Chapter 71

71.91(6)(d) (d) Failure to surrender; discharge.

71.91(6)(d)1. 1. Except as provided in subd. 4., any person, including an officer or employee, who fails to surrender property that is subject to levy upon demand of the department is liable to the department for a sum equal to the value of the property not surrendered, but not exceeding the amount of taxes for the collection of which that levy was made, together with costs and interest at the rate of 18 percent per year from the date of that levy. Any amount, other than costs, recovered under this paragraph shall be credited against the tax liability for the collection of which that levy was made. The liability under this paragraph may be assessed, levied and collected as are additional income or franchise taxes or may be recovered by the department in a civil action.

71.91(6)(d)2. 2. In addition to the liability imposed under subd. 1., if any person required to surrender property fails or refuses to surrender that property without reasonable cause, that person is liable for a penalty equal to 50 percent of the amount recoverable under subd. 1. No part of the penalty under this subdivision may be credited against the tax liability for the collection of which that levy was made. The penalty under this subdivision may be assessed, levied and collected as are additional income or franchise taxes or may be recovered by the department in a civil action.

71.91(6)(d)3. 3. Any person in possession of, or obligated with respect to, property upon which a levy has been made who, upon demand by the department, surrenders that property, or discharges that obligation, to the department or who pays a liability under subd. 1. is discharged from any liability to the delinquent taxpayer or, in the case of payments under par. (c) 2., to a beneficiary, with respect to that property arising from that surrender or payment.

71.91(6)(d)4. 4. If a financial institution is in possession of, or obligated with respect to, property subject to levy upon which a levy has been made, the financial institution is liable under this paragraph for failure to surrender that property or discharge that obligation only upon expiration of a reasonable time to comply with the department’s demand for the property.

71.91(6)(e) (e) Actions against this state.

71.91(6)(e)1. 1. If the department has levied upon or sold property, any person, other than the person who is assessed the tax out of which the levy arose, who claims an interest in or lien on that property and claims that that property was wrongfully levied upon may bring a civil action against the state in the circuit court for Dane County. That action may be brought whether or not that property has been surrendered to or sold by the department. The court may grant only the relief under subd. 2. No other action to question the validity of or restrain or enjoin a levy by the department may be maintained.

71.91(6)(e)2. 2. In actions under subd. 1., if a levy or sale would irreparably injure rights to property, the court may enjoin the enforcement of that levy or prohibit that sale. If the court determines that the property has been wrongfully levied upon, it may order the return of specific property that the department possesses or grant a judgment for the amount of money obtained by levy. If the property was sold, the court may grant a judgment for an amount not exceeding the amount received by the department from the sale. If the property was purchased by the state at a sale under par. (f), the state shall be treated as having received an amount equal to the minimum price determined under that paragraph or the amount received by the state from the resale of that property, whichever is larger.

71.91(6)(e)3. 3. For purposes of an adjudication under this paragraph, the assessment of the tax upon which the interest or lien of the department is based is conclusively presumed to be valid. Interest shall be allowed for judgments under this paragraph at the rate of 12 percent per year from the date the department receives the money wrongfully levied upon to the date of payment of the judgment or from the date of sale to the date of payment.

71.91(6)(f) (f) Notice and sale.

71.91(6)(f)1. 1. As soon as practicable after obtaining property, the department shall notify, in the manner prescribed by the department, the owner of any real or personal property, and, at the possessor’s request, the possessor of any personal property, obtained by the department under this subsection. The department may leave that notice at the person’s usual place of residence or business. If the owner cannot be located or has no dwelling or place of business in this state, or if the property is obtained as a result of a continuous levy on commissions, wages, or salaries, the department may send a notice to the owner’s last-known address. That notice shall specify the sum demanded and shall contain, in the case of personal property, an account of the property obtained and, in the case of real property, a description with reasonable certainty of the property seized.

71.91(6)(f)2. 2. As soon as practicable after obtaining property, the department shall cause a notice of the sale to be published in a newspaper published or generally circulated within the county where the property was obtained. If there is no newspaper published or generally circulated in that county, the department shall post that notice at the city, town or village hall nearest the place where the property was obtained and in at least 2 other public places. That notice shall specify the property to be sold and the time, place, manner and conditions of the sale.

