Chapter 71

71.83(1)(b)4. 4. ‘Exemption documents.’ Any employee who files a withholding exemption certificate, form or agreement under s. 71.64 (2) (b) or 71.66 (1) (a), (2) or (3) with the intent to defeat or evade the proper withholding of tax under subch. X shall be subject to a penalty equal to the difference between the amount required to be withheld and the amount actually withheld for the period that the incorrect certificate, form or agreement was in effect.

71.83(1)(b)5. 5. ‘Joint return after separate returns.’ If the amount shown as the tax by the husband and wife on a joint return filed under s. 71.03 (2) (g) to (L) exceeds the sum of the amounts shown as the tax on the separate return of each spouse and if any part of that excess is attributable to fraud with intent to evade tax at the time of the filing of that separate return, then 50 percent of the total amount of that excess shall be added to the tax.

71.83(1)(b)6. 6. ‘Corporations.’ If a corporation or limited liability company files a false declaration of complete inactivity, or, after filing a declaration, becomes activated or reactivated and fails to file timely statements and information under this chapter covering such year or years of activity or reactivity its officers or managers at the time of such filing or failure shall be jointly and severally liable for a civil penalty of $25 for such filing or each such failure, which penalty may be assessed and collected as income or franchise taxes are assessed and collected.

71.83(1)(b)7. 7. ‘Fraudulently filed claims.’ A person who fraudulently files an incorrect claim for refund of tax, or credits, under this chapter is subject to a penalty of 100 percent of the difference between the amount claimed and the amount that should have been claimed.

71.83(1)(c) (c) Medical savings account withdrawals. Any person who is liable for a penalty for federal income tax purposes under section 220 (f) (4) of the Internal Revenue Code is liable for a penalty equal to 33 percent of that penalty. The department of revenue shall assess, levy and collect the penalty under this paragraph as it assesses, levies and collects taxes under this chapter.

71.83(1)(ce) (ce) Health savings accounts. Any person who is liable for a penalty for federal income tax purposes under section 223 (f) (4) of the Internal Revenue Code is liable for a penalty equal to 33 percent of that penalty. The department of revenue shall assess, levy, and collect the penalty under this paragraph as it assesses, levies, and collects taxes under this chapter.

71.83(1)(cf) (cf) Inconsistent estate basis reporting. If any portion of an underpayment of tax required to be shown on a Wisconsin return is the result of an inconsistent estate basis reporting, there shall be added to the tax an amount equal to 20 percent of that portion of the underpayment. For purposes of this paragraph, an inconsistent estate basis reporting occurs if the property basis claimed on a Wisconsin return exceeds the property basis determined under section 1014 (f) of the Internal Revenue Code. The department shall assess, levy, and collect the penalty under this paragraph in the same manner as it assesses, levies, and collects taxes under this chapter.

71.83(1)(d) (d) Sale of certain business assets or assets used in farming.

71.83(1)(d)1. 1. If a person who purchases or otherwise receives business assets or assets used in farming, of which the gains realized by the transferor on the sale or disposition of such assets are exempt from taxation under s. 71.05 (6) (b) 25., sells or otherwise disposes of the assets within 2 years after the person purchases or receives the assets, the person shall pay a penalty that is calculated under subd. 2.

71.83(1)(d)2. 2. The penalty described under subd. 1. shall be the amount of income tax that would have been imposed under s. 71.02 on the capital gains received by the transferor in the transaction described in subd. 1. if the exemption under s. 71.05 (6) (b) 25. did not apply to the transaction multiplied by a fraction, the denominator of which is 24 and the numerator of which is the difference between 24 and the number of months between the date on which the person who is liable for the penalty purchased or otherwise received the assets described in subd. 1. and the month in which the person sells or otherwise disposes of the assets.

71.83(1)(d)3. 3. The department of revenue shall assess, levy and collect the penalty under this paragraph as it assesses, levies and collects taxes under this chapter.

