77.51(10m)(b)5.5. For purposes of par. (a) 4., eggs, fish, meat, and poultry, and foods containing any of them in raw form, that require cooking by the consumer, as recommended by the food and drug administration in chapter 3, part 401.11 of its food code to prevent food-borne illnesses. 77.51(10m)(c)1.a.a. A numerator that includes sales of prepared food, as defined in par. (a) 1., 2., and 4., and food for which plates, bowls, glasses, or cups are necessary to receive the food, but not including alcoholic beverages. 77.51(10m)(c)1.b.b. A denominator that includes all food and food ingredients, including prepared food, candy, dietary supplements, and soft drinks, but not including alcoholic beverages. 77.51(10m)(c)2.a.a. If the percentage determined under subd. 1. is 75 percent or less, utensils are considered to be provided by the retailer if the retailer’s customary practice is to physically give or hand the utensils to the purchaser or, in the case of plates, bowls, glasses, or cups that are necessary to receive the food, to make such items available to the purchaser. 77.51(10m)(c)2.b.b. If the percentage determined under subd. 1. is greater than 75 percent, utensils are considered to be provided by the retailer if the utensils are made available to the purchaser. 77.51(10m)(c)3.3. For a retailer whose percentage determined under subd. 1. is greater than 75 percent, an item sold by the retailer that contains 4 or more servings packaged as one item and sold for a single price does not become prepared food simply because the retailer makes utensils available to the purchaser of the item, but does become prepared food if the retailer physically gives or hands utensils to the purchaser of the item, except that plates, bowls, glasses, or cups necessary for the purchaser to receive the food need only be made available to the purchaser. For purposes of this subdivision 3., serving sizes are based on the information contained on the label of each item sold, except that, if the item has no label, the serving size is based on the retailer’s reasonable determination. 77.51(10m)(c)4.a.a. Except as provided in subd. 4. b., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer, the utensils are considered to be provided by the retailer. 77.51(10m)(c)4.b.b. Except as provided in subds. 2. and 3., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer and the person’s primary classification in the North American Industry Classification System, 2002 edition, published by the federal office of management and budget, is manufacturing under subsector 311, the utensils are not considered to be provided by the retailer. 77.51(10m)(c)5.5. For purposes of par. (a) 3., a retailer shall determine the percentage for the retailer’s tax year or business fiscal year, based on the retailer’s data from the retailer’s prior tax year or business fiscal year, as soon as practical after the retailer’s accounting records are available, but not later than 90 days after the day on which the retailer’s tax year or business fiscal year begins. For a retailer with more than one establishment in this state, a single determination under subd. 1. that combines the information for all of the retailer’s establishments in this state shall be made annually, as provided in this subdivision, and apply to each of the retailer’s establishments in this state. A retailer that has no prior tax year or business fiscal year shall make a good faith estimate of its percentage for purposes of par. (a) 3. for the retailer’s first tax year or business fiscal year and shall adjust the estimate prospectively after the first 3 months of the retailer’s operations if the actual percentage is materially different from the estimated percentage. 77.51(10n)(10n) “Prescription” means an order, formula, or recipe that is issued by any oral, written, electronic, or other means of transmission and by a person who is authorized by the laws of this state to issue such an order, formula, or recipe. 77.51(10r)(10r) “Prewritten computer software” means computer software, including prewritten upgrades, that is not designed and developed by the author or other creator to the specifications of a specific purchaser. The combining of 2 or more “prewritten computer software” programs or prewritten portions of computer software does not cause the combination to be other than “prewritten computer software.” “Prewritten computer software” includes software designed and developed by the author or other creator to the specifications of a specific purchaser if it is sold to a person other than the specific purchaser. For purposes of this subsection, if a person modifies or enhances computer software of which the person is not the author or creator, the person is the author or creator only of the person’s modifications or enhancements. “Prewritten computer software” or a prewritten portion of computer software that is modified or enhanced to any degree, with regard to a modification or enhancement that is designed and developed to the specifications of a specific purchaser, remains “prewritten computer software,” except that if there is a reasonable, separately stated charge or an invoice or other statement of the price given to the purchaser for the modification or enhancement, the modification or enhancement is not “prewritten computer software.” 77.51(10rn)(10rn) “Primarily” means more than 50 percent. 77.51(11)(11) “Printing” and “imprinting” include lithography, photolithography, rotogravure, gravure, letterpress, silk screen printing, multilithing, multigraphing, mimeographing, photostating, steel die engraving and similar processes. 