Chapter 71

71.80(23)(a)3. 3. The taxpayer establishes that the transaction satisfies any other conditions that the department considers relevant, based on the facts and circumstances, to determine that the primary motivation for the transaction was one or more business purposes other than the avoidance or reduction of state income or franchise taxes; that the transaction changed the economic position of the taxpayer in a meaningful way apart from tax effects; and that the interest expenses, rental expenses, intangible expenses, or management fees were paid, accrued, or incurred using terms that reflect an arm’s-length relationship.

71.80(23)(b) (b) Notwithstanding par. (a), the deductions provided under ss. 71.05 (6) (b) 45., 71.26 (2) (a) 8., 71.34 (1k) (k), and 71.45 (2) (a) 17. shall not be allowed for any interest expenses, rental expenses, intangible expenses, or management fees that are directly or indirectly paid, accrued, or incurred to, or in connection directly or indirectly with one or more direct or indirect transactions with, one or more related entities, if the aggregate amount paid, accrued, or incurred for those related entity transactions is not disclosed on a separate form prescribed by the department in the manner prescribed by the department.

71.80(24) (24) Throwback transition. For persons subject to tax under this chapter whose sales factor includes sales under s. 71.04 (7) (a) or 71.25 (9) (a), the department shall deem timely paid the estimated tax payments attributable to the difference between the person’s tax liability for the taxable year and the person’s tax liability for the taxable year computed under ch. 71, 2007 stats., for installments that become due during the period beginning on January 1, 2009, and ending on July 1, 2009, provided that such estimated tax payments are paid by the next installment due date that follows in sequence following July 1, 2009. However, if the next installment due date that follows in sequence following July 1, 2009, is less than 45 days after July 1, 2009, such estimated tax payments, in addition to the payment due less than 45 days after July 1, 2009, shall be deemed timely paid if paid by the next subsequent installment due date.

71.80(25) (25) Net operating and business loss carry-forward and carry-back.

71.80(25)(a) (a) No offset of Wisconsin income may be made under s. 71.05 (8) (b) 1., 71.26 (4) (a), or 71.45 (4) (a) unless the incurred loss was computed on a return that was filed within 4 years of the unextended due date for filing the original return for the taxable year in which the loss was incurred.

71.80(25)(b) (b) No carry-back of a loss may be allowed under s. 71.05 (8) (b) 1. unless claimed within 4 years of the unextended due date for filing the original return for the taxable year to which the loss is carried back.

71.80(26) (26) Pass-through entity representative.

71.80(26)(a) (a) Each pass-through entity shall designate, in the manner prescribed by the department, a pass-through member or other person with substantial presence in the United States as the representative of the pass-through entity. In the case in which such designation is not in effect, the pass-through entity shall appoint a representative within 60 days following a written request by the department. If the pass-through entity fails to appoint a representative following a written request by the department, the department may designate a representative and notify the pass-through entity, or the beneficiaries in the case of a closed estate or trust, in writing of the designation. The pass-through entity may at any time provide a written statement to the department designating a new representative and the department shall accept the designation if the statement is signed by an authorized agent of the pass-through entity. The representative designated by a pass-through entity under this paragraph may be different than the pass-through entity’s federal representative or authorized agent.

71.80(26)(b) (b) The representative designated under par. (a) shall have the power and duty to do all of the following:

71.80(26)(b)1. 1. Act as the sole authority on behalf of the pass-through entity and its pass-through members with respect to a determination under s. 71.745.

71.80(26)(b)2. 2. Provide the department sufficient information to identify each pass-through member and the capital, profits, and loss interest of each pass-through member.

71.80(26)(b)3. 3. Enter into extension agreements on behalf of the pass-through entity under s. 71.77 (5).

71.80(26)(b)4. 4. Receive notices of pass-through entity adjustments under this chapter.

