Chapter 77

77.30 77.30 Rules. The secretary of revenue may adopt, pursuant to ch. 227, such rules as the secretary deems necessary in the administration of this subchapter and may proceed under s. 73.03 (9) to enforce its provisions.

77.30 History History: 1991 a. 316.

subch. III of ch. 77 SUBCHAPTER III

GENERAL SALES AND USE TAX

77.51 77.51 Definitions. Except where the context requires otherwise, the definitions given in this section govern the construction of terms in this subchapter.

77.51(1a) (1a) 

77.51(1a)(a) (a) “Additional digital goods” means all of the following, if they are transferred electronically:

77.51(1a)(a)1. 1. Greeting cards.

77.51(1a)(a)2. 2. Finished artwork.

77.51(1a)(a)3. 3. Periodicals.

77.51(1a)(a)4. 4. Video or electronic games.

77.51(1a)(a)5. 5. Newspapers or other news or information products.

77.51(1a)(b) (b) For purposes of this subchapter, the sale, license, lease, or rental of or the storage, use, or other consumption of a digital code is treated the same as the sale, license, lease, or rental of or the storage, use, or other consumption of any additional digital goods for which the digital code relates.

77.51(1ag) (1ag) “Advertising and promotional direct mail” means direct mail that has the primary purpose of attracting public attention to a product, person, business, or organization or to attempt to sell, popularize, or secure financial support for a product, person, business, or organization.

77.51(1b) (1b) “Alcoholic beverage” means a beverage that is suitable for human consumption and that contains 0.5 percent or more of alcohol by volume.

77.51(1ba) (1ba) “Ancillary services” means services that are associated with or incidental to providing telecommunications services, including detailed telecommunications billing, directory assistance, vertical service, and voice mail services.

77.51(1bm) (1bm) “Beekeeping” means the business of moving, raising, producing, and other management of bees or bee products, regardless of the number of hives of bees managed.

77.51(1c) (1c) “Biotechnology” means the application of biotechnologies, including recombinant deoxyribonucleic acid techniques, biochemistry, molecular and cellular biology, genetics, genetic engineering, biological cell fusion, and other bioprocesses, that use living organisms or parts of an organism to produce or modify products to improve plants or animals or improve animal health, develop microorganisms for specific uses, identify targets for small molecule pharmaceutical development, or transform biological systems into useful processes and products.

77.51(1d) (1d) “Biotechnology business” means a business, as certified by the department in the manner prescribed by the department, that is primarily engaged in the application of biotechnologies that use a living organism or parts of an organism to produce or modify products to improve plants or animals, develop microorganisms for specific uses, identify targets for small molecule pharmaceutical development, or transform biological systems into useful processes and products.

77.51(1f) (1f) “Bundled transaction” means the retail sale of 2 or more products, not including real property and services to real property, if the products are distinct and identifiable products and sold for one nonitemized price. “Bundled transaction” does not include any of the following:

77.51(1f)(a) (a) The sale of any products for which the sales price varies or is negotiable based on the purchaser’s selection of the products included in the transaction.

77.51(1f)(b) (b)

77.51(1f)(b)1. 1. The retail sale of tangible personal property and a service, if the tangible personal property is essential to the use of the service, and provided exclusively in connection with the service, and if the true object of the transaction is the service.

77.51(1f)(b)2. 2. The retail sale of a service and items, property, or goods under s. 77.52 (1) (b), (c), or (d), if such items, property, or goods are essential to the use of the service, and provided exclusively in connection with the service, and if the true object of the transaction is the service.

77.51(1f)(c) (c) The retail sale of services, if one of the services is essential to the use or receipt of another service, and provided exclusively in connection with the other service, and if the true object of the transaction is the other service.

77.51(1f)(d) (d) A transaction that includes taxable and nontaxable products, if the seller’s purchase price or the sales price of the taxable products is no greater than 10 percent of the seller’s total purchase price or sales price of all the bundled products, as determined by the seller using either the seller’s purchase price or sales price, but not a combination of both, or, in the case of a service contract, the full term of the service contract.

77.51(1f)(e) (e) The retail sale of taxable tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d) and tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d) that is exempt from the taxes imposed under this subchapter, if the transaction includes food and food ingredients, drugs, durable medical equipment, mobility-enhancing equipment, prosthetic devices, or medical supplies and if the seller’s purchase price or the sales price of the taxable tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d) is no greater than 50 percent of the seller’s total purchase price or sales price of all the tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d) included in what would otherwise be a bundled transaction, as determined by the seller using either the seller’s purchase price or the sales price, but not a combination of both.

77.51(1fd) (1fd) “Business” includes any activity engaged in by any person or caused to be engaged in by any person with the object of gain, benefit or advantage, either direct or indirect, and includes also the furnishing and 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(1fm) (1fm) “Candy” means a preparation of sugar, honey, or other natural or artificial sweetener combined with chocolate, fruit, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces. “Candy” does not include any of the following:

77.51(1fm)(a) (a) A preparation that contains flour or that requires refrigeration.

