Chapter 139

139.41 139.41 Place to place delivery. No person shall peddle any cigarettes from house to house, where the sale is consummated and delivery made concurrently.

139.42 139.42 Nuisance. Any building or place of any kind where cigarettes are sold, possessed, stored or manufactured without a lawful permit in violation of ss. 139.30 to 139.41 is declared a public nuisance and may be closed and abated as such.

139.43 139.43 Statewide concern. Sections 139.30 to 139.44 shall be construed as an enactment of statewide concern for the purpose of providing a uniform regulation of the sale of cigarettes.

139.43 History History: 1993 a. 213; 1995 a. 225.

139.43 Annotation The state regulatory scheme for tobacco sales preempts municipalities from adopting regulations that are not in strict conformity with those of the state. U.S. Oil, Inc. v. City of Fond du Lac, 199 Wis. 2d 333, 544 N.W.2d 589 (Ct. App. 1995), 95-0213.

139.44 139.44 Interest and penalties.

139.44(1) (1) Any person who falsely or fraudulently makes, alters or counterfeits any stamp or procures or causes the same to be done, or who knowingly utters, publishes, passes or tenders as true any false, altered or counterfeit stamp, or who affixes the same to any package or container of cigarettes, or who possesses with the intent to sell any cigarettes in containers to which false, altered or counterfeit stamps have been affixed is guilty of a Class G felony.

139.44(1m) (1m) Any person who falsely or fraudulently tampers with a cigarette meter in order to evade the tax under s. 139.31 is guilty of a Class G felony.

139.44(2) (2) Any person who makes or signs any false or fraudulent report may be fined not more than $10,000 or imprisoned for not more than 9 months or both.

139.44(2m) (2m) Any person who evades or attempts to evade, or who aids or abets the evasion or attempted evasion of, a tax imposed under s. 139.31 or 139.76 is guilty of the following:

139.44(2m)(a) (a) A Class A misdemeanor if the amount of the tax is no more than $2,500.

139.44(2m)(b) (b) A Class I felony if the amount of the tax is more than $2,500, but no more than $5,000.

139.44(2m)(c) (c) A Class H felony if the amount of the tax is more than $5,000, but no more than $10,000.

139.44(2m)(d) (d) A Class G felony if the amount of the tax is more than $10,000, but no more than $100,000.

139.44(2m)(e) (e) A Class F felony if the amount of the tax is more than $100,000.

139.44(3) (3) Any permittee who fails to keep the records required by ss. 139.30 to 139.42 or 139.77 to 139.82 shall be fined not less than $100 nor more than $500 or imprisoned not more than 6 months or both.

139.44(4) (4) Any person who refuses to permit the examination or inspection authorized in s. 139.39 (2) or 139.83 may be fined not more than $500 or imprisoned not more than 90 days or both. Such refusal shall be cause for immediate suspension or revocation of permit by the secretary.

139.44(5) (5) Any person who violates any of the provisions of ss. 139.30 to 139.41 or 139.75 to 139.83 for which no other penalty is prescribed shall be fined not less than $100 nor more than $1,000 or imprisoned not less than 10 days nor more than 90 days or both.

139.44(6) (6) Any person who violates any of the rules of the department shall be fined not less than $100 nor more than $500 or be imprisoned not more than 6 months or both.

139.44(7) (7) In addition to the penalties imposed for violation of ss. 139.30 to 139.41 or 139.75 to 139.83 or any of the rules of the department, the permit of any person convicted shall be automatically revoked and he or she shall not be granted another permit for a period of 2 years following such revocation.

139.44(8) (8) Penalties for violation of s. 139.321 (1) shall be as follows:

139.44(8)(a) (a) If the number of cigarettes does not exceed 200, the person may be fined not more than $200 or imprisoned for not more than 6 months or both.

139.44(8)(am) (am) If the number of cigarettes exceeds 200 but does not exceed 3,000, the person may be fined not more than $1,000 or imprisoned for not more than one year or both.

139.44(8)(b) (b) If the number of cigarettes exceeds 3,000 but does not exceed 5,000, the person is guilty of a Class I felony.

139.44(8)(c) (c) If the number of cigarettes exceeds 5,000 but does not exceed 10,000, the person is guilty of a Class H felony.

139.44(8)(d) (d) If the number of cigarettes exceeds 10,000, the person is guilty of a Class F felony.

139.44(9) (9) Unpaid taxes bear interest at the rate of 12 percent per year from the due date of the return until paid or deposited with the department, and all refunded taxes bear interest at the rate of 3 percent per year from the due date of the return to the date on which the refund is certified on the refund rolls.