71.83(1)(e) (e) Wisconsin qualified opportunity funds. A Wisconsin qualified opportunity fund, as defined in s. 71.05 (25m) (a) 2., that is liable for a penalty under section 1400Z-2 (f) of the Internal Revenue Code is liable for a penalty equal to 33 percent of the federal penalty. The department shall assess, levy, and collect the penalty under this paragraph in the same manner as it assesses, levies, and collects taxes under this chapter.

71.83(2) (2) Criminal.

71.83(2)(a) (a) Misdemeanor.

71.83(2)(a)1. 1. ‘All persons.’ If any person, including an officer of a corporation or a manager of a limited liability company required by law to make, render, sign or verify any return, willfully fails or refuses to make a return at the time required in s. 71.03, 71.24 or 71.44 or willfully fails or refuses to make deposits or payments as required by s. 71.65 (3) or willfully renders a false or fraudulent statement required by s. 71.65 (1) and (2) or deposit report or withholding report required by s. 71.65 (3), such person shall be guilty of a misdemeanor and may be fined not more than $10,000 or imprisoned for not to exceed 9 months or both, together with the cost of prosecution.

71.83(2)(a)2. 2. ‘Penalties for certain false documents.’ Any person who willfully makes and subscribes any return, claim, statement or other document required by this chapter that that person does not believe to be true and correct as to every material matter or who willfully aids in, procures, counsels or advises the preparation of any return, claim, statement or other document that is false or fraudulent as to any material matter related to, or required by, this chapter may be fined not more than $10,000 or imprisoned for not more than 9 months or both, together with the cost of prosecution.

71.83(2)(a)3. 3. ‘Divulging information.’ Any person who violates s. 71.78 shall upon conviction be fined not less than $100 nor more than $500 or imprisoned for not less than one month nor more than 6 months or both.

71.83(2)(a)3m. 3m. ‘Browsing in records.’ Any person who violates s. 71.78 (1m) (a) shall upon conviction be fined not less than $100 nor more than $500 or imprisoned for not less than one month nor more than 6 months or both.

71.83(2)(a)4. 4. ‘Coercing employee to prepay taxes.’ Any employer found guilty of violating s. 71.09 (15) (d) may be fined not less than $25 nor more than $200 for each violation.

71.83(2)(a)5. 5. ‘False withholding agreement.’ Any employee who willfully supplies an employer with false or fraudulent information regarding an agreement with the intent to defeat or evade the proper withholding of tax under subch. X may be imprisoned for not more than 6 months or fined not more than $500, plus the costs of prosecution, or both.

71.83(2)(a)6. 6. ‘Construction contractor surety bond.’ Any person who fails or refuses to comply with s. 71.80 (16) shall be fined not less than $300 nor more than $5,000.

71.83(2)(b) (b) Felony.

71.83(2)(b)1. 1. ‘False income tax return; fraud.’ Any person, other than a corporation or limited liability company, who renders a false or fraudulent income tax return with intent to defeat or evade any assessment required by this chapter, or to obtain a refund or credit with fraudulent intent, is guilty of a Class H felony and may be assessed the cost of prosecution. In this subdivision, “return” includes a separate return filed by a spouse with respect to a taxable year for which a joint return is filed under s. 71.03 (2) (g) to (L) after the filing of that separate return, and a joint return filed by the spouses with respect to a taxable year for which a separate return is filed under s. 71.03 (2) (m) after the filing of that joint return.

71.83(2)(b)2. 2. ‘Officer of a corporation; false franchise or income tax return.’ Any officer of a corporation or manager of a limited liability company required by law to make, render, sign or verify any franchise or income tax return, who makes any false or fraudulent franchise or income tax return, with intent to defeat or evade any assessment required by this chapter is guilty of a Class H felony and may be assessed the cost of prosecution.

71.83(2)(b)3. 3. ‘Evasion.’ Any person who removes, deposits or conceals or aids in removing, depositing or concealing any property upon which a levy is authorized with intent to evade or defeat the assessment or collection of any tax administered by the department is guilty of a Class I felony and may be assessed the cost of prosecution.