77.51(11b)(11b) “Prison” means a prison described in s. 302.01, except it does not include the correctional institution under s. 301.046 (1) if the institution is the prisoner’s place of residence and does not include a Type 2 prison, as defined in s. 301.01 (6). 77.51(11c)(11c) “Private communication service” means a telecommunications service that entitles the customer to exclusive or priority use of a communications channel or group of communications channels, regardless of the manner in which the communications channel or group of communications channels is connected, and includes switching capacity, extension lines, stations, and other associated services that are provided in connection with the use of such channel or channels. 77.51(11d)(11d) For purposes of subs. (1ag), (1f), (3pf), (7j), and (9p) and ss. 77.52 (20) and (21), 77.522, 77.54 (9g), (51), (52), and (60), and 77.59 (5r), “product” includes tangible personal property, and items, property, and goods under s. 77.52 (1) (b), (c), and (d), and services. 77.51(11m)(11m) “Prosthetic device” means a replacement, corrective, or supportive device, including the repair parts and replacement parts for the device, that is placed in or worn on the body to artificially replace a missing portion of the body; to prevent or correct a physical deformity or malfunction; or to support a weak or deformed portion of the body. 77.51(12)(a)(a) Any transfer of title, possession, ownership, enjoyment, or use by: cash or credit transaction, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatever of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) for a consideration, including any transaction for which a person’s books and records show the transaction created, with regard to the transferee, an obligation to pay a certain amount of money or an increase in accounts payable or, with regard to the transferor, a right to receive a certain amount of money or an increase in accounts receivable. 77.51(12)(b)(b) A transaction whereby the possession of property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d) is transferred but the seller retains the title as security for the payment of the price. 77.51(12m)(a)(a) “Purchase price” means the total amount of consideration, including cash, credit, property, and services, for which tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services are sold, licensed, leased, or rented, valued in money, whether paid in money or otherwise, without any deduction for the following: 77.51(12m)(a)2.2. The cost of materials used, labor or service cost, interest, losses, all costs of transportation to the seller, all taxes imposed on the seller, except as provided in par. (b) 3m. and 3s., and any other expense of the seller. 77.51(12m)(a)3.3. Charges by the seller for any services necessary to complete a sale, not including delivery and installation charges. 77.51(12m)(a)4.b.b. If a shipment includes property or items that are subject to tax under this subchapter and property or items that are not subject to tax under this subchapter, the amount of the delivery charge that the seller allocates to the property and items that are subject to tax under this subchapter is based either on the total purchase price of the property and items that are subject to tax under this subchapter as compared to the total purchase price of all the property and items or on the total weight of the property and items that are subject to tax under this subchapter as compared to the total weight of all the property and items, except that if the seller does not make the allocation under this subd. 4. b., the purchaser shall allocate the delivery charge amount, consistent with this subd. 4. b. 77.51(12m)(b)1.1. Discounts, including cash, terms, or coupons, that are not reimbursed by a 3rd party, except as provided in par. (c); that are allowed by a seller; and that are taken by a purchaser on a sale. 77.51(12m)(b)2.2. Interest, financing, and carrying charges from credit that is extended on a sale of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services, if the amount of the interest, financing, or carrying charges is separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser. 77.51(12m)(b)3.3. Any taxes legally imposed directly on the purchaser that are separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser. 77.51(12m)(b)3m.3m. Taxes imposed on the seller that are separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser if the law imposing or authorizing the tax provides that the seller may, but is not required to, pass on to and collect the tax from the user or consumer. 77.51(12m)(b)3s.3s. The federal tax imposed on the seller in a retail sale of a heavy truck or trailer under section 4051 of the Internal Revenue Code that is separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser. 77.51(12m)(b)4.4. Delivery charges for direct mail, if the delivery charges for direct mail are separately stated on the invoice, bill of sale, or similar document that the seller gives to the purchaser. 77.51(12m)(b)5.5. In all transactions in which an article of tangible personal property, an item under s. 77.52 (1) (b), property under s. 77.52 (1) (c), or a good under s. 77.52 (1) (d) is traded toward the purchase of an article, item, property, or good of greater value, the amount of the purchase price that represents the amount allowed for the article, item, property, or good traded, except that this subdivision does not apply to any transaction to which subd. 7. or 8. applies. 