139.44(10) (10) All nondelinquent payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.

139.44(11) (11) Delinquent cigarette taxes bear interest at the rate of 1.5 percent per month until paid. The taxes imposed by this subchapter shall become delinquent if not paid:

139.44(11)(a) (a) In the case of a timely filed return, no return filed or a late return, on or before the due date of the return; or

139.44(11)(b) (b) In the case of a deficiency determination of taxes, within 2 months after the date of demand.

139.44(12) (12) If due to neglect an incorrect return is filed, the entire tax finally determined is subject to a penalty of 25 percent of the tax exclusive of interest or other penalty. A person filing an incorrect return has the burden of proving that the error or errors were due to good cause and not due to neglect.

139.44 History History: 1981 c. 20; 1983 a. 63; 1985 a. 302; 1987 a. 399; 1989 a. 31; 1993 a. 16; 1997 a. 27, 283; 2001 a. 109; 2013 a. 20; 2023 a. 73.

139.45 139.45 Prosecutions by attorney general. Upon request by the secretary of revenue, the attorney general may represent this state or assist a district attorney in prosecuting any case arising under this subchapter or under ss. 134.65 and 134.66. The attorney general may take any action necessary to enforce s. 139.345.

139.45 History History: 1985 a. 302; 2005 a. 25.

139.46 139.46 Lists. The department shall compile and maintain a list of direct marketers who have complied with the requirements of s. 139.345 and a list of direct marketers who the department knows have not complied with such requirements. The department shall provide copies of the lists described under this section to the attorney general and to each person who delivers cigarettes to consumers in this state that are sold by direct marketing under s. 139.345.

139.46 History History: 2005 a. 25.

subch. III of ch. 139 SUBCHAPTER III

TOBACCO PRODUCTS TAX

Subch. III of ch. 139 Cross-reference Cross-reference: See also s. Tax 9.69, Wis. adm. code.

139.75 139.75 Definitions. In this subchapter:

139.75(1d) (1d) “Actual cost” means the total price of cigars or pipe tobacco charged by the manufacturer or other seller to an unrelated distributor or remote retail seller. The total price includes all charges by the manufacturer or other seller that are necessary to complete the sale. The total price does not include a reduction for any cost or expense, regardless of whether the cost or expense is separately stated on an invoice, that is incurred by the manufacturer or other seller, including fees, delivery, freight, transportation, packaging, handling, or marketing costs, federal excise taxes, import fees, or duties. The total price does not include a reduction for the value or cost of discounts or free promotional or sample products. For purposes of this subsection, a manufacturer or other seller is related to a distributor or remote retail seller if the 2 parties have significant common purposes and substantial common membership or, directly or indirectly, substantial common direction or control.

139.75(1h) (1h) “Business” means any trade, occupation, activity or enterprise engaged in for the purpose of selling or distributing tobacco products or vapor products in this state.

139.75(1p) (1p) “Cigar” means any roll of tobacco wrapped in leaf tobacco or in any substance containing tobacco but does not include a cigarette.

139.75(2) (2) “Consumer” means any person who has title to or possession of tobacco products or vapor products in storage for use or other consumption in this state.

139.75(3) (3) “Department” means the department of revenue.

139.75(4) (4) “Distributor” means:

139.75(4)(a) (a) Any person engaged in the business of selling tobacco products or vapor products in this state who brings, or causes to be brought, into this state from outside the state any tobacco products or vapor products for sale;

139.75(4)(b) (b) Any person who makes, manufactures or fabricates tobacco products or vapor products in this state for sale in this state; or

139.75(4)(c) (c) Any person engaged in the business of selling tobacco products or vapor products outside this state who ships or transports tobacco products or vapor products to retailers in this state to be sold by those retailers.

139.75(4d) (4d) “Enrolled member” has the meaning given in s. 139.30 (4).

139.75(4m) (4m) “File” means mail or deliver a document that the department prescribes to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.

139.75(4p) (4p) “Indian tribe” has the meaning given in s. 139.30 (5).

139.75(5) (5) “Manufacturer” means any person who manufactures and sells tobacco products or vapor products.

139.75(5d) (5d) “Moist snuff” means any finely cut, ground, or powdered smokeless tobacco that is intended to be placed or dipped in the mouth.

139.75(5m) (5m) “Pay” means mail or deliver funds to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.

139.75(5p) (5p) “Person” includes any individual, sole proprietorship, partnership, limited liability company, corporation, or association. A single-owner entity that is disregarded as a separate entity under ch. 71 is disregarded as a separate entity for purposes of this subchapter.

