internal revenue service is filed with the return under this chapter or at an earlier date that the department prescribes by rule and if the taxpayer pays the Wisconsin tax in the manner applicable to federal income taxes under the internal revenue code. Taxes payable upon the filing of the return do not become delinquent during the period of an extension but are subject to interest at the rate of 12 6 percent per year during such period except as follows:

AB1089,3 Section 3. 71.24 (7) (a) of the statutes is amended to read:

AB1089,,10 71.24 (7) (a) In the case of a corporation required to file a return, the department of revenue shall allow an automatic extension of 7 months or until the original due date of the corporation’s corresponding federal return, whichever is later. Any extension of time granted by law or by the internal revenue service for the filing of corresponding federal returns shall extend the time for filing under this subchapter to 30 days after the federal due date if the corporation reports the extension in the manner specified by the department on the return. Except for payments of estimated taxes, income or franchise taxes payable upon the filing of the tax return shall not become delinquent during such extension period, but shall, except as provided in par. (b), be subject to interest at the rate of 12 6 percent per year during such period.

AB1089,4 Section 4. 71.44 (3) (a) of the statutes is amended to read:

AB1089,,12 71.44 (3) (a) In the case of a corporation required to file a return, the department of revenue shall allow an automatic extension of 7 months or until the original due date of the corporation’s corresponding federal return, whichever is later. Any extension of time granted by law or by the internal revenue service for the filing of corresponding federal returns shall extend the time for filing under this subchapter to 30 days after the federal due date if the corporation reports the extension in the manner specified by the department on the return. Except for payments of estimated taxes, income or franchise taxes payable upon the filing of the tax return shall not become delinquent during such extension period, but shall, except as provided in par. (b), be subject to interest at the rate of 12 6 percent per year during such period.

AB1089,5 Section 5. 71.775 (4) (bm) 1. of the statutes is amended to read:

AB1089,,14 71.775 (4) (bm) 1. For the return under par. (a), the department shall allow an automatic extension of 7 months or until the corresponding due date of the pass-through entity’s federal income tax return or return of partnership income, whichever is later. Except for payments of estimated taxes, and except as provided in subd. 2., withholding taxes payable upon filing the return are not delinquent during the extension period but shall be subject to interest at the rate of 12 6 percent per year during that period.

AB1089,6 Section 6. 71.775 (4) (bm) 2. of the statutes is amended to read:

AB1089,,16 71.775 (4) (bm) 2. For taxable years beginning after December 31, 2008, for persons who qualify for a federal extension of time to file under 26 USC 7508A due to a presidentially declared disaster or terroristic or military action, withholding taxes that are otherwise due from a pass-through entity under sub. (2) are not subject to 12 6 percent interest as otherwise provided under subd. 1. during the extension period and for 30 days after the end of the federal extension period.

AB1089,7 Section 7. 71.775 (4) (em) of the statutes is amended to read:

AB1089,,18 71.775 (4) (em) Except as provided in par. (fm), in the case of any underpayment of estimated withholding taxes under par. (cm), interest shall be added to the aggregate withholding tax for the taxable year at the rate of 12 6 percent per year on the amount of the underpayment for the period of the underpayment. In this paragraph, “period of the underpayment” means the time period beginning with the due date of the installment and ending on either the unextended due date of the return under par. (a) or the date of payment, whichever is earlier. If 90 percent of the tax due under sub. (2) for the taxable year is not paid by the unextended due date of the return under par. (a), the difference between that amount and the estimated taxes paid, along with any interest due, shall accrue delinquent interest in the same manner as income and franchise taxes under s. 71.82 (2) (a).

AB1089,8 Section 8. 71.82 (1) of the statutes is amended to read:

AB1089,,20 71.82 (1) Normal. (a) In assessing taxes interest shall be added to such taxes at 12 6 percent per year from the date on which such taxes if originally assessed would have become delinquent if unpaid, to the date on which such taxes when subsequently assessed will become delinquent if unpaid.

AB1089,,21 (b) Except as otherwise specifically provided, in crediting overpayments of income and surtaxes against underpayments or against taxes to be subsequently collected and in certifying refunds of such taxes interest shall be added at the rate of 3 6 percent per year from the date on which such taxes when assessed would have become delinquent if unpaid to the date on which such overpayment was certified for refund except that if any overpayment of tax is certified for refund within 90 days after the last date prescribed for filing the return of such tax or 90 days after the date of actual filing of the return of such tax, whichever occurs later, no interest shall be allowed on such overpayment. For purposes of this section the return of such tax shall not be deemed actually filed by an employee unless and until the employee has included the written statement required to be filed under s. 71.65 (1). However when any part of a tax paid on an estimate of income, whether paid in connection with a tentative return or not, is refunded or credited to a taxpayer, such refund or credit shall not draw interest.