71.80(26)(b)5. 5. Notify all pass-through members of their share of corrections and adjustments made to pass-through items within 60 days after a determination under s. 71.745 becomes final or after receipt of notice of approval under s. 71.76 (2) (b).

71.80(26)(b)6. 6. File appeals of notices of pass-through entity adjustments under this chapter.

71.80(26)(b)7. 7. Enter into settlement agreements and bind pass-through members to adjustments relating to pass-through items.

71.80(26)(c) (c) The representative designated under par. (a) may delegate the powers and duties under par. (b) to an authorized agent of the pass-through entity.

71.80 History History: 1987 a. 312; 1987 a. 411 ss. 70, 189 to 192; 1989 a. 31; 1991 a. 39, 301; 1993 a. 205; 1995 a. 27, 404, 418; 1997 a. 27, 39, 291; 2001 a. 44, 102; 2003 a. 33; 2005 a. 49; 2007 a. 20, 226; 2009 a. 2, 28, 276; 2013 a. 20, 349; 2015 a. 55, 218, 295; 2017 a. 59, 231, 324; 2021 a. 258, 262.

71.805 71.805 Tax avoidance transactions voluntary compliance program.

71.805(1) (1) Definitions. In this section:

71.805(1)(a) (a) “Tax avoidance transaction” means a transaction, plan, or arrangement devised for the principal purpose of avoiding federal or Wisconsin income or franchise tax. “Tax avoidance transaction” includes a listed transaction as provided under U.S. department of the treasury regulations as of October 27, 2007, and may include a transaction, as determined by the department, that provides a tax benefit for Wisconsin income or franchise tax purposes without providing a similar benefit for federal income tax purposes.

71.805(1)(b) (b) “Taxpayer” means a person who is subject to the taxes imposed under this chapter and who has a tax liability attributable to using a tax avoidance transaction for any taxable year beginning before January 1, 2007.

71.805(2) (2) Penalty waiver or abatement. All of the following apply with regard to a taxpayer who satisfies the conditions under sub. (3):

71.805(2)(a) (a) Except as provided under sub. (4) (b), the department shall waive or abate all penalties that are applicable to the underreporting or underpayment of Wisconsin income or franchise taxes attributable to using a tax avoidance transaction for any taxable year for which the taxpayer satisfies the conditions under sub. (3).

71.805(2)(b) (b) The department shall not seek a criminal prosecution against the taxpayer with respect to using a tax avoidance transaction for any taxable year for which the taxpayer satisfies the conditions under sub. (3).

71.805(3) (3) Taxpayer eligibility. A taxpayer is eligible for the benefits described under sub. (2) (a) and (b), if, during the period beginning on January 1, 2008, and ending on May 31, 2008, the taxpayer does the following:

71.805(3)(a) (a) Files an amended Wisconsin tax return for each taxable year for which the taxpayer has previously filed a Wisconsin tax return that uses a tax avoidance transaction to underreport the taxpayer’s Wisconsin income or franchise tax liability and the amended return reports the total Wisconsin net income and tax for the taxable year, computed without regard to any tax avoidance transaction and without regard to any other adjustment that is unrelated to any tax avoidance transaction.

71.805(3)(b) (b) Pays, in full, for each taxable year for which an amended return is filed under par. (a), the entire amount of Wisconsin income or franchise tax and interest due that is attributable to using a tax avoidance transaction, except that the secretary of revenue may enter into an agreement with the taxpayer to make payments in installments. A taxpayer who does not comply with an installment agreement provided under this paragraph is ineligible to receive the benefits described under sub. (2) (a) and (b) and the total amount of tax, interest, and penalties shall be immediately due and payable.

71.805(4) (4) Limitations and administration.

71.805(4)(a) (a) A taxpayer who receives the benefits described under sub. (2) may not file an appeal or a claim for credit or refund with respect to the tax avoidance transactions for the taxable years for which the taxpayer satisfied the conditions under sub. (3), except to the extent that a timely filed appeal or claim for a refund results from an adjustment to the taxpayer’s federal income tax liability regarding such transactions.

