Chapter 139

139.323(1) (1) The tribal council has filed a claim for the refund with the department.

139.323(2) (2) The tribal council has approved the retailer.

139.323(3) (3) The land on which the sale occurred was designated a reservation or trust land on or before January 1, 1983, or on a later date as determined by an agreement between the department and the tribal council.

139.323(4) (4) The cigarettes were not delivered by the retailer to the buyer by means of a common carrier, a contract carrier or the U.S. postal service.

139.323(5) (5) The retailer has not sold the cigarettes to another retailer or to a jobber.

139.323 History History: 1983 a. 27; 1985 a. 29, 302; 2009 a. 28.

139.323 Cross-reference Cross-reference: See also ss. Tax 9.08 and 9.19, Wis. adm. code.

139.323 Annotation The phrase “was designated a reservation or trust land” in sub. (3) is necessarily read as referring to the applicable formal process that must occur in order for land to be a reservation or trust land. Because the proper authorities had not completed the necessary steps for the property in question to be designated a reservation or trust land on or before January 1, 1983, and because that is required in order to qualify for the tax refund, a claim for refund was properly denied. Ho-Chunk Nation v. DOR, 2009 WI 48, 317 Wis. 2d 553, 766 N.W.2d 738, 07-1985.

139.325 139.325 Agreements with Indian tribes. The department may enter into agreements with Indian tribes to provide for the refunding of the cigarette tax imposed under s. 139.31 (1) on cigarettes sold on reservations to enrolled members of the tribe residing on the tribal reservation.

139.325 History History: 1983 a. 27.

139.325 Cross-reference Cross-reference: See also ss. Tax 9.08 and 9.09, Wis. adm. code.

139.33 139.33 Use tax.

139.33(1) (1) A use tax is imposed and levied upon the use of cigarettes in this state by any person for any purpose if the excise tax imposed by s. 139.31 has not been paid on such cigarettes. Such tax is levied and shall be collected at the same rates as provided for in s. 139.31. The tax imposed by this section is not applicable to cigarettes subject to the excise tax imposed by s. 139.31 nor to cigarettes exempt from that tax under s. 139.31 (3).

139.33(3) (3) No person other than a member of the armed forces, as specified in this subsection, a distributor, or a bonded direct marketer who is authorized by the department to purchase and affix tax stamps may import into this state cigarettes on which the excise tax imposed by s. 139.31 has not been paid and the container of which does not bear proper stamps. Within 15 days, any such person importing cigarettes shall file a declaration of such cigarettes imported and shall remit therewith the tax on such cigarettes imposed by this section. Members of the armed forces shall not be required to report or pay the tax on cigarettes in their possession if such cigarettes are issued to them by the U.S. government or any of its subdivisions or were purchased in any armed forces post exchange or service store for their personal use or consumption. If the use tax imposed by this section is not paid when due, it shall become delinquent and the person liable for it shall pay, in addition, a penalty of $25 for each 200 cigarettes. Interest on the delinquent tax and penalty shall accrue at the rate of 1.5 percent per month or each fraction of a month from the date the tax became due until paid.

139.33(4) (4) Sections 139.30 to 139.44 relating to enforcement of the excise tax imposed by s. 139.31 apply to enforcement of the use tax imposed by this section.

139.33 History History: 1977 c. 289; 1983 a. 27; 1987 a. 312 s. 17; 1991 a. 39; 1997 a. 27; 2005 a. 25.

139.33 Cross-reference Cross-reference: See also s. Tax 9.51, Wis. adm. code.

139.34 139.34 Permits required.

139.34(1) (1) 

139.34(1)(a) (a) No person may manufacture cigarettes in this state or sell cigarettes in this state as a distributor, jobber, vending machine operator or multiple retailer and no person may operate a warehouse in this state for the storage of cigarettes for another person without first filing an application for and obtaining the proper permit to perform such operations from the department.

139.34(1)(b) (b) This section applies to all officers, directors, agents and stockholders holding 5 percent or more of the stock of any corporation applying for a permit under this section.

139.34(1)(c) (c) Subject to ss. 111.321, 111.322 and 111.335, no permit under this section may be granted to any person to whom any of the following applies:

139.34(1)(c)1. 1. The person has been convicted of a misdemeanor, not involving chs. 340 to 349, at least 3 times.