71.83(2)(b)4. 4. ‘Fraudulent claim for credit.’ A claimant who files a claim for credit under s. 71.07, 71.28 or 71.47 or subch. VIII or IX that is false or excessive and filed with fraudulent intent and any person who, with fraudulent intent, assists in the preparation or filing of the false or excessive claim or supplied information upon which the false or excessive claim was prepared is guilty of a Class H felony and may be assessed the cost of prosecution.

71.83(3) (3) Late filing fees.

71.83(3)(a) (a) If any person required under this chapter to file an income or franchise tax return fails to file a return within the time prescribed by law, or as extended under s. 71.03 (7), 71.24 (7), or 71.44 (3), unless the return is filed under such an extension but the person fails to file a copy of the extension that is granted by or requested of the internal revenue service, the department shall add $50 to the person’s tax if the return is filed under subch. I or $150 to the person’s tax if the return is filed under subch. IV or VII. If no tax is assessed against any such person the amount of this fee shall be collected as income or franchise taxes are collected. If any person who is required under s. 71.65 (3) to file a withholding report and deposit withheld taxes fails timely to do so and upon a showing by the department under s. 73.16 (4); unless the person so required dies; the department of revenue shall add $50 to the amount due except that if the person is subject to taxation under subch. IV or VII the department shall add $150 to the amount due.

71.83(3)(b) (b) A partnership that fails to file a statement under s. 71.20 (1) by the due date, including any extension, is subject to a $50 fee.

71.83(4) (4) Sales and use tax reporting. This section does not apply to the failure to report, or the incomplete or incorrect reporting of, sales and use taxes due under subch. III of ch. 77 on any return filed under this chapter.

71.83(5) (5) Ineligibility to claim certain credits.

71.83(5)(a) (a) Definitions. In this subsection:

71.83(5)(a)1. 1. “Credit” means the earned income tax credit under s. 71.07 (9e), the homestead credit under subch. VIII, the farmland preservation credit under subch. IX, or any refundable credit under s. 71.07, 71.28, or 71.47.

71.83(5)(a)2. 2. “Fraudulent claim” means a claim for a credit, filed by a person, that is false or excessive and filed with fraudulent intent, as determined by the department.

71.83(5)(a)3. 3. “Reckless claim” means a claim for a credit, filed by a person, that is improper, due to reckless or intentional disregard of the provisions in this chapter or of rules and regulations of the department, as determined by the department.

71.83(5)(b) (b) Disallowance period.

71.83(5)(b)1. 1. A person who files a fraudulent claim may not file a claim for a credit for 10 successive taxable years, beginning with the taxable year that begins immediately after the taxable year for which the department determined that the person filed a fraudulent claim.

71.83(5)(b)2. 2. A person who files a reckless claim may not file a claim for a credit for 2 successive taxable years, beginning with the taxable year that begins immediately after the taxable year for which the department determined that the person filed a reckless claim.

71.83(5)(c) (c) Reinstatement. After the period described under par. (b) during which a person may not file a claim for a credit, the person may file a claim for a credit, subject to any requirements that the department may impose on the person to demonstrate that the person is eligible to claim the credit.

71.83(6) (6) Automated sales suppression devices and phantomware.

71.83(6)(a) (a) Definitions. In this subsection:

71.83(6)(a)1. 1. “Automated sales suppression device” means a software program, including programs accessed through the Internet or by any other means, that falsifies the electronic records, including transaction data and transaction reports, of electronic cash registers and other point-of-sale systems.

71.83(6)(a)2. 2. “Electronic cash register” means a device that keeps a register or supporting documents by means of an electronic device or computer system designed to record transaction data for the purpose of computing, compiling, or processing retail sales transaction data or transaction reports.

71.83(6)(a)3. 3. “Phantomware” means a programming option embedded in the operating system of an electronic cash register, or hardwired into an electronic cash register, that can be used to create a virtual 2nd electronic cash register or eliminate or manipulate transaction records that may or may not be preserved in digital formats to represent the true or manipulated record of transactions in the electronic cash register.

71.83(6)(a)4. 4. “Transaction data” includes items purchased by a customer, the price for each item, a taxability determination for each item, a segregated tax amount for each of the taxed items, the amount of cash or credit tendered, the net amount returned to the customer in change, the date and time of the purchase, the name, address, and identification number of the vendor, and the receipt or invoice number of the transaction.