71.91(6)(f)3. 3. If any property liable to levy is not divisible so as to enable the department, by sale of a part, to raise the whole amount of the tax and expenses, the whole of the property shall be sold.

71.91(6)(f)4. 4. The sale shall occur not less than 10 days and not more than 40 days after the notice under subd. 2. The department may interrupt the sale, but not for a period longer than 90 days. The sale shall be in the county in which the property is levied upon or in Dane County.

71.91(6)(f)5. 5. Before the sale, the department shall determine a minimum price for which the property shall be sold. If no person offers for that property at the sale at least the amount of the minimum price, the state shall purchase the property for the minimum price; otherwise, the property shall be sold to the highest bidder. In determining the minimum price, the department shall take into account the expense of making the levy and sale in addition to the value of the property. If payment in full is required at the time of acceptance of a bid and is not paid then, the department shall sell the property in the manner provided under this paragraph. If the conditions of the sale permit part of the payment to be deferred and if that part is not paid within the prescribed period, the department may sue the purchaser in the circuit court for Dane County for the unpaid part of the purchase price and interest at the rate of 12 percent per year from the date of the sale or the department may declare the sale void and may sell the property again under this paragraph. If the property is sold again, the 2nd purchaser shall receive it free of any claim of the defaulting purchaser and the amount paid upon the bid price by the defaulting purchaser is forfeited.

71.91(6)(f)6. 6. No property of any person is exempt from levy and sale under this subsection.

71.91(6)(g) (g) Redemption.

71.91(6)(g)1. 1. Any person whose property has been levied upon may pay the amount due and the expenses of the proceeding to the department, or to the person that the department prescribes, at any time before the sale. Upon that payment, the department shall restore the property to the person whose property has been levied upon and stop all proceedings related to the levy.

71.91(6)(g)2. 2. The owners of any real property sold under par. (f), their heirs or personal representatives, or any person having an interest in or a lien on that property, or any person on behalf of a person specified in this subdivision may redeem the property sold, or any part of that property, within 120 days after the sale by payment to the purchaser or, if the purchaser cannot be found in the county in which the property to be redeemed is situated, then to the department, for the use of the purchaser or the purchaser’s heirs or assigns, the amount paid by the purchaser and interest at the rate of 18 percent per year.

71.91(6)(h) (h) Certificate of sale.

71.91(6)(h)1. 1. The department shall give the purchaser under par. (f) a certificate of sale upon payment in full of the purchase price. In the case of real property, that certificate shall specify the property purchased, the name of the purchaser and the price.

71.91(6)(h)2. 2. In the case of any real property sold under par. (f) and not redeemed under par. (g), the department shall execute to the purchaser, upon surrender of the certificate of sale, a deed reciting the facts set forth in the certificate.

71.91(6)(h)3. 3. If real property is purchased by the state under par. (f), the department shall execute and record a deed.

71.91(6)(h)4. 4. The certificate of sale for personal property sold under par. (f) is prima facie evidence of the right of the department to make the sale and conclusive evidence of the regularity of the proceedings of the sale. That certificate transfers to the purchaser all right, title and interest of the delinquent party to the property sold. If that property is stocks, that certificate is notice, when received, to any person of that transfer and authority to record the transfer on books and records as if the stocks were transferred or assigned by the party holding them, and all prior certificates are void. If the subject of sale is securities or other evidence of debt, the certificate is valid against any person possessing or claiming to possess the securities or other evidence of debt. If the property is a motor vehicle, the certificate is notice, when received, to the department of transportation as if the certificate of title were transferred or assigned by the party holding that certificate of title, and any prior certificate is void.

71.91(6)(h)5. 5. The deed of sale of real property is prima facie evidence of the facts stated in it and conveys all of the right, title and interest the delinquent party had to the property.

71.91(6)(h)6. 6. A certificate of sale of personal property given or a deed to real property executed under this paragraph discharges that property from all liens, encumbrances and titles subordinate to the department’s lien.

71.91(6)(i) (i) Determination of expenses. The department shall determine the expenses to be allowed in all cases of levy and sale.