139.34(1)(c)2. 2. The person has been convicted of a felony, unless pardoned.

139.34(1)(c)3. 3. The person is addicted to the use of a controlled substance or controlled substance analog under ch. 961.

139.34(1)(c)4. 4. The person has income which comes principally from gambling or has been convicted of 2 or more gambling offenses.

139.34(1)(c)5. 5. The person has been guilty of crimes relating to prostitution.

139.34(1)(c)6. 6. The person has been guilty of crimes relating to loaning money or anything of value to persons holding licenses or permits pursuant to ch. 125.

139.34(1)(c)7. 7. The person does not hold a permit under s. 77.52 (9), if the person is a retailer.

139.34(1)(d) (d) Upon denial of a permit the department of revenue shall immediately notify such person in writing of the denial and the reasons therefor.

139.34(1)(e) (e) A denial of a permit by the department of revenue shall be subject to judicial review under ch. 227.

139.34(1)(f) (f) The person holds a valid certificate issued under s. 73.03 (50).

139.34(3) (3) No distributor or bonded direct marketer may affix stamps to cigarette packages, as provided in s. 139.32, unless the distributor or bonded direct marketer certifies to the department, in a manner prescribed by the department, that the distributor or bonded direct marketer purchases cigarettes directly from a manufacturer.

139.34(4) (4) A separate permit shall be required of and issued to each class of permittee and the holder of any permit shall perform only the operations thereby authorized. Such permit shall not be transferable from one person to another or from one premises to another. A separate permit shall be required for each place where cigarettes are stamped or where cigarettes are stored for sale at wholesale or through vending machines or multiple retail outlets.

139.34(5) (5) The ownership and operation of any retail outlet does not preclude a person from receiving a permit as a distributor or jobber, if more than 50 percent of that person’s sales of cigarettes are at wholesale to retailers, vending machine operators or multiple retailers neither owned, controlled nor operated by that person.

139.34(6) (6) A vending machine operator or a multiple retailer may acquire unstamped cigarettes from the manufacturers thereof and affix the stamps to packages or other containers only if the vending machine operator or multiple retailer also holds a permit as a distributor.

139.34(7) (7) The secretary may require by rule that stamps affixed to cigarette packages be identified by a permit or code number assigned to the person affixing them.

139.34 Cross-reference Cross-reference: See also s. Tax 9.19, Wis. adm. code.

139.34(8) (8) The holder of a warehouse permit is entitled to store cigarettes on the premises described in the permit. The warehouse permit shall not authorize the holder to sell cigarettes. Unstamped cigarettes stored in a warehouse for a manufacturer or distributor may be delivered only to a person holding a permit as a manufacturer or distributor.

139.34(9) (9) The applicant for a permit, if a nonresident, foreign corporation or foreign limited liability company, shall file proof that the applicant has appointed the department of financial institutions as agent for the service of process on any matter arising under ss. 139.30 to 139.44. A foreign corporation without a place of business in this state need not obtain a certificate of authority under ss. 180.1501 to 180.1505. If a foreign corporation has a certificate of authority under ss. 180.1501 to 180.1505, the foreign corporation satisfies this subsection by filing the address of its registered office in this state and the name and e-mail address of its registered agent at that office and by promptly filing any changes to this information. A foreign limited liability company without a place of business in this state need not obtain a certificate of registration under s. 183.0902. If a foreign limited liability company has a certificate of registration under s. 183.0902, the foreign limited liability company satisfies this subsection by filing the name and address, and e-mail address, of its registered agent in this state and by promptly filing any changes to this information.

139.34(10) (10) Every vending machine operator shall in the vending machine operator’s application for a permit list each county in which the vending machine operator operates such machines and state the number of such machines the vending machine operator is then operating in each such county.

139.34 History History: 1971 c. 219; 1973 c. 198; 1975 c. 39 s. 732 (2m); 1977 c. 125; 1979 c. 34, 89, 221; 1981 c. 79 s. 18; 1981 c. 334 s. 25 (1); 1981 c. 380, 391; 1985 a. 313; 1989 a. 303; 1991 a. 32, 39; 1993 a. 112, 482; 1995 a. 27, 448; 1997 a. 27; 2001 a. 16; 2005 a. 25; 2021 a. 258.

139.34 Cross-reference Cross-reference: See also ss. Tax 9.21, 9.56, 9.61, and 9.68, Wis. adm. code.

139.345 139.345 Direct marketing.

