Chapter 70

70.365 History History: 1977 c. 418; 1981 c. 20; 1983 a. 490; 1991 a. 248; 1997 a. 237; 2007 a. 210; 2013 a. 228; 2019 a. 2, 114.

70.365 Annotation Under s. 74.37 (4), a taxpayer must challenge an assessment in front of the board of review before filing an excessive assessment claim, unless the taxing authority fails to provide a notice of assessment under circumstances in which notice is required. Under this section, a notice of assessment is required only when the property’s assessed value has changed. After reading these statutes, it should have been clear to the taxpayer that: 1) because it did not receive a notice of assessment, its property’s assessed value for 2011 would be unchanged from 2010; and 2) if the taxpayer wanted to challenge the 2011 assessment, it needed to object before the board of review. These requirements did not violate the taxpayer’s rights to due process. Northbrook Wisconsin, LLC v. City of Niagara, 2014 WI App 22, 352 Wis. 2d 657, 843 N.W.2d 851, 13-1322.

70.37 70.37 Net proceeds occupation tax on persons extracting metalliferous minerals in this state.

70.37(1) (1) Legislative findings. The legislature finds that:

70.37(1)(a) (a) The existence has been announced of several economically significant ore bodies containing copper, zinc, lead, taconite and other metalliferous minerals in this state, including one of the largest zinc deposits in North America.

70.37(1)(b) (b) Metalliferous minerals are valuable, irreplaceable natural resources which, once removed, are forever lost as an economic asset to the state.

70.37(1)(c) (c) The activity of mining metalliferous minerals creates jobs, economic activity, tax revenues and other valuable benefits to the economy and residents of this state.

70.37(1)(d) (d) The activity of mining metalliferous minerals creates additional costs to the state and municipalities for highways, sewers, schools and other improvements which are necessary to accommodate the development of a metalliferous mining industry.

70.37(1)(e) (e) The activity of mining metalliferous minerals has a permanent and often damaging effect on the environment of the state.

70.37(1)(f) (f) The activity of mining metalliferous minerals significantly alters the quality of life in communities directly affected by mining.

70.37(1)(g) (g) As the size of a mining operation increases, the cost to the state and municipalities to support the operation increases, as does the damage to the environment. Furthermore, as the size of a mining operation increases, the person mining metalliferous minerals benefits from economies of scale in the mining operation.

70.37(1)(h) (h) A graduated net proceeds occupational tax, by taxing profitability at rates which vary with the level of profitability, encourages important state goals, such as:

70.37(1)(h)1. 1. Gradual, continuous and complete extraction of metalliferous minerals.

70.37(1)(h)2. 2. Continued stable employment.

70.37(1)(h)3. 3. Taxation according to ability to pay.

70.37(1)(h)4. 4. Taxation based on the privileges enjoyed by persons mining metalliferous metallic minerals.

70.37(1)(i) (i) Municipalities incur long-term economic costs as a result of metalliferous mineral mining after the mining operation shuts down. An impact fund, in which is deposited a portion of the tax revenues, should assure that moneys will be available to such municipalities for long- and short-term costs associated with social, educational, environmental and economic impacts of metalliferous mineral mining.

70.37(2) (2) Legislative intent. It is the declared intent of the legislature to establish a net proceeds occupation tax on persons engaged in the activity of mining metalliferous minerals in this state. The tax is established in order that the state may derive a benefit from the extraction of irreplaceable metalliferous minerals and in order to compensate the state and municipalities for costs, past, present and future, incurred or to be incurred as a result of the loss of valuable irreplaceable metallic mineral resources.

70.37 History History: 1977 c. 31.

70.375 70.375 Net proceeds occupation tax on mining of metallic minerals; computation.

70.375(1) (1) Definitions. In ss. 70.37 to 70.3965:

70.375(1)(ab) (ab) “Controlled entity” means a person at least 50 percent of the voting stock of which is owned directly or indirectly by another person who is engaged in mining metalliferous minerals.

70.375(1)(ad) (ad) “Controlling entity” is a person who owns directly or indirectly at least 50 percent of the voting stock of another person who is engaged in mining metalliferous minerals.

70.375(1)(ae) (ae) “Department” means the department of revenue.

70.375(1)(ag) (ag) “Extraction of ores or minerals from the ground” includes the extraction, by owners or operators of mines, of ores or minerals from the waste or residue of prior mining unless the extraction is made by a purchaser of waste or residue or by a purchaser of the rights to extract ores or minerals from the waste or residue.

