Chapter Tax 2

Tax 2.49(4)(v) (v) Gross receipts from investment banking services. The numerator of the receipts factor includes gross receipts, including commissions, management fees, or underwriting fees, earned from investment banking services if either of the following applies:

Tax 2.49(4)(v)1. 1. The issuer of the securities is not engaged in a trade or business, and the issuer’s billing address is in this state.

Tax 2.49(4)(v)2. 2. The issuer of the securities is engaged in a trade or business, the issuer of the securities maintains a regular place of business in this state, and the securities relate to that person’s business in this state. If the securities relate to that person’s regular place of business in more than one state, the receipts from the performance of the service are included in the numerator of the receipts factor according to the portion of the service received in this state. If the regular place of business to which the securities relate cannot be determined, the service is received in this state if the issuer of the securities, in the regular course of the issuer’s business, ordered the service from an office in this state. If the ordering office cannot be determined, the service is received in this state if the issuer’s billing address is in this state.

Tax 2.49(4)(w) (w) Gross receipts from security brokerage services.

Tax 2.49(4)(w)1. 1. The numerator of the receipts factor includes fees, commissions, margin interest, and other gross receipts from security brokerage services if the customer’s billing address is in this state.

Tax 2.49(4)(w)2. 2. The numerator of the receipts factor includes net gains, net of commissions, but not less than zero, from sales of trading assets if the customer’s billing address is in this state. “Trading assets” include securities, commodities, and related financial instruments that a taxpayer acquires and holds for sale in its inventory account. The receipts factor does not include gross receipts or net gains from sales or other dispositions of investment assets.

Tax 2.49(4)(x) (x) Gross receipts from other services. The numerator of the receipts factor includes gross receipts from services that are not described in pars. (a) to (w) if the purchaser of the service received the benefit of the service in this state under any of the following circumstances:

Tax 2.49(4)(x)1. 1. The benefit of a service is received in this state if any of the following applies:

Tax 2.49(4)(x)1.a. a. The service relates to real property that is located in this state.

Tax 2.49(4)(x)1.b. b. The service relates to tangible personal property that is delivered directly or indirectly to customers in this state.

Tax 2.49(4)(x)1.c. c. The service is purchased by an individual who is physically present in this state at the time that the service is received.

Tax 2.49(4)(x)1.d. d. The service is provided to a person engaged in a trade or business in this state and relates to that person’s business in this state.

Tax 2.49(4)(x)2. 2. If the purchaser of a service receives the benefit of a service in more than one state, the gross receipts from the performance of the service are included in the numerator of the receipts factor according to the portion of the service received in this state.

Tax 2.49(4)(y) (y) Gross receipts from computer software.

Tax 2.49(4)(y)1. 1. The numerator of the receipts factor includes gross receipts from the use of computer software if the purchaser or licensee uses the computer software at a location in this state.

Tax 2.49(4)(y)2. 2. Computer software is used at a location in this state if the purchaser or licensee uses the computer software in the regular course of business operations in this state, for personal use in this state, or if the purchaser or licensee is an individual whose domicile is in this state. If the purchaser or licensee uses the computer software in more than one state, the gross receipts shall be divided among those states having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in proportion to the use of the computer software in those states. To determine computer software use in this state, the department may consider the number of users in each state where the computer software is used, the number of site licenses or workstations in this state, and any other factors that reflect the use of computer software in this state.

Tax 2.49(4)(z) (z) Gross royalties and other gross receipts from intangibles.

Tax 2.49(4)(z)1. 1. The numerator of the receipts factor includes gross royalties and other gross receipts received for the use of intangible property if the user, purchaser, or licensee uses the intangible property at a location in this state.

Tax 2.49(4)(z)2. 2. Intangible property is used at a location in this state if the user, purchaser, or licensee uses the property in the operation of a trade or business at a location in this state, for personal use in this state, or if the user, purchaser, or licensee is an individual whose domicile is in this state. If the user, purchaser, or licensee uses the intangible property in more than one state, the gross royalties and other gross receipts from the sale or use of the intangible property shall be divided among those states having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in proportion to the use of the intangible property in those states. To determine intangible property use in this state, the department may consider the number of licensed sites in each state, the volume of property manufactured, produced, or sold at locations in this state, or any other factors that reflect the use of the intangible property in this state.

