Chapter 71

subch. X of ch. 71 SUBCHAPTER X

WITHHOLDING

71.63 71.63 Definitions. In this subchapter, unless the context clearly indicates otherwise:

71.63(1) (1) “Department” means the department of revenue.

71.63(1m) (1m) “Deposit” means mail or deliver funds to the department or, if the department prescribes another method of submitting or if the department of administration designates under s. 34.05 another destination, use that other method or submit to that other destination.

71.63(2) (2) “Employee” means a resident individual who performs or performed services for an employer anywhere or a nonresident individual who performs or performed such services within this state, and includes an officer, employee or elected official of the United States, a state, territory, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of these entities. The term includes an officer of a corporation, an entertainer and an entertainment corporation, but does not include a direct seller who is not treated as an employee under section 3508 of the Internal Revenue Code or a real estate broker or salesperson who is excluded under s. 452.38.

71.63(3) (3) “Employer” means a person, partnership or limited liability company, whether subject to or exempt from taxation under this chapter, for whom an individual performs or performed any service as an employee of that person, partnership or company and includes a person, partnership or company that engages the services of an entertainer or an entertainment corporation, except that:

71.63(3)(a) (a) If the person for whom the individual performs or performed the services does not have control of the payment of the wages for those services, “employer”, except for purposes of sub. (6), means the person having receipt, custody or control of the payment of those wages.

71.63(3)(b) (b) If a resident person, including but not limited to a ticket agency or box office manager, has receipt, custody or control of the proceeds of an event taking place and the proceeds are paid to an entertainer or entertainment corporation or to any nonresident person who has engaged the services of an entertainer or entertainment corporation, “employer” means the resident person, firm or nonresident person having the receipt, custody or control of the proceeds.

71.63(3)(c) (c) In regard to a single-owner entity that is disregarded as a separate entity under section 7701 of the Internal Revenue Code, the entity is the employer for purposes of this subchapter.

71.63(3)(d) (d) With regard to s. 71.65 (6), “employer” means a person described in s. 108.18 (2) (c) or a person engaged in the painting or drywall finishing of buildings or other structures.

71.63(3m) (3m) “File” means mail or deliver a document that the department prescribes to the department or, if the department prescribes another method of submitting or the department of administration designates under s. 34.05 another destination, use that other method or submit to that other destination.

71.63(3r) (3r) “Furnish” 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.

71.63(4) (4) “Income”, “person” and all other terms not otherwise defined, have the same meaning as in the internal revenue code.

71.63(5) (5) “Payroll period” means a period for which a payment of wages is ordinarily made to the employee by his or her employer, and the term “miscellaneous payroll period” means a payroll period other than a daily, weekly, biweekly, semimonthly, monthly, quarterly, semiannual or annual payroll period.

71.63(5m) (5m) “Remit” means mail or deliver funds to the department or, if the department prescribes another method of submitting or if the department of administration designates under s. 34.05 another destination, use that other method or submit to that other destination.

71.63(6) (6) “Wages” means all remuneration, other than fees paid to a public official, for services performed by an employee for an employer, including cash value of all remuneration paid in any medium other than cash and remuneration paid to an entertainer or entertainment corporation, minus the amount of remuneration not subject to tax under this chapter, but does not include remuneration paid:

71.63(6)(a) (a) For active service as a member of the armed forces of the United States for any month during any part of which such member served in a combat zone during an induction period or was hospitalized as a result of wounds, disease or injury incurred while serving in a combat zone during an induction period, but this paragraph shall not apply for any month during any part of which there are no combatant activities in any combat zone and remuneration, for purposes of this paragraph, shall not include pensions and retirement pay.