70.375(1)(ai) (ai) “Gross income from mining” means that amount of income which is attributable to the processes of extraction of ores or minerals from the ground and the application of mining processes, including mining transportation and as further defined in 26 CFR section 1.613-4. In this paragraph “income” means the actual amount for which ore or mineral, less trade and cash discounts actually allowed, is sold if the taxpayer sells the ore or mineral after the application of mining processes. If ore or minerals are sold after the application of nonmining processes, gross income from mining shall be computed as provided in 26 CFR section 1.613-4.

70.375(1)(am) (am) “Gross proceeds” means gross income from mining except as provided under sub. (3).

70.375(1)(ar) (ar) “Internal Revenue Code” means the federal Internal Revenue Code, as amended, and applicable federal regulations adopted by the federal department of the treasury.

70.375(1)(as) (as) “Mine” means an excavation in or at the earth’s surface made to extract metalliferous minerals for which a permit has been issued under s. 293.49 or 295.58.

70.375(1)(av) (av) “Mine site” means the underground and surface area disturbed by a mine, including the locations from which the minerals or refuse or both have been removed, the surface area covered by refuse, and any surface areas in which structures, haulageways, pipelines, equipment, materials and any other things used directly in connection with the mine are situated.

70.375(1)(b) (b)

70.375(1)(b)1. 1. “Mining” has the meaning under section 613 (c) of the internal revenue code and includes the extraction of ores or minerals from the ground, the transportation of ores or minerals from the point of extraction to the plants or mills at which the treatment processes are applied and the following treatment processes applied to an ore or mineral for which the owner or operator is entitled to a deduction for depletion under section 611 of the internal revenue code:

70.375(1)(b)1.a. a. In the case of iron ore, bauxite and other ores or minerals that are customarily sold in the form of a crude mineral product; sorting, concentrating, sintering and substantially equivalent processes that bring the ore or mineral to shipping grade and form, and loading for shipment.

70.375(1)(b)1.b. b. In the case of lead, zinc, copper, gold, silver, uranium and other ores or minerals that are not customarily sold in the form of the crude mineral product; crushing, grinding and beneficiation by concentration by means of gravity, flotation, amalgamation, electrostatic or magnetic processes, cyanidation, leaching, crystallization or precipitation; not including electrolytic deposition, roasting, thermal or electric smelting or refining; or by substantially equivalent processes or by a combination of processes used in the separation or extraction of the products from other material taken out of the mine or out of another natural deposit.

70.375(1)(b)1.c. c. The furnacing of quicksilver ores.

70.375(1)(b)1.d. d. Treatment processes necessary or incidental to the processes under subd. 1. a. to c.

70.375(1)(b)1.e. e. Any treatment processes provided for by rules promulgated by the department.

70.375(1)(b)2. 2. For purposes of this section, “mining” does not include the extraction or beneficiation of sand or gravel or the following treatment processes unless they are provided for under subd. 1. d.: electrolytic deposition, roasting, calcining, thermal or electric smelting, refining, polishing, fine pulverization, blending with other materials, treatment effecting a chemical change, thermal action, molding and shaping.

70.375(1)(bm) (bm) “Mining-related purposes” means activities which are directly in response to the application for a mining permit under s. 293.37 or 295.47; directly in response to construction, operation, curtailment of operation or cessation of operation of a metalliferous mine site; or directly in response to conditions at a metalliferous mine site which is not in operation. “Mining-related purposes” also includes activities which anticipate the economic and social consequences of the cessation of mining. “Mining-related purposes” also includes the purposes under s. 70.395 (2) (g).

70.375(1)(c) (c) “Municipality” means any county, city, village, town or school district.

70.375(1)(d) (d) “Person” means a sole proprietorship, partnership, limited liability company, association or corporation and includes a lessee engaged in mining metalliferous minerals.

70.375(1)(e) (e) “Secretary” means the secretary of revenue.

70.375(2) (2) Tax imposed.

70.375(2)(a) (a) In respect to mines not in operation on November 28, 1981, there is imposed upon persons engaged in mining metalliferous minerals in this state a net proceeds occupation tax effective on the date on which extraction begins to compensate the state and municipalities for the loss of valuable, irreplaceable metalliferous minerals. The amount of the tax shall be determined by applying the rates established under sub. (5) to the net proceeds of each mine. The net proceeds of each mine for each year are the difference between the gross proceeds and the deductions allowed under sub. (4) for the year.