Tax 2.49(4)(ze) (ze) Gross receipts from services provided to regulated investment companies.

Tax 2.49(4)(ze)1. 1. Except as provided in subd. 2., the numerator of the receipts factor includes gross receipts and net gain described under pars. (a) to (z) from services provided to or on behalf of a regulated investment company, as defined in section 851 of the Internal Revenue Code. The regulated investment company is considered the purchaser or consumer of the services.

Tax 2.49(4)(ze)2. 2. At the taxpayer’s option, the portion of the gross receipts received from a regulated investment company from the sale of administration, distribution, or management services shall be included in the numerator of the receipts factor as described in subd. 3. A taxpayer that makes this election shall use this method to determine the receipts included in the numerator of the receipts factor from each regulated investment company for or on behalf of which it performs services and shall compute the receipts from each regulated investment company separately. For purposes of this subdivision:

Tax 2.49(4)(ze)2.a. a. “Administration services” include clerical, accounting, participant record keeping, transfer agency, bookkeeping, data processing, custodial, internal auditing, legal, and tax services provided for a regulated investment company but only if the provider of the services also provides, or is affiliated with a person that provides, distribution or management services to the regulated investment company.

Tax 2.49(4)(ze)2.b. b. “Distribution services” include advertising, servicing investor accounts, marketing, or selling shares of the regulated investment company. In the case of advertising, servicing, or marketing shares, the services shall be performed by a person that is or, in the case of a closed end company, was either engaged in the service of selling the shares or affiliated with a person that is engaged in the service of selling the shares. In the case of an open end company, the service of selling shares shall be performed pursuant to a contract entered into under 15 USC 80a-15(b).

Tax 2.49(4)(ze)2.c. c. “Management services” include rendering investment advice directly or indirectly to a regulated investment company, determining when sales and purchases of securities are to be made on behalf of the regulated investment company, selling or purchasing securities constituting assets of a regulated investment company, and related activities, but only if the activities are performed pursuant to a contract with the regulated investment company entered into under 15 USC 80a-15(a), for a person that has entered into the contract with the regulated investment company or for a person that is affiliated with a person that has entered into the contract with a regulated investment company.

Tax 2.49(4)(ze)2.d. d. A person is affiliated with another person if each person is a member of the same affiliated group, as defined under section 1504 of the Internal Revenue Code without regard to sub. (b) of section 1504.

Tax 2.49(4)(ze)2.e. e. Receipts received from a regulated investment company include amounts received directly or indirectly from the regulated investment company and amounts received from shareholders in the regulated investment company.

Tax 2.49(4)(ze)3. 3. The numerator of the receipts factor includes the sum of receipts determined by multiplying the gross receipts from the sale of administration, distribution, and management services provided to or on behalf of each separate regulated investment company by a fraction, computed as follows:

Tax 2.49(4)(ze)3.a. a. The numerator of the fraction is the sum of the monthly percentages determined for each month of the regulated investment company’s taxable year for federal income tax purposes, which taxable years ends within or at the same time as the taxpayer’s taxable year, but excluding any month during which the regulated investment company had no outstanding shares. The monthly percentage for each month is determined by dividing the number of shares in the regulated investment company that are owned on the last day of the month by shareholders whose domicile or commercial domicile is in this state by the total number of shares in the regulated investment company outstanding on that date.

Tax 2.49(4)(ze)3.b. b. The denominator of the fraction is the number of monthly percentages.

Tax 2.49(4)(zm) (zm) Other sales. The numerator of the receipts factor includes all other receipts described in s. Tax 2.39 (6) (b) to (i), to the extent not described in this subsection.

Tax 2.49(4)(zs) (zs) Receipts not taxed. For taxable years beginning before January 1, 2009, fifty percent of the taxpayer’s receipts that are apportioned under this section to a state which does not have jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer shall be included in the numerator of the apportionment fraction if the taxpayer’s employees or representatives performed such services from a location in this state. With regard to receipts described in pars. (a) to (ze), this paragraph does not apply to taxable years beginning on or after January 1, 2009.