71.805(4)(b) (b) The department may not waive or abate a penalty as provided under sub. (2) (a) if the penalty relates to an amount of Wisconsin income and franchise tax that is attributable to a tax avoidance transaction and assessed and paid prior to January 1, 2008, or after May 31, 2008.

71.805 History History: 2007 a. 20.

71.81 71.81 Disclosing reportable transactions.

71.81(1) (1) Definitions. In this section:

71.81(1)(a) (a) “Listed transaction” means any reportable transaction that is the same as, or substantially similar to, a transaction, plan, or arrangement specifically identified by the U.S. secretary of the treasury as a listed transaction, for purposes of section 6011 of the Internal Revenue Code and that is specifically identified by the U.S. secretary of the treasury as a listed transaction on or after the date the transaction occurred.

71.81(1)(b) (b) “Material advisor” means any person who provides any material aid, assistance, or advice with respect to organizing, managing, promoting, selling, implementing, insuring, or carrying out any reportable transaction and who, directly or indirectly, derives gross income from providing such aid, assistance, or advice in an amount that exceeds the threshold amount.

71.81(1)(c) (c) “Reportable transaction” means any transaction, plan, or arrangement, including a listed transaction, for which a taxpayer is required to submit information to the department because the taxpayer is required to disclose the transaction, plan, or arrangement for federal income tax purposes for the taxable year in which the transaction occurred, as provided under U.S. department of treasury regulations.

71.81(1)(d) (d) “Tax shelter” means any entity, plan, or arrangement, if avoiding or evading federal income tax or Wisconsin income or franchise tax is a significant purpose of the entity, plan, or arrangement.

71.81(1)(e) (e) “Threshold amount” means the following:

71.81(1)(e)1. 1. In the case of a reportable transaction, not including a listed transaction, from which the tax benefits are provided primarily to an individual, $50,000.

71.81(1)(e)2. 2. In the case of a listed transaction from which the tax benefits are provided primarily to an individual, $10,000.

71.81(1)(e)3. 3. In the case of a reportable transaction, not including a listed transaction, from which the tax benefits are provided primarily to an entity and not an individual, $250,000.

71.81(1)(e)4. 4. In the case of a listed transaction, from which the tax benefits are provided primarily to an entity and not an individual, $25,000.

71.81(2) (2) Disclosure. For each taxable year in which a taxpayer has participated in a reportable transaction, the taxpayer shall file with the department a copy of any form required by the internal revenue service for disclosing the reportable transaction for federal income tax purposes no later than 60 days after the date for which the taxpayer is required to file the form for federal income tax purposes, except that, if the taxpayer has filed a form with the internal revenue service on or before October 27, 2007, the taxpayer shall file a copy of the form with the department no later than May 31, 2008. The department may require that forms filed with the department under this subsection be filed separately from this state’s income or franchise tax return. This subsection applies to any reportable transaction entered into on or after January 1, 2001, or any reportable transaction entered into prior to January 1, 2001, that reduced the taxpayer’s tax liability for taxable years beginning on or after January 1, 2001, for any taxable year for which the transaction remains undisclosed and for which the statute of limitations on assessment, including any extension provided under sub. (6), has not expired as of the date that is 60 days after October 27, 2007.

71.81(3) (3) Penalty for failing to disclose.

71.81(3)(a) (a) Any taxpayer who does not file the form under sub. (2) and who is required to file the form is subject to the following penalty:

71.81(3)(a)1. 1. If the taxpayer participated in a reportable transaction that is not a listed transaction, the lesser of $15,000 or 10 percent of the tax benefit obtained from the reportable transaction.

71.81(3)(a)2. 2. If the taxpayer participated in a listed transaction, $30,000.

