Chapter 78

78.57(2) (2) Investigation. The department shall investigate each applicant under sub. (1). No license may be issued if the department determines any of the following:

78.57(2)(a) (a) That the application was not filed in good faith.

78.57(2)(b) (b) That the applicant is not the real party in interest and the license of the real party in interest has been revoked for cause.

78.57(2)(c) (c) That the applicant does not hold a valid certificate under s. 73.03 (50).

78.57(2)(d) (d) That other reasonable cause for nonissuance exists.

78.57(3) (3) Hearing. Before refusing to issue a license, the department shall grant the applicant a hearing, of which he or she shall be given at least 5 days’ advance written notice.

78.57(4) (4) Issue. If the application and the bond under sub. (9), if that bond is required, are approved, the department shall issue a license in as many copies as the licensee has places of business for which a general aviation fuel license is required.

78.57(6) (6) Transfer forbidden. A general aviation fuel license is not transferable to another person or to another place of business.

78.57(7) (7) Display of license. Each license shall be preserved and conspicuously displayed at the place of business for which issued.

78.57(8) (8) Discontinuance. Upon the discontinuance of the business licensed at any place, the copy of the license issued for that place shall be immediately surrendered to the department.

78.57(9) (9) Bond.

78.57(9)(a) (a) To protect the revenues of this state, the department may require any person liable to the department for the tax imposed by this subchapter to place with it, either before or after a general aviation fuel license is issued, security in an amount which the department determines. The amount of security required may be increased or decreased as the department deems necessary, but may not exceed 3 times the licensee’s average monthly liability for taxes under this subchapter, as estimated by the department. If an applicant or licensee fails or refuses to place such security, the department may refuse to issue or may revoke the license. If any taxpayer is delinquent in the payment of taxes imposed by this subchapter, the department may, upon 10 days’ advance written notice, recover the taxes, interest, penalties, cost and disbursements from the taxpayer’s security placed with the department. No interest may be paid or allowed by the state to any person for the deposit of the security.

78.57(9)(b) (b) The security required by this subsection may be in the form of a surety bond furnished to the department payable to the state to secure payment of any and all general aviation fuel taxes, interest and penalties accrued under this subchapter, together with costs and disbursements incurred in the collection thereof. The department shall prescribe the form and contents of the bond.

78.57(9)(c) (c) Section 78.11 (2) to (4), regarding motor vehicle fuel licensees’ bonds, also applies to bonds furnished by general aviation fuel applicants and licensees under this subsection.

78.57 History History: 1981 c. 20; 1993 a. 16; 1995 a. 27; 1997 a. 27.

78.57 Cross-reference Cross-reference: See also ss. Tax 4.54 and 4.55, Wis. adm. code.

78.58 78.58 Reports to department; computation of tax.

78.58(1) (1) Reports of general aviation fuel licensees.

78.58(1)(a) (a) For the purpose of determining the amount of the licensee’s liability to the state for the tax imposed by this subchapter, except as provided in par. (b), each general aviation fuel licensee shall, not later than the 20th day of each month, file a monthly report for the next preceding month. The licensee or the licensee’s duly authorized agent shall sign the report.

78.58(1)(b) (b) The department may allow a licensee whose tax liability is less than or equal to $500 per quarter to file on a quarterly basis. The licensee shall file the quarterly report for the next preceding quarter on or before the 20th day of each quarter.

78.58(2) (2) Reports of others. Any person, not a general aviation fuel licensee, who places any general aviation fuel in the fuel supply tank of an aircraft in this state upon which the general aviation fuel tax has not been paid or the liability therefor has not been incurred by any general aviation fuel licensee in this state, shall file a report and make payment of the tax on the general aviation fuel and shall be subject to this chapter in the same manner as is provided for general aviation fuel licensees.

78.58(3) (3) Computation of tax. Each general aviation fuel licensee at the time of making the monthly or quarterly report shall compute and pay the full amount of the general aviation fuel tax for the next preceding month or quarter, which shall be computed as follows: the number of gallons of general aviation fuel placed into the fuel supply tanks of an aircraft or into bulk storage facilities by the general aviation fuel licensee, multiplied by 0.06 and the resulting figure expressed in dollars.

78.58 History History: 1981 c. 20; 1993 a. 16; 1997 a. 27, 41.

78.59 78.59 Notice by general aviation fuel licensee of cessation, sale or transfer of business; final report.

78.59(1) (1) Notice required. Whenever any general aviation fuel licensee ceases to perform any of the acts for which a general aviation fuel license is required, the licensee shall notify the department in writing. The notice shall give the date of cessation and, in the event of sale or transfer of the business, the name and address of the purchaser or transferee thereof.

78.59(2) (2) Final report. Every general aviation fuel licensee shall, upon such cessation, sale or transfer of the business or upon the cancellation or revocation of a license, make a report as required in s. 78.58 and pay all general aviation fuel taxes and penalties due the state.

78.59 History History: 1981 c. 20; 1987 a. 399; 1993 a. 16; 1997 a. 27.

78.60 78.60 Theft of general aviation fuel tax moneys. All sums paid by a purchaser of general aviation fuel to any general aviation fuel dealer as general aviation fuel taxes, which have not theretofore been paid to the state, are public moneys, the property of this state. Any general aviation fuel dealer who fails or refuses to pay over to the state the tax on general aviation fuel at the time required in this chapter or who fraudulently withholds or appropriates or otherwise uses such moneys or any portion thereof belonging to the state is guilty of theft and shall be punished as provided by law for the crime of theft, irrespective of whether such general aviation fuel dealer has or claims to have any interest in such moneys so received.