139.75(5u) (5u) “Pipe tobacco” means any tobacco that, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to or purchased by consumers as tobacco to be smoked in a pipe.

139.75(6) (6) “Place of business” means any place where tobacco products or vapor products are sold, manufactured, stored or kept for the purpose of sale or consumption, including any vessel, vehicle, airplane, train or vending machine.

139.75(6c) (6c) “Remote retail sale” means any sale of cigars or pipe tobacco to a consumer that satisfies any of the following:

139.75(6c)(a) (a) The consumer submits the order for the sale by telephone, a method of voice transmission, mail, or the Internet or other online service, or the seller is otherwise not in the physical presence of the consumer when the order or request for purchase is made.

139.75(6c)(b) (b) The cigars or pipe tobacco are delivered to the consumer by common carrier, private delivery service, or other method of remote delivery, or the seller is not in the physical presence of the consumer when the consumer obtains possession of the cigars or pipe tobacco.

139.75(6g) (6g) “Remote retail seller” means a person located inside or outside of this state who makes remote retail sales.

139.75(6m) (6m) “Reservation” has the meaning given in s. 139.30 (9).

139.75(7) (7) “Retail outlet” means each place of business from which tobacco products or vapor products are sold to consumers.

139.75(8) (8) “Retailer” means any person engaged in the business of selling tobacco products or vapor products to ultimate consumers.

139.75(9) (9) “Sale” means any transfer, exchange or barter for a consideration. It includes a gift by a person engaged in the business of selling tobacco products or vapor products for advertising or as a means of evading this subchapter or for any other purpose, and it includes solicitation of orders for, and the sale for, future delivery.

139.75(9m) (9m) “Sign” has the meaning given in s. 139.01 (9m).

139.75(10) (10) “Storage” means any keeping or retention of tobacco products or vapor products for use or consumption in this state.

139.75(11) (11) “Subjobber” means any person, other than a manufacturer or distributor, who buys tobacco products or vapor products from a distributor and sells them to persons other than the ultimate consumers.

139.75(12) (12) “Tobacco products” means cigars; pipe tobacco; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready-rubbed and other smoking tobacco; snuff, including moist snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking; but “tobacco products” does not include cigarettes, as defined under s. 139.30 (1m).

139.75(12m) (12m) “Trust lands” has the meaning given in s. 139.30 (13m).

139.75(13) (13) “Use” means the exercise of any right or power incidental to the ownership of tobacco products or vapor products.

139.75(14) (14) “Vapor product” means a noncombustible product that produces vapor or aerosol for inhalation from the application of a heating element to a liquid or other substance that is depleted as the product is used, regardless of whether the liquid or other substance contains nicotine.

139.75 History History: 1981 c. 20; 1985 a. 302; 1997 a. 27; 1999 a. 9; 2005 a. 25, 49; 2007 a. 20; 2015 a. 216; 2019 a. 9; Bartlett v. Evers, 2020 WI 68, ¶¶ 4, 9, 393 Wis. 2d 172, 945 N.W.2d 685, 19-1376; 2021 a. 239; 2023 a. 150.

139.76 139.76 Imposition; exceptions.

139.76(1) (1) Except as provided in sub. (1p), an excise tax is imposed upon the sale, offering or exposing for sale, possession with intent to sell or removal for consumption or sale or other disposition for any purpose of tobacco products by any person engaged as a distributor of them at the rate, for tobacco products, not including moist snuff, vapor products, cigars, and pipe tobacco, of 71 percent of the manufacturer’s established list price to distributors without diminution by volume or other discounts on domestic products and, for moist snuff, at the rate of 100 percent of the manufacturer’s established list price to distributors without diminution by volume or other discounts on domestic products. On products imported from another country, not including moist snuff, vapor products, cigars, and pipe tobacco, the rate of tax is 71 percent of the amount obtained by adding the manufacturer’s list price to the federal tax, duties and transportation costs to the United States. On moist snuff imported from another country, the rate of the tax is 100 percent of the amount obtained by adding the manufacturer’s list price to the federal tax, duties, and transportation costs to the United States. Except as provided in sub. (1p), the tax attaches at the time the tobacco products are received by the distributor in this state. The tax shall be passed on to the ultimate consumer of the tobacco products. All tobacco products received in this state for sale or distribution within this state, except tobacco products actually sold as provided in sub. (2), shall be subject to such tax.