71.83(6)(a)5. 5. “Transaction report” means a report that includes the sales, taxes collected, media totals, and discount voids at an electronic cash register that is printed on cash register tape at the end of a day or shift or a report documenting every action at an electronic cash register that is stored electronically.

71.83(6)(b) (b) Automated sales suppression devices and phantomware. Any person who creates, designs, manufactures, sells, purchases, leases, installs, updates, repairs, services, transfers, uses, or possesses in this state or accesses from this state phantomware or an automated sales suppression device, unless for a legitimate purpose, is guilty of a Class D felony.

71.83 History History: 1987 a. 312; 1989 a. 31, 90; 1991 a. 39, 190, 269, 315; 1993 a. 16, 112, 213; 1995 a. 428, 453; 1997 a. 27, 237, 283, 323; 1999 a. 32; 2001 a. 109; 2007 a. 20; 2009 a. 28; 2011 a. 1, 68; 2013 a. 20; 2017 a. 59; 2017 a. 365 s. 111; 2019 a. 136; 2021 a. 1, 262; 2023 a. 73; s. 35.17 correction in (1) (a) 12. (title).

71.84 71.84 Addition to the tax.

71.84(1) (1) Individuals and fiduciaries. Except as provided in s. 71.09 (11), in the case of any underpayment of estimated tax by an individual, estate or trust, except as provided under s. 71.09, there shall be added to the aggregate tax for the taxable year interest at the rate of 12 percent per year on the amount of the underpayment for the period of the underpayment. In this subsection, “the period of the underpayment” means the time period from the due date of the installment until either the 15th day of the 4th month beginning after the end of the taxable year or the date of payment, whichever is earlier.

71.84(2) (2) Corporations.

71.84(2)(a) (a) Except as provided in s. 71.29 (7), in the case of any underpayment of estimated tax by a corporation under s. 71.29 or 71.48, there shall be added to the aggregate tax for the taxable year interest at the rate of 12 percent per year on the amount of the underpayment for the period of the underpayment. In this paragraph, “period of the underpayment” means the time period from the due date of the installment until either the date on which the corporation is required to file for federal income tax purposes, not including any extension, under the Internal Revenue Code or the date of payment, whichever is earlier. If 90 percent of the tax shown on the return is not paid by the date on which the corporation is required to file for federal income tax purposes, not including any extension, under the Internal Revenue Code, the difference between that amount and the estimated taxes paid, along with any interest due, shall accrue delinquent interest under s. 71.91 (1) (a).

71.84(2)(b) (b) For corporations that are subject to a tax under this chapter on unrelated business taxable income, as defined under section 512 of the internal revenue code, and virtually exempt entities, “period of the underpayment” means the time period from the due date of the installment until either the 15th day of the 5th month beginning after the end of the taxable year or the date of payment, whichever is earlier. If 90 percent of the tax shown on the return is not paid by the 15th day of the 5th month following the close of the taxable year, the difference between that amount and the estimated taxes paid along with any interest due, shall accrue delinquent interest under s. 71.91 (1) (a).

71.84(2)(c) (c) If a refund under s. 71.29 (3m) results in an income or franchise tax liability that is greater than the amount of estimated taxes paid when reduced by the amount of the refund, the taxpayer shall add to the aggregate tax for the taxable year interest at an annual rate of 12 percent on the amount of the unpaid tax liability for the period beginning on the date the refund is issued and ending on either the date on which the taxpayer is required to file for federal income tax purposes, not including any extension, under the Internal Revenue Code or the date the tax liability is paid, whichever is earlier.

71.84 History History: 1987 a. 312, 411; 1989 a. 31; 1991 a. 39; 2017 a. 2.

71.84 Annotation The definition of “return” in s. 71.29 applies to both the first and last sentences in sub. (2) (a). Thus, “return” means a return showing the proper amount due, regardless of whether the audited amount due is higher than the amount shown on the filed return. General Casualty Co. of Wisconsin v. DOR, 2002 WI App 248, 258 Wis. 2d 196, 653 N.W.2d 513, 01-2810.

