Chapter Tax 11

Tax 11.905 Note Example: If the relative precision of a sample is 20 percent and the net error is $100,000, there is 90% confidence that the true error of the sample population is between $80,000 and $120,000.

Tax 11.905 Note Note: Section Tax 11.905 interprets s. 77.59 (2) and (2g), Stats.

Tax 11.905 History History: CR 18-080: cr. Register April 2019 No. 760, eff. 5-1-19; correction in (2) (f), (h) made under s. 35.17, Stats., Register April 2019 No. 760.

Tax 11.91 Tax 11.91 Successor’s liability.

Tax 11.91(1) (1) Description of successor.

Tax 11.91(1)(a) (a) A purchaser or assignee of the business or stock of goods, including furniture, fixtures, equipment, and inventory, of any retailer liable for sales or use tax shall be personally liable for the payment of the sales or use tax if the purchaser or assignee fails to withhold a sufficient amount of the purchase price to cover the taxes due.

Tax 11.91(1)(b) (b) If a corporation is created and acquires the assets of a sole proprietor in consideration for the corporation’s capital stock, the corporation is liable for any sales or use tax liability of the sole proprietorship.

Tax 11.91(1)(c) (c) A surviving joint tenant shall not have successor’s liability for delinquent sales or use tax where the business or inventory passes by law to the remaining joint tenant.

Tax 11.91(1)(d) (d) A financial institution or mortgagee who forecloses on a loan to a retailer owing delinquent sales or use tax shall not incur successor’s liability.

Tax 11.91(1)(e) (e) If a retail business or stocks of goods shall pass from A to B to C, and B’s successor’s liability shall be unpaid, such liability shall not pass to C. The new successor, C, shall be liable only for B’s unpaid sales and use tax.

Tax 11.91(1)(f) (f) Successor’s liability is not incurred in a sale by a trustee in bankruptcy, in a transfer by gift or inheritance, in a sheriff’s sale, or in a sale by a personal representative or special administrator.

Tax 11.91(1)(g) (g) If a creditor, including a financial institution, actually operates a business which has been voluntarily surrendered by a delinquent debtor in full or partial liquidation of a debt, the creditor is a successor. The creditor is not a successor if it acquires possession of a business voluntarily surrendered, if it never operates the business and if its sole purpose is to sell the business in its entirety, as a whole or piecemeal, at whatever price it can obtain to recover its investment.

Tax 11.91(2) (2) Extent of liability.

Tax 11.91(2)(a) (a) If there is no purchase price, there shall be no successor’s liability.

Tax 11.91(2)(b) (b) A successor shall be liable to the extent of the purchase price. The purchase price shall include:

Tax 11.91(2)(b)1. 1. Consideration paid for tangible property and items, property, and goods, under s. 77.52 (1) (b), (c), and (d), Stats., and for intangibles such as leases, licenses, and good will.

Tax 11.91(2)(b)2. 2. Debts assumed by the purchaser, or canceled by a creditor.

Tax 11.91(2)(c) (c) A successor shall be liable only for the amount of the tax liability, not for penalties and interest. Although based on the predecessor’s tax, the successor’s liability shall not bear interest.

Tax 11.91(2)(d) (d) A successor’s liability shall be limited to amounts owed by the predecessor which were incurred at the location purchased. If the seller operated at more than one location while incurring a total liability for all locations, its liability incurred at the location sold shall be determined and shall represent the amount for which the successor may be held liable.

Tax 11.91(2)(e) (e) Successor’s liability is determined by law and shall not be altered by agreements or contracts between a buyer and seller.

Tax 11.91(3) (3) Procedures for purchaser.

Tax 11.91(3)(a) (a) A purchaser shall withhold a sufficient amount from the purchase price to cover any possible sales or use tax liability.

Tax 11.91(3)(b) (b) The purchaser shall submit a written request to the department for a clearance certificate. An oral request for a clearance certificate shall not be accepted. The letter requesting the certificate shall include the real name, business name, and seller’s permit number, if known, of the prior operator. All sales tax returns for all periods during which the predecessor operated shall be filed with the department before it may issue the certificate.

Tax 11.91(3)(c) (c) Under s. 77.52 (18) (bm), Stats., the department has 60 days from the date it receives the request for a clearance certificate or from the date the former owner makes its records available, whichever is later, but no later than 90 days after it receives the request, to ascertain the amount of sales tax liability, if any. The department shall within these periods, issue either:

Tax 11.91(3)(c)1. 1. A clearance certificate; or

Tax 11.91(3)(c)2. 2. A notice of sales tax liability to purchaser and successor in business, which shall state the amount of tax due before a clearance certificate can be issued and which shall be served and handled as a deficiency determination under s. 77.59, Stats.