AB1089,,22 (c) Any assessment made as a result of the adjustment or disallowance of a claim for credit under s. 71.07, 71.28 or 71.47 or subch. VIII or IX, except as provided in sub. (2) (c), shall bear interest at 12 6 percent per year from the due date of the claim.

AB1089,9 Section 9. 71.82 (2) (b) of the statutes is amended to read:

AB1089,,24 71.82 (2) (b) Department may reduce delinquent interest. The department shall provide by rule for reduction of interest under par. (a) to 12 6 percent per year in stated instances wherein the secretary of revenue determines that reduction is fair and equitable.

AB1089,10 Section 10. 71.82 (2) (d) of the statutes is amended to read:

AB1089,,26 71.82 (2) (d) Withholding tax. Of the amounts required to be withheld any amount not deposited or paid over to the department within the time required shall be deemed delinquent and deposit reports or withholding reports filed after the due date shall be deemed late. Delinquent deposits or payments shall bear interest at the rate of 1.5 percent per month from the date deposits or payments are required under this section until deposited or paid over to the department. The department shall provide by rule for reduction of interest on delinquent deposits to 12 6 percent per year in stated instances wherein the secretary of revenue determines reduction fair and equitable. In the case of a timely filed deposit or withholding report, withheld taxes shall become delinquent if not deposited or paid over on or before the due date of the report. In the case of no report filed or a report filed late, withheld taxes shall become delinquent if not deposited or paid over by the due date of the report. In the case of an assessment under s. 71.83 (1) (b) 2., the amount assessed shall become delinquent if not paid on or before the first day of the calendar month following the calendar month in which the assessment becomes final, but if the assessment is contested before the tax appeals commission or in the courts, it shall become delinquent on the 30th day following the date on which the order or judgment representing final determination becomes final.

AB1089,11 Section 11. 71.84 (1) of the statutes is amended to read:

AB1089,,28 71.84 (1) Individuals and fiduciaries. Except as provided in s. 71.09 (11), in the case of any underpayment of estimated tax by an individual, estate or trust, except as provided under s. 71.09, there shall be added to the aggregate tax for the taxable year interest at the rate of 12 6 percent per year on the amount of the underpayment for the period of the underpayment. In this subsection, “the period of the underpayment” means the time period from the due date of the installment until either the 15th day of the 4th month beginning after the end of the taxable year or the date of payment, whichever is earlier.

AB1089,12 Section 12. 71.84 (2) (a) of the statutes is amended to read:

AB1089,,30 71.84 (2) (a) Except as provided in s. 71.29 (7), in the case of any underpayment of estimated tax by a corporation under s. 71.29 or 71.48, there shall be added to the aggregate tax for the taxable year interest at the rate of 12 6 percent per year on the amount of the underpayment for the period of the underpayment. In this paragraph, “period of the underpayment” means the time period from the due date of the installment until either the date on which the corporation is required to file for federal income tax purposes, not including any extension, under the Internal Revenue Code or the date of payment, whichever is earlier. If 90 percent of the tax shown on the return is not paid by the date on which the corporation is required to file for federal income tax purposes, not including any extension, under the Internal Revenue Code, the difference between that amount and the estimated taxes paid, along with any interest due, shall accrue delinquent interest under s. 71.91 (1) (a).

AB1089,13 Section 13. 71.84 (2) (b) of the statutes is amended to read:

AB1089,,32 71.84 (2) (b) For corporations that are subject to a tax under this chapter on unrelated business taxable income, as defined under section 512 of the internal revenue code, and virtually exempt entities, “period of the underpayment” means the time period from the due date of the installment until either the 15th day of the 5th month beginning after the end of the taxable year or the date of payment, whichever is earlier. If 90 percent of the tax shown on the return is not paid by the 15th day of the 5th month following the close of the taxable year, the difference between that amount and the estimated taxes paid along with any interest due, shall accrue delinquent interest under s. 71.91 (1) (a).

AB1089,14 Section 14. 71.84 (2) (c) of the statutes is amended to read:

AB1089,,34 71.84 (2) (c) If a refund under s. 71.29 (3m) results in an income or franchise tax liability that is greater than the amount of estimated taxes paid when reduced by the amount of the refund, the taxpayer shall add to the aggregate tax for the taxable year interest at an annual rate of 12 6 percent on the amount of the unpaid tax liability for the period beginning on the date the refund is issued and ending on either the date on which the taxpayer is required to file for federal income tax purposes, not including any extension, under the Internal Revenue Code or the date the tax liability is paid, whichever is earlier.