78.60 History History: 1981 c. 20.

78.61 78.61 Presumption. For the purpose of enforcing this chapter, it is prima facie presumed that all general aviation fuel received by a general aviation fuel dealer or a general aviation fuel user into storage and dispensing equipment designed to fuel aircraft is to be transferred or delivered by the dealer or user into the supply tanks of aircraft.

78.61 History History: 1981 c. 20, 314.

78.62 78.62 Exemptions. This subchapter does not apply to aviation fuel delivered to or used by the United States or its agencies or to an air carrier company.

78.62 History History: 1981 c. 20.

subch. IV of ch. 78 SUBCHAPTER IV

PROVISIONS COMMON TO MOTOR VEHICLE FUEL TAX, GENERAL AVIATION FUEL TAX AND
ALTERNATE FUEL TAX

78.64 78.64 Definitions. In this subchapter:

78.64(1) (1) “Alternate fuels” has the meaning given in s. 78.39 (1).

78.64(2) (2) “Department” means the department of revenue.

78.64(3) (3) “Motor vehicle fuel” has the meaning given in s. 78.005 (13).

78.64(4) (4) “Person” includes any individual, sole proprietorship, partnership, limited liability company, corporation, or association. A single-owner entity that is disregarded as a separate entity under ch. 71 is disregarded as a separate entity for purposes of this subchapter.

78.64 History History: 1993 a. 16; 2015 a. 216.

78.65 78.65 Suspension and revocation of licenses.

78.65(1) (1) If a general aviation fuel licensee or licensee under s. 78.09 or 78.47 violates any provision of this chapter and the department deems good cause exists for suspension or revocation by reason of such violation, the department may suspend such person’s license, or, after a hearing of the charges is held, it may revoke such license. The department may not suspend a license unless the department has notified the holder of the license of a hearing to be held on the charges, and the department may not revoke a license until after the department has notified the holder of the license of a hearing and has afforded the holder an opportunity to appear and testify. The department shall notify the licensee in writing of the time and place a hearing of the charges shall be held. The notice shall contain a statement of the alleged violation and shall be served upon the licensee at least 10 days prior to the hearing. At the time and place fixed in the notice, the department shall proceed to a hearing of the charges and shall afford the licensee an opportunity to present in person or by counsel statements, testimony, evidence, and argument pertinent to the charges or to any defense thereto. The department may continue the hearing from time to time but not more than 60 days. After the hearing, the department shall rescind the order of suspension, if any, and for good cause shown shall either suspend the license for a period of time or revoke the license.

78.65(3) (3) Upon the suspension or revocation of any license, the department shall request the holder thereof to surrender to it immediately all copies of licenses issued to the holder, and the holder shall surrender promptly all such copies to the department.

78.65 History History: 1981 c. 20; 1987 a. 399; 1991 a. 316; 1993 a. 16; 2017 a. 324.

78.66 78.66 Records to be kept by licensees.

78.66(1) (1) Every general aviation fuel licensee and licensee under s. 78.09 or 78.47 shall keep a record of all purchases, receipts, sales, distribution and consumption of each kind or trade name of motor vehicle fuel, crude petroleum and general aviation fuel and each alternate fuel.

78.66(2) (2) Every licensee shall keep true and accurate records of all stocks of motor vehicle fuel, crude petroleum and general aviation fuel and each alternate fuel on hand. Every licensee shall take a physical inventory of those fuels on hand at each licensed location at the close of business on the last day of every month.

78.66(3) (3) Every licensee shall retain the records of the inventory required by sub. (2) and all other records required by this section available for the inspection by the department, and upon demand of the department, any licensee shall furnish a statement under oath reflecting the contents of any record to be kept under this section.

78.66(4) (4) The department may require any person who keeps records in machine-readable form for federal fuel tax purposes to keep those records in the same form for purposes of the taxes under this chapter.

78.66 History History: 1981 c. 20; 1991 a. 39; 1993 a. 16; 1997 a. 27.

78.67 78.67 Timely filing. When the final date provided in this chapter for the filing of any report or claim or for the remittance of any tax or penalty falls on a Saturday, Sunday or legal holiday, the next secular or business day shall be the final date. The provisions on timely filing under s. 71.80 (18) apply to the reports, claims and remittances under this chapter.

78.67 History History: 1985 a. 302; 1987 a. 312 s. 17; 1993 a. 16.

78.68 78.68 Returns; failure to pay; refunds.

78.68(1) (1) Unpaid taxes shall bear interest at the rate of 12 percent per year from the due date of the tax until paid or deposited with the department, and all refunded taxes bear interest at the rate of 3 percent per year from the due date of the return to the date on which the refund is certified on the refund rolls.

78.68(1m) (1m) All payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.

78.68(2) (2) Delinquent tax returns are subject to a $10 late filing fee. Delinquent motor vehicle fuel, alternate fuels and general aviation fuel taxes bear interest at the rate of 1.