Tax 11.51(4)(c)1.
1. The retailer's primary classification in the North American Industry Classification System, 2002 edition, published by the federal office of management and budget is manufacturing under subsector 311, but not including bakeries and tortilla manufacturing under industry group number 3118.
Tax 11.51(4)(c)3.
3. The item is a bakery item made by the retailer, including breads, rolls, pastries, buns, biscuits, bagels, croissants, donuts, danish, cakes, tortes, pies, tarts, muffins, bars, cookies, and tortillas.
Tax 11.51 Note
Examples: 1) Restaurant A purchases various food and food ingredients (eggs, flour, sugar, ice cream, fudge, cookie bits, etc.) to make cakes with an ice cream layer. Restaurant A makes a layer of cake using the eggs, flour, sugar, etc. Once the cake layers are baked and cooled, Restaurant A covers one of the cake layers with a layer of fudge and cookie bits. Restaurant A then places another cake layer over the fudge and cookie bits and covers the second cake layer with a layer of ice cream. Restaurant A decorates the top of the cake according to instructions provided by its customer. Although this cake is two or more ingredients mixed or combined by the retailer for sale as a single item, it is excluded from the definition of prepared food because it is primarily a bakery item and is not subject to Wisconsin sales or use tax, assuming the cake does not meet any of the other definitions of prepared food.
Tax 11.51 Note
2) Restaurant B purchases various food and food ingredients (eggs, flour, sugar, ice cream, fudge, cookie bits, etc.) to make a layered ice cream cake. Restaurant B makes a layer of cake using the eggs, flour, sugar, etc. Once the cake layer is baked and cooled, Restaurant B places the cake layer between two layers of ice cream. Restaurant B decorates the top of the cake according to instructions provided by its customer. This cake is prepared food and subject to Wisconsin sales or use tax since Restaurant B mixed or combined 2 or more ingredients to make the cake, and the ice cream cake is not primarily a bakery item.
Tax 11.51(4)(c)4.
4. The food and food ingredients are only sliced, repackaged, or pasteurized by the retailer.
Tax 11.51 Note
Example: Grocer C sells cheese trays. The cheese trays are put together by the grocer selecting the various types of cheeses and slicing the amount of each type of cheese it wants to include, placing each type of sliced cheese on the tray, and then wrapping the cheese tray. The cheese tray is not prepared food since the cheese on the tray was only sliced and repackaged, assuming the cheese tray does not meet any of the other definitions of prepared food.
Tax 11.51(4)(c)5.
5. The item contains eggs, fish, meat, or poultry in raw form that requires cooking by the consumer, as recommended by the food and drug administration in chapter 3, part 401.11 of its food code to prevent food-borne illnesses.
Tax 11.51(4)(d)1.1. Food and food ingredients sold with eating utensils that are provided by the retailer of the food and food ingredients, including plates, bowls, knives, forks, spoons, glasses, cups, napkins, or straws. However a “plate" does not include a container or packaging used to transport the food and food ingredients. Eating utensils are provided by the retailer if:
Tax 11.51(4)(d)1.a.
a. The eating utensils are available to the purchasers and the retailer's sales of food and food ingredients as described in pars.
(a),
(b), and
(c) and food for which plates, bowls, glasses, or cups are necessary to receive the food are more than 75 percent of the retailer's total sales of all food and food ingredients at that establishment; or
Tax 11.51(4)(d)1.b.
b. The retailer's customary practice is to physically give or hand the utensils to the purchaser, except that plates, bowls, glasses, or cups that are necessary for the purchaser to receive the food and food ingredients need only be made available to the purchaser.
Tax 11.51 Note
Examples: 1) Deli A has a self-service salad bar. Customers go to the salad bar, pick up a clam shell container at the salad bar, and place the items they would like in the clam shell container. The clam shell container is a plate or bowl necessary for the customer to receive the food and is made available to the customer. Therefore, sales from the self-service salad bar are sales of prepared food.