71.81(3)(b) (b) The secretary of revenue may waive or abate any penalty imposed under this subsection, or any portion of such penalty, related to a reportable transaction that is not a listed transaction, if the waiver or abatement promotes compliance with this section and effective tax administration. Notwithstanding any other law or rule, a determination by the secretary of revenue under this paragraph may not be reviewed in any judicial proceeding.

71.81(3)(c) (c) The penalties imposed under this subsection apply to any failure to disclose a listed transaction entered into on or after January 1, 2001, or entered into prior to January 1, 2001, that reduced the taxpayer’s tax liability for taxable years beginning on or after January 1, 2001, including transactions that were not listed transactions when entered into, but became listed transactions before October 27, 2007, or any other reportable transaction entered into after October 27, 2007, for any taxable year for which the statute of limitations on assessment, including any extension under sub. (6), has not expired as of October 27, 2007.

71.81(4) (4) Understatement penalty.

71.81(4)(a) (a) If a taxpayer has a reportable transaction understatement, as determined in par. (b), the taxpayer shall pay, in addition to any tax owed with regard to the reportable transaction, an amount equal to either 20 percent of the reportable transaction understatement or, in the case of a reportable transaction that is not disclosed as provided in sub. (2), 30 percent of the reportable transaction understatement.

71.81(4)(b) (b) A taxpayer has a reportable transaction understatement if the following calculation results in a positive number:

71.81(4)(b)1. 1. Multiply the taxpayer’s highest applicable tax rate under s. 71.06, 71.27, or 71.46, by the amount of any increase in Wisconsin taxable income that results from the difference between the proper tax treatment of a reportable transaction and the taxpayer’s treatment of the transaction as shown on the taxpayer’s tax return, including any amended return the taxpayer files before the date on which the department first contacts the taxpayer regarding an examination of the taxable year for which the amended return is filed. For purposes of this subdivision, the amount of any increase in Wisconsin taxable income for a taxable year includes any reduction in the amount of loss available for carry-forward to the subsequent year.

71.81(4)(b)2. 2. Add the amount determined under subd. 1. to the amount of any decrease in the aggregate amount of Wisconsin income or franchise tax credits that results from the difference between the proper tax treatment of a reportable transaction and the taxpayer’s treatment of the transaction as shown on the taxpayer’s tax return.

71.81(4)(c) (c) The secretary of revenue may waive or abate any penalty imposed under this subsection, or any portion of such penalty, if the taxpayer demonstrates to the department that the taxpayer had reasonable cause to act the way the taxpayer did, and in good faith, with regard to the tax treatment for which the taxpayer is subject to a penalty under this subsection and all facts relevant to the tax treatment are adequately disclosed in the filing under sub. (2), except that, if the taxpayer does not fully disclose such facts under sub. (2), the taxpayer’s penalty may be waived or abated under this paragraph if the taxpayer demonstrates to the department that the taxpayer reasonably believed that the tax treatment for which the taxpayer is subject to a penalty under this subsection was more likely than not the proper treatment and substantial authority exists or existed for the tax treatment for which the taxpayer is subject to a penalty under this subsection. Notwithstanding any other law or rule, a determination by the secretary of revenue under this paragraph may not be reviewed in any judicial proceeding.

71.81(4)(d) (d) The penalties under par. (a) apply to any reportable transaction understatement from a reportable transaction, including a listed transaction, entered into on or after January 1, 2001, or entered into prior to January 1, 2001, that reduced the taxpayer’s tax liability for taxable years beginning on or after January 1, 2001, for any taxable year for which the statute of limitations on assessment, including any extension provided under sub. (6), has not expired as of October 27, 2007.

71.81(5) (5) Additional understatement penalty.

71.81(5)(a) (a)

71.81(5)(a)1. 1. In addition to the penalty under sub. (4) (a), a taxpayer who files an amended return after May 31, 2008, and before the taxpayer is contacted by the internal revenue service or the department regarding a reportable transaction is subject to a penalty in an amount equal to 50 percent of the interest assessed under s. 71.82 on any reportable transaction understatement, as determined under sub. (4) (b), for the tax period for which the taxpayer files an amended return.