77.51(1fm)(b) (b) A preparation that has as its predominant ingredient dried or partially dried fruit along with one or more sweeteners, and which may also contain other additives including oils, natural flavorings, fiber, or preservatives. This paragraph does not apply to a preparation that includes chocolate, nuts, yogurt, or a preparation that has a confectionary coating or glazing on the dried or partially dried fruit. For purposes of this paragraph, “dried or partially dried fruit” does not include fruit that has been ground, crushed, grated, flaked, pureed, or jellied.

77.51(1fr) (1fr) “Catalog” means a printed and bound, stitched, sewed, or stapled book containing a list and description of property or services for sale, regardless of whether a price is specified.

77.51(1g) (1g) “Certified service provider” means an agent that is certified jointly by the states that are signatories to the agreement, as defined in s. 77.65 (2) (a), and that performs all of a seller’s sales tax and use tax functions related to the seller’s retail sales, except that a certified service provider is not responsible for a retailer’s obligation to remit tax on the retailer’s own purchases.

77.51(1m) (1m) “Cloth diaper” means a cloth diaper used for sanitary purposes.

77.51(1n) (1n) “Computer” means an electronic device that accepts information in digital or similar form and that manipulates such information to achieve a result based on a sequence of instructions.

77.51(1p) (1p) “Computer software” means a set of coded instructions designed to cause a computer or automatic data processing equipment to perform a task.

77.51(1pd) (1pd) “Computer software maintenance contract” means a contract that obligates a vendor of computer software to provide a customer with future updates or upgrades to computer software, computer software support services, or both.

77.51(1r) (1r) “Conference bridging service” means an ancillary service that links 2 or more participants of an audio or video conference call and may include providing a telephone number, but does not include the telecommunications services used to reach the conference bridge.

77.51(2) (2) “Contractors” and “subcontractors” are the consumers of tangible personal property or items or goods under s. 77.52 (1) (b) or (d) used by them in real property construction activities, and the sales and use tax applies to the sale of tangible personal property or items or goods under s. 77.52 (1) (b) or (d) to them. A contractor engaged primarily in real property construction activities may use resale certificates only with respect to purchases of tangible personal property or items or goods under s. 77.52 (1) (b) or (d) that the contractor has sound reason to believe the contractor will sell to customers for whom the contractor will not perform real property construction activities involving the use of such tangible personal property or items or goods under s. 77.52 (1) (b) or (d).

77.51(2d) (2d) “Custom farming services” include services performed by a veterinarian to animals that are farm livestock or work stock and used exclusively in the business of farming.

77.51(2k) (2k) “Delivered electronically” means delivered to a purchaser by means other than by tangible storage media.

77.51(2m) (2m) “Delivery charges” means charges by a seller to prepare and deliver tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services to a location designated by the purchaser of the tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services, including charges for transportation, shipping, postage, handling, crating, and packing.

77.51(3) (3) “Department” means the department of revenue, its duly authorized employees and agents.

77.51(3c) (3c) “Detailed telecommunications billing service” means an ancillary service that separately indicates information pertaining to individual calls on a customer’s billing statement.

77.51(3m) (3m) “Diaper service” means a business primarily engaged in the lease or rental, delivery and laundering of cloth diapers.

77.51(3n) (3n) “Dietary supplement” means a product, other than tobacco, that is intended to supplement a person’s diet, if all of the following apply:

77.51(3n)(a) (a) The product contains any of the following ingredients or any combination of any of the following ingredients:

77.51(3n)(a)1. 1. A vitamin.

77.51(3n)(a)2. 2. A mineral.

77.51(3n)(a)3. 3. An herb or other botanical.

77.51(3n)(a)4. 4. An amino acid.

77.51(3n)(a)5. 5. A dietary substance that is intended for human consumption to supplement the diet by increasing total dietary intake.

77.51(3n)(a)6. 6. A concentrate, metabolite, constituent, or extract.

77.51(3n)(b) (b) The product is intended for ingestion in tablet, capsule, powder, soft-gel, gel-cap, or liquid form, or, if not intended for ingestion in such forms, is not represented as conventional food and is not represented for use as the sole item of a meal or diet.

77.51(3n)(c) (c) The product is required to be labeled as a dietary supplement as required under 21 CFR 101.36.

77.51(3p) (3p) “Digital audiovisual works” means a series of related images that, when shown in succession, impart an impression of motion, along with accompanying sounds, if any, and that are transferred electronically. “Digital audiovisual works” includes motion pictures, musical videos, news and entertainment programs, and live events, but does not include video greeting cards or video or electronic games.

77.51(3pa) (3pa) “Digital audio works” means works that result from the fixation of a series of musical, spoken, or other sounds that are transferred electronically, including prerecorded or live music, prerecorded or live readings of books or other written materials, prerecorded or live speeches, ringtones, or other sound recordings but not including audio greeting cards sent by electronic mail.

