Chapter ATCP 105

ATCP 105.07(3)(a) (a) The expenses listed in par. (b) shall be allocated according to the percentage that the cubic feet of space in vehicles used for transporting cigarettes and other tobacco products comprises of total space used for the transportation of goods in delivery vehicles. All other space in the delivery vehicles shall be excluded from this percentage calculation, although expenses associated with this space shall be allocated.

ATCP 105.07(3)(b) (b) The delivery vehicle space allocation factor applies to the following expenses:

ATCP 105.07(3)(b)1. 1. Salaries, fringe benefits, and other remunerations of delivery vehicle drivers.

ATCP 105.07(3)(b)2. 2. Garage expenses for the housing and maintenance of vehicles, including:

ATCP 105.07(3)(b)2.a. a. Salaries, fringe benefits, and other remuneration of garage employees.

ATCP 105.07(3)(b)2.b. b. Depreciation and insurance on garage equipment.

ATCP 105.07(3)(b)2.c. c. Noncapitalized expendable tools.

ATCP 105.07(3)(b)2.d. d. Garage supplies.

ATCP 105.07(3)(b)2.e. e. Purchased parts.

ATCP 105.07(3)(b)2.f. f. Purchased repairs to vehicles.

ATCP 105.07(3)(b)3. 3. Gas, oil, tires and licenses.

ATCP 105.07(3)(b)4. 4. Delivery vehicle insurance and depreciation.

ATCP 105.07(3)(b)5. 5. Delivery vehicle lease payments.

ATCP 105.07(4) (4) Direct assignment of expenses. Upon approval of the department, a wholesaler that maintains sufficient sub-records may assign expenses directly to cigarettes and other tobacco products instead of using the indirect allocation methods listed in this section.

ATCP 105.07 History History: Cr. Register, October, 1988, No. 394, eff. 11-1-88; correction in (1) (b) 16. made under s. 13.93 (2m) (b) 6., Stats., Register October 2004 No. 586; CR 06-028: am. (1) (b) 16. Register November 2006 No. 611, eff. 12-1-06.

ATCP 105.08 ATCP 105.08 Application of discounts and allowances.

ATCP 105.08(1) (1) Definitions. In this section:

ATCP 105.08(1)(a) (a) “Allowance” means a manufacturer’s payment of consideration to a wholesaler who, in exchange, performs some service for or provides something of value to the manufacturer. “Allowance” includes advertising allowances, customary discounts for cash payment, and manufacturer’s hand stamping allowances.

ATCP 105.08(1)(b) (b) “Consideration” means something of value in any form, including adjustments a manufacturer makes to the list price of cigarettes and other tobacco products and an offer of other goods for free or at reduced prices.

ATCP 105.08(1)(c) (c) “Manufacturer’s discount” includes any trade discount and any allowance.

ATCP 105.08(1)(d) (d) “Trade discount” means a manufacturer’s payment of consideration to a wholesaler to account for differences in the cost of manufacture, sale, or delivery resulting from differing methods or quantities in which the manufacturer’s cigarettes or other tobacco products are sold or delivered to the wholesaler. “Trade discount” does not include allowances.

ATCP 105.08 Note Note: State v. Eau Claire Oil, 35 Wis. 2d 724 (1967), 63 OAG 516 (1974) and 72 OAG 126 (1983) all provide definitions of trade discounts and allowances under s. 100.30, Stats. Section 100.30, Stats., uses the terms “trade discount” and “manufacturer’s discount” more loosely than they are defined in these rules. As a result, the definitions of “trade discount” and “manufacturer’s discount” in these rules may not be appropriate in interpreting these phrases where they appear in the statute.

ATCP 105.08(2) (2) Jobber’s application of discounts and allowances. The following provisions interpret s. 100.30 (2) (c) 1. a., Stats., regarding the proper accounting treatment of trade discounts and allowances by cigarette jobbers:

ATCP 105.08(2)(a) (a) All trade discounts may be used to reduce the cost of merchandise to the jobber.

ATCP 105.08(2)(b) (b) To the extent provided under this paragraph, allowances may be deducted from the jobber’s cost of doing business. Each allowance so used shall offset expenses incurred when performing the service or providing the item of value; customary discounts for cash payment shall offset interest expenses and other bank charges. These offsets may not exceed the amount of expense incurred for performing the service or providing the item of value that is allocated to cigarettes and other tobacco products.

