Chapter 70

70.38 70.38 Reports, appeals, estimated liability.

70.38(1) (1) Reports. On or before June 15, persons mining metalliferous minerals shall file with the department a true and accurate report in the form the department deems necessary to administer the tax under s. 70.375. The books and records of the person shall be open to inspection and examination to employees of the department designated by the secretary and to the state geologist.

70.38(1m) (1m) Estimated liability. Upon written request and for sufficient reason shown, the department shall allow a person subject to the tax under s. 70.375 to file, on or before June 15, a net proceeds tax return and to pay that tax based upon estimated tax liability. On or before September 15, that person shall file a final report and pay any additional tax due along with interest at the rate of 1 percent per month from June 15 until the date of payment. If the additional tax exceeds 10 percent of the person’s tax under s. 70.375 for the previous year, the penalty and interest under s. 70.39 (1) apply. If the final report indicates that the person overpaid the person’s liability, the department shall refund the overpayment.

70.38(2) (2) Combined reporting. If the same person extracts metalliferous minerals from different sites in this state, the net proceeds for each site for which a permit has been issued under s. 293.49 or 295.58 shall be reported separately for the purposes of computing the amount of the tax under s. 70.375 (5).

70.38(4) (4) Appeals.

70.38(4)(a) (a) Any person feeling aggrieved by the assessment notice shall, within 60 days after the receipt of the notice, file with the department a petition for redetermination setting forth the person’s objections to the assessment. The person may request an informal conference with representatives of the department prior to September 15. The request shall be indicated in the petition. The secretary shall act on the petition on or before October 1. On or before November 1, the person shall pay the amount determined by the secretary pursuant to the secretary’s action on the petition. If the person is aggrieved by the secretary’s denial of the petition the person may appeal to the tax appeals commission if the appeal is filed with the commission on or before December 1.

70.38(4)(b) (b) Determinations of the tax appeals commission shall be subject to judicial review under ch. 227.

70.38 History History: 1977 c. 31; 1981 c. 86; 1983 a. 27; 1995 a. 227; 2013 a. 1.

70.38 Cross-reference Cross-reference: See also ch. TA 1 and s. Tax 12.25, Wis. adm. code.

70.385 70.385 Collection of the tax. All taxes as evidenced by the report under s. 70.38 (1) are due and payable to the department on or before June 15, and shall be deposited by the department with the secretary of administration.

70.385 History History: 1977 c. 31; 1981 c. 86; 1983 a. 27; 2003 a. 33.

70.39 70.39 Collection of delinquent tax.

70.39(1) (1) Taxes due and unpaid on June 15 shall be deemed delinquent as of that date, and when delinquent shall be subject to a penalty of 4 percent of the tax and interest at the rate of 1.5 percent per month until paid. The parent shall be liable for any delinquent taxes of a subsidiary person. The department shall immediately proceed to collect the tax due, penalty, interest and costs. For the purpose of collection the department or its duly authorized agent has the same powers as conferred by law upon the county treasurer, county clerk, sheriff and district attorney.

70.39(2) (2) Any part of an assessment which is contested before the tax appeals commission or the courts, which after hearing shall be ordered to be paid, shall be considered as a delinquent tax if unpaid on the 10th day following the date of the final order and shall be subject to the penalty and interest provisions under sub. (1).

70.39(3) (3) After the tax becomes delinquent, the department shall issue a warrant to the sheriff of any county of the state in which the metalliferous mineral property is located in total or in part. The warrant shall command the sheriff to levy upon and sell sufficient of the person’s metalliferous mineral property found within the sheriff’s county, to pay the tax with the penalties, interest and costs, and to proceed in the same manner as upon an execution against property issued out of a court of record, and to return the warrant to the department and pay to it the money collected, or the part thereof as may be necessary to pay the tax, penalties, interest and costs, within 60 days after the receipt of the warrant, and deliver the balance, if any, after deduction of lawful charges to the person.

70.39(4) (4) 

70.39(4)(a) (a) Within 5 days after the receipt of the warrant the sheriff shall file a copy of it with the clerk of circuit court of the county, unless the person makes satisfactory arrangements for payment with the department, in which case, the sheriff shall, at the direction of the department, return the warrant to it.

70.39(4)(b) (b) The clerk of circuit court shall enter the warrant as a delinquent income or franchise tax warrant as required under s. 806.11. The clerk of circuit court shall accept, file, and enter the warrant without prepayment of any fee, but shall submit a statement of the proper fees within 30 days to the department of revenue. Upon audit by the department of administration on the certificate of the secretary of revenue, the secretary of administration shall pay the fees and the fees shall be charged to the proper appropriation for the department of revenue.

