Chapter 77

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.

77.51(13g)(d)2. 2. One person, or each person, is a partnership, estate, or trust and any partner or beneficiary; and the partnership, estate, or trust and its partners or beneficiaries; own directly, indirectly, beneficially, or constructively, in the aggregate, at least 50 percent of the profits, capital, stock, or value of the other person or both persons.

77.51(13g)(d)3. 3. An individual stockholder and the members of the stockholder’s family, as defined in section 318 of the Internal Revenue Code, owns directly, indirectly, beneficially, or constructively, in the aggregate, at least 50 percent of both persons’ outstanding stock value.

77.51(13g)(e) (e) Any person servicing, repairing, or installing equipment or other tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d) in this state.

77.51(13g)(f) (f) Any person delivering tangible personal property or items under s. 77.52 (1) (b) into this state in a vehicle operated by the person that sells the property or items that are delivered.

77.51(13g)(g) (g) Any person performing construction activities in this state.

77.51(13gm) (13gm) 

77.51(13gm)(a) (a) “Retailer engaged in business in this state” does not include a retailer who has no activities as described in sub. (13g), except for activities described in sub. (13g) (c), unless the retailer’s annual gross sales into this state exceed $100,000 in the previous or current calendar year.

77.51(13gm)(b) (b) If an out-of-state retailer’s annual gross sales into this state exceed $100,000 in the previous calendar year, the retailer shall register with the department and collect the taxes administered under s. 77.52 or 77.53 on sales sourced to this state under s. 77.522 for the entire current calendar year.

77.51(13gm)(c) (c) If an out-of-state retailer’s annual gross sales into this state are $100,000 or less in the previous calendar year, the retailer is not required to register with the department and collect the taxes administered under s. 77.52 or 77.53 on sales sourced to this state under s. 77.522 until the retailer’s gross sales exceed $100,000 for the current calendar year, at which time the retailer shall register with the department and collect the tax for the remainder of the current calendar year.

77.51(13gm)(d) (d) All of the following apply for purposes of this subsection:

77.51(13gm)(d)2. 2. “Gross sales” includes both taxable and nontaxable sales.

77.51(13gm)(d)5. 5. An out-of-state retailer’s annual gross sales include all sales into this state by the retailer on behalf of other persons and all sales into this state by another person on the retailer’s behalf.

77.51(13h) (13h) “Retailer engaged in business in this state”, notwithstanding sub. (13g), beginning on the applicable date does not include a foreign corporation that is the publisher of printed materials the only activities of which in this state do not exceed the storage of its raw materials for any length of time in this state in or on property owned by a person other than the foreign corporation and the delivery of its raw materials to another person in this state if that storage and delivery are for printing by that other person, and the purchase from a printer of a printing service or of printed materials in this state for the publisher and the storage of the printed materials for any length of time in this state in or on property owned by a person other than the publisher and do not exceed maintaining, occupying and using, directly or by means of another person, a place that is in this state, that is not owned by the publisher and that is used for the distribution of printed materials. In this subsection, “applicable date” for publishers of books and periodicals other than catalogs means January 1, 1980, and for all other publishers means January 1, 1990. In this subsection “raw materials” means tangible personal property which becomes an ingredient or component part of the printed materials or which is consumed or destroyed or loses its identity in the printing of the printed materials.

77.51(13r) (13r) Any person purchasing from a retailer as defined in sub. (13) shall be deemed the consumer of the tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services purchased.

77.51(13rm) (13rm) “Retail sale” or “sale at retail” means any sale, lease, or rental for any purpose other than resale, sublease, or subrent.

77.51(13rn) (13rn) “Ringtones” means digitized sound files that are downloaded onto a device and that may be used to alert the customer regarding a communication, but not including ringback tones or other digital audio files that are not stored on the purchaser’s communication device.

77.51(13s) (13s) “Safety classes” means all classes approved by the department of natural resources related to hunting, including hunting with a bow, and related to firearms, all-terrain vehicles, utility terrain vehicles, off-highway motorcycles, boats, and snowmobiles.

77.51(14) (14) “Sale” includes any of the following: the transfer of the ownership of, title to, possession of, or enjoyment of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services for use or consumption but not for resale as tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services and includes:

77.51(14)(a) (a) Any sale at an auction with respect to tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) which are sold to a successful bidder, except the sale of tangible personal property, items, or goods sold at auction which are bid in by the seller and on which title does not pass to a new purchaser.

77.51(14)(b) (b) The furnishing or distributing of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services for a consideration by social clubs and fraternal organizations to their members or others.

77.51(14)(c) (c) A transaction whereby the possession of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) are transferred but the seller retains the title as security for the payment of the price.

77.51(14)(f) (f) The furnishing, preparing or serving for consideration of food, meals, confections or drinks.

77.51(14)(h) (h) A transfer for a consideration of the title or possession of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) which have been produced, fabricated, or printed to the special order of the customer or of any publication.

77.51(14)(j) (j) The granting of possession of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) by a lessor to a lessee, or to another person at the direction of the lessee. Such a transaction is deemed a continuing sale.

77.51(14)(m) (m) A 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(14)(n) (n) All activities described in this subsection regardless of all of the following:

77.51(14)(n)1. 1. Whether the transaction is mercantile in nature.

77.51(14)(n)2. 2. Whether the seller sells smaller quantities from inventory.

77.51(14)(n)3. 3. Whether the seller makes or intends to make a profit on the sale.

77.51(14)(n)4. 4. Whether the seller or the buyer receives a benefit the seller or buyer bargained for.