Tax 2.49(5) (5) Payroll factor. The payroll factor is the ratio of the total compensation paid to employees located in this state to the total compensation paid to employees located everywhere, determined in accordance with the provisions of ss. 71.04 (6) and 71.25 (8), Stats., and s. Tax 2.39 (5). “Compensation paid to employees” includes deductible management or service fees paid to a related entity directly or indirectly for the performance of personal services, and the situs of the fees is in this state if the services are performed in this state. The recipient of the fees may not include the compensation paid to its employees with respect to the personal services in either the numerator or denominator of its payroll factor.

Tax 2.49 Note Note: The provisions of s. Tax 2.49 first apply for taxable years beginning on January 1, 2006.

Tax 2.49 History History: Cr. Register, August, 1973, No. 212, eff. 9-1-73; am. (1) (b), Register, July, 1978, No. 271, eff. 8-1-78; corrections in (1) (b) and (3) made under s. 13.93 (2m) (b) 7., Stats., Register, March, 1999, No. 519; CR 04-031: r. and recr. Register June 2006 No. 606, eff. 7-1-06; correction in (4) (zm) made under s. 13.93 (2m) (b) 7., Stats., Register November 2006 No. 611; corrections in (1) and (3) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register April 2010 No. 652; EmR0943: eff. 12-31-09 and CR 10-001: am. (1), (2) (h), (3) (intro.), (4) (intro.), (z) 1., (zm) and (zs), cr. (2) (dm), (fm), (g) 16., 17., (hm) and (3) (d), r. (3) (c), renum. (3) (d) to be (3) (c) Register June 2010 No. 654, eff. 7-1-10; CR 19-141: am. (2) (hm), (4) (x) 1. b., c. Register September 2020 No. 777, eff. 10-1-20.

Tax 2.495 Tax 2.495 Apportionment of apportionable income of interstate brokers-dealers, investment advisers, investment companies, and underwriters.

Tax 2.495(1) (1) Scope. A brokerage house, investment adviser, investment company, or underwriter that is engaged in business both in and outside this state shall apportion its apportionable income as provided in this section, except if the brokerage house, investment adviser, investment company, or underwriter is in a combined group, its Wisconsin share of the combined group’s apportionable income is computed as provided in s. 71.255 (5), Stats., and further detailed in s. Tax 2.61 (7). Nonapportionable income shall be allocated as provided in s. 71.25 (5) (b), Stats.

Tax 2.495 Note Note: A brokerage house, investment adviser, investment company, or underwriter that is a corporation may be in a combined group for taxable years beginning on or after January 1, 2009. See s. Tax 2.61 (2) for a description of corporations required to use combined reporting.

Tax 2.495(2) (2) Definitions. In this section:

Tax 2.495(2)(a) (a) “Billing address” means the address indicated in the taxpayer’s books and records on the first day of the taxable year, or on a later date in the taxable year when the customer relationship began, to which a taxpayer regularly sends any notice, statement or bill to the taxpayer’s customer. The billing address of a customer who is a natural person means the address of that person’s domicile.

Tax 2.495(2)(b) (b) “Brokerage commission” includes, but is not limited to, all sales fees on agency or principal transactions whether charged explicitly or implicitly.

Tax 2.495(2)(c) (c) “Brokerage house” means a firm or place where a broker-dealer conducts business.

Tax 2.495(2)(d) (d) “Broker-dealer” means a person engaged in the business of effecting transactions in securities, commodities, and related financial instruments for the account of another or for the person’s own account. “Broker-dealer” does not include a sales agent; an issuer with respect to purchasing and selling the issuer’s own securities; a bank, savings institution, or trust company, when effecting transactions for its own account or as an agent; a person in that person’s capacity as a personal representative, executor, administrator, holder of power of attorney, guardian, trustee of a testamentary or inter vivos trust, conservator, or pledgee; or any other person excluded from the definition of “broker-dealer” in s. 551.102 (4), Stats.