71.63(6)(b) (b) For agricultural labor, including all service performed:

71.63(6)(b)1. 1. On a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry and fur-bearing animals and wildlife;

71.63(6)(b)2. 2. In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm;

71.63(6)(b)3. 3. In connection with the production or harvesting of crude gum, gum spirits of turpentine or gum rosin, in connection with the ginning of cotton, or in connection with the operation or maintenance of ditches, canals, reservoirs or waterways, not owned or operated for profit, used exclusively for supplying and storing water for farm purposes;

71.63(6)(b)4. 4. In the employ of the operator of a farm in handling, planting, drying, packaging, processing, freezing, grading, storing or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodity, but only if such operator produced more than one-half of the commodity with respect to which such service was performed, or in the employ of a group of operators of farms, other than a cooperative organization or an unincorporated cooperative association, in the performance of such services, but only if such operators produced all of the commodity with respect to which such service is performed, but the provisions of this subdivision shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution or consumption;

71.63(6)(b)5. 5. On a farm operated for profit if such service is not in the course of the employer’s trade or business;

71.63(6)(b)6. 6. In this paragraph, “farm” includes stock, dairy, poultry, fruit, fur-bearing animals and truck farms, plantations, ranches, nurseries, ranges, greenhouses, or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.

71.63(6)(c) (c) For domestic service in a private home, local college club or local chapter of a college fraternity or sorority.

71.63(6)(d) (d) For service not in the course of the employer’s trade or business performed in any calendar quarter by an employee, unless the cash remuneration paid for such service is $50 or more and such service is performed by an individual who is regularly employed by such employer to perform such service. An individual shall be deemed to be regularly employed by an employer during a calendar quarter only if on each of some 24 days during such quarter such individual performs, for such employer, for some portion of the day, service not in the course of the employer’s trade or business, or such individual was regularly employed (as defined in this paragraph) by such employer in the performance of such service during the preceding calendar quarter.

71.63(6)(e) (e) For services by a citizen or resident of the United States for a foreign government or an international organization.

71.63(6)(f) (f) For services performed by a duly ordained, commissioned or licensed minister of a church in the exercise of his or her ministry or by a member of a religious order in the exercise of duties required by such order.

71.63(6)(g) (g) For services performed by an individual under the age of 18 in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution.

71.63(6)(h) (h) For services performed by an individual in, and at the time of, the sale of newspapers or magazines to ultimate consumers, under an arrangement under which the newspapers or magazines are to be sold by him or her at a fixed price, his or her compensation being based on the retention of the excess of such price over the amount at which newspapers or magazines are charged to him or her, whether or not he or she is guaranteed a minimum amount of compensation for such services, or is entitled to be credited with the unsold newspapers or magazines turned back.

71.63(6)(i) (i) For services not in the course of the employer’s trade or business to the extent paid in any medium other than cash.

71.63(6)(j) (j) To, or on behalf of, an employee or his or her beneficiary from a trust created or organized in the United States and forming part of a stock bonus, pension or profit sharing plan of an employer for the exclusive benefit of his or her employees or their beneficiaries and which trust is exempt from taxation, unless such payment is made to an employee of the trust as remuneration for services rendered as such employee and not as a beneficiary of the trust.

71.63(6)(k) (k) For personal services performed in Wisconsin in the form of retirement, pension and profit-sharing benefits, received by nonresidents after retirement from the employ of the employer for whom such personal services were performed.

71.63(6)(L) (L) To, or on behalf of, an employee or beneficiary from a plan or contract described in s. 815.18 (3) (j) under which the benefits are fully funded by life insurance or annuities.

71.63(6)(m) (m) If the remuneration paid by an employer to an employee for services performed during one-half or more of any payroll period of not more than 31 consecutive days constitutes wages, all the remuneration paid by such employer to such employee for such period shall be deemed to be wages; but if the remuneration paid by an employer to an employee for services performed during more than one-half of any such payroll period does not constitute wages, then none of the remuneration paid by such employer to such employee for such period shall be deemed to be wages.