70.375(2)(b) (b) The secretary may promulgate any rules necessary to implement the tax under ss. 70.37 to 70.39 and 70.395 (1e). In respect to mines not in operation on November 28, 1981, ss. 71.10 (1), 71.30 (1) and (2), 71.74 (2), (3), (9), (11) and (15), 71.77, 71.78, 71.80 (6), 71.83 (1) (a) 1. and 2. and (b) 2. and (2) (a) 3. and (b) 1. and 71.85 (2) apply to the administration of this section.

70.375(2m) (2m) Tax imposed.

70.375(2m)(a) (a) There is imposed upon persons engaged in mining metalliferous minerals in this state in respect to mines in operation on November 28, 1981, a net proceeds occupation tax effective on the date on which extraction begins to January 1, 1991, to compensate the state and municipalities for the loss of valuable, irreplaceable metalliferous minerals. The amount of the tax shall be determined by applying the rates established under sub. (5) to the average of the net proceeds of the person for the preceding 3-year period. The net proceeds of a person for each year shall be the difference between the gross proceeds, computed under sub. (3) for the year, and the deductions allowed under sub. (4) for the year.

70.375(2m)(b) (b) In respect to mines in operation on November 28, 1981, ss. 71.10 (1), 71.30 (1), 71.74 (2), (3), (7), (9) and (11), 71.76 and 71.77 (1) to (8) apply to the administration of this section to January 1, 1991.

70.375(3) (3) Alternate computation of gross proceeds. If products are sold or transferred to a person operating a smelting, refining or other processing or marketing facility which is located outside of the United States or to a controlled entity or controlling entity of the seller or transferor and if the secretary determines that the gross proceeds under sub. (1) (am) do not reflect or demonstrate the gross proceeds that would have been received from an unrelated purchaser for the product under similar circumstances, the gross proceeds shall be computed under this subsection. For the purpose of this subsection “control” means direct or indirect ownership of at least 50 percent of the total combined voting stock of the corporation. The gross proceeds shall be computed by multiplying that part of the production of recovered metalliferous minerals which were sold or transferred during the taxable year by the average price of that mineral for the taxable year and then subtracting the cost of postmining processes, including the cost of capital (interest and earnings) imputed to that production. The average price shall be computed from the monthly prices published in the engineering and mining journal as follows:

70.375(3)(a) (a) Taconite pellets, lower lake ports price, net of unloading charges.

70.375(3)(b) (b) Copper, United States producer price, F.O.B. refinery.

70.375(3)(c) (c) Lead, United States producer price.

70.375(3)(d) (d) Zinc, United States prime western price.

70.375(3)(e) (e) Silver, United States producer price.

70.375(3)(f) (f) Gold, London final price.

70.375(3)(g) (g) Other metalliferous minerals or other forms of metalliferous minerals not including mineral aggregates such as stone, sand and gravel, at a price determined by the secretary, by rule, from a nationally known publication or other nationally known source listing prices of metalliferous minerals.

70.375(4) (4) Deductions. If the costs are not excluded in determining gross proceeds and are actually incurred or accrued, there shall be allowed to persons subject to the tax under sub. (2) or (2m) the following deductions:

70.375(4)(a) (a) The actual and necessary expenses incurred during the taxable year for labor, tools, appliances and supplies used in mining metalliferous minerals, including the labor of the lessee and the lessee’s employees and the amount expended by the lessee for tools, appliances and supplies used by the lessee in the mining operation. The personal labor of the lessee shall be computed at the prevailing wage rate.

70.375(4)(b) (b) The actual and necessary expenses for mining including extracting, transporting, milling, concentrating, smelting, refining, reducing, assaying, sampling, inventorying and handling the ore and for further processing and transferring related to the product for which gross proceeds are received, including the cost of capital (interest and earnings) imputed to smelting and refining expenses.

70.375(4)(c) (c) The actual and necessary expenses for administrative, appraising, accounting, legal, medical, engineering, clerical and technical services directly related to mining metalliferous minerals in this state, excluding salaries and expenses for corporate officers and for lobbying, as defined in s. 13.62 (10).

70.375(4)(d) (d) The actual and necessary expenses directly related to the repair and maintenance of any machinery, mills, reduction works, buildings, structures, other necessary improvements, tools, appliances and supplies used in mining metalliferous minerals extracted in this state.

70.375(4)(e) (e) Except as provided in par. (em), federal income taxes paid, state income or franchise taxes paid, property taxes, sales taxes and use taxes paid and other taxes paid and deductible by corporations in computing net income under s. 71.26 (2) which are allocable to the mine, excluding the tax under this section.