Tax 2.495(2)(e) (e) “Commercial domicile” means the location from which a trade or business is principally managed and directed. If the taxpayer is organized under the laws of a foreign country, the commonwealth of Puerto Rico, or any territory or possession of the United States, “commercial domicile” shall be deemed for the purposes of this section to be the state of the United States or the District of Columbia from which the taxpayer’s trade or business in the United States is principally managed and directed. It shall be rebuttably presumed that the location from which a trade or business is principally managed and directed is the state of the United States or the District of Columbia at which the greatest number of the taxpayer’s employees work, have their office or base of operations, or are directed or controlled, as of the last day of the taxable year.

Tax 2.495(2)(em) (em) “Engaged in business in and outside this state” has the same meaning as in s. Tax 2.39 (2) (b).

Tax 2.495(2)(f) (f) “Investment adviser” has the meaning given in 15 USC 80b-2 (a) (11).

Tax 2.495(2)(g) (g) “Investment company” has the meaning given in 15 USC 80a-3.

Tax 2.495(2)(h) (h) “Person” means a natural person, estate, trust, partnership, limited liability company, corporation, or any other business entity.

Tax 2.495(2)(i) (i) “Regular place of business” means an office at which the taxpayer carries on its business in a regular and systematic manner and which is regularly maintained, occupied, or used by employees of the taxpayer.

Tax 2.495(2)(j) (j) “Sales agent” means any individual other than a broker-dealer who represents a broker-dealer or issuer in effecting or attempting to effect transactions in securities. A sales agent includes a partner, officer, or director of a broker-dealer or issuer, or a person occupying a similar status or performing similar functions.

Tax 2.495(2)(k) (k) “State” means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico, or any territory or possession of the United States.

Tax 2.495(2)(L) (L) “Taxpayer” means a broker-dealer, investment adviser, investment company, or underwriter who is subject to apportionment under this section.

Tax 2.495(2)(m) (m) “Trading assets” include securities, commodities, and related financial instruments that a taxpayer acquires and holds for sale in its inventory account.

Tax 2.495(2)(n) (n) “Underwriter” includes all persons described under 15 USC 77b (a) (11).

Tax 2.495(3) (3) Apportionment formula computation. For taxable years beginning after December 31, 2005, a broker-dealer, investment adviser, investment company, or underwriter that is engaged in business in and outside this state shall determine its net income for state franchise or income tax purposes as provided in this section. The broker-dealer, investment adviser, investment company, or underwriter shall first deduct from its total net income its nonapportionable income, less related expenses. Nonapportionable income shall be allocated as provided in s. 71.25 (5) (b), Stats. The broker-dealer, investment adviser, investment company, or underwriter shall apportion its remaining net income to this state as follows:

Tax 2.495(3)(a) (a) For taxable years beginning after December 31, 2005, and before January 1, 2007, apportionable income shall be apportioned using an apportionment fraction composed of a receipts factor under sub. (4) representing 60% of the fraction, a payroll factor under sub. (5) representing 20% of the fraction, and a property factor under sub. (6) representing 20% of the fraction.

Tax 2.495(3)(b) (b) For taxable years beginning after December 31, 2006, and before January 1, 2008, apportionable income shall be apportioned using an apportionment fraction composed of a receipts factor under sub. (4) representing 80% of the fraction, a payroll factor under sub. (5) representing 10% of the fraction, and a property factor under sub. (6) representing 10% of the fraction.

Tax 2.495(3)(c) (c) In any case in which the taxpayer has no employees nor pays management or service fees to a related entity, or in which the department determines that employees are not a substantial income producing factor, the department may order or permit the elimination of the payroll factor. In any case in which the taxpayer has no property, or in which the department determines that property is not a substantial income producing factor, the department may order or permit the elimination of the property factor. This subsection does not apply to taxable years beginning after December 31, 2007.

Tax 2.495(3)(d) (d) For taxable years beginning after December 31, 2007, apportionable income shall be apportioned using an apportionment fraction composed of the receipts factor under sub. (4).

Tax 2.495 Note Note: Brokers-dealers, investment advisers, investment companies, and underwriters that are in combined groups use the receipts factor numerator and denominator to compute the modified sales factor, which then determines the company’s Wisconsin share of the combined group’s apportionable income. See s. 71.255 (5), Stats., and s. Tax 2.61 (7) for details.