139.345(1) (1) 

139.345(1)(a) (a) No person may sell cigarettes to consumers in this state as a direct marketer unless the person submits to the department the person’s name, trade name, address of the person’s principal place of business, phone number, e-mail address, and website address.

139.345(1)(b) (b) No person may sell cigarettes as described under this section unless the person certifies to the department, in the manner prescribed by the department, that the person shall acquire stamped cigarettes from a licensed distributor or unstamped cigarettes from the manufacturer thereof, pay the tax imposed under this subchapter on all unstamped cigarettes and affix stamps to the cigarette packages or containers as provided under s. 139.32 (1), store such packages or containers, and sell only such packages or containers to consumers in this state by direct marketing; or acquire cigarettes from a distributor, to the packages or containers of which stamps have been affixed as provided under s. 139.32 (1), and sell only such packages or containers to consumers in this state by direct marketing.

139.345(1)(d) (d) No person may sell cigarettes as described in this section unless the person certifies to the department, in the manner prescribed by the department, that the person shall register with credit card and debit card companies; that the invoices and all means of solicitation for all shipments of cigarette sales from the person shall bear the person’s name and address; and that the person shall provide the department any information the department considers necessary to administer this section.

139.345(2) (2) No person may sell cigarettes to consumers in this state by direct marketing unless the tax imposed under s. 77.52 or 77.53 is paid on the sale of such cigarettes.

139.345(3) (3) No person may sell cigarettes to consumers in this state unless the person does all of the following:

139.345(3)(a) (a) Verifies the consumer’s name and address and that the consumer is at least 18 years of age by any of the following methods:

139.345(3)(a)1. 1. The person uses a database that includes information based on public records.

139.345(3)(a)2. 2. The person receives from the consumer, at the time of purchase, a copy of a government issued identification.

139.345(3)(a)3. 3. The person uses a mechanism, other than a mechanism specified under subd. 1. or 2., that is approved by the department.

139.345(3)(b) (b) Obtains from the consumer, at the time of purchase, a statement signed by the consumer that confirms all of the following:

139.345(3)(b)1. 1. The consumer’s name, address, and birth date.

139.345(3)(b)2. 2. That the consumer understands that no person who is under 18 years of age may purchase or possess cigarettes or falsely represent his or her age for the purpose of receiving cigarettes, as provided under s. 254.92.

139.345(3)(b)3. 3. That the consumer understands that any person who, for the purpose of obtaining credit, goods, or services, intentionally uses, attempts to use, or possesses with intent to use, any personal identifying information or personal identification document of an individual, including a deceased individual, without the authorization or consent of the individual and by representing that he or she is the individual, that he or she is acting with the authorization or consent of the individual, or that the information or document belongs to him or her, is guilty of a Class H felony, as provided under s. 943.201.

139.345(4) (4) Any person who makes a sale of cigarettes by means of the Internet shall, at the time of purchase, obtain the purchaser’s electronic mail address and shall receive payment for the sale by credit card, debit card, or check prior to shipping.

139.345(5) (5) The invoice for any shipment of cigarettes sold to consumers in this state by direct marketing shall specify the name and address of the seller and any valid permit issued under s. 139.34 that is held by the seller.

139.345(6) (6) All packages of cigarettes shipped to consumers in this state shall be clearly labelled “CIGARETTES” on the outside of such packages.

139.345(7) (7) 

139.345(7)(a) (a) No person may deliver a package of cigarettes sold by direct marketing to a consumer in this state unless the person making the delivery receives a government issued identification card from the person receiving the package and verifies that the person receiving the package is at least 18 years of age. If the person receiving the package is not the person to whom the package is addressed, the person delivering the package shall have the person receiving the package sign a statement that affirms that the person to whom the package is addressed is at least 18 years of age.

139.345(7)(b) (b) No person may deliver a package of cigarettes to a consumer in this state unless the seller of the cigarettes provides proof to the person making the delivery that the seller has complied with all requirements under this subchapter. A seller shall have no course of action against any person who refuses to deliver cigarettes as provided under this subdivision.

139.345 History History: 2005 a. 25; 2017 a. 365 s. 112.

139.35 139.35 Stamps.