70.375(4)(em) (em) In the case of a mine owned by a corporation that owns other business operations or is part of an affiliated group of corporations eligible to file consolidated federal income tax returns, the determination of deductible state income or franchise taxes and federal income taxes shall be made by calculating the taxable income from the mine as though the mine were a separate entity and applying the federal income tax laws and state income or franchise tax laws to this income as though the mine were filing a separate income or franchise tax return. To calculate taxable income, federal taxable income as it applies to the depletion deduction under section 613 of the internal revenue code shall be adjusted to reflect the difference between Wisconsin income or franchise tax law and federal income tax law.

70.375(4)(f) (f) Rents paid on personal property used in mining metalliferous minerals.

70.375(4)(g) (g) The cost of relocating employees within this state.

70.375(4)(h) (h) The cost of premiums for bonds required under s. 293.26 (9), 293.51, 295.45 (5), or 295.59.

70.375(4)(i) (i) The cost of premiums for insurance on persons or tangible assets relating to mining metalliferous minerals.

70.375(4)(j) (j) Losses from uninsured casualty losses and the sale of personal property used in mining metalliferous minerals.

70.375(4)(k) (k) Depreciation or amortization on property used in connection with mining. With respect to property first eligible for depreciation or amortization before January 1, 1981, the deduction shall be limited to the deduction under s. 70.375 (4) (k), 1979 stats. With respect to property first eligible for depreciation or amortization on or after January 1, 1981, the deduction shall be limited to the amount allowable as a deduction to corporations in computing net income under s. 71.26 (2). The following assets may be depreciated or amortized:

70.375(4)(k)1. 1. Machinery, mills and reduction works.

70.375(4)(k)2. 2. Buildings, structures and other improvements.

70.375(4)(k)3. 3. Permit fees, license fees and any other fees for formal written authorization required by a department or instrumentality of the state.

70.375(4)(k)4. 4. Development of the mine after the date on which extraction begins.

70.375(4)(L) (L) Royalties paid to owners of the mineral rights to the lands where the mine or an extension of the mine is located. In this paragraph, “owners” does not include the person mining or a controlled entity or controlling entity of the person mining.

70.375(4)(m) (m) Amortization by a straight-line method over the life of the mine commencing with production of premining costs, including costs for drilling, geological and engineering studies, design of facilities, pilot mines, mine testing, environmental surveys, facilities siting surveys and other exploration and development activities.

70.375(4)(n) (n) Expenses under par. (m) incurred after mining begins, those costs to be expensed currently.

70.375(4)(o) (o) Actual and necessary reclamation and restoration costs associated with a mine in this state, including payments for future reclamation and postmining costs which are required by law or by department of natural resources order and fees and charges under chs. 281, 285 or 289 to 299 not otherwise deductible under this section. Any refunds of escrowed or reserve fund payments allowed as a deduction under this paragraph shall be taxed as net proceeds at the average effective tax rate for the years the deduction was taken.

70.375(4)(p) (p) Interest determined as follows:

70.375(4)(p)1. 1. If the interest is specifically allocable to the development or operation of a mine or beneficiation facility from which net proceeds are derived, all of the interest is deductible.

70.375(4)(p)2. 2. If the interest is not specifically allocable to the development or operation of a mine or beneficiation facility, the proportion of the interest that equals the proportion of the capital investment in the mine and beneficiation facilities as compared to the taxpayer’s total capital investment.

70.375(4)(p)3. 3. If a mine is owned by a corporation that is part of an affiliated group of corporations, “interest” means the interest paid to nonmembers of the group.

70.375(4)(p)4. 4. The deduction for interest under this paragraph shall not exceed 5 percent of the total gross proceeds for the taxable year.

70.375(4)(q) (q) An allowance for depletion of ores on the basis of their actual original cost in cash or the equivalent of cash.

70.375(4)(r) (r) Administrative fees under s. 70.3965.

70.375(4m) (4m) Generally accepted accounting principles. Except as otherwise provided under this section, a person subject to the tax imposed under sub. (2), shall use generally accepted accounting principles to determine the person’s net proceeds occupation tax liability under this section.

70.375(5) (5) Rates. The tax to be assessed, levied and collected upon persons engaging in mining metalliferous minerals in this state shall be computed at the following rates:

70.375(5)(a) (a) On the amount from $250,001 to $5,000,000, at a rate of 3 percent.

70.375(5)(b) (b) On the amount from $5,000,001 to $10,000,000, at a rate of 7 percent.

70.375(5)(c) (c) On the amount from $10,000,001 to $15,000,000, at a rate of 10 percent.