71.85 71.85 General provisions.

71.85(1) (1) Penalties not deductible. No penalty imposed by this chapter, including penalties imposed under s. 71.83 (1) (a) 3., 4. and 5. and (b) 2., 3. and 4. and (2) (a) 1., 4. and 5., or by subch. III of ch. 77 may be deducted from gross income in arriving at net income taxable under this chapter.

71.85(2) (2) Prosecutions by attorney general. The attorney general is authorized, upon request of the secretary of revenue, to represent the state or to assist the district attorney in the prosecution of any case arising under s. 71.83 (2) (a) 1. or (2) (b) 1. or 2.

71.85(3) (3) Abatement of interest and penalties. No penalty or interest that has been imposed under this subchapter on a taxpayer who is eligible for the exemption under s. 71.05 (6) (b) 13. or 14. may continue to accrue while the taxpayer is in the Operation Desert Shield or Operation Desert Storm theater of operations and for 180 days after the taxpayer leaves the Operation Desert Shield or Operation Desert Storm theater of operations.

71.85 History History: 1987 a. 312, 411; 1991 a. 2; 1995 a. 255; 1997 a. 36; 2001 a. 103.

subch. XIV of ch. 71 SUBCHAPTER XIV

APPEALS

71.87 71.87 Definition. In this subchapter, “person feeling aggrieved” and “person aggrieved” include the spouse of a person against whom an additional assessment was made or who was denied a claim for refund for a taxable year for which a separate return was filed and include either spouse for a taxable year for which a joint return was filed or, if no return was filed, a joint return could have been filed.

71.87 History History: 1987 a. 312.

71.88 71.88 Time for filing an appeal.

71.88(1) (1) Appeal to the department of revenue.

71.88(1)(a) (a) Contested assessments and claims for refund. Except for refunds set off under s. 71.93 in respect to which appeal is to the agency to which the debt is owed, except for refunds set off under s. 71.935 in respect to which an appeal is held under procedures that the department of revenue establishes except for refunds set off under s. 49.855 in respect to which a hearing is held before the circuit court, and except as provided in s. 71.745 (6), any person feeling aggrieved by a notice of additional assessment, refund, or notice of denial of refund may, within 60 days after receipt of the notice, petition the department of revenue for redetermination. A petition or an appeal by one spouse is a petition or an appeal by both spouses. The department shall make a redetermination on the petition within 6 months after it is filed.

71.88(1)(b) (b) Contested adjustments to credits. Except as provided in s. 71.745 (6), any person feeling aggrieved by the determination made by the department to adjust a credit claimed under s. 71.07, 71.28 or 71.47 or subch. VIII or IX may, within 60 days after receipt, petition the department for redetermination. The department shall make a redetermination on the petition within 6 months after it is filed and notify the claimant under s. 71.74 (11). If no timely petition for redetermination is filed with the department, its determination shall be final and conclusive.

71.88 Cross-reference Cross-reference: See also s. Tax 1.14, Wis. adm. code.

71.88(2) (2) Appeal to the Wisconsin tax appeals commission.

71.88(2)(a) (a) Appeal of the department’s redetermination of assessments and claims for refund. A person aggrieved by the department’s redetermination, including a pass-through entity that has been issued a redetermination under s. 71.745 (6) (b), may appeal to the tax appeals commission by filing a petition with the clerk of the commission as provided by law and the rules of practice promulgated by the commission. If a petition is not filed with the commission within the time provided in s. 73.01 or, except as provided in s. 71.75 (5), if no petition for redetermination is made within the time provided the assessment, refund, or denial of refund shall be final and conclusive.

71.88(2)(b) (b) Appeal of department’s redetermination of credits. Any person aggrieved by the department of revenue’s redetermination, including a pass-through entity that has been issued a redetermination under s. 71.745 (6) (b), of a credit under s. 71.07 (6) or (9e), 71.28 (1), or 71.47 (1) or subch. VIII or IX, except when the denial is based upon late filing of claim for credit or is based upon a redetermination under s. 71.55 (8) of rent constituting property taxes accrued as at arm’s length, may appeal the redetermination to the tax appeals commission by filing a petition with the commission within 60 days after the redetermination, as provided under s. 73.01 (5) with respect to income or franchise tax cases, and review of the commission’s decision may be had under s. 73.015. For appeals brought under this paragraph, the filing fee required under s. 73.01 (5) (a) does not apply.