71.63(6)(n) (n) In the form of tips paid to employees if:

71.63(6)(n)1. 1. The tips are paid in a medium other than cash; or

71.63(6)(n)2. 2. The cash tips received by an employee in any calendar month in the course of employment by an employer are less than $20. However, if such cash tips received in a calendar month amount to $20 or more none of such cash tips are excepted from wages under this section.

71.63 History History: 1987 a. 312; 1989 a. 278; 1993 a. 112; 1997 a. 27; 2005 a. 49, 441; 2009 a. 28, 288; 2011 a. 259; 2015 a. 216, 258.

71.63 Cross-reference Cross-reference: See also s. Tax 2.90, Wis. adm. code.

71.64 71.64 Employers required to withhold.

71.64(1) (1) Withholding from wages.

71.64(1)(a) (a) Every employer at the time of payment of wages to an employee shall deduct and withhold from such wages, without regard for federal insurance contributions act deductions therefrom, an amount determined in accordance with tables to be prepared by the department under sub. (9). The secretary may grant permission to employers who do not desire to use the withholding tax tables provided by the department to determine the amount of tax to be withheld by use of a method of withholding other than the withholding tax tables, provided such method will withhold from each employee substantially the same amount as would be withheld by use of the withholding tax tables. Employers who desire to determine the amount of tax to be withheld by a method other than by use of the withholding tax tables shall obtain permission from the secretary before the beginning of a payroll period for which the employer desires to withhold the tax by such other method. Applications for use of such other method must be accompanied by evidence establishing the need for the use of such method.

71.64(1)(b) (b) An employer may, at his or her discretion, deduct and withhold from any one payment of wages in a month, in the case of an employee paid more often than once during any month, the total amount which the employer reasonably estimates he or she will be required to withhold under this section from such employee during that month. Permission from the secretary under par. (a) is not needed by any employer acting under this paragraph.

71.64(1)(c) (c) Withholding from marital income shall be allocated between taxpayers in the same manner that income is allocated or would be allocated.

71.64(2) (2) Changing amount of withholding by written agreement between employer and employee.

71.64(2)(a) (a) Additional amount. In addition to the amount required to be deducted and withheld, an employer and employee may agree in writing that an additional amount shall be withheld from the employee’s wages. The amount deducted and withheld pursuant to such an agreement shall be considered as an amount required to be deducted and withheld for all purposes of this subchapter.

71.64(2)(b) (b) Lesser amount. In lieu of the amount required to be deducted and withheld under this section, an employer and employee may agree in writing on a form prescribed and provided by the department that a lesser amount be withheld from the employee’s wages if:

71.64(2)(b)1. 1. The employee determines that the lesser amount approximates the employee’s anticipated income tax liability for the year.

71.64(2)(b)2. 2. The employee sends a copy of the completed agreement form to the department within 10 days after it is filed with the employer.

71.64(2)(b)3. 3. The agreement expires on April 30 of the following year, for calendar year taxpayers, or 4 months following the close of their fiscal year, for fiscal year taxpayers.

71.64(2)(c) (c) Department may void agreement. If the department determines that an agreement under par. (b) would result in an insufficient amount of tax being withheld, the department may void the agreement by notification to the employer and employee.

71.64(3) (3) Withholding from pension or sick pay plan. If a payee furnishes written notification to a payor of any pension or to a 3rd-party payor of any sick pay plan that the payee desires to have Wisconsin income tax withheld from the pension or sick pay plan, the payor shall withhold from each pension payment or sick pay payment an amount in accordance with the withholding tables or the amount that the payee designates to the payor. The amount withheld from each payment may not be less than $5. For purposes of this subsection, “pension” includes any retirement payment plan, and “sick pay” includes any amount paid to an employee as remuneration or paid instead of remuneration for any period when the employee is temporarily absent from work because of sickness or personal injuries. Payors withholding under this subsection are employers for all purposes of this section and shall withhold, remit and be subject to the other requirements of an employer in withholding Wisconsin income tax from employees.