Tax 2.495(4) (4) Receipts factor. The receipts factor is the ratio of the taxpayer’s receipts in this state to the taxpayer’s total receipts everywhere during the taxable year. Interest, dividends, gross receipts or net gains from sales of securities, and other income from investment assets held by a taxpayer in the taxpayer’s investment account may not be included in the receipts factor. The receipts factor shall include the items described in pars. (a) to (h).

Tax 2.495 Note Note: A broker-dealer, investment adviser, investment company, or underwriter that is a combined group member must adjust its receipts factor numerator and denominator as described in s. Tax 2.61 (7).

Tax 2.495(4)(a) (a) Gross brokerage commissions. The numerator of the receipts factor includes gross brokerage commissions earned if the billing address of the customer is in this state.

Tax 2.495(4)(b) (b) Gross margin interest. The numerator of the receipts factor includes total margin interest earned on behalf of brokerage accounts owned by customers if the billing address of the customer is in this state.

Tax 2.495(4)(c) (c) Gross account maintenance fees. The numerator of the receipts factor includes account maintenance fees received on behalf of brokerage accounts owned by customers if the billing address of the customer is in this state.

Tax 2.495(4)(d) (d) Gross receipts from trading assets.

Tax 2.495(4)(d)1. 1. Except as provided in subds. 1m., 2., and 3., the numerator of the receipts factor includes gross receipts, net of commissions, from sales of trading assets, if the day-to-day decisions regarding the trading assets occur at a location in this state. If the day-to-day decisions regarding the trading assets occur at locations both in and outside this state, the assets shall be considered to be located at the location where the trading policies and guidelines are established. It shall be rebuttably presumed that the location where the trading policies and guidelines are established is at the taxpayer’s commercial domicile.

Tax 2.495(4)(d)1m. 1m. Except as provided in subd. 2., at the election of the taxpayer, for taxable years beginning after December 31, 2014, the numerator of the receipts factor includes gross receipts, net of commissions, from sales of trading assets if the customer’s billing address is in this state. Once made, an election under this subdivision cannot be revoked without prior consent from the department. If a request to change an election has been approved by the department, the change becomes effective with the first taxable year ending on or after approval by the department.

Tax 2.495(4)(d)2. 2. If the inclusion of gross receipts results in substantial distortion of the receipts factor, the department may order or permit the substitution of net gain, net of commissions, from sales of trading assets.

Tax 2.495(4)(d)3. 3. Subdivision 2. does not apply to any taxpayer who, before January 1, 2023, elected to use the customer billing address method defined in subd. 1m. if the taxpayer has not revoked that election, and who, for any taxable year beginning after December 31, 2021, determines its receipts factor under this section by using the average of the receipts factors determined by using (a) gross receipts, net of commissions, and (b) net gain, net of commissions, from sales of trading assets for the taxable year, with all other components of the receipts factor remaining the same. Any such taxpayer may compute its receipts factor under this subsection using that averaging method. The department cannot require any taxpayer who elected before January 1, 2023, to use the customer billing address method, if the taxpayer has not revoked that election, to use any other method of determining its receipts factor under this section.

Tax 2.495(4)(e) (e) Investment company receipts. The numerator of the receipts factor includes gross payments received on investment contracts issued by the taxpayer and held by customers if the billing address of the customer is in this state. “Investment contract” includes any bonds, shares, coupons, certificates of membership, or other obligations or agreements issued by the taxpayer to return to the holders or owners money or anything of value at some future date.

Tax 2.495(4)(f) (f) Gross receipts from underwriting services. The numerator of the receipts factor includes gross receipts, including gross commissions, gross management fees, or gross underwriting fees, earned in performing underwriting activities on behalf of the issuer of the securities if either of the following applies:

Tax 2.495(4)(f)1. 1. The issuer of the securities is not engaged in a trade or business, and the issuer’s billing address is in this state.

Tax 2.495(4)(f)2. 2. The issuer of the securities is engaged in a trade or business, the issuer of the securities maintains a regular place of business in this state, and the securities relate to that person’s business in this state. If the securities relate to that person’s regular place of business in more than one state, the receipts from the performance of the service are included in the numerator of the receipts factor according to the portion of the service received in this state. If the regular place of business to which the securities relate cannot be determined, the service is received in this state if the issuer of the securities, in the regular course of the issuer’s business, ordered the service from an office in this state. If the ordering office cannot be determined, the service is received in this state if the issuer’s billing address is in this state.