Tax 11.91(3)(d) (d) The department’s failure to mail the notice of liability within the 90 day period shall release the purchaser from any further obligation.

Tax 11.91(4) (4) Department’s collection procedures.

Tax 11.91(4)(a) (a) The department shall first direct collection against the predecessor.

Tax 11.91(4)(b) (b) Action against the successor shall not be commenced prior to an action against a predecessor unless it appears that a delay would jeopardize collection of the amount due.

Tax 11.91(4)(c) (c) A demand for a successor to pay a predecessor’s tax liability shall be subject to the right of appeal.

Tax 11.91 Note Note: Section Tax 11.91 interprets s. 77.52 (18), Stats.

Tax 11.91 Note Note: The interpretations in s. Tax 11.91 are effective under the general sales and use tax law on and after September 1, 1969, except that 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 11.91 History History: Cr. Register, October, 1976, No. 250, eff. 11-1-76; am. (1) (d) and (2) (b) 2., cr. (1) (f) and (g), Register, December, 1978, No. 276, eff. 1-1-79; am. (1) (a), (b) and (g), (2) (a) and (3) (b) and (c) (intro.), Register, June, 1991, No. 426, eff. 7-1-91; correction in (3) (c) (intro.) made under s. 13.93 (2m) (b) 7., Stats., Register July 2002 No. 559; EmR0924: emerg. am. (1) (a), (2) (b) 1. and (3) (b), eff. 10-1-09; CR 09-090: am. (1) (a), (2) (b) 1. and (3) (b) Register May 2010 No. 653, eff. 6-1-10.

Tax 11.92 Tax 11.92 Records and record keeping.

Tax 11.92(1) (1) General. All persons selling, licensing, leasing, or renting tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., or taxable services and every person storing, using, or otherwise consuming in Wisconsin tangible personal property, items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., or taxable services shall keep adequate and complete records so that they may prepare complete and accurate tax returns. These records shall include the normal books of account ordinarily maintained by a prudent business person, together with all supporting information such as beginning and ending inventories, records of purchases and sales, cancelled checks, bills, receipts, invoices which shall contain a posting reference, cash register tapes, credit memoranda which shall carry a reference to the document evidencing the original transaction or other documents of original entry which are the basis for the entries in the books of account, and schedules used in connection with the preparation of tax returns. These records shall show:

Tax 11.92(1)(a) (a) The sales price from sales of tangible personal property, items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., and taxable services, or licenses, rentals, or leases of tangible personal property and items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., including any services that are a part of the sale, license, lease, or rental sourced to Wisconsin under s. 77.522, Stats., even if the seller, licensor, or lessor regards the receipts as taxable or nontaxable. Taxable receipts shall be reported on the accrual basis, except when the department is satisfied that an undue hardship would exist and authorizes reporting on some other basis.

Tax 11.92(1)(b) (b) The basis for all deductions claimed in filing returns, including exemption certificates obtained from customers. Exempt sales to governmental units and public schools need not be supported by exemption certificates, if the supplier retains a copy of the exempt entity’s purchase order and the supplier’s invoice or billing document. Sales to organizations holding a certificate of exempt status, CES, including religious or charitable organizations and certain title holding companies described under section 501 (c) (2), can be documented as exempt by recording the CES number on the seller’s copy of the bill of sale. Except as provided in this paragraph and ss. 77.52 (13) and 77.53 (10), Stats., exempt sales shall be supported by an exemption certificate retained by the seller and paper certificates shall also be signed by the purchaser. Documents necessary to support claimed exemptions from tax liability, such as bills of lading and purchase orders, shall be maintained in a manner in which they readily can be related to the transaction for which exemption is sought.

Tax 11.92(1)(bg) (bg) Sales to state veterans organizations, as defined in s. 45.41 (1) (b), Stats., are exempt, except for property and services used primarily in preparing, storing, serving, selling, or delivering food and beverages, including products and services for cleaning machinery and equipment used for the food and beverages that are sold by the veterans organization. The state veterans organization shall provide a Wisconsin sales and use tax exemption certificate, Form S-211 or S-211E, to claim an exemption on their purchases.

Tax 11.92(1)(c) (c) Total purchase price of all tangible personal property, items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., and taxable services purchased for sale, license, lease, rental, storage, use, or other consumption in Wisconsin.

Tax 11.92(1)(d) (d) Every person subject to the county or stadium sales and use tax shall keep a record of sales that the person makes that are sourced under s. 77.522, Stats., to each:

Tax 11.92(1)(d)1. 1. County that has in effect an ordinance imposing a county tax under s. 77.70, Stats.

Tax 11.92(1)(d)2. 2. Stadium district that has in effect a resolution imposing the tax under s. 77.705 or 77.706, Stats.