71.64(4) (4) Withholding from payments made to entertainers. For purposes of this section, all payments made to entertainers and entertainment corporations, except payments made as provided under s. 71.80 (15) (b) 2., are presumed subject to withholding unless the recipient provides to the person making the payment a written statement, on a form prescribed by the department, certifying that the payment is exempt under sub. (6) (b) or s. 71.05 (2).

71.64(5) (5) Withholding from entertainer in absence of bond or cash deposit. If no bond or cash deposit is made under s. 71.80 (15) (b) by an entertainer or entertainment corporation at the time of payment of wages to an entertainer, the employer shall either withhold the amount for which a bond should have been provided under s. 71.80 (15) (b) or deduct and withhold the tax reflected by the proper withholding table. If the entertainer establishes to the department’s satisfaction that a lower rate is more appropriate, the department shall notify the employer to withhold at the lower rate. The department may notify the employer that it waives the withholding requirement on the amount specified. Payments to an entertainment corporation shall be withheld at the rate of 6 percent unless the payee establishes to the satisfaction of the department that a lower rate is appropriate, in which case the department may notify the employer to withhold at a lower rate.

71.64(6) (6) Withholding from payments made to nonresidents.

71.64(6)(a) (a) At the time of payment of wages to a nonresident employee which wages were derived from the performance of services both within and without the state, the employer shall deduct and withhold from the wages derived from the performance of services within the state the amount as reflected by the proper withholding table.

71.64(6)(b) (b) No amount shall be withheld from the wages paid to a nonresident employee for services performed in this state if the employer reasonably estimates that during that calendar year the employee will earn less than $2,000; but whenever it appears that the employee will earn more than $2,000 in this state during the calendar year, the employer shall withhold, from wages paid thereafter, such additional amounts as the employer reasonably estimates will be required to offset the amounts not withheld from previous payments.

71.64(6)(c) (c) No amount shall be withheld from wages paid to an out-of-state employee, as defined in s. 323.12 (5) (a) 7., for disaster relief work, as defined in s. 323.12 (5) (a) 3.

71.64(7) (7) Special withholding arrangements. The secretary of revenue, acting within his or her discretion, may authorize special withholding arrangements in hardship cases resulting from situations in which persons, domiciled in Wisconsin, are subjected to withholding in some other state by reason of the performance of substantial personal services in such other state, pursuant to s. 71.07 (7).

71.64(8) (8) Exceptions.

71.64(8)(a) (a) The employer of any employee domiciled in a state with which Wisconsin has reciprocity under s. 71.05 (2) is not required to withhold under this subchapter from the wages earned by such employee in this state.

71.64 Cross-reference Cross-reference: See also s. Tax 2.02, Wis. adm. code.

71.64(8)(b) (b) This subchapter shall not apply to any county fair association in regard to any employee receiving less than $500 annually in wages or salary from the association.

71.64(8)(c) (c) The department of corrections is not required to withhold under sub. (1) from wages paid to an inmate working in a prison listed in s. 302.01, and if the inmate’s wages do not exceed $2,000 per year the department of corrections is not required under s. 71.65 (3) to file reports relating to those wages.

71.64(9) (9) Withholding tables.

71.64(9)(a) (a) The department shall prepare, promulgate and publish in the official state paper, without regard to the requirements of ch. 227, rules establishing withholding tables prepared on a weekly, biweekly, semimonthly, monthly, and daily or miscellaneous pay period basis. Those rules shall also provide instructions for withholding with respect to quarterly, semiannual and annual pay periods.