71.91(6)(j) (j) Departmental records. The department shall keep a record of all sales of real property under par. (f) and of all redemptions of that property. The record shall set forth the tax for which any sale was made, the dates of levy and sale, the name of the party assessed and all proceedings related to the sale, the amount of expenses, the names of the purchasers and the date of the deed.

71.91(6)(k) (k) Use of proceeds.

71.91(6)(k)1. 1. The department shall apply all money realized under this subsection first against the expenses of the proceedings and then against the liability in respect to which the levy was made or the sale was conducted and any other liability owed to the department by the delinquent person.

71.91(6)(k)2. 2. The department may refund or credit any amount left after the applications under subd. 1., upon claim for and satisfactory proof of, to the person entitled to that amount.

71.91(6)(L) (L) Release of levy. The department may release the levy upon all or part of property levied upon to facilitate the collection of the liability, but that release does not prevent any later levy.

71.91(6)(m) (m) Wrongful levy.

71.91(6)(m)1. 1. If the department determines that property has been wrongfully levied upon, the department may return the property, an amount of money equal to the amount of money levied upon or an amount of money equal to the amount of money received by the state from the sale of that property.

71.91(6)(m)2. 2. The department may return property at any time. The department may return an amount of money equal to the amount of money levied upon or received from sale within 9 months after the levy.

71.91(6)(m)3. 3. For purposes of this paragraph, if property is purchased by the state under par. (f) the state shall be treated as having received an amount of money equal to the minimum price determined under that paragraph or, if less, the amount of money received by the state from the resale of that property.

71.91(6)(n) (n) Preservation of remedies. The availability of the remedy under this subsection does not abridge the right of the department to pursue other remedies.

71.91(7) (7) Withholding by employer of delinquent tax of employee.

71.91(7)(a) (a) In this subsection, “employee” includes any subcontractor.

71.91(7)(b) (b) The department of revenue may give notice to any employer deriving income having a taxable situs in this state (regardless of whether any such income is exempt from taxation) to the effect that an employee of the employer is delinquent in a certain amount with respect to state taxes, including penalties, interest, and costs. Upon receipt of the notice of delinquency, the employer shall withhold from compensation due or to become due to the employee the total amount shown by the notice. The department of revenue may direct the employer to withhold part of the amount due the employee each pay period, until the total amount as shown by the notice, plus interest, has been withheld. The employer may not withhold more than 25 percent of the compensation due the employee for any one pay period, except that, if the employee leaves the employ of the employer or gives notice of the employee’s intention to do so, or is discharged for any reason, the employer shall withhold the entire amount otherwise payable to the employee, or so much thereof as may be necessary to equal the unwithheld balance of the amount shown in the notice of delinquency, plus delinquent interest. In crediting amounts withheld against delinquent taxes of an employee, the department of revenue shall apply amounts withheld in the following order: costs, penalties, delinquent interest, delinquent tax. The “compensation due” an employee for purposes of determining the 25 percent maximum withholding for any one pay period shall include all wages, salaries, and fees constituting income, including wages, salaries, income advances, or other consideration paid for future services, when paid to an employee, less amounts payable pursuant to a garnishment action with respect to which the employer was served prior to being served with the notice of delinquency and any amounts covered by any irrevocable and previously effective assignment of wages, of which amounts and the facts relating to such assignment the employer shall give notice to the department of revenue within 10 days after service of the notice of delinquency.

71.91(7)(c) (c) In any case in which the employee ceases to be employed by the employer before the full amount set forth in a notice of delinquency, plus delinquent interest, has been withheld by the employer, the employer shall immediately notify the department in writing of the termination date of the employee and the total amount withheld.

71.91(7)(d) (d) The employer shall, on or before the last day of the month after the month during which an amount was withheld, remit to the department or to the person that the department prescribes that amount. Any amount withheld from an employee by an employer shall immediately be a trust fund for this state. Should any employer, after notice, willfully fail to withhold in accordance with the notice and this subsection, or willfully fail to remit any amount withheld, as required by this subsection, such employer shall be liable for the total amount set forth in the notice together with delinquent interest as though the amount shown by the notice was due by such employer as a direct obligation to the state for delinquent taxes, and may be collected by any means provided by law including the means provided for the collection of delinquent income or franchise taxes. However, no amount required to be paid by an employer by reason of his or her failure to remit under this paragraph may be deducted from the gross income of such employer. Any amount collected from the employer for failure to withhold or for failure to remit under this subsection shall be credited as tax, costs, penalties and interest paid by the employee.