Tax 2.495(4)(g) (g) Other gross receipts or net gains. The numerator of the receipts factor includes any other gross receipts or net gains as provided in s. Tax 2.49 (4).

Tax 2.495(4)(h) (h) Receipts not taxed. For taxable years beginning before January 1, 2009, fifty percent of the taxpayer’s receipts that are apportioned under this section to a state which does not have jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer shall be included in the numerator of the apportionment fraction if the taxpayer’s commercial domicile is in this state. With regard to receipts described in pars. (a) to (f), this paragraph does not apply to taxable years beginning on or after January 1, 2009.

Tax 2.495(5) (5) Payroll factor. The payroll factor is the ratio of the total compensation paid to employees located in this state to the total compensation paid to employees located everywhere, determined in accordance with the provisions of ss. 71.04 (6) and 71.25 (8), Stats., and s. Tax 2.39 (5). “Compensation paid to employees” includes deductible management or service fees paid to a related entity directly or indirectly for the performance of personal services, and the situs of the fees is in this state if the services are performed in this state. The recipient of the fees may not include the compensation paid to its employees with respect to the personal services in either the numerator or denominator of its payroll factor.

Tax 2.495(6) (6) Property factor. The property factor is determined in accordance with the provisions of ss. 71.04 (5) and 71.25 (7), Stats., and s. Tax 2.39 (4).

Tax 2.495 Note Note: The provisions of s. Tax 2.495 first apply for taxable years beginning on January 1, 2006.

Tax 2.495 History History: CR 04-031: cr. Register June 2006 No. 606, eff. 7-1-06; corrections in (1), (2) (d) and (3) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register April 2010 No. 652; EmR0943: eff. 12-31-09 and CR 10-001: am. (1), (3) (intro.), (4) (intro.) and (h), cr. (2) (em) and (3) (d), r. (3) (c), renum. (3) (d) to be (3) (c) Register June 2010 No. 654, eff. 7-1-10; CR 14-077: am. (4) (d) 1., cr. (4) (d) 1m. Register May 2015 No. 713, eff. 6-1-15; 2023 Wis. Act 19: am. (4) (d) 1., cr. (4) (d) 3. Register July 2023 No. 811, eff. 7-7-23.

Tax 2.50 Tax 2.50 Apportionment of apportionable income of interstate public utilities.

Tax 2.50(1) (1) Scope. A public utility that is engaged in business both in and outside this state shall apportion its apportionable income as provided in this section, except if the public utility is in a combined group, its Wisconsin share of the combined group’s apportionable income is computed as provided in s. 71.255 (5), Stats., and further detailed in s. Tax 2.61 (7). Nonapportionable income shall be allocated as provided in s. 71.25 (5) (b), Stats.

Tax 2.50 Note Note: A public utility that is a corporation may be in a combined group for taxable years beginning on or after January 1, 2009. See s. Tax 2.61 (2) for a description of corporations required to use combined reporting.

Tax 2.50(2) (2) Definitions. In this section:

Tax 2.50(2)(a) (a) “Engaged in business in and outside this state” has the same meaning as in s. Tax 2.39 (2) (b).

Tax 2.50(2)(b) (b) “Payroll factor” means the payroll fraction computed under s. 71.04 (6) or 71.25 (8), Stats., and s. Tax 2.39.

Tax 2.50(2)(c) (c) “Property factor” means the property fraction computed under s. 71.04 (5) or 71.25 (7), Stats., and s. Tax 2.39.

Tax 2.50(2)(d) (d) “Public utility” means any business entity that owns or operates any plant, equipment, property, franchise, or license for the production, transmission, sale, delivery, or furnishing of electricity, water, or steam the rates of charges for goods or services of which have been established or approved by a federal, state, or local government or governmental agency.

Tax 2.50(2)(e) (e) “Sales factor” means the sales fraction computed under ss. 71.04 (4m) and (7) or 71.25 (6m) and (9), Stats., and s. Tax 2.39.