71.64(9)(b) (b) The department shall from time to time adjust the withholding tables to reflect any changes in income tax rates, any applicable surtax or any changes in dollar amounts in s. 71.06 (1), (1m), (1n), (1p), (1q), and (2) resulting from statutory changes, except as follows:

71.64(9)(b)1. 1. The department may not adjust the withholding tables to reflect the changes in rates in s. 71.06 (1m) and (2) (c) and (d) and any changes in dollar amounts with respect to bracket indexing under s. 71.06 (2e), with respect to changes in rates under s. 71.06 (1m) and (2) (c) and (d), and with respect to standard deduction indexing under s. 71.05 (22) (ds) for any taxable year that begins before January 1, 2000.

71.64(9)(b)2. 2. The department shall adjust the withholding tables to reflect the changes in rates in s. 71.06 (1n), (1p) and (2) (e), (f), (g) and (h) and any changes in dollar amounts with respect to bracket indexing, with respect to changes in rates under s. 71.06 (1p) and (2) (g) and (h) on July 1, 2000.

71.64(9)(c) (c) The tables shall account for the working families tax credit under s. 71.07 (5m). The tables shall be extended to cover from zero to 10 withholding exemptions, shall assume that the payment of wages in each pay period will, when multiplied by the number of pay periods in a year, reasonably reflect the annual wage of the employee from the employer and shall be based on the further assumption that the annual wage will be reduced for allowable deductions from gross income. The department may determine the length of the tables and a reasonable span for each bracket. In preparing the tables the department shall adjust all withholding amounts not an exact multiple of 10 cents to the next highest figure that is a multiple of 10 cents. The department shall also provide instructions with the tables for withholding with respect to quarterly, semiannual and annual pay periods.

71.64 History History: 1987 a. 312; 1989 a. 31; 1997 a. 27, 41; 1999 a. 9; 2011 a. 131; 2013 a. 20, 349; 2015 a. 84; 2023 a. 146.

71.64 Cross-reference Cross-reference: See also ss. Tax 2.90 and 2.91, Wis. adm. code.

71.65 71.65 Filing returns or reports.

71.65(1) (1) Employer must furnish statement to employee.

71.65(1)(a) (a) Every person, partnership or limited liability company required to deduct and withhold from an employee under the general withholding provisions of this subchapter shall furnish to each such employee in respect of the remuneration paid by such person, partnership or company to such employee during the calendar year, on or before January 31 of the succeeding year, or if his or her employment is terminated before the close of any such calendar year on the day on which the last payment of remuneration is made, 2 legible copies of a written statement showing the following:

71.65(1)(a)1. 1. The name of such person, partnership or limited liability company, and that person’s, partnership’s or company’s Wisconsin income tax identification number, if any.

71.65(1)(a)2. 2. The name of the employee and the employee’s social security number, if any, or other number required by the department.

71.65(1)(a)3. 3. The total amount of wages.

71.65(1)(a)4. 4. The total amount deducted and withheld as required by the general withholding provisions of this subchapter.

71.65(1)(b) (b) The employee shall furnish the department of revenue one copy of such written statement along with his or her return for the year.

71.65(2) (2) Employers’ statements.

71.65(2)(a) (a) Every person required to deduct and withhold from an employee under this subchapter shall furnish, in respect to remuneration paid by the person to the employee during the calendar year, on or before January 31 of the succeeding year, one copy of the statement under sub. (1), except that, if the statement includes a number other than the employee’s social security number, the statement furnished shall include the employee’s social security number.

71.65(2)(b) (b) Every resident of this state and every nonresident carrying on activities within this state, whether taxable or not under this chapter, who pays in any calendar year for services performed within this state by an individual remuneration that is excluded from the definition of wages, in the amount of $600 or more, shall, on or before January 31 of the year following the year in which the payments are made, furnish a statement, in such form as required by the department, disclosing the name of the payor, the name and address of the recipient of the payment, and the total amount paid in the calendar year to the recipient. The person who pays for the services shall, on or before that deadline, furnish the recipient of the payment with a copy of the statement. In any case in which an individual receives wages and also remuneration for services which remuneration is excluded from such definition, both from the same payor, the wages and the excluded remuneration shall both be reported in the report required under this subsection in a manner satisfactory to the department, regardless of the amount of the excluded remuneration.