77.51(12m)(b)6.6. If a person who purchases a motor vehicle presents a statement issued under s. 218.0171 (2) (cq) to the seller at the time of purchase, and the person presents the statement to the seller within 60 days from the date of receiving a refund under s. 218.0171 (2) (b) 2. b., the trade-in amount specified in the statement issued under s. 218.0171 (2) (cq), but not to exceed the purchase price from the sale of the motor vehicle. This subdivision applies only to the first motor vehicle purchased by a person after receiving a refund under s. 218.0171 (2) (b) 2. b. 77.51(12m)(b)7.7. Thirty-five percent of the purchase price, excluding trade-ins, of a new manufactured home, as defined in s. 101.91 (11). This subdivision does not apply to a lease or rental. 77.51(12m)(b)8.8. At the retailer’s option; except that after the retailer chooses an option the retailer may not use the other option for other sales without the department’s written approval; either 35 percent of the purchase price of a modular home, as defined in s. 101.71 (6), or an amount equal to the purchase price of the home minus the cost of materials that become an ingredient or component part of the home. 77.51(12m)(c)(c) “Purchase price” includes consideration received by the seller from a 3rd party, if: 77.51(12m)(c)1.1. The seller actually receives consideration from a 3rd party, other than the purchaser, and the consideration is directly related to a price reduction or discount on a sale. 77.51(12m)(c)2.2. The seller is obliged to pass the price reduction or discount to the purchaser. 77.51(12m)(c)3.3. The amount of the consideration that is attributable to the sale is a fixed amount and the seller is able to determine that amount at the time of the sale to the purchaser. 77.51(12m)(c)4.a.a. The purchaser presents a coupon, certificate, or other documentation to the seller to claim the price reduction or discount, if the coupon, certificate, or other documentation is authorized, distributed, or granted by the 3rd party with the understanding that the 3rd party will reimburse the seller for the amount of the price reduction or discount. 77.51(12m)(c)4.b.b. The purchaser identifies himself or herself to the seller as a member of a group or organization that may claim the price reduction or discount. 77.51(12m)(c)4.c.c. The seller provides an invoice to the purchaser, or the purchaser presents a coupon, certificate, or other documentation to the seller, that identifies the price reduction or discount as a 3rd-party price reduction or discount. 77.51(12p)(12p) “Purchaser” means a person to whom a sale of tangible personal property is made or to whom a service is furnished. 77.51(12t)(12t) “Real property construction activities” means activities that occur at a site where tangible personal property or items or goods under s. 77.52 (1) (b) or (d) that are applied or adapted to the use or purpose to which real property is devoted are permanently affixed to that real property. “Real property construction activities” does not include affixing property subject to tax under s. 77.52 (1) (c) to real property or affixing to real property tangible personal property that remains tangible personal property after it is affixed. The department may promulgate rules to determine whether activities that occur at a site where tangible personal property or items or goods under s. 77.52 (1) (b) or (d) are affixed to real property are real property construction activities for purposes of this subchapter. If the classification of property or an activity is not identified by rule, the department’s determination of whether personal property becomes a part of real property shall be made by considering the following criteria: 77.51(12t)(a)(a) Actual physical annexation to the real property. 77.51(12t)(b)(b) Application or adaptation to the use or purpose to which the real property is devoted. 77.51(12t)(c)(c) An intention on the part of the person making the annexation to make a permanent accession to the real property. 77.51(13)(a)(a) Every seller who makes any sale on the seller’s own behalf or on behalf of another person, regardless of whether the sale is mercantile in nature, of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or a service specified under s. 77.52 (2) (a). 77.51(13)(am)(am) Any person making any retail sale of a motor vehicle, aircraft, snowmobile, recreational vehicle, as defined in s. 340.01 (48r), trailer, semitrailer, all-terrain vehicle, utility terrain vehicle, off-highway motorcycle, as defined in s. 23.335 (1) (q), or boat registered or titled, or required to be registered or titled, under the laws of this state or of the United States. 77.51(13)(b)(b) Every person engaged in the business of making sales of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) for storage, use or consumption or in the business of making sales at auction of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) owned by the person or others for storage, use or other consumption. 77.51(13)(c)(c) When the department determines that it is necessary for the efficient administration of this subchapter to regard any salespersons, representatives, peddlers, marketplace providers, or canvassers as the agents of the dealers, distributors, marketplace sellers, supervisors, or employers under whom they operate or from whom they obtain the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) sold by them, irrespective of whether they are making the sales on their own behalf or on behalf of such dealers, distributors, marketplace sellers, supervisors, or employers, the department may so regard them and may regard the dealers, distributors, marketplace sellers, supervisors, or employers as retailers for purposes of this subchapter. 