Tax 11.51 Note
2) Retailer X has a self-service milk machine. Customers go to the milk machine, pick-up a disposable cup, and fill it with whatever kind of milk they want. The cup is necessary for the customer to receive the milk and is made available to the customer. Therefore, sales of milk in this manner are sales of prepared food.
Tax 11.51(4)(d)2.a.a. The numerator of the percentage described in subd.
1. a. includes only sales of prepared food as defined in pars.
(a),
(b), and
(c) and food for which plates, bowls, glasses, or cups are necessary to receive the food, but not including alcoholic beverages.
Tax 11.51(4)(d)2.b.
b. The denominator of the percentage described in subd.
1. a. includes all food and food ingredients, including prepared food, candy, dietary supplements, and soft drinks, but not including alcoholic beverages.
Tax 11.51(4)(d)3.a.a. If the percentage determined under subd.
2. is 75 percent or less, utensils are considered to be provided by the retailer if the retailer's customary practice is to physically give or hand the utensils to the purchaser or, in the case of plates, bowls, glasses, or cups that are necessary to receive the food, to make such items available to the purchaser.
Tax 11.51(4)(d)3.b.
b. If the percentage determined under subd.
2. is greater than 75 percent, utensils are considered to be provided by the retailer if the utensils are made available to the purchaser.
Tax 11.51(4)(d)4.a.a. For a retailer whose percentage determined under subd.
2. is greater than 75 percent, an item sold by the retailer that contains 4 or more servings packaged as one item and sold for a single price does not become prepared food simply because the retailer makes utensils available to the purchaser of the item.
Tax 11.51(4)(d)4.b.
b. For a retailer whose percentage determined under subd.
2. is greater than 75 percent, an item sold by the retailer that contains 4 or more servings packaged as one item and sold for a single price does become prepared food if the retailer physically gives or hands utensils to the purchaser of the item, except that plates, bowls, glasses, or cups necessary for the purchaser to receive the food, need only be made available to the purchaser.
Tax 11.51(4)(d)4.c.
c. For purposes of subd.
4. a. and
b., serving sizes are based on the information contained on the label of each item sold, except that, if the item sold has no label, the serving size is based on the retailer's reasonable determination.
Tax 11.51(4)(d)5.a.a. Except as provided in subd.
5. b., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer, the utensils are considered to be provided by the retailer.
Tax 11.51(4)(d)5.b.
b. Except as provided in subds.
3. and
4., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer and the person's primary classification in the North American Industrial Classification System (NAICS), 2002 edition, published by the federal office of management and budget, is manufacturing under subsector 311, the utensils are not considered to be provided by the retailer.
Tax 11.51(4)(d)6.a.a. For purposes of subd.
1. a., a retailer shall determine the percentage for the retailer's tax year or business fiscal year based on the retailer's data from the retailer's prior tax or business fiscal year as soon as practical after the retailer's accounting records are available, but no later than 90 days after the day on which the retailer's tax or business fiscal year begins.
Tax 11.51(4)(d)6.b.
b. For retailers with more than one establishment in Wisconsin, a single determination under subd.
1. a. that combines the information for all of the retailer's establishments in Wisconsin shall be made annually, and will apply to all of the retailer's establishments in Wisconsin.
Tax 11.51(4)(d)6.c.
c. If a retailer has no prior tax or business fiscal year in Wisconsin, the retailer shall make a good faith estimate of its percentage under subd.
1. a. for the retailer's first tax or business fiscal year and shall adjust the estimate prospectively after the first 3 months of the retailer's operations if the actual percentage is materially different from the estimated percentage.
Tax 11.51(5)
(5)
Federal Supplemental Nutrition Assistance Program (SNAP). A grocer's receipts from SNAP, formerly known as the federal food stamp program, are not subject to sales tax even if the items purchased by the consumer are not exempt food or food ingredients under s.
77.54 (20n), Stats.
Tax 11.51 Note
Note: The interpretations in s.