71.91(7)(e) (e) Paragraphs (b) to (d) shall apply in any case in which the employer is the United States or any instrumentality thereof or this state or any municipality or other subordinate unit thereof except those provisions imposing a liability on the employer for failure to withhold or remit. But an amount equal to any amount withheld by any municipality or other subordinate unit of this state under this subsection and not remitted to the department as required by this subsection shall be retained by the secretary of administration from funds otherwise payable to any such municipality or subordinate unit, and transmitted instead to the department, upon certification by the secretary of revenue.

71.91(7)(f) (f) The department shall refund to the employee excess amounts withheld from the employee under this subsection.

71.91(7)(g) (g) Employers required to withhold delinquent taxes, penalties, interest and costs under this subsection shall not be required to withhold amounts other than the total amounts certified to such employers by the department and shall not be required to compute interest, costs or other charges to be withheld.

71.91(7)(h) (h) The department of revenue may, by written notice, require any employer, as defined in s. 71.63 (3), to withhold from the compensation due or to become due to any entertainer or entertainment corporation the amount of any delinquent state taxes, including costs, penalties, and interest, shown by the notice. The employer shall send the money withheld to the department of revenue on or before the last day of the month after the month during which an amount was withheld.

71.91(8) (8) Financial record matching program.

71.91(8)(a) (a) Definitions. In this subsection:

71.91(8)(a)1. 1. “Account” means a demand deposit account, checking account, negotiable withdrawal order account, savings account, time deposit account, or money market mutual fund account.

71.91(8)(a)2. 2. “Department” means the department of revenue.

71.91(8)(a)3. 3. “Financial institution” has the meaning given in s. 49.853 (1) (c).

71.91(8)(a)5. 5. “Person” includes any individual, firm, partnership, limited liability company, joint venture, joint stock company, association, public or private corporation, estate, trust, receiver, personal representative, and other fiduciary, and the owner of a single-owner entity that is disregarded as a separate entity under this chapter.

71.91(8)(b) (b) Matching program agreements. The department shall promulgate rules specifying procedures under which the department shall enter into agreements with financial institutions doing business in this state to operate the financial record matching program under this subsection. The information shall be provided by electronic data exchange in the manner specified by the department by rule or by agreement between the department and the financial institution. If the financial institution requests reimbursement, the department shall reimburse a financial institution for costs associated with participating in the financial record matching program under this subsection in an amount not to exceed $125 for each calendar quarter that the institution participates in the program.

71.91(8)(e) (e) Confidentiality. A financial institution participating in the financial institution matching program under this subsection and the employees, agents, officers, and directors of the financial institution, may use any information provided by the department only for the purpose of administering this subsection and shall be subject to the confidentiality provisions of ss. 71.78 (1) and 77.61 (5) (a). Any person violating this paragraph may be fined not less than $25 nor more than $500, or imprisoned in the county jail for not less than 10 days nor more than one year or both.

71.91(8)(f) (f) Financial institution liability. A financial institution is not liable to any person for disclosing information to the department under this subsection or for any other action that the financial institution takes in good faith to comply with this subsection.

71.91(8)(g) (g) Penalty. A financial institution that fails to provide any information required within 120 days from either the date that the information is due or from the date that the department requests the information may be subject to a $100 penalty for each occurrence of the financial institution’s failure to provide account information about an account holder. The department may commence civil proceedings to enforce this subsection if a financial institution fails to provide any information required after 120 days from either the date that the information is due or from the date that the department requests the information.

71.91 Cross-reference Cross-reference: See also s. Tax 1.16, Wis. adm. code.

71.91 History History: 1987 a. 312, 411; 1989 a. 31 ss. 2102b, 2102f; 1991 a. 39, 315; 1993 a. 205; 1995 a. 27, 224, 233, 428; 1997 a. 27, 237; 2001 a. 102, 103; 2003 a. 33, 288; 2009 a. 28; 2013 a. 20; 2015 a. 55; 2017 a. 324; 2019 a. 65.