70.39(4)(c) (c) The sheriff shall be entitled to the same fees for executing upon the warrant as upon an execution against property issued out of a court of record, to be collected in the same manner.

70.39(4)(d) (d) Upon the sale of any real estate the sheriff shall execute a deed of the real estate, and the person may redeem the real estate as from a sale under an execution against property upon a judgment of a court of record. No public official may demand prepayment of any fee for the performance of any official act required in carrying out this section.

70.39 History History: 1977 c. 31; 1983 a. 27; 1991 a. 39; 1995 a. 224; 2003 a. 33.

70.395 70.395 Distribution and apportionment of tax.

70.395(1) (1) Definition. In this section, “first-dollar payment” means an amount equal to $100,000 adjusted as provided in s. 70.375 (6).

70.395(1e) (1e) Distribution. Fifteen days after the collection of the tax under ss. 70.38 to 70.39, the department of administration, upon certification of the department of revenue, shall transfer the amount collected in respect to mines not in operation on November 28, 1981, to the investment and local impact fund, except that, after the payments are made under sub. (2) (d) 1., 2., and 2m., the department of administration shall transfer 60 percent of the amount collected from each person extracting ferrous metallic minerals to the investment and local impact fund and 40 percent of the amount collected from any such person to the general fund.

70.395(2) (2) Investment and local impact fund.

70.395(2)(b) (b) There is created an investment and local impact fund under the jurisdiction and management of the investment and local impact fund board, as created under s. 15.435.

70.395(2)(c) (c) The board shall, according to procedures established by rule:

70.395(2)(c)1. 1. Certify to the department of administration the amount of funds to be distributed under pars. (d) to (g) and to be paid under par. (j).

70.395(2)(c)2. 2. Determine the amount which is not distributed under subd. 1. which shall be invested under s. 25.17 (1) (jc).

70.395(2)(d) (d) Annually on the first Monday in January, except as provided in subd. 5. b. and c., the department of administration shall distribute, upon certification by the board:

70.395(2)(d)1. 1. To each county in which metalliferous minerals are extracted, the first-dollar payment.

70.395(2)(d)1m. 1m. To each county in which metalliferous minerals are extracted, 20 percent of the tax collected annually under ss. 70.38 to 70.39 from persons extracting metalliferous minerals in the county or $250,000, whichever is less, to be used for mining-related purposes.

70.395(2)(d)2. 2. To each city, town or village in which metalliferous minerals are extracted, the first-dollar payment minus any payment during that year under par. (d) (intro.) or subd. 5. If the minable ore body is located in 2 contiguous municipalities and if at least 15 percent of the minable ore body is in each municipality, each qualifying municipality shall receive a full payment specified in this subdivision as if the ore body were located solely within that municipality. The department of revenue shall annually change the dollar amount specified in this subdivision as specified in s. 70.375 (6) except that the dollar amount may not be reduced below the dollar amount under this subdivision on November 28, 1981.

70.395(2)(d)2m. 2m. To any Native American community that has tribal lands within a municipality qualified to receive a payment under this section, an amount equal to $100,000 minus any payments during that year under par. (d) (intro.) or subd. 5. Annually, the dollar amount in this subdivision shall be adjusted as specified under s. 70.375 (6).

70.395(2)(d)3. 3. Where the tax under ss. 70.37 to 70.39 is in respect to a mining site which is located in more than one county or municipality the distribution under subds. 1. and 2. shall be as follows:

70.395(2)(d)3.a. a. On or before February 10 of each year persons extracting metalliferous minerals in this state shall report to the department the amount of crude ore extracted from each municipality and county in the state in the previous year. The data shall detail the total amount of crude ore extracted from each mine and the portion of the total taken from each municipality and county. This data shall be included in the report required by s. 70.38 (1) and (2).

70.395(2)(d)3.c. c. Each county’s proportion of the amount determined under subd. 1. shall be equal to the ratio of the amount of crude ore extracted from the mine in that county to the total amount of crude ore extracted from the mine multiplied by the amount determined under subd. 1.

70.395(2)(d)4. 4. To the investment and local impact fund an amount equal to 10 percent of the taxes paid by each mine plus all accrued interest on that amount for a project reserve fund. The funds shall be withdrawn by the investment and local impact fund board to be used for the following purposes in respect to the municipality or municipalities in which the mine is located:

70.395(2)(d)4.a. a. To ensure an annual payment to each municipality under subds. 1. and 2. in an amount equal to the average payment for the 3 previous years to that municipality.