139.76(1m) (1m) An excise tax is imposed upon the sale, offering or exposing for sale, possession with intent to sell or removal for consumption or sale or other disposition for any purpose of vapor products by any person engaged as a distributor of them at the rate of 5 cents per milliliter of the liquid or other substance based on the volume as listed by the manufacturer and at a proportionate rate for any other quantity or fractional part thereof. The tax attaches at the time the vapor products are received by the distributor in this state. The tax shall be passed on to the ultimate consumer of the vapor products. All vapor products received in this state for sale or distribution within this state, except those actually sold as provided in sub. (2), shall be subject to such tax.

139.76(1p) (1p) An excise tax is imposed upon the sale, offering or exposing for sale, possession with intent to sell, or removal for consumption or sale or other disposition for any purpose of cigars and pipe tobacco by any person engaged as a distributor or remote retail seller of them at the rate of 71 percent of the actual cost to the distributor or remote retail seller. The tax imposed under this subsection on cigars shall not exceed an amount equal to 50 cents for each cigar. The tax attaches at the time the cigars or pipe tobacco are received by the distributor in this state, except that for cigars and pipe tobacco sold by a remote retail seller, the tax attaches at the time the remote retail seller makes a remote retail sale of cigars or pipe tobacco to a consumer. The tax shall be passed on to the ultimate consumer of the cigars and pipe tobacco. All cigars and pipe tobacco received in this state for sale or distribution within this state, except tobacco products actually sold as provided in sub. (2), shall be subject to such tax.

139.76(2) (2) Tobacco products and vapor products sold to or by post exchanges of the U.S. armed forces, to or by federally operated veterans hospitals in this state, and tobacco products and vapor products sold to an interstate carrier of passengers for hire to be resold to bona fide passengers actually being transported and tobacco products and vapor products sold for shipment outside this state in interstate commerce are not subject to the tax.

139.76 History History: 1981 c. 20; 1983 a. 27; 1989 a. 56; 1999 a. 9; 2001 a. 16; 2005 a. 22; 2007 a. 20; 2009 a. 28; 2019 a. 9; 2023 a. 150.

139.76 Cross-reference Cross-reference: See also ch. Tax 9, Wis. adm. code.

139.77 139.77 Distributors, monthly returns.

139.77(1) (1) On or before the 15th day of each month, every distributor with a place of business in this state shall file a return showing the quantity, including milliliters in the case of a vapor product, and taxable price of each tobacco product or vapor product brought, or caused to be brought, into this state for sale; or made, manufactured or fabricated in this state for sale in this state, during the preceding month. Every distributor outside this state shall file a return showing the quantity, including milliliters in the case of a vapor product, and taxable price of each tobacco product or vapor product shipped or transported to retailers in this state to be sold by those retailers during the preceding month. At the time that the return is filed, the distributor shall pay the tax.

139.77(2) (2) As soon as practicable after any return is filed, the department shall examine each return and correct it, if necessary, according to its best judgment and information. If the department finds that any amount of tax is due from the taxpayer and unpaid, it shall notify the taxpayer of the deficiency, stating that it proposes to assess the amount due together with interest and penalties. If a deficiency disclosed by the department’s examination cannot be allocated to one or more particular months, the department shall notify the taxpayer of the deficiency, stating its intention to assess the amount due for a given period without allocating it to any particular months.

139.77(3) (3) If, within 60 days after the department sends notice of the proposed assessment, the taxpayer files a protest to the proposed assessment and requests a hearing on it, the department shall give notice to the taxpayer of the time and place fixed for the hearing, shall hold a hearing on the protest, and shall issue a final assessment to the taxpayer for the amount found to be due as a result of the hearing. If the taxpayer does not file a protest within 60 days, the department shall issue a final assessment to the taxpayer. In any action or proceeding in respect to the proposed assessment, the taxpayer has the burden of establishing the incorrectness or invalidity of any final assessment made by the department.

139.77(4) (4) If any taxpayer required to file any return fails to do so within the time prescribed, the taxpayer shall, on the written demand of the department, file the return within 20 days after the department sends the demand and at the same time pay the tax due on its basis. If the taxpayer fails within that time to file the return, the department shall prepare the return from the department’s own knowledge and from the information that the department obtains and on that basis shall assess a tax that the taxpayer shall pay within 10 days after the department sends to the taxpayer a written notice of the amount and a demand for its payment. In any action or proceeding in respect to the assessment, the taxpayer has the burden of establishing the incorrectness or invalidity of any return or assessment made by the department because of the failure of the taxpayer to make a return.

139.77(5) (5) All taxes are due not later than the 15th day of the month following the calendar month in which they were incurred.

139.77(7) (7) The department may recover the amount of any tax due and unpaid, interest and any penalty in a civil action. The collection of the tax, interest or penalty is not a bar to any prosecution under s. 139.85 (1).