ATCP 105.08(3) (3) Distributors’ application of discounts and allowances. The following provisions interpret s. 100.30 (2) (c) 1. b., Stats., regarding the proper accounting treatment of trade discounts, manufacturer’s discounts, and allowances by cigarette distributors holding permits under s. 139.30 (3), Stats.:

ATCP 105.08(3)(a) (a) Neither the state stamping discount under s. 139.32 (5), Stats., nor any manufacturer’s discount may be used to reduce the cost of merchandise to the cigarette distributor.

ATCP 105.08(3)(b) (b) To the extent provided under this paragraph, allowances and the state stamping discount under s. 139.32 (5), Stats., may be deducted from the cost of doing business. If an allowance or the state stamping discount is so used it shall offset expenses incurred when performing the service or providing the item of value; customary discounts for cash payment shall offset interest expenses and other bank charges. These offsets may not exceed the amount of expense incurred for performing the service or providing the item of value that is allocated to cigarettes and other tobacco products.

ATCP 105.08 History History: Cr. Register, October, 1988, No. 394, eff. 11-1-88.

ATCP 105.09 ATCP 105.09 Specific expense allocation. In lieu of using the average expense allocation method specified in ss. ATCP 105.06 and 105.07, a wholesaler may prove a lesser cost of doing business using its own specific allocation method. An independent certified public accountant shall attest that the method is appropriate for complying with the purposes of s. 100.30, Stats., and the wholesaler shall support its allocation of expenses with a time and motion study. The certified public accountant’s attestation is not binding on the department and any wholesaler’s specific allocation method is subject to the department’s review and approval under s. ATCP 105.03 (2).

ATCP 105.09 History History: Cr. Register, October, 1988, No. 394, eff. 11-1-88.

ATCP 105.10 ATCP 105.10 Applicability. This subchapter applies to any offer to sell or sale of cigarettes and other tobacco products occurring on or after November 1, 1988.

ATCP 105.10 Note Note: References in this chapter to “sell”, “sale,” and “sold” include offers to sell. See s. 100.30 (2) (g), Stats., for the complete definition of these words.

ATCP 105.10 History History: Cr. Register, October, 1988, No. 394, eff. 11-1-88; am. Register, August, 1990, No. 416, eff. 9-1-90.

subch. III of ch. ATCP 105 Subchapter III — Motor Fuel Pricing

ATCP 105.21 ATCP 105.21 Calculating cost of motor fuel. For the purpose of calculating the cost of motor fuel under s. 100.30, Stats., the following terms have the following meanings:

ATCP 105.21(1) (1) “At the close of business on the determination date,” as used in s. 100.30 (2) (a), Stats., means the time at which the petroleum price reporting service no longer posts new price data.

ATCP 105.21 Note Note: As of May, 1998, this time was 4:00 p.m. eastern time for the largest petroleum price reporting service.

ATCP 105.21(2) (2) “Cost of doing business” means the allocation of all costs of a seller related to sales of motor vehicle fuel meeting all of the following requirements.

ATCP 105.21(2)(a) (a) Operating costs are allocated between sales of motor vehicle fuel and sales of all other products.

ATCP 105.21(2)(b) (b) Cost allocations are based on overall average sales of motor vehicle fuel.

ATCP 105.21(2)(c) (c) Marginal costs or decreasing costs for each additional gallon of fuel sold are excluded in calculating the cost of doing business.

ATCP 105.21(3) (3) “Terminal located closest to the retail station” or “terminal located closest to the retailer,” as used in s. 100.30 (2), Stats., means the closest terminal based on straight line distance, not road distance.

ATCP 105.21 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99; correction in (3) made under s. 35.17, Stats., Register May 2024 No. 821.

ATCP 105.22 ATCP 105.22 Unavailability of average posted terminal price for fuel sold. When calculating “cost to retailer” under s. 100.30 (2) (am) 1m., Stats., if an average posted terminal price for the specific grade of motor vehicle fuel sold by a retailer or retail station is unavailable from the terminal located closest to the seller, the seller shall use one of the following:

ATCP 105.22(1) (1) The average posted terminal price at the next closest terminal that is based upon the prices of 3 or more suppliers for the same grade of motor vehicle fuel sold, as required under s. 100.30 (2) (j), Stats.

ATCP 105.22(2) (2) The average posted terminal price at the closest terminal for a fuel which is most nearly similar in terms of octane rating and content to the motor vehicle fuel sold.

ATCP 105.22 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99.