70.395(2)(d)4.b. b. To reimburse municipalities for costs associated with the cessation of mining operations.

70.395(2)(d)4.c. c. To indemnify municipalities for reclamation expenses.

70.395(2)(d)5. 5.

70.395(2)(d)5.a. a. To each municipality that contains a metalliferous mining site in respect to which an application for a mining permit has been made prior to January 1, 1986, until a final decision is made on that application or for 4 years, whichever is the shorter period, $100,000 annually. To each municipality that contains a metalliferous mining site at which construction has begun prior to January 1, 1989, but at which extraction has not been engaged in for at least 3 years, $100,000 annually. The funds under this subdivision shall be used only for mining-related purposes. Payments under this subdivision are payable 30 days following submission of the application or commencement of construction. Payments shall be made on a project fiscal year basis commencing on the date of submission or commencement of construction. In this subdivision, “municipality” means a city, town or village and any Native American community contained within such a city, town or village.

70.395(2)(d)5.b. b. Annually, after the board has determined that the use of the funds is for mining-related purposes associated with construction of the specific project in the project fiscal year, to each county that contains a metalliferous mining site at which construction is begun prior to January 1, 1989, but at which extraction has not been engaged in, $300,000 annually reduced by the amount of property taxes paid to the county during the current fiscal year on improvements and also reduced by any payments received under subds. 1. and 1m. The funds under this subd. 5. b. shall be used only for mining-related purposes. Payments shall be made on a project fiscal year basis commencing on the date of commencement of construction, and are payable 30 days following the close of the fiscal year.

70.395(2)(d)5.c. c. To each Native American community, county, city, town and village that contains at least 15 percent of a minable ore body in respect to which construction has begun at a metalliferous mining site but in respect to which extraction has not begun, $100,000 as a one-time payment. Those payments shall be made on or before the date 30 days after the beginning of construction.

70.395(2)(dc) (dc)

70.395(2)(dc)1. 1. Each person intending to submit an application for a mining permit under s. 293.37 or 295.47 shall pay $75,000 to the department of revenue for deposit in the investment and local impact fund at the time that the person notifies the department of natural resources under s. 293.31 (1) or 295.465 of that intent.

70.395(2)(dc)2. 2. A person making a payment under subd. 1. shall pay an additional $75,000 upon notification by the board that the board has distributed 50 percent of the payment under subd. 1.

70.395(2)(dc)3. 3. A person making a payment under subd. 2. shall pay an additional $75,000 upon notification by the board that the board has distributed all of the payment under subd. 1. and 50 percent of the payment under subd. 2.

70.395(2)(dc)4. 4. Six months after the signing of a local agreement under s. 293.41 or 295.443 for the proposed mine for which the payment is made, the board shall refund any funds paid under this paragraph but not distributed under par. (fm) from the investment and local impact fund to the person making the payment under this paragraph.

70.395(2)(dg) (dg) Each person constructing a metalliferous mining site shall pay to the department of revenue for deposit in the investment and local impact fund, as a construction fee, an amount sufficient to make the construction period payments under par. (d) 5. in respect to that site. Any person paying a construction fee under this paragraph may credit against taxes due under s. 70.375 an amount equal to the payments that the taxpayer has made under this paragraph, provided that the credit does not reduce the taxpayer’s liability under s. 70.375 below the amount needed to make the first-dollar payments under par. (d) 1., 2. and 2m. for that year in respect to the taxpayer’s mine. Any amount not creditable because of that limitation in any year may be carried forward.

70.395(2)(e) (e) If the appropriations under ss. 20.566 (7) (e) and (v) in any year are insufficient to make all payments under par. (d), full payments shall be made in the order listed in subds. 1. to 4., except that construction period payments under par. (d) 5. for which a person mining has made a construction fee payment under par. (dg) shall be made first. If funds are insufficient to pay the full amounts payable at a particular priority level listed in subds. 1. to 4., payments shall be prorated among the entities entitled to payments at that level:

70.395(2)(e)1. 1. Payments under par. (d) 1., 2. and 2m.

70.395(2)(e)2. 2. Payments under par. (d) 1m.

70.395(2)(e)3. 3. Payments under par. (d) 4.

70.395(2)(e)4. 4. Mining permit application payments under par. (d) 5.