Tax 11.92(1)(e) (e) Every person shall keep a record of the purchase price of property, items, and goods on which the person is subject to county and stadium use or excise tax in each enacting county or stadium district’s jurisdiction.

Tax 11.92(2) (2) Microfilm records. Microfilm, including microfiche, reproductions of general books of account, such as cash books, journals, voucher registers and ledgers, and supporting records of detail shall be acceptable if the following conditions are met:

Tax 11.92(2)(a) (a) Appropriate facilities are provided for preservation of the films for periods required.

Tax 11.92(2)(b) (b) Microfilm rolls are indexed, cross referenced, labeled to show beginning and ending numbers or beginning and ending alphabetical listing of documents included, and are systematically filed.

Tax 11.92(2)(c) (c) Transcriptions are provided for any information contained on microfilm which may be required for purposes of verification of tax liability.

Tax 11.92(2)(d) (d) Proper facilities are provided for the ready inspection and location of the particular records, including adequate projectors for viewing and copying the records.

Tax 11.92(3) (3) Records prepared by automated data processing (adp) systems. An automatic data processing, ADP, tax accounting system shall have the capability of producing visible and legible records which will provide the following necessary information for verification of the taxpayer’s tax liability:

Tax 11.92(3)(a) (a) Recorded or reconstructible data. ADP records shall provide an opportunity to trace any transaction back to the original source or forward to a final total. If detailed printouts are not made of transactions at the time they are processed, then the system must have the ability to readily reconstruct these transactions.

Tax 11.92(3)(b) (b) General and subsidiary books of account. A general ledger, with source references, shall be written out to coincide with financial reports for tax reporting periods. Where subsidiary ledgers are used to support the general ledger accounts, the subsidiary ledgers shall also be written out periodically.

Tax 11.92(3)(c) (c) Audit trail and supporting documents. The audit trail shall be designed so that the details underlying the summary accounting data may be identified and made available to the department upon request. The record keeping system should be so designed that supporting documents, such as sales invoices, purchase invoices, exemption certificates, and credit memoranda, shall be readily available.

Tax 11.92(3)(d) (d) Program documentation. A written description of the ADP portion of the accounting system shall be available. Important changes, together with their effective dates, shall be noted in order to preserve an accurate chronological record. The statements and illustrations as to the scope of operations shall be sufficiently detailed to indicate:

Tax 11.92(3)(d)1. 1. The application being performed.

Tax 11.92(3)(d)2. 2. The procedures employed in each application.

Tax 11.92(3)(d)3. 3. The controls used to ensure accurate and reliable processing.

Tax 11.92(4) (4) Records retention. The records shall be preserved and retained for the 4-year period open to audit under s. 77.59 (3), Stats. If any agreement is entered into to extend the 4-year audit period, the records shall be preserved for that extended period. If a notice of tax determination has been issued to the taxpayer by the department and if the taxpayer files a petition for redetermination, the records for the period covered by the notice of the tax determination shall be preserved and retained until the tax redetermination has been finally resolved.

Tax 11.92(5) (5) Examination of records. All records described in this section shall be made available for examination by the department at its request.

Tax 11.92(6) (6) Failure to maintain records. In the absence of suitable and adequate records, the department may determine the amount of tax due by using any information available, whether obtained from the taxpayer’s records or from any other source. Failure to maintain and keep complete and accurate records may result in penalties or other appropriate action provided by law, including the disallowance of deductions, credits, and exemptions and the inclusion of additional taxable sales or additional taxable purchases to which the requested records relate.

Tax 11.92(7) (7) Penalties.

Tax 11.92(7)(a) (a) If the department has given notice to a person to keep certain sales and use tax records, and thereafter additional sales or use taxes are assessed on the basis of information not contained in the records, the department shall impose a penalty equal to 25% of the amount of sales or use tax assessed. This is in addition to all other penalties provided by law.

Tax 11.92(7)(b) (b) If a person fails to produce records or documents that were requested by the department, as provided under ss. 73.03 (9) and 77.59 (2), Stats., the penalties under s. 77.61 (19), Stats., may be imposed. See s. Tax 11.90 for additional information relating to these penalties.

Tax 11.92 Note Note: Section Tax 11.92 interprets ss. 77.52 (13), 77.54 (9a) and (9g), 77.58 (6m), 77.60 (8), 77.61 (4) (a) and (9), and 77.75, Stats.