139.35(1) (1) Transfers. No person may give, sell or lend any stamps to another and no person may accept, purchase or borrow any stamps from another. All sales and transfers of stamps may be made only by the secretary to permit holding manufacturers, distributors, and bonded direct marketers who are authorized by the department to purchase and affix tax stamps.

139.35(2) (2) Records. The secretary shall keep a record of the sale of all stamps including the names of the purchasers and the date of sale.

139.35 History History: 2005 a. 25.

139.355 139.355 Appeals. Sections 71.88 (1) (a) and (2) (a), 71.89 and 71.90 as they apply to the taxes under ch. 71 apply to the taxes under this subchapter.

139.355 History History: 1991 a. 39.

139.36 139.36 Refunds for unusable stamps. The secretary shall refund to any purchaser the money paid for any stamps returned unfit for use or otherwise unused or which have been affixed to packages which are unsalable. The secretary shall prescribe by rule the proof required to obtain such refund. The permittee shall pay the expenses of determining the amount of such refund.

139.36 History History: 1991 a. 39; 1993 a. 482.

139.36 Cross-reference Cross-reference: See also s. Tax 9.11, Wis. adm. code.

139.362 139.362 Bad debt deductions.

139.362(1) (1) In this section, “bad debt” means an amount that is equal to the purchase price of cigarettes, if such amount may be claimed as a deduction under section 166 of the Internal Revenue Code. “Bad debt” does not include financing charges, interest on the wholesale price of cigarettes, uncollectible amounts on property that remains in the seller’s possession until the full purchase price is paid, expenses incurred in attempting to collect any debt, debts sold or assigned to 3rd parties for collection, and repossessed property.

139.362(2) (2) A person who pays the taxes imposed under this subchapter may claim as a deduction on a return under s. 139.38, and against the purchase of stamps under s. 139.32, the amount of any such taxes that are attributable to bad debt that the person writes off as uncollectible in the person’s books and records and that is eligible to be deducted as bad debt for federal income tax purposes, regardless of whether the person is required to file a federal income tax return. A person who claims a deduction under this section shall claim the deduction on the return under s. 139.38 that is submitted for the period in which the person writes off the amount of the bad debt as uncollectible in the person’s books and records and in which such amount is eligible to be deducted as bad debt for federal income tax purposes. If the person subsequently collects in whole or in part any bad debt for which a deduction is claimed under this section, the person shall submit to the department the portion of the deduction related to the amount collected, in the manner prescribed by the department and for the period in which the amount is collected.

139.362(3) (3) A person who claims a deduction under this section shall submit the claim on a form prescribed by the department and shall submit with the form all of the following:

139.362(3)(a) (a) A copy of the original invoice for the sale of cigarettes that represents bad debt.

139.362(3)(b) (b) Evidence that the cigarettes described in the invoice under par. (a) were delivered to the person who ordered them.

139.362(3)(c) (c) Evidence that the person who ordered and received the cigarettes did not pay the person who claims a deduction under this section for the cigarettes.

139.362(3)(d) (d) Evidence that the person who claims a deduction under this section used reasonable collection practices in attempting to collect the amount owed under par. (c).

139.362(4) (4) Any person who possesses cigarettes for which the taxes imposed under this subchapter have not been paid and have been claimed as a deduction under this section shall file a report as prescribed by the department, pay the taxes imposed under this subchapter on the cigarettes, and be subject to this subchapter in the same manner as is provided for persons who hold valid permits under this subchapter.

139.362 History History: 2005 a. 25.

139.363 139.363 Preferred claims. If the property of any purchaser of cigarettes from any permittee under this subchapter is seized upon any intermediate or final process of any court in this state, or if the business of any purchaser of cigarettes from any permittee under this subchapter is suspended by the action of creditors or put into the hands of any assignee, receiver, or trustee, all amounts that are due from the purchaser to any permittee for taxes imposed under this subchapter that the permittee has paid to the state for cigarettes purchased from the permittee shall be considered preferred claims, and shall be paid in full, and the permittee shall be a preferred creditor.

139.363 History History: 2005 a. 25.

139.365 139.365 Other refunds. Section 71.75 (2), (4) to (7) and (10) as it applies to the taxes under ch. 71 applies to the taxes under this subchapter. Section 71.74 (13) as it applies to the refund of taxes under ch. 71 applies to the refund of taxes under this subchapter.

139.365 History History: 1991 a. 39; 1993 a. 205.

139.37 139.37 Salespersons.