70.395(2)(f) (f) A school district may apply to the board for payments from the fund in an amount equal to the school district’s nonshared costs. If the board finds that the school district has incurred costs attributable to enrollment resulting from the development and operation of metalliferous mineral mining and if the board and the school board of the school district reach an agreement on a payment schedule, the board shall certify to the department of administration for payment to the school district an amount equal to all or part of the nonshared costs of the school district in the year in which the initial agreement was reached. The board and the school district may, by mutual consent, modify the provisions of the agreement at any time. The payment shall be considered a nondeductible receipt for the purposes of s. 121.07 (6). In this paragraph, “nonshared costs” means the amount of the school district’s principal and interest payments on long-term indebtedness and annual capital outlay for the current school year, which is not shared under s. 121.07 (6) (a) or other nonshared costs and which is attributable to enrollment increases resulting from the development of metalliferous mineral mining operations.

70.395(2)(fm) (fm) The board may distribute a payment received under par. (dc) to a county, town, village, city, tribal government or local impact committee authorized under s. 293.41 (3) or 295.443 only for legal counsel, qualified technical experts in the areas of transportation, utilities, economic and social impacts, environmental impacts and municipal services and other reasonable and necessary expenses incurred by the recipient that directly relate to the good faith negotiation of a local agreement under s. 293.41 or 295.443 for the proposed mine for which the payment is made.

70.395(2)(g) (g) The board may distribute the revenues received under sub. (1e) or proceeds thereof in accordance with par. (h) for the following purposes, with a preference to private sector economic development projects under subd. 3., as the board determines necessary:

70.395(2)(g)1. 1. Protective services, such as police and fire services associated with the construction and operation of the mine site.

70.395(2)(g)2. 2. Highways, as defined in s. 990.01 (12), repaired or constructed as a consequence of the construction and operation of the mine site.

70.395(2)(g)3. 3. Studies and projects for local private sector economic development.

70.395(2)(g)4. 4. Monitoring the effects of the mining operation on the environment.

70.395(2)(g)5. 5. Extraordinary community facilities and services provided as a result of mining activity.

70.395(2)(g)6. 6. Legal counsel and technical consultants to represent and assist municipalities appearing before state agencies on matters relating to metalliferous mineral mining.

70.395(2)(g)7. 7. Other expenses associated with the construction, operation, cessation of operation or closure of the mine site.

70.395(2)(g)8. 8. The preparation of areawide community service plans for municipalities applying for funds under par. (h) which identify social, economic, educational and environmental impacts associated with mining and set forth a plan for minimizing the impacts.

70.395(2)(g)9. 9. Provision of educational services in a school district.

70.395(2)(g)10. 10. Expenses attributable to a permanent or temporary closing of a mine including the cost of providing retraining and other educational programs designed to assist displaced workers in finding new employment opportunities and the cost of operating any job placement referral programs connected with the curtailment of mining operations in any area of this state.

70.395(2)(h) (h) Distribution under par. (g) shall be as follows:

70.395(2)(h)1. 1. Distribution shall first be made to those municipalities in which metalliferous minerals are extracted or were extracted within 3 years previous to December 31 of the current year, or in which a permit has been issued under s. 293.49 or 295.58 to commence mining;

70.395(2)(h)2. 2. Distribution shall next be made to those municipalities adjacent to municipalities in which metalliferous minerals are extracted or were extracted more than 3 years, but less than 7 years previous to December 31 of the current year;

70.395(2)(h)3. 3. Distribution shall next be made to those municipalities which are not adjacent to municipalities in which metalliferous minerals are extracted and in which metalliferous minerals are not extracted.

70.395(2)(hg) (hg) The board shall, by rule, establish fiscal guidelines and accounting procedures for the use of payments under pars. (d), (f), (fm) and (g), sub. (3) and ss. 293.65 (5) and 295.61 (9).

70.395(2)(hr) (hr) The board shall, by rule, establish procedures to recoup payments made, and to withhold payments to be made, under pars. (d), (f), (fm) and (g), sub. (3) and ss. 293.65 (5) and 295.61 (9) for noncompliance with this section or rules adopted under this section.

70.395(2)(hw) (hw) A recipient of a discretionary payment under par. (f) or (g), sub. (3) or ss. 293.65 (5) and 295.61 (9) or any payment under par. (d) that is restricted to mining-related purposes who uses the payment for attorney fees may do so only for the purposes under par. (g) 6. and for processing mining-related permits or other approvals required by the municipality. The board shall recoup or withhold payments that are used or proposed to be used by the recipient for attorney fees except as authorized under this paragraph. The board may not limit the hourly rate of attorney fees for which the recipient uses the payment to a level below the hourly rate that is commonly charged for similar services.