71.91 Annotation Under sub. (4), a person’s failure to pay income or franchise taxes creates a perfected lien in favor of the Department of Revenue (DOR) on all of a debtor’s property. The perfected lien does not give DOR priority over other lienholders and judgment creditors whose interests are recorded before DOR’s lien. By implication DOR’s perfected lien is superior to any interest recorded after DOR’s lien. Prince Corp. v. Vandenberg, 2015 WI App 55, 364 Wis. 2d 457, 868 N.W.2d 599, 14-2097.

71.92 71.92 Compromises.

71.92(2) (2) Any taxpayer who is unable to pay the full amount of his or her delinquent income or franchise taxes, costs, penalties and interest may apply to the department of revenue to pay such taxes, costs, penalties and interest in installments. Such application shall contain a statement of the reasons such taxes, costs, penalties and interest cannot be paid in full and shall set forth the plan of installment payments proposed by the taxpayer. Upon approval of such plan by the department and the payment of installments in accordance therewith collection proceedings with respect to such taxes, costs, penalties and interest shall be withheld; but on failure of the taxpayer to make any installment payment, the department shall proceed to collect the unpaid portion of such taxes, costs, penalties and interest in the manner provided by law. The department of revenue may require taxpayers who make installment payments under this subsection to do so by electronic funds transfer.

71.92(3) (3) Any taxpayer may petition the department of revenue to compromise his or her delinquent income or franchise taxes including the costs, penalties and interest. The petition shall set forth a sworn statement of the taxpayer and shall be in a form that the department prescribes and the department may examine the petitioner under oath concerning the matter. If the department finds that the taxpayer is unable to pay the taxes, costs, penalties and interest in full it shall determine the amount the taxpayer is able to pay and shall enter an order reducing such taxes, costs, penalties and interest in accordance with the determination. The order shall provide that the compromise, if paid in a lump sum, is effective only if paid within 10 days or the order shall provide that the compromise is effective if paid according to a payment schedule that is set up by the department. The department or its collection agents upon receipt of the order shall accept payment in accordance with the order. Upon payment of the total amount due under the order, the department shall credit the unpaid portion of the principal amount of such taxes and make appropriate record of the unpaid amount of penalties, costs, and interest accrued to the date of the order. If within 3 years of the date of the compromise order or the date of a final payment under a payment schedule, whichever is later, the department ascertains that the taxpayer has an income or property sufficient to enable the taxpayer to pay the remainder of the tax including costs, penalty and interest the department shall reopen the matter and order the payment in full of such taxes, costs, penalties and interest. Before the entry of the order a notice shall be given to the taxpayer in writing advising of the intention of the department of revenue to reopen the matter and fixing a time and place for the appearance of the taxpayer if the taxpayer desires a hearing. Upon entry of the order the department of revenue shall make an appropriate record of the principal amount of the taxes, penalties, costs and interest ordered to be paid and such taxes shall be immediately due and payable and shall thereafter be subject to the interest provided by s. 71.82 (2), and the department shall immediately proceed to collect the same together with the unpaid portion of penalty, costs, and interest accrued to the date of the compromise order.

71.92(4) (4) Delinquent income or franchise taxes, interest and penalties, resulting from assessments pursuant to s. 71.74 (3), 71.82 (2) (d) or 71.83 (1) (a) 3. or 4. or (b) 2. or 3. or from assessments by virtue of disallowance of claimed deductions for failure to file information reports relating thereto, as required by this chapter, may be compromised by the department when such action is fair and equitable under the circumstances.

71.92(6) (6) If any delinquent income or franchise tax has been referred by the department to the attorney general for collection and after having fully investigated the matter the attorney general determines that it would be in the best interest of the state to compromise the tax, a written recommendation shall be made to the department stating the terms upon which the tax should be compromised and the reasons therefor. The department shall approve or disapprove the recommendation and notify the department of justice. If approved the department of justice may enter into a stipulation with the taxpayer providing for the compromise of the tax on the terms set forth in the recommendation and upon compliance by the taxpayer the tax shall be fully discharged. The department of justice shall furnish the department with a copy of such stipulation, and the department or its agents charged with the collection of income or franchise taxes may accept payment of such tax in accordance with the terms of such stipulation and upon payment being made shall credit the unpaid portion of the tax. This subsection shall be in addition to all other powers of the department of justice and the department of revenue with respect to compromise or settlement of income or franchise taxes.