77.51(14)(n)5. 5. The percentage of the seller’s total sales that the sale represents.

77.51(14)(n)6. 6. Any activities other than those described in sub. (13) (a) to (o) in which the seller is engaged.

77.51(14)(n)7. 7. Whether the seller sells on the seller’s own behalf or on behalf of another person.

77.51(14a) (14a) For purposes of ss. 77.54, 77.55, and 77.56, “sale” includes licenses, leases, and rentals.

77.51(14g) (14g) “Sale” does not include:

77.51(14g)(a) (a) The transfer of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a corporation upon its organization solely in consideration for the issuance of its stock;

77.51(14g)(b) (b) The contribution of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a newly formed partnership solely in consideration for a partnership interest therein;

77.51(14g)(bm) (bm) The contribution of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a limited liability company upon its organization solely in consideration for a membership interest;

77.51(14g)(c) (c) The transfer of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a corporation, solely in consideration for the issuance of its stock, pursuant to a merger or consolidation;

77.51(14g)(cm) (cm) The transfer of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a limited liability company, solely in consideration for a membership interest, pursuant to a merger;

77.51(14g)(d) (d) The distribution of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) by a corporation to its stockholders as a dividend or in whole or partial liquidation;

77.51(14g)(e) (e) The distribution of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) by a partnership to its partners in whole or partial liquidation;

77.51(14g)(em) (em) The distribution of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) by a limited liability company to its members in whole or partial liquidation;

77.51(14g)(f) (f) Repossession of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) by the seller from the purchaser when the only consideration is cancellation of the purchaser’s obligation to pay the remaining balance of the purchase price;

77.51(14g)(fm) (fm) The transfer of transmission facilities, as defined in s. 196.485 (1) (h), to a transmission company, as defined in s. 196.485 (1) (ge), after the organizational start-up date, as defined in s. 196.485 (1) (dv), of such company in exchange for securities, as defined in s. 196.485 (1) (fe);

77.51(14g)(g) (g) The transfer of property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) in a reorganization as defined in section 368 of the internal revenue code in which no gain or loss is recognized for franchise or income tax purposes; or

77.51(14g)(h) (h) Any transfer of all or substantially all the property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) held or used by a person in the course of an activity requiring the holding of a seller’s permit, if after the transfer the real or ultimate ownership of the property, items, or goods is substantially similar to that which existed before the transfer. For the purposes of this section, stockholders, bondholders, partners, members or other persons holding an interest in a corporation or other entity are regarded as having the real or ultimate ownership of the property, items, or goods of the corporation or other entity. In this paragraph, “substantially similar” means 80 percent or more of ownership.

77.51(15a) (15a) 

77.51(15a)(a) (a) “Sales, lease, or rental for resale, sublease, or subrent” includes transfers of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a service provider that the service provider transfers in conjunction with but not incidental to the selling, performing, or furnishing of any service, and transfers of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a service provider that the service provider physically transfers in conjunction with the selling, performing, or furnishing services under s. 77.52 (2) (a) 7., 10., 11., or 20. This paragraph does not apply to sub. (2).

77.51(15a)(b) (b) “Sales, lease, or rental for resale, sublease, or subrent” does not include any of the following:

77.51(15a)(b)1. 1. The sale of building materials, supplies, and equipment to owners, contractors, subcontractors, or builders for use in real property construction activities or the alteration, repair, or improvement of real property, regardless of the quantity of such materials, supplies, and equipment sold.

77.51(15a)(b)2. 2. Any sale of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a purchaser even though such property, items, or goods may be used or consumed by some other person to whom such purchaser transfers the property, items, or goods without valuable consideration, such as gifts, and advertising specialties distributed at no charge and apart from the sale of other tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d) or service.

77.51(15a)(b)3. 3. Transfers of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a service provider that the service provider transfers in conjunction with the selling, performing, or furnishing of any service, if the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) are incidental to the service, unless the service provider is selling, performing, or furnishing services under s. 77.52 (2) (a) 7., 10., 11., or 20.

77.51(15a)(b)4. 4. A sale of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to a contractor or subcontractor for use in the performance of contracts with the United States or its instrumentalities for the construction of improvements on or to real property.

77.51(15b) (15b) 

77.51(15b)(a) (a) “Sales 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 received in money or otherwise, without any deduction for the following:

77.51(15b)(a)1. 1. The seller’s cost of the property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) sold.

77.51(15b)(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(15b)(a)3. 3. Charges by the seller for any services necessary to complete a sale, not including delivery and installation charges.

77.51(15b)(a)4. 4.

77.51(15b)(a)4.a. a. Delivery charges, except as provided in par. (b) 4.

77.51(15b)(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 sales price of the property and items that are subject to tax under this subchapter as compared to the total sales 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.

77.51(15b)(a)5. 5. Installation charges.

77.51(15b)(b) (b) “Sales price” does not include:

77.51(15b)(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(15b)(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(15b)(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(15b)(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(15b)(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(15b)(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(15b)(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 sales 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(15b)(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 sales 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(15b)(b)7. 7. Thirty-five percent of the sales 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(15b)(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 sales price of a modular home, as defined in s. 101.71 (6), or an amount equal to the sales price of the home minus the cost of materials that become an ingredient or component part of the home.

77.51(15b)(c) (c) “Sales price” includes consideration received by the seller from a 3rd party, if:

77.51(15b)(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(15b)(c)2. 2. The seller is obliged to pass the price reduction or discount to the purchaser.

77.51(15b)(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.