71.65(3) (3) Filing reports and making deposits of withheld taxes.

71.65(3)(a) (a) Every employer who deducts and withholds any amount under this subchapter shall deposit such amount on a quarterly basis, except that if the amount deducted and withheld in any quarter exceeds $300, the department may require by written notice to the employer, that amounts deducted and withheld on and after the date indicated on such notice be deposited on a monthly basis. Employers who are required to file reports and deposit withheld taxes on a monthly, quarterly or annual basis, as the case may be, shall file such reports and deposit such taxes on or before the last day of the month next succeeding the withholding period. If the amount deducted and withheld in any quarter exceeds $5,000, the department may require by written notice to the employer, that for amounts deducted and withheld from the first day of the month through the 15th day of the month, the employer shall file reports and deposit such taxes on or before the last day of such month and that for amounts deducted and withheld from the 16th day of the month through the last day of the month the employer shall file reports and deposit such taxes on or before the 15th day of the next succeeding month. Employers shall file reports and deposit taxes with such public depository in Wisconsin as the department of administration designates a public depository therefor under s. 34.05 to the credit of the general fund. With each deposit the employer shall include a deposit report on a form to be provided by the department. The department may, when satisfied that the revenues will be adequately safeguarded, permit an employer whose withheld taxes do not exceed $50 per month to deposit withheld taxes and reports for other than quarterly periods. The department may revoke such permission at any time. The department, if it deems it necessary in order to ensure payment to or facilitate the collection by the state of the amount of taxes, may require reports or payments of the amount of withheld taxes for other than quarterly periods. The public depository shall record on such deposit report the amount deposited and shall then forward such report to the department in such manner and at such time as the department by rule prescribes. On or before January 31 of each year every employer shall file a withholding report on a form to be provided by the department showing the amount withheld from the wages paid each employee in the previous calendar year, the amount deposited in respect to each employee on wages paid in the previous calendar year and a reconciliation of the aggregate of the amounts deposited in respect to each employee on wages paid in the previous calendar year with the aggregate of the amounts shown on the semimonthly, monthly and quarterly deposit reports filed in respect to such withholding. Every employer who discontinues business prior to the end of a calendar year shall, within 30 days of such discontinuance, deposit withheld taxes not previously deposited and submit a deposit report concerning such deposit with the public depository and file a withholding report with the department covering the period from the beginning of the calendar year to the date of discontinuance. No employee shall have any right of action against an employer in regard to money deducted from wages and deposited with the public depository in compliance or intended compliance with this subchapter.

71.65 Cross-reference Cross-reference: See also s. Tax 1.10, Wis. adm. code.

71.65(3)(b) (b) Upon not less than 6 months’ notice to the public depository designated under par. (a), the secretary of revenue may direct that withheld taxes required to be reported and remitted by employers on and after a date specified be reported and remitted directly to the department of revenue. Every employer who deducts and withholds any amount under this subchapter required to be reported and remitted on or after such date shall report and remit directly to the department. Amounts withheld shall be paid over a quarterly basis but if the amount deducted and withheld in any quarter exceeded $300, the department may require, by written notice to the employer, that amounts deducted and withheld after the date indicated on such notice be paid over a monthly basis. Employers who are required to file reports and pay over withheld taxes on a monthly, quarterly or annual basis shall file such reports and pay over such taxes on or before the last day of the month next succeeding the withholding period. If the amount deducted and withheld in any quarter exceeded $5,000, the department may require by written notice to the employer, that for amounts deducted and withheld from the first day of the month through the 15th day of the month, the employer shall file such reports and pay over such taxes on or before the last day of such month; for amounts deducted and withheld from the 16th day of the month through the last day of the month, the employer shall file such reports and pay over such taxes on or before the 15th day of the next succeeding month.