Chapter 77

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.

77.51(4m) (4m) “Gun club” includes a trapshooting club, skeet-shooting club, sporting-clay club, rifle and pistol club, sportsmen’s club, hunting club, rod and gun club, hunting and fishing club, and conservation club. “Gun club” does not include a wild animal farm or bird hunting preserve licensed under ch. 169.

77.51(5) (5) For purposes of subs. (13) (e) and (f) and (15a) and s. 77.52 (2m), “incidental” means depending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal; or something incidental to the main purpose of the service. Tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) transferred by a service provider is incidental to the service if the purchaser’s main purpose or objective is to obtain the service rather than the property, items, or goods, even though the property, items, or goods may be necessary or essential to providing the service.

77.51(5d) (5d) “International telecommunications services” means telecommunications services that originate or terminate in the United States, including the District of Columbia and any U.S. territory or possession and originate or terminate outside of the United States, including the District of Columbia and any U.S. territory or possession.

77.51(5f) (5f) “Internet access services” means sending messages and information transmitted through the use of local, toll and wide-area telephone service; channel services; telegraph services; teletypewriter; computer exchange services; cellular mobile telecommunications service; specialized mobile radio; stationary two-way radio; paging service; or any other form of mobile and portable one-way or two-way communications; or any other transmission of messages or information by electronic or similar means between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities. “Internet access services” does not include telecommunications services to the extent that such services are taxable under s. 77.52 (2) (a) 5. am.

77.51(5n) (5n) “Interstate telecommunications services” means telecommunications services that originate in one state or U.S. territory or possession and terminate in a different state or U.S. territory or possession.

77.51(5r) (5r) “Intrastate telecommunications services” means telecommunications services that originate in one state or U.S. territory or possession and terminate in the same state or U.S. territory or possession.

77.51(6) (6) “In this state” or “in the state” means within the exterior limits of the state of Wisconsin.

77.51(7) (7) 

77.51(7)(a) (a) “Lease or rental” means any transfer of possession or control of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) for a fixed or indeterminate term and for consideration and includes:

77.51(7)(a)1. 1. A transfer that includes future options to purchase or extend.

77.51(7)(a)2. 2. Agreements related to the transfer of possession or control of motor vehicles or trailers, if the amount of any consideration may be increased or decreased by reference to the amount realized on the sale or other disposition of such motor vehicles or trailers, consistent with section 7701 (h) (1) of the Internal Revenue Code.

77.51(7)(b) (b) “Lease or rental” does not include any of the following:

77.51(7)(b)1. 1. A transfer of possession or control of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) under a security agreement or deferred payment plan, if such agreement or plan requires transferring title to the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) after making all required payments.

77.51(7)(b)2. 2. A transfer of possession or control of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) under any agreement that requires transferring title to the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) after making all required payments and after paying an option price that does not exceed the greater of $100 or 1 percent of the total amount of the required payments.

77.51(7)(b)3. 3. Providing tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) along with an operator, if the operator is necessary for the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to perform in the manner for which it is designed and if the operator does more than maintain, inspect, or set up the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d).

77.51(7)(c) (c)

77.51(7)(c)1. 1. Transfers described under par. (a) are considered a lease or rental, regardless of whether such transfer is considered a lease or rental under generally accepted accounting principles, or any provision of federal or local law, or any other provision of state law.

77.51(7)(c)2. 2. Transfers described under par. (b) are not considered a lease or rental, regardless of whether such transfer is considered a lease or rental under generally accepted accounting principles, or any provision of federal or local law, or any other provision of state law.

77.51(7g) (7g) “Load-and-leave” means delivery to a purchaser by using a tangible storage media that is not physically transferred to the purchaser.

77.51(7h) (7h) 

77.51(7h)(a) (a) “Manufacturing” means the production by machinery of a new article of tangible personal property or item or property under s. 77.52 (1) (b) or (c) with a different form, use, and name from existing materials, by a process popularly regarded as manufacturing, and that begins with conveying raw materials and supplies from plant inventory to the place where work is performed in the same plant and ends with conveying finished units of tangible personal property or item or property under s. 77.52 (1) (b) or (c) to the point of first storage in the same plant. “Manufacturing” includes:

77.51(7h)(a)1. 1. Crushing, washing, grading and blending sand, rock, gravel and other minerals.

77.51(7h)(a)2. 2. Ore dressing, including the mechanical preparation, by crushing and other processes, and the concentration, by flotation and other processes, of ore, and beneficiation, including the preparation of ore for smelting.

77.51(7h)(a)3. 3. Conveying work in progress directly from one manufacturing process to another in the same plant; testing or inspecting, throughout the manufacturing process, the new article of tangible personal property or item or property under s. 77.52 (1) (b) or (c) that is being manufactured; storing work in progress in the same plant where the manufacturing occurs; assembling finished units of tangible personal property or item or property under s. 77.52 (1) (b) or (c); and packaging a new article of tangible personal property or items or property under s. 77.52 (1) (b) or (c), if the manufacturer, or another person on the manufacturer’s behalf, performs the packaging and if the packaging becomes part of the new article as it is customarily offered for sale by the manufacturer.

77.51(7h)(b) (b) “Manufacturing” does not include storing raw materials or finished units of tangible personal property or items or property under s. 77.52 (1) (b) or (c), research or development, delivery to or from the plant, or repairing or maintaining plant facilities.