71.88 Note NOTE: Par. (b) is shown as amended by 2021 Wis. Acts 127 and 262 and as merged by the legislative reference bureau under s. 13.92 (2) (i).

71.88 History History: 1987 a. 312; 1989 a. 31; 1991 a. 39; 1995 a. 27, 404; 2005 a. 49; 2021 a. 127, 262; s. 13.92 (2) (i).

71.88 Cross-reference Cross-reference: See also ch. TA 1, Wis. adm. code.

71.89 71.89 Appeal procedures.

71.89(1) (1) If the taxpayer requests a hearing, the additional tax or overpayment shall not become due and payable until after hearing and determination of the tax by the tax appeals commission or disposition of the appeal pursuant to stipulation and order under ss. 73.01 (4) (a) and 73.03 (25).

71.89(2) (2) No person against whom an assessment of income or franchise tax has been made shall be allowed in any action either as plaintiff or defendant or in any other proceeding to question such assessment unless the requirements of ss. 71.88 and 71.90 (1) shall first have been complied with, and unless such person shall have made full disclosure under oath at the hearing before the tax appeals commission of any and all income that the person received. The requirement of full disclosure under this subsection may be waived by the department of revenue.

71.89(3) (3) As soon as the appellant shall have filed a petition with the tax appeals commission, all collection proceedings, except proceedings under s. 71.74 (14), shall be stayed until final determination of the appeal and any review thereof.

71.89(4) (4) Any person who contests an assessment before the tax appeals commission or in court shall state in his or her petition or notice of appeal what portion if any of the tax is admitted to be legally assessable and correct. Within 5 days after notice by the department, the appellant shall pay to the department the whole amount of the admitted tax and such tax shall be appropriated in accordance with s. 25.20. Any such payment shall be considered an admission of the legality of the tax thus paid, and such tax so paid cannot be recovered in the pending appeal or in any other action or proceeding.

71.89(5) (5) After final decision or other disposition, the record shall be returned to the department of revenue, and the department shall proceed to collect the taxes in the same manner as other income or franchise taxes are collected.

71.89 History History: 1987 a. 312; 1991 a. 39.

71.90 71.90 Depositing contested amounts.

71.90(1) (1) Deposit. The department shall notify any person who files a petition for redetermination that the person may deposit the amount of an additional assessment, including any interest or penalty, with the department, or with a person that the department prescribes, at any time before the department makes its redetermination. The department shall notify spouses jointly except that, if the spouses have different addresses and if either spouse notifies the department in writing of those addresses, the department shall serve a duplicate of the original notice on the spouse who has the address other than the address to which the original notice was sent. Amounts deposited under this subsection shall be subject to the interest provided by s. 71.82 only to the extent of the interest accrued prior to the first day of the month succeeding the date of deposit. Any deposited amount which is refunded shall bear interest at the rate of 3 percent per year during the time the funds were on deposit. A person may also pay any portion of an assessment which is admitted to be correct and the payment shall be considered an admission of the validity of that portion of the assessment and may not be recovered in an appeal or in any other action or proceeding.

71.90(2) (2) Deposit with the department. At any time while the petition is pending before the tax appeals commission or an appeal in regard to that petition is pending in a court, the taxpayer may offer to deposit the entire amount of the additional taxes, penalties, and fines, together with interest, with the department. The department shall, upon final determination of the appeal, refund to the appellant any portion of such payment which has been found to have been improperly assessed, including interest.

71.90 History History: 1987 a. 312; 1997 a. 27; 2003 a. 33; 2007 a. 20; 2013 a. 20.

subch. XV of ch. 71 SUBCHAPTER XV

COLLECTION OF DELINQUENT TAXES AND STATE AGENCY DEBTS