71.81(5)(a)2. 2. If the internal revenue service or the department contacts a taxpayer after May 31, 2008, regarding a reportable transaction and the taxpayer is contacted before the taxpayer files an amended return with respect to that transaction, the taxpayer is subject to a penalty in an amount equal to the interest assessed under s. 71.82 on any reportable transaction understatement, as determined under sub. (4) (b), for the tax period for which the internal revenue service or the department contacts the taxpayer.

71.81(5)(b) (b) The penalties under par. (a) apply to any reportable transaction understatement resulting from a reportable transaction, including a listed transaction, entered into on or after January 1, 2001, or entered into prior to January 1, 2001, that reduced the taxpayer’s tax liability for taxable years beginning on or after January 1, 2001, for any taxable year for which the statute of limitations on assessment, including any extension provided under sub. (6), has not expired as of October 27, 2007.

71.81(5)(c) (c) The secretary of revenue may waive or abate any penalty imposed under this subsection, or any portion of such penalty, if the taxpayer demonstrates to the department that the taxpayer had reasonable cause to act the way the taxpayer did, and in good faith, with regard to the tax treatment for which the taxpayer is subject to a penalty under this subsection and all facts relevant to the tax treatment are adequately disclosed in the filing under sub. (2), except that, if the taxpayer does not fully disclose such facts under sub. (2), the taxpayer’s penalty may be waived or abated under this paragraph if the taxpayer demonstrates to the department that the taxpayer reasonably believed that the tax treatment for which the taxpayer is subject to a penalty under this subsection was more likely than not the proper treatment and substantial authority exists or existed for the tax treatment for which the taxpayer is subject to a penalty under this subsection. Notwithstanding any other law or rule, a determination by the secretary of revenue under this paragraph may not be reviewed in any judicial proceeding.

71.81(6) (6) Statute of limitations extension.

71.81(6)(a) (a) Except as provided in par. (b), if a taxpayer fails to provide any information regarding a reportable transaction, other than a listed transaction, under sub. (2), the time for assessing any tax imposed under this chapter with respect to that transaction shall expire no later than the date that is 6 years after the date on which the return for the taxable year in which the reportable transaction occurred was filed. If a taxpayer fails to provide any information regarding a listed transaction, under sub. (2), the time for assessing any tax imposed under this chapter with respect to that transaction shall expire on the latest of the following dates:

71.81(6)(a)1. 1. The date that is 6 years after the date on which the return for the taxable year in which the listed transaction occurred was filed.

71.81(6)(a)2. 2. The date that is 12 months after the date on which the taxpayer provides information regarding the listed transaction under sub. (2).

71.81(6)(a)3. 3. The date that is 12 months after the date on which the taxpayer’s material advisor provides, at the department’s request, the list described in sub. (7) (b).

71.81(6)(a)4. 4. The date that is 4 years after the date on which the department discovers a listed transaction that was a listed transaction on the date the transaction occurred for which the taxpayer did not provide the information described under sub. (2) or for which the taxpayer’s material advisor did not provide the information described under sub. (7) (b).

71.81(6)(b) (b) Any limitation determined under par. (a) may be extended by a written agreement between the taxpayer and the department as provided under s. 71.77 (5).

71.81(6)(c) (c) This subsection applies to any reportable transaction, including a listed transaction entered into on or after January 1, 2001, or entered into prior to January 1, 2001, that reduced the taxpayer’s tax liability for taxable years beginning on or after January 1, 2001.

71.81(7) (7) Material advisor.

71.81(7)(a) (a) Each material advisor who is required to disclose a reportable transaction under section 6111 of the Internal Revenue Code shall file a copy of the disclosure with the department no later than 60 days after the date for which the material advisor is required to file the disclosure with the internal revenue service, except that, if a material advisor files the disclosure with the internal revenue service on or before October 27, 2007, the material advisor shall file a copy of the disclosure with the department no later than May 31, 2008.