77.51(7i) (7i) “Marketplace provider” means any person who facilitates a retail sale by a seller by listing or advertising for sale by the seller, in any manner, 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) and, who directly or indirectly, through agreements or arrangements with 3rd parties, processes the payment from the purchaser for the retail sale, regardless of whether the person receives compensation or other consideration in exchange for the services provided by the person.

77.51(7j) (7j) “Marketplace seller” means a seller who sells products through a physical or electronic marketplace operated by a marketplace provider, regardless of whether the seller is required to be registered with the department.

77.51(7k) (7k) “Mobile wireless service” means a telecommunications service for which the origination or termination points of the service’s transmission, conveyance, or routing are not fixed, regardless of the technology used to transmit, convey, or route the service. “Mobile wireless service” includes a telecommunications service provided by a commercial mobile radio service provider.

77.51(7m) (7m) “Mobility-enhancing equipment” means equipment, including the repair parts and replacement parts for the equipment, that is primarily and customarily used to provide or increase the ability of a person to move from one place to another; that may be used in a home or motor vehicle; and that is generally not used by a person who has normal mobility. “Mobility-enhancing equipment” does not include a motor vehicle or any equipment on a motor vehicle that is generally provided by a motor vehicle manufacturer. “Mobility-enhancing equipment” does not include durable medical equipment.

77.51(8) (8) “Newspaper” means those publications which are commonly understood to be newspapers and which are printed and distributed periodically at daily, weekly or other short intervals for the dissemination of current news and information of a general character and of a general interest to the public. In addition, any publication which qualifies as a newspaper under s. 985.03 (1) is a newspaper. “Newspaper” also includes advertising supplements if they are printed by a newspaper and distributed as a component part of one of that newspaper’s publications or if they are printed by a newspaper or a commercial printer and sold to a newspaper for inclusion in publications of that newspaper. A “newspaper” does not include handbills, circulars, flyers, or the like, advertising supplements not described in this subsection which are distributed with a newspaper, nor any publication which is issued to supply information on certain subjects of interest to particular groups, unless such publication otherwise qualifies as a newspaper within this subsection. In this subsection, advertising is not considered news of a general character and of a general interest.

77.51(8m) (8m) “Nine hundred service” means an inbound toll telecommunications service purchased by a subscriber that allows the subscriber’s customers to call the subscriber’s prerecorded announcement or live service. “Nine hundred service” does not include any charge for collection services provided by the seller of the telecommunications services to the subscriber or for any product or service the subscriber sells to the subscriber’s customers. A “nine hundred service” is designated with the “900” number or any other number designated by the federal communications commission.

77.51(9) (9) “Occasional sales” includes:

77.51(9)(a) (a)

77.51(9)(a)1. 1. Isolated and sporadic sales of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services where the infrequency, in relation to the other circumstances, including the sales price and the gross profit, support the inference that the seller is not pursuing a vocation, occupation or business or a partial vocation or occupation or part-time business as a vendor of personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services. No sale of any tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable service may be deemed an occasional sale if at the time of such sale the seller holds or is required to hold a seller’s permit, except that this provision does not apply to an organization required to hold a seller’s permit solely for the purpose of conducting bingo games and except as provided in par. (am).

77.51(9)(a)2. 2. For purposes of subd. 1., it is presumed that a seller is not pursuing a vocation, occupation, or business or a partial vocation or occupation or part-time business as a vendor of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services if the seller’s total taxable sales price from sales of tangible personal property, items, property, and goods under s. 77.52 (1) (b), (c), and (d), and taxable services is less than $2,000 during a calendar year.

77.51(9)(am) (am) The sale of personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), other than inventory held for sale, previously used by a seller to conduct its trade or business at a location after that person has ceased actively operating in the regular course of business as a seller of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services at that location, even though the seller holds a seller’s permit for one or more other locations.

77.51(9)(e) (e) Five or fewer auctions that are the sale of personal farm property or household goods and that are held by the same auctioneer at the same location during the year. In this paragraph, with respect to indoor locations, “location” means a building, except that in the case of a shopping center or a shopping mall “location” means a store.

77.51(9p) (9p) “One nonitemized price” does not include a price that is separately identified by product on a binding sales document, or other sales-related document, that is made available to the customer in paper or electronic form, including an invoice, a bill of sale, a receipt, a contract, a service agreement, a lease agreement, a periodic notice of rates and services, a rate card, or a price list.

77.51(9r) (9r) 

77.51(9r)(a) (a) “Other direct mail” means any direct mail that is not advertising and promotional direct mail, regardless of whether advertising and promotional direct mail is included in the same mailing. “Other direct mail” includes all of the following:

77.51(9r)(a)1. 1. Transactional direct mail that contains personal information specific to the addressee, including invoices, bills, account statements, and payroll advices.

77.51(9r)(a)2. 2. Any legally required mailings, including privacy notices, tax reports, and stockholder reports.

77.51(9r)(a)3. 3. Other nonpromotional direct mail, including newsletters and informational pieces, that is delivered to existing or former shareholders, customers, employees, or agents.

77.51(9r)(b) (b) “Other direct mail” does not include printed materials that result from developing billing information or providing any data processing service that is more than incidental, as defined in sub. (5), to producing the other direct mail.

77.51(9s) (9s) “Paging service” means a telecommunications service that transmits coded radio signals to activate specific pagers and may include messages or sounds.