Tax 11.51 are effective under the general sales and use tax law on and after September 1, 1969, except: (a) Sales of cigarettes became taxable on September 1, 1975, pursuant to
Chapter 39, Laws of 1975; (b) Magazines and periodicals sold over-the-counter became taxable on September 1, 1983, pursuant to
1983 Wis. Act 27; (c) The definitions of “meals" and “sandwiches" and the tax treatment of prepackaged food combinations became effective August 1, 1997, pursuant to
1997 Wis. Act 237; The definitions of “candy," “dietary supplement," “food and food ingredient," “prepared food," and “soft drink," and the exemption for food and food ingredients became effective October 1, 2009, pursuant to
2009 Wis. Act 2; and (d) The change of the term “gross receipts" to “sales price" and the separate impositions of tax on coins and stamps sold above face value under s.
77.52 (1) (b), Stats., certain leased property affixed to real property under s.
77.52 (1) (c), Stats., and digital goods under s.
77.52 (1) (d), Stats., became effective October 1, 2009, pursuant to
2009 Wis. Act 2.
Tax 11.51 History
History: Cr.
Register, December, 1977, No. 264, eff. 1-1-78; am. (2) (b),
Register, June, 1983, No. 330, eff. 7-1-83; am. (2) (a) and (b),
Register, September, 1984, No. 345, eff. 10-1-84; am. (1), (2) (a), (b) and (c) (intro.), 2., 3., and 4., cr. (2) (c) 5. and (3),
Register, June, 1991, No. 426, eff. 7-1-91; am. (2) (a) and (b),
Register, December, 1992, No. 444, eff. 1-1-93; am. (1) and (2) (a) and (b),
Register, December, 1996, No. 492, eff. 1-1-97; am. (1) and (2) (a) and (b), r. (2) (c) (intro.), renum. (2) (c) 1. to 4. to be (3) (a) to (d), (2) (c) 5. to be (3) (g) 1., (3) to be (4) and am. (3) (c) and (d), (3) (g) 1.; cr. (3) (intro.), (e), (f), (g) 2. and (h),
Register, October, 1999, No. 526, eff. 11-1-99;
EmR0924: emerg. r. and recr. eff. 10-1-09;
CR 09-090: r. and recr.
Register May 2010 No. 653, eff. 6-1-10; correction in (2) (a) made under s.
13.92 (4) (b) 7., Stats.,
Register May 2010 No. 653;
CR 10-094: am. (2) (a), (3) (a) 2., (d) 3., (e) 2., (5)
Register November 2010 No. 659, eff. 12-1-10;
CR 12-014: am. (2) (a), (b), r. and recr. (3) (a) 2., cr. (3) (a) 3. to 10., am. (4) (b) 1. (Example), 2. (Example 1), cr. (4) (b) 3. (Example), (c) 3. (Examples), 4. (Example), am. (4) (d) 1. (intro.), a., b., cr. (4) (d) 1. b. (Examples)
Register August 2012 No. 680, eff. 9-1-12;
CR 16-053: am. (2) (a), (b)
Register June 2018 No. 750, eff. 7-1-18.
Tax 11.52
Tax 11.52
Coin-operated vending machines and amusement devices. Tax 11.52(1)(1)
Scope. This section applies to all sales from coin-operated machines, except those located on army, air force, navy, or marine corps exchanges where the operator leases the machines to those exchanges which acquire title to and sell the merchandise through the machines to authorized purchasers from those exchanges.
Tax 11.52(2)(a)
(a) “Heated" means the food or beverages have been prepared for sale in a heated condition and which are sold at any temperature higher than the air temperature of the room or place where they are sold.
Tax 11.52(2)(c)
(c) “Retailer" for purposes of this section means either of the following:
Tax 11.52(2)(c)1.
1. Any person who owns or possesses coin-operated vending machines or amusement devices, who controls the operations of the machines as by stocking or removing the receipts from the machines or devices, who has access to the machines or devices for any purpose connected with the sale of merchandise or services through the machines or devices, and whose compensation is based, in whole or in part, upon receipts from sales made through the machines or devices.
Tax 11.52(2)(c)2.
2. A person who is responsible for providing laundry, dry cleaning, photographic, photocopy, or other taxable services through vending machines.
Tax 11.52 Note
Note: If there is a question of who is the retailer for a single machine or device, a determination regarding who is the retailer liable for tax may be obtained by writing to: Wisconsin Department of Revenue, PO Box 8902, Madison, WI 53708-8902.
Tax 11.52(3)(a)(a) Retailers of tangible personal property, items, property and goods under s.
77.52 (1) (b),
(c), and
(d), Stats., and taxable services sold through coin-operated vending machines or devices dispensing taxable tangible personal property, items, property, or goods under s.
77.52 (1) (b),
(c), or
(d), Stats., or services shall obtain a seller's permit. One permit shall be sufficient for all the machines of each retailer.
Tax 11.52 Note
Note: Refer to s.
Tax 11.002 for a description of permit requirements, how to apply for a permit, and the 15-day time period within which the department is required to act on permit applications.
Tax 11.52(3)(b)
(b) A notice must be affixed to each coin-operated machine or device showing the retailer's name, address and seller's permit number.
Tax 11.52(4)
(4)
Taxable receipts. Taxable receipts include receipts from:
Tax 11.52(4)(a)6.d.
d. Drugs and other medical supplies, such as aspirin, bandages, and suntan lotion.
Tax 11.52(4)(b)
(b) Coin-operated machines which provide a taxable service, such as telephones, car washes, televisions, vacuums, parking meters, shoe shine machines, bowling ball cleaning machines and coin-operated amusement devices such as juke boxes, pinball machines, shuffleboards, pool tables, slot racing, mechanical rides and games, and penny arcades.
Tax 11.52(4)(c)
(c) Coin-operated machines of non-governmental retailers located on army, navy, or air force installations, hospitals, or other facilities of the United States government.
Tax 11.52(5)
(5)
Nontaxable receipts. Receipts from the following are not taxable:
Tax 11.52(5)(a)
(a) Laundry, dry cleaning and pressing machines when the service is performed by the customer through the use of self-service machines.
Tax 11.52(5)(b)
(b) Coin-operated storage lockers, pay toilets, and scales.
Tax 11.52(5)(d)
(d) Hospitals sales from vending machines of food and food ingredients, except soft drinks to patients, staff, or visitors.
Tax 11.52(5)(e)
(e) Sales from a vending machine of food and food ingredients except, candy, soft drinks, dietary supplements, and prepared foods.
Tax 11.52(5m)(a)
(a) Tangible personal property sold to a person who provides a taxable service through an amusement device, as defined in s.
77.54 (65m) (b), Stats., is exempt from sales and use tax if the property is used exclusively as a prize awarded or transferred through the use of the amusement device.
Tax 11.52(5m)(b)
(b) An amusement device operator shall pay sales or use tax on purchases of tangible personal property that is used to play an amusement device but not awarded as a prize. Examples include tokens used to play the amusement device and paper tickets dispensed from the amusement device and redeemed for prizes.
Tax 11.52(6)(a)
(a) The receipts from the sale of taxable property, items, goods, or services from vending machines and amusement devices are subject to sales tax. Thus, taxable receipts include, for example, receipts from property, items, goods, and services selling for one, 5, and 10 cents and more. No deduction shall be permitted for the cost of the property, item, good, or service sold, materials used, labor or service cost, or any other expense, including commissions paid to place machines in an establishment.
Tax 11.52(6)(b)
(b) Sales tax collected from customers may be deducted from the total receipts before computing the tax payable, if customers are notified the prices include sales tax. If customers are not notified that the prices include sales tax, no deduction shall be allowed. The notification of the customer may be made by either:
Tax 11.52(6)(b)1.
1. Conspicuously posting the bracket system charts issued by the department.
Tax 11.52(6)(b)2.
2. Conspicuously posting a sign that states “Prices Include Sales Tax."
Tax 11.52(6)(c)
(c) Each retailer shall maintain adequate and complete records including:
Tax 11.52(6)(c)3.
3. Purchases and inventories of all merchandise sold through machines.