71.81(7)(b) (b) Each material advisor shall maintain a list that identifies each Wisconsin taxpayer for whom the person provided services as a material advisor with respect to a reportable transaction, regardless of whether the taxpayer is required to file the form under sub. (2). Any material advisor who is required to maintain a list under this paragraph shall provide the list to the department after receiving the department’s written request to provide the list and shall retain the information contained in the list for 7 years or for the period determined by the department by rule. If 2 or more material advisors are required under this paragraph to maintain identical lists, the department may provide that only one of the material advisors maintain the list.

71.81(7)(c) (c) This subsection applies to reportable transactions, not including listed transactions, for which a material advisor provides services after October 27, 2007, and listed transactions for which a material advisor provides services, and were entered into, on or after January 1, 2001, or were entered into prior to January 1, 2001, and that reduced the taxpayer’s tax liability for taxable years beginning on or after January 1, 2001, regardless of when the transactions became listed transactions.

71.81(8) (8) Material advisor penalties.

71.81(8)(a) (a) If a person who is required to file a disclosure with the department as provided under sub. (7) (a) fails to file the disclosure or files a disclosure containing false or incomplete information, the person is subject to a penalty equal to the following amounts:

71.81(8)(a)1. 1. If the disclosure relates to a reportable transaction that is not a listed transaction, $15,000.

71.81(8)(a)2. 2. If the disclosure relates to a listed transaction, $100,000.

71.81(8)(b) (b) Any person who is required to maintain a list under sub. (7) (b) and who fails to provide the list to the department no later than 20 business days after the date on which the person receives the department’s request to provide the list, as provided under sub. (7) (b), shall pay a penalty to the department in an amount that is equal to $10,000 for each day that the person does not provide the list, beginning with the day that is 21 business days after the date on which the person receives the department’s request.

71.81(8)(c) (c) The secretary of revenue may waive or abate any penalty imposed under this subsection, or any portion of such penalty, related to a reportable transaction that is not a listed transaction, if the waiver or abatement promotes compliance with this section and effective tax administration or, with regard to the penalty imposed under par. (b), if, on each day after the time for providing the list without incurring a penalty has expired, the person demonstrates to the department that the person’s failure to provide the list on that day is because of reasonable cause. Notwithstanding any other law or rule, a determination by the secretary of revenue under this paragraph may not be reviewed in any judicial proceeding.

71.81(9) (9) Tax shelter promotion.

71.81(9)(a) (a) Beginning on October 27, 2007, any person who organizes or assists in organizing a tax shelter, or directly or indirectly participates in the sale of any interest in a tax shelter, and who makes or provides or causes another person to make or provide, in connection with such organization or sale, a statement that the person knows or has reason to know is false or fraudulent as to any material matter regarding the allowability of any tax deduction or credit, the excludability of any income, the manipulation of any allocation or apportionment rule, or the securing of any other tax benefit resulting from holding an interest in the entity or participating in the plan or arrangement, shall pay a penalty to the department, with respect to each sale or act of organization described under this paragraph, in an amount equal to 50 percent of the person’s gross income derived from the sale or act.

71.81(9)(b) (b) For purposes of administering this chapter, beginning on October 27, 2007, a written communication to any person, director, officer, employee, agent, or representative of the person, or any other person holding a capital or profits interest in the person, regarding the promotion of, or advice with respect to, the person’s direct or indirect participation in any tax shelter is not considered a confidential or privileged communication.

71.81(11) (11) Injunction. The department may commence an action in the circuit court of Dane County to enjoin a person from taking any action, or failing to take any action, that is subject to a penalty under this section or in violation of this section or any rules that the department promulgates pursuant to this section.

71.81 History History: 2007 a. 20.

subch. XIII of ch. 71 SUBCHAPTER XIII

INTEREST AND PENALTIES

71.82 71.82 Interest.