AB1089,15 Section 15. 71.90 (1) of the statutes is amended to read:

AB1089,,36 71.90 (1) Deposit. The department shall notify any person who files a petition for redetermination that the person may deposit the amount of an additional assessment, including any interest or penalty, with the department, or with a person that the department prescribes, at any time before the department makes its redetermination. The department shall notify spouses jointly except that, if the spouses have different addresses and if either spouse notifies the department in writing of those addresses, the department shall serve a duplicate of the original notice on the spouse who has the address other than the address to which the original notice was sent. Amounts deposited under this subsection shall be subject to the interest provided by s. 71.82 only to the extent of the interest accrued prior to the first day of the month succeeding the date of deposit. Any deposited amount which is refunded shall bear interest at the rate of 3 6 percent per year during the time the funds were on deposit. A person may also pay any portion of an assessment which is admitted to be correct and the payment shall be considered an admission of the validity of that portion of the assessment and may not be recovered in an appeal or in any other action or proceeding.

AB1089,16 Section 16. 71.91 (6) (e) 3. of the statutes is amended to read:

AB1089,,38 71.91 (6) (e) 3. For purposes of an adjudication under this paragraph, the assessment of the tax upon which the interest or lien of the department is based is conclusively presumed to be valid. Interest shall be allowed for judgments under this paragraph at the rate of 12 6 percent per year from the date the department receives the money wrongfully levied upon to the date of payment of the judgment or from the date of sale to the date of payment.

AB1089,17 Section 17. 71.91 (6) (f) 5. of the statutes is amended to read:

AB1089,,40 71.91 (6) (f) 5. Before the sale, the department shall determine a minimum price for which the property shall be sold. If no person offers for that property at the sale at least the amount of the minimum price, the state shall purchase the property for the minimum price; otherwise, the property shall be sold to the highest bidder. In determining the minimum price, the department shall take into account the expense of making the levy and sale in addition to the value of the property. If payment in full is required at the time of acceptance of a bid and is not paid then, the department shall sell the property in the manner provided under this paragraph. If the conditions of the sale permit part of the payment to be deferred and if that part is not paid within the prescribed period, the department may sue the purchaser in the circuit court for Dane County for the unpaid part of the purchase price and interest at the rate of 12 6 percent per year from the date of the sale or the department may declare the sale void and may sell the property again under this paragraph. If the property is sold again, the 2nd purchaser shall receive it free of any claim of the defaulting purchaser and the amount paid upon the bid price by the defaulting purchaser is forfeited.

AB1089,18 Section 18. 73.03 (6) of the statutes is amended to read:

AB1089,,42 73.03 (6) In its discretion to inspect and examine or cause an inspection and examination of the records of any town, city, village, or county officer whenever such officer shall have failed or neglected to return properly the information as required by sub. (5), within the time set by the department of revenue. Upon the completion of such inspection and examination the department of revenue shall transmit to the clerk of the town, city, village, or county a statement of the expenses incurred by the department of revenue to secure the necessary information. Duplicates of such statements shall be filed in the office of the secretary of administration. Within 60 days after the receipt of the above statement, the same shall be audited, as other claims of towns, cities, villages, and counties are audited, and shall be paid into the state treasury, in default of which the same shall become a special charge against such town, city, village, or county and be included in the next apportionment or certification of state taxes and charges, and collected with interest at the rate of 10 6 percent per year from the date such statements were certified by the department, as other special charges are certified and collected.

AB1089,19 Section 19. 76.075 of the statutes is amended to read:

AB1089,,44 76.075 Adjustments of assessments. Within 4 years after the due date, or extended due date, of the report under s. 76.04, any person subject to taxation under this subchapter may request the department to make, or the department may make, an adjustment to the data under s. 76.07 (4g) or (4r) submitted by the person. If an adjustment under this section results in an increase in the tax due under this subchapter, the person shall pay the amount of the tax increase plus interest on that amount at the rate of 1 0.5 percent per month from the due date or extended due date of the report under s. 76.04 until the date of final determination and interest at the rate of 1.5 percent per month from the date of final determination until the date of payment. If an adjustment under this section results in a decrease in the tax due under this subchapter, the department shall refund the appropriate amount plus interest at the rate of 0.25 0.5 percent per month from the due date or extended due date under s. 76.04 until the date of refund. Sections 71.74 (1) and (2) and 71.75 (6) and (7), as they apply to income and franchise tax adjustments, apply to adjustments under this section. Review of the adjustments is as stated in s. 76.08.