71.92 History History: 1987 a. 312; 1989 a. 31; 1991 a. 39; 1997 a. 237; 1999 a. 189.

71.93 71.93 Setoffs for other state agencies.

71.93(1) (1) Definitions. In this section:

71.93(1)(a) (a) “Debt” means all of the following:

71.93(1)(a)1. 1. An amount owed to a state agency, if the amount has been reduced to a judgment or if the state agency has provided the debtor reasonable notice and an opportunity to be heard with regard to the amount owed.

71.93(1)(a)2. 2. A delinquent child support or spousal support obligation that has been reduced to a judgment and has been submitted by an agency of another state to the department of children and families for certification under this section.

71.93(1)(a)3. 3. An amount that the department of health services may recover under s. 49.45 (2) (a) 10., 49.497, 49.793, or 49.847, if the department of health services has certified the amount under s. 49.85.

71.93(1)(a)4. 4. An amount that the department of children and families may recover under s. 49.138 (5), 49.161, or 49.195 (3) or collect under s. 49.147 (6) (cm), if the department of children and families has certified the amount under s. 49.85.

71.93(1)(a)5. 5. An amount owed to the department of corrections under s. 304.074 (2).

71.93(1)(a)6. 6. An amount owed to the department of military affairs under s. 321.40 (4).

71.93(1)(a)7m. 7m. An amount owed pursuant to an order under s. 973.20 (1r), if the department of corrections has certified the amount under s. 973.20 (10) (b).

71.93(1)(a)8. 8. Any amount owed to a state agency and collected pursuant to a written agreement between the department of revenue and the state agency as provided under sub. (8) (b), if the debt has been reduced to a judgment or if the state agency or the department has provided the debtor reasonable notice and an opportunity to be heard with regard to the amount owed.

71.93(1)(b) (b) “Debtor” means any person owing a debt to a state agency and any person who owes a delinquent child support or spousal support obligation to an agency of another state.

71.93(1)(c) (c) “Department” means the department of revenue.

71.93(1)(cm) (cm) “Disbursement” means any payment to a person who provides goods and services to the state under subch. IV or V of ch. 16 or under ch. 84.

71.93(1)(d) (d) “Refund” means any of the following:

71.93(1)(d)1. 1. The excess amount by which any payments, refundable credits, or both exceed a debtor’s Wisconsin tax liability or any other liability owed to the department.

71.93(1)(d)2. 2. The amount owed to a debtor under s. 177.0905 for the return of abandoned property under subch. IX of ch. 177 which exceeds a debtor’s Wisconsin tax liability or any other liability owed to the department.

71.93(1)(e) (e) “State agency” has the meaning set forth under s. 20.001 (1).

71.93(2) (2) Certification. A state agency may certify to the department any properly identified debt exceeding $20 so that the department may set off the amount of the debt against a refund to the debtor or so that the department of administration may reduce a disbursement to the debtor by the amount of the debt. At least 30 days prior to certification each debtor shall be sent a notice by the state agency of its intent to certify the debt to the department for setoff or reduction and of the debtor’s right of appeal. At the time of certification, the certifying state agency shall furnish the social security number of individual debtors and the federal employer identification number of other debtors.

71.93(3) (3) Administration.

71.93(3)(a) (a) The department of revenue shall setoff any debt or other amount owed to the department, regardless of the origin of the debt or of the amount, its nature or its date. The department’s setoff shall include the use of unclaimed property owed to the debtor under s. 177.0505, 177.0605 (12), 177.0905 (2), or 177.0906 (2). If after the setoff there remains a refund in excess of $10, the department shall set off the remaining refund against certified debts of other entities in the following order:

71.93(3)(a)1. 1. Debt under s. 49.855 (1), certified by the department of children and families under sub. (2).

71.93(3)(a)1m. 1m. Debt certified under s. 973.20 (10) (b).

71.93(3)(a)2. 2. State agency debt collected pursuant to an agreement under sub. (8) and debt owed to the courts, the legislature, or an authority, as defined in s. 16.41 (4), collected pursuant to an agreement under sub. (8).