77.51(13)(d)(d) Every wholesaler to the extent that the wholesaler sells tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a person other than a seller as defined in sub. (17) provided such wholesaler is not expressly exempt from the sales tax on such sale or from collecting the use tax on such sale. 77.51(13)(e)(e) A person selling tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a service provider who transfers the property, items, or goods in conjunction with the selling, performing or furnishing of any service and the property, items, or goods are incidental to the service, unless the service provider is selling, performing or furnishing services under s. 77.52 (2) (a) 7., 10., 11. and 20. This subsection does not apply to sub. (2). 77.51(13)(f)(f) A service provider who transfers tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) in conjunction with but not incidental to the selling, performing or furnishing of any service and a service provider selling, performing or furnishing services under s. 77.52 (2) (a) 7., 10., 11. and 20. This subsection does not apply to sub. (2). 77.51(13)(i)(i) A person selling items, property, or goods under s. 77.52 (1) (b), (c), or (d), materials, or supplies to barbers, beauty shop operators, or bootblacks for use by them in the performance of their services. 77.51(13)(k)(k) With respect to a lease, any person deriving rentals from a lease of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) sourced to this state as provided under s. 77.522. 77.51(13)(m)(m) A person selling tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a veterinarian to be used or furnished by the veterinarian in the performance of services in some manner related to domestic animals, including pets or poultry. 77.51(13)(n)(n) A person selling household furniture, furnishings, equipment, appliances or other items of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a landlord for use by tenants in leased or rented living quarters. 77.51(13)(o)(o) A person selling drugs for animals or bees to a veterinarian. As used in this paragraph, “animal” includes livestock, pets, and poultry. 77.51(13)(p)(p) All persons described in this subsection regardless of all of the following: 77.51(13)(p)2.2. Whether the seller sells smaller quantities from inventory. 77.51(13)(p)3.3. Whether the seller makes or intends to make a profit on the sale. 77.51(13)(p)4.4. Whether the seller or the buyer receives a benefit the seller or buyer bargained for. 77.51(13)(p)5.5. The percentage of the seller’s total sales that the sale represents. 77.51(13)(p)6.6. Any activities other than those described in pars. (a) to (o) in which the seller is engaged. 77.51(13)(p)7.7. Whether the seller sells on the seller’s own behalf or on behalf of another person. 77.51(13)(q)(q) A marketplace provider who facilitates, on behalf of a marketplace seller, sales that are sourced to this state as provided under s. 77.522 of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services. 77.51(13g)(13g) Except as provided in subs. (13gm) and (13h), “retailer engaged in business in this state”, for purposes of the use tax, includes any of the following: 77.51(13g)(a)(a) Any retailer owning any real property in this state. 77.51(13g)(ab)(ab) Any retailer leasing or renting out any tangible personal property, or items or property under s. 77.52 (1) (b) or (c), if such property or items are located in this state. 77.51(13g)(ac)(ac) Any retailer maintaining, occupying, or using, permanently or temporarily, directly or indirectly, or through a subsidiary, an agent, or some other person, an office, place of distribution, sales or sample room or place, warehouse or storage place, or other place of business in this state. 77.51(13g)(b)(b) Any retailer having any representative, including a manufacturer’s representative, agent, salesperson, canvasser, or solicitor operating in this state under authority of the retailer or its subsidiary for the purpose of selling, delivering, or the taking orders for any tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services or for the purpose of performing any of the other activities described in this subsection. 77.51(13g)(c)(c) Any retailer selling tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services for storage, use, or other consumption in this state, unless otherwise limited by federal law. 77.51(13g)(d)(d) Any person who has an affiliate in this state, if the person is related to the affiliate and if the affiliate uses facilities or employees in this state to advertise, promote, or facilitate the establishment of or market for sales of items by the related person to purchasers in this state or for providing services to the related person’s purchasers in this state, including accepting returns of purchases or resolving customer complaints. For purposes of this paragraph, 2 persons are related if any of the following apply: 77.51(13g)(d)1.1. One person, or each person, is a corporation and one person and any person related to that person in a manner that would require a stock attribution from the corporation to the person or from the person to the corporation under section 318 of the Internal Revenue Code owns directly, indirectly, beneficially, or constructively at least 50 percent of the corporation’s outstanding stock value.
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