AB1089,20 Section 20. 76.13 (2) of the statutes is amended to read:

AB1089,,46 76.13 (2) Every tax roll upon completion shall be delivered to the secretary of administration. The department shall notify, by certified mail, all companies listed on the tax roll of the amount of tax due, which shall be paid to the department. The payment dates provided for in sub. (2a) shall apply. The payment of one-fourth of the tax of any company may, if the company has brought an action in the Dane County circuit court under s. 76.08, be made without delinquent interest as provided in s. 76.14 any time prior to the date upon which the appeal becomes final, but any part of the tax ultimately required to be paid shall bear interest from the original due date to the date the appeal became final at the rate of 12 6 percent per year and at 1.5 percent per month thereafter until paid. The taxes extended against any company after the same become due, with interest, shall be a lien upon all the property of the company prior to all other liens, claims, and demands whatsoever, except as provided in ss. 292.31 (8) (i) and 292.81, which lien may be enforced in an action in the name of the state in any court of competent jurisdiction against the property of the company within the state as an entirety.

AB1089,21 Section 21. 76.13 (2a) of the statutes is amended to read:

AB1089,,48 76.13 (2a) Taxes levied under this section shall be paid to the department in semiannual installments, on May 10 and November 10, on a partially estimated basis. The May 10 payment shall be at least 50 percent of the total tax assessed for the previous calendar year or 40 percent of the tax assessed for the current calendar year. Any amounts not paid when due shall become delinquent and shall be subject to interest under s. 76.14. The payment of 25 percent of the tax of any company may, if the company has brought an action in the Dane County circuit court under s. 76.08, be made without delinquent interest as provided in s. 76.14 any time prior to the date upon which the appeal becomes final, but any part thereof ultimately required to be paid shall bear interest from the original due date to the date the appeal becomes final at the rate of 12 6 percent per year and at 1.5 percent per month thereafter until paid. Companies with a tax liability under this section of less than $2,000 are not required to make semiannual payments but shall pay the full amount of taxes due on or before November 10.

AB1089,22 Section 22. 76.13 (3) of the statutes is amended to read:

AB1089,,50 76.13 (3) If the Dane County circuit court, after such roll is delivered to the secretary of administration, increases or decreases the assessment of any company, the department shall immediately redetermine the tax of the company on the basis of the revised assessment, and shall certify and deliver the revised assessment to the secretary of administration as a revision of the tax roll. If the amount of tax upon the assessment as determined by the court is less than the amount paid by the company, the secretary of administration shall refund the excess to the company with interest at the rate of 3 6 percent per year. If the amount of the tax upon the assessment as determined by the court is in excess of the amount of the tax as determined by the department, interest shall be paid on the additional amount at the rate of 12 6 percent per year from the date of entry of judgment to the date the judgment becomes final, and at 1.5 percent per month thereafter until paid.

AB1089,23 Section 23. 76.22 (2) of the statutes is amended to read:

AB1089,,52 76.22 (2) The action to recover taxes and interest and to enforce the same as a lien shall be an action in equity and shall be commenced and carried on and judgment entered according to the laws of the state and the rules and practice of courts of equity so far as applicable. No reference shall be made to take testimony or to hear, try and determine the issues of fact in the action. The judgment shall fix the amount of taxes and interest, adjudge the same a lien on the property of the company and provide for the sale of such property in 90 days after the entry of judgment upon publication of the notice of sale as a class 3 notice, under ch. 985. The judgment shall bear interest at the rate of 10 6 percent per year from the date of entry until finally paid.

AB1089,24 Section 24. 76.28 (4) (a) of the statutes is amended to read:

AB1089,,54 76.28 (4) (a) If after filing the reports specified in sub. (7) and after the department’s computation and assessment of license fees under sub. (2) it is determined that the amount of gross revenues reported is in error, the department shall compute the additional license fee to be paid or the amount of the overpayment of license fee to be refunded, as the case may be. If an additional license fee is due, the department shall give notice to the light, heat and power company against whom the license fee is to be levied. All such additional assessments and claims for refunds for excess license fees paid are subject to the same procedure for review and final determination as additional income or franchise tax assessments and claims for refunds under ch. 71 as far as the same may be applicable, except that appeals of denials of claims for refunds shall be made directly to the tax appeals commission and except that the additional license fees shall become delinquent 60 days after notice provided in this subsection or, if review proceedings are held, 60 days following final determination of the review proceedings. All additional license fees shall bear interest at the rate of 12 6 percent per year from the time they should have been paid to the date on which the additional fees shall become delinquent if unpaid.