ATCP 105.23 ATCP 105.23 Notice of price offered to meet competition. Except as provided in s. ATCP 105.009 (5) (c):

ATCP 105.23(1) (1) Time of notice. A person who purports to justify a motor fuel selling price by giving notice to the department under s. 100.30 (7), Stats., shall send that notice on the same day that the person lowers the price of motor fuel to that price. The person shall send the notice before the actual close of the person’s motor fuel selling business at the relevant location on that day or, if that business remains open for 24 hours a day, before the time at which the business day ends for accounting purposes.

ATCP 105.23 Note Note: Section 100.30 (7), Stats., only requires sellers of motor vehicle fuel to file a notice on the day that they lower their price to meet a competitor’s price. It is not necessary for a seller to provide notice on a day they did not change their price, even if they are selling motor vehicle fuel below cost in order to meet competition. The department recommends that sellers maintain daily price surveys [see s. ATCP 105.009 (3)], especially for days that they are selling motor vehicle fuel below cost, as defined in s. 100.30 (2), Stats.

ATCP 105.23(2) (2) Method of giving notice. A person giving notice to the department under s. 100.30 (7), Stats., shall give that notice in writing. The person shall give the written notice in one of the following ways:

ATCP 105.23(2)(a) (a) Electronically, by transmitting a facsimile to a receiving number specified by the department. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if the department receives it by midnight of the day on which the person is required to give the notice.

ATCP 105.23(2)(b) (b) Electronically, by transmitting an e-mail message to an e-mail address specified by the department. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if the department receives it by midnight of the day on which the person is required to give the notice.

ATCP 105.23(2)(bm) (bm) Electronically, by transmitting a web-based notification to a website specified by the department. Notice under this paragraph is presumed to be timely under sub. (1) if the department receives it by midnight of the day on which the person is required to give the notice, but this presumption may be rebutted.

ATCP 105.23(2)(c) (c) By United States mail, to a post office box number specified by the department. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if it is postmarked by midnight of the day on which the person is required to give the notice.

ATCP 105.23(2)(d) (d) By commercial courier delivery to the department’s headquarters. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if the commercial courier takes custody of the notice by midnight of the day on which the person is required to give the notice.

ATCP 105.23(2)(e) (e) By personal delivery to the department’s headquarters. Notice under this paragraph is rebuttably presumed to be timely under sub. (1) if it is delivered to the department’s headquarters by 4:30 p.m. of the day on which the person is required to give the notice.

ATCP 105.23(3) (3) Notice contents. A person giving notice under s. 100.30 (7), Stats., shall include all of the following in that notice:

ATCP 105.23(3)(a) (a) The person’s name, including any trade name under which the person sells motor fuel at the price which the notice purports to justify.

ATCP 105.23(3)(b) (b) The address and telephone number of each business location at which the person is offering motor fuel at the price which the notice purports to justify.

ATCP 105.23(3)(c) (c) The motor fuel selling price which the notice purports to justify, the effective date and time that the person established that selling price, and the identity and grade of motor fuel to which that selling price applies.

ATCP 105.23(3)(d) (d) The name of the competitor whose price the person is purporting to meet, and the address at which that competitor is offering that price.

ATCP 105.23(3)(e) (e) The competitor’s price which the person is purporting to meet, the relevant dates on which the competitor offered that price, and the identity and grade of motor fuel to which that price applies.

ATCP 105.23(4) (4) Falsified notice. A person giving notice under this section may not falsify any of the information contained in that notice. The person may not claim that a competitor offered a motor fuel selling price on a specified date at a specified address if the competitor was not open for business on that date at that address.

ATCP 105.23 Note Note: Section 100.30, Stats., prohibits sales of motor fuel below “cost” as defined in the statute. A seller may claim, as a defense, that the seller sold motor fuel below cost in order to meet the existing price of a competitor. Under s. 100.30 (7), Stats., a seller who wishes to establish a presumptive “meeting competition” defense must notify the department of the below-cost selling price on the day the seller offers that price to meet a competitor’s price. The seller must give notice “in the form and manner required by the department.” Section ATCP 105.23 spells out the “form and manner” in which a seller must give the required notice. Section ATCP 105.23 does not affect or replace s. ATCP 105.009.

ATCP 105.23 History History: Cr., Register, May, 1999, No. 521, eff. 6-1-99; cr. (intro.), Register, March, 2000, No. 531, eff. 4-1-00; CR 18-019: cr. (2) (bm) Register January 2020 No. 769, eff. 2-1-20; correction in (2) (bm) made under s. 35.17, Stats., Register January 2020 No. 769.