70.395(2)(i) (i) The board may require financial audits of all recipients of payments made under pars. (d) to (g). The board shall require that all funds received under pars. (d) to (g) be placed in a segregated account. The financial audit may be conducted as part of a municipality’s or county’s annual audit, if one is conducted. The cost of the audits shall be paid by the board from the appropriation under s. 20.566 (7) (g).

70.395(2)(j) (j) Prior to the beginning of a fiscal year, the board shall certify to the department of administration for payment from the investment and local impact fund any sum necessary for the department of natural resources to make payments under s. 289.68 (3) for the long-term care of mining waste sites, if moneys in the waste management fund are insufficient to make complete payments during that fiscal year, but this sum may not exceed the balance in the waste management fund at the beginning of that fiscal year or 50 percent of the balance in the investment and local impact fund at the beginning of that fiscal year, whichever amount is greater.

70.395(2)(k) (k) Prior to the beginning of each fiscal year, the board shall certify to the department of administration for payment from the investment and local impact fund any sum necessary for the department of natural resources to make payments under s. 292.31 for the environmental repair of mining waste sites, if moneys in the environmental fund that are available for environmental repair are insufficient to make complete payments during that fiscal year. This sum may not exceed the balance in the environmental fund at the beginning of that fiscal year or 50 percent of the balance in the investment and local impact fund at the beginning of that fiscal year, whichever amount is greater.

70.395(3) (3) Federal revenue distribution. The investment and local impact fund board shall distribute federal mining revenue received by the state from the sales, bonuses, royalties and rentals of federal public lands located within the state. The distribution of such federal revenues by the board shall give priority to those municipalities socially or economically impacted by mining on such federal lands and shall be used for planning, construction and maintenance of public facilities or provision of public services. The funds distributed under this subsection may be used only for mining-related purposes.

70.395 History History: 1977 c. 31, 185, 423; 1979 c. 34 s. 2102 (46) (c); 1979 c. 63; 1979 c. 175 s. 53; 1981 c. 86 ss. 27 to 36, 71; 1981 c. 374 s. 150; 1983 a. 27 ss. 1184u to 1185r, 2202 (38) and (45); 1983 a. 410 ss. 22, 2202 (38); 1985 a. 29 ss. 1214s to 1214z, 3200 (46) (a); 1985 a. 332 s. 253; 1987 a. 399; 1989 a. 31; 1991 a. 39, 259; 1995 a. 27, 227; 1997 a. 27; 1999 a. 32; 2013 a. 1; 2021 a. 240 s. 30.

70.395 Cross-reference Cross-reference: See also ch. Tax 13, Wis. adm. code.

70.395 Annotation The legislature has vested the Investment and Local Impact Fund Board with the power to make discretionary distributions under sub. (2) (g). Kammes v. Wisconsin Mining Investment & Local Impact Fund Board, 115 Wis. 2d 144, 340 N.W.2d 206 (Ct. App. 1983).

70.395 Annotation Grants under this section would not violate the public purpose doctrine and the internal improvements clause of the Wisconsin Constitution. 70 Atty. Gen. 48.

70.396 70.396 Use of metalliferous mining tax payments by counties. Counties receiving payments under s. 70.395 (2) (d) 1. shall expend the funds for any or all of the following uses:

70.396(1) (1) For mining-related purposes.

70.396(2) (2) Funds may be placed in the county mining investment fund for investment by the state investment board or may be placed in a segregated account with a financial institution located in the state. The funds may be withdrawn only at a later date to alleviate impacts associated with the closing of a metalliferous mine in the county or the curtailment of metalliferous mining activity in the county. If a county deposits mining impact funds in the county mining investment fund, withdrawals from the fund shall be subject to the restrictions described under s. 25.65 (4). If a county deposits mining impact funds with a financial institution located in this state, withdrawals made within 10 years of deposit shall be subject to the review and approval of the investment and local impact fund board. The county shall notify the board of withdrawals made 10 years after deposit. The county shall report annually to the impact board any deposits, withdrawals and use of mining impact funds in that year.

70.396(3) (3) A maximum of $25,000 annually may be distributed by a county to any town, city or village in the county where the extraction of metalliferous minerals is occurring.

70.396 History History: 1977 c. 423; 1981 c. 87; 1985 a. 29; 1991 a. 259.