Tax 11.92 Note Note: The interpretations in this s. Tax 11.92 are effective under the general sales and use tax law on and after September 1, 1969, except: (a) The 25% penalty in sub. (7) became effective July 20, 1985, pursuant to 1985 Wis. Act 29; and (b) 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 11.92 History History: Cr. Register, July, 1977, No. 259, eff. 8-1-77; emerg. cr. (1) (d), eff. 3-24-86; cr. (1) (d), Register, October, 1986, No. 370, eff. 11-1-86; am. (1) (intro.), (a), (b) and (c), (2) (intro.), (3) (intro.) and (c) and (4), cr. (7), Register, June, 1991, No. 426, eff. 7-1-91; EmR0924: emerg. am. (1) (intro.) to (c), (2) (b), (3) (c) and (6), renum. (1) (d) to be (1) (d) (intro.) and am., cr. (1) (d) 1. to 3. and (e) eff. 10-1-09;CR 09-090: am. (1) (intro.) to (c), (2) (b), (3) (c) and (6), renum. (1) (d) to be (1) (d) (intro.) and am., cr. (1) (d) 1. to 3. and (e) Register May 2010 No. 653, eff. 6-1-10; CR 10-094: renum. (7) to be (7) (a), cr. (7) (b) Register November 2010 No. 659, eff. 12-1-10; CR 12-014: am. (1) (b), (d) (intro.), r. (1) (d) 3., am. (1) (e) Register August 2012 No. 680, eff. 9-1-12; CR 20-018: am. (1) (b), cr. (1) (bg) Register July 2021 No. 787, eff. 8-1-21.

Tax 11.925 Tax 11.925 Sales and use tax security deposits.

Tax 11.925(1) (1) General.

Tax 11.925(1)(a) (a) Under s. 77.61 (2) (a), Stats., the department may require a person liable for sales and use taxes to make a security deposit before or after a seller’s permit is issued. The amount of the security deposit determined by the department may not exceed $15,000. If a person fails or refuses to make a security deposit as requested, the department may refuse to issue a permit or revoke the permit.

Tax 11.925(1)(b) (b) As provided in s. 77.61 (2) (b), Stats., a certified service provider who has contracted with a seller and filed an application to collect and remit sales and use taxes on behalf of the seller shall submit a surety bond within 60 days after the department notifies the certified service provider that the certified service provider is registered to collect Wisconsin sales and use taxes, to guarantee the payment of such sales and use taxes. However, the secretary of revenue or the secretary’s designee may waive this requirement or release the liability with respect to any certified service provider.

Tax 11.925(2) (2) Factors for department’s consideration.

Tax 11.925(2)(a) (a) In determining whether or not security will be required and the amount of security to be required, the department may consider all relevant factors including the person’s:

Tax 11.925(2)(a)1. 1. Evidence of adequate financial responsibility. Evidence may include a person’s assets and liabilities, liquidity of assets, estimated expenditures, and potential sales tax liability.

Tax 11.925(2)(a)2. 2. Prior record of filing tax returns and paying taxes of any kind with the department.

Tax 11.925(2)(a)3. 3. Type of business.

Tax 11.925 Note Example: A temporary or seasonal business having no fixed location which is frequently moved from city to city may be a greater security risk than one operating continually at a fixed location.

Tax 11.925(2)(a)4. 4. Type of entity.

Tax 11.925 Note Example: A sole proprietor or partner having nonbusiness financial resources may be a better risk than a corporation having limited assets.

Tax 11.925(2)(b) (b) Although the individual factors listed in par. (a) may be considered in determining security requirements, each case shall be determined on its merits as evaluated by the department. Protection of the sales and use tax revenues shall be the major consideration in determining security requirements. However, due consideration shall be given to reasonable evidence that security is not necessary.

Tax 11.925(2)(c) (c) In instances in which the department determines that a security deposit in excess of $50.00 is required, notification of this requirement shall include a written statement clearly describing the reasons for the requirement and a description or calculation showing how the amount of the security requirement was determined.

Tax 11.925(3) (3) Types of security. Acceptable types of security include, but are not limited to:

Tax 11.925(3)(a) (a) Non interest-bearing.

Tax 11.925(3)(a)1. 1. Cash, certified check, or money order.

Tax 11.925(3)(a)2. 2. Surety bonds issued by authorized underwriters.

Tax 11.925(3)(b) (b) Interest-bearing.

Tax 11.925(3)(b)1. 1. Time certificates of deposit issued by financial institutions and made payable to the department. Interest earned on those certificates shall be paid to the depositor.

Tax 11.925(3)(b)2. 2. Fully paid investment certificates issued by savings and loan associations made payable to the depositor. A security assignment, form S-127, shall be completed if this type of security is selected.

Tax 11.925 Note Note: Form S-127 may be obtained from the department’s website at www.revenue.wi.gov, any Department of Revenue office, or by writing, emailing, or calling: Wisconsin Department of Revenue, P.O. Box 8901, Madison, WI 53708-8901, [e-mail], [phone].

Tax 11.925(3)(b)3. 3. Bearer bonds issued by the U.S. government, any unit of Wisconsin municipal government or by Wisconsin schools. The depositor should clip 2 full years’ coupons before depositing this type of security.