77.51(3pb) (3pb) “Digital books” means works that are generally recognized in the ordinary and usual sense as books and are transferred electronically. “Digital books” includes any literary work, other than a digital audio work or digital audiovisual work, that is expressed in words, numbers, or other verbal or numerical symbols or indicia, if the literary work is generally recognized in the ordinary and usual sense as a book, work of fiction or nonfiction, or a short story, but does not include newspapers or other news or information products, periodicals, chat room discussions, or blogs.

77.51(3pc) (3pc) “Digital code” means a code that provides the person who holds the code a right to obtain an additional digital good, a digital audiovisual work, digital audio work, or digital book and that may be obtained by any means, including tangible forms and electronic mail, regardless of whether the code is designated as song code, video code, or book code. “Digital code” includes codes used to access or obtain any specified digital goods, or any additional digital goods that have been previously purchased, and promotion cards or codes that are purchased by a retailer or other business entity for use by the retailer’s or entity’s customers. “Digital code” does not include the following:

77.51(3pc)(a) (a) A code that represents any redeemable card, gift card, or gift certificate that entitles the holder of such card or certificate to select any specified digital goods or additional digital goods at the cash value indicated by the card or certificate.

77.51(3pc)(b) (b) Digital cash that represents a monetary value that a customer may use to pay for a future purchase.

77.51(3pd) (3pd) “Direct mail” means printed material that is delivered or distributed by the U.S. postal service or other delivery service to a mass audience or to addressees on a mailing list provided by or at the direction of the purchaser of the printed material, if the cost of the printed material or any tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) included with the printed material is not billed directly to the recipients of the printed material. “Direct mail” includes any tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d) provided directly or indirectly by the purchaser of the printed material to the seller of the printed material for inclusion in any package containing the printed material, including billing invoices, return envelopes, and additional marketing materials. “Direct mail” does not include multiple items of printed material delivered to a single address.

77.51(3pe) (3pe) “Directory assistance” means an ancillary service that provides telephone numbers or addresses.

77.51(3pf) (3pf) “Distinct and identifiable product” does not include any of the following:

77.51(3pf)(a) (a) Packaging, including containers, boxes, sacks, bags, bottles, and envelopes; and other materials, including wrapping, labels, tags, and instruction guides; that accompany, and are incidental or immaterial to, the retail sale of any product.

77.51(3pf)(b) (b) A product that is provided free of charge to the consumer in conjunction with the required purchase of another product, if the sales price of the other product does not vary depending on whether the product provided free of charge is included in the transaction.

77.51(3pf)(c) (c) Any items specified under sub. (12m) (a) or (15b) (a).

77.51(3pj) (3pj) “Drug” means a compound, substance, or preparation, or any component of them, other than food and food ingredients, dietary supplements, or alcoholic beverages, to which any of the following applies:

77.51(3pj)(a) (a) It is listed in the United States Pharmacopoeia, Homeopathic Pharmacopoeia of the United States, or National Formulary, or any supplement to any of them.

77.51(3pj)(b) (b) It is intended for use in diagnosing, curing, mitigating, treating, or preventing a disease.

77.51(3pj)(c) (c) It is intended to affect a function or structure of the body.

77.51(3pm) (3pm) “Durable medical equipment” means equipment, including the repair parts and replacement parts for the equipment, that is primarily and customarily used for a medical purpose related to a person; that can withstand repeated use; that is not generally useful to a person who is not ill or injured; and that is not placed in or worn on the body. “Durable medical equipment” does not include mobility-enhancing equipment.

77.51(3pn) (3pn) “Eight hundred service” means a telecommunications service that allows a caller to dial a toll-free number without incurring a charge for the call and is marketed under “800,” “855,” “866,” “877,” or “888” toll-free calling, or any other number designated as toll-free by the federal communications commission.

77.51(3po) (3po) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

77.51(3r) (3r) “File” means mail or deliver a document that the department prescribes to the department or, if the department prescribes another method of submitting or another destination, use that other method or submit to that other destination.

77.51(3rm) (3rm) “Finished artwork” means the final art used for actual reproduction by photomechanical or other processes or for display purposes, but does not include website or home page designs. “Finished artwork” includes all of the following items regardless of whether such items are reproduced:

77.51(3rm)(a) (a) Drawings.

77.51(3rm)(b) (b) Paintings.

77.51(3rm)(c) (c) Designs.

77.51(3rm)(d) (d) Photographs.

77.51(3rm)(e) (e) Lettering.

77.51(3rm)(f) (f) Paste-ups.

77.51(3rm)(g) (g) Mechanicals.

77.51(3rm)(h) (h) Assemblies.

77.51(3rm)(i) (i) Charts.

77.51(3rm)(j) (j) Graphs.

77.51(3rm)(k) (k) Illustrative materials.

77.51(3rn) (3rn) “Fixed wireless service” means a telecommunications service that provides radio communication between fixed points.

77.51(3t) (3t) “Food and food ingredient” means a substance in liquid, concentrated, solid, frozen, dried, or dehydrated form, that is sold for ingestion, or for chewing, by humans and that is ingested or chewed for its taste or nutritional value. “Food and food ingredient” does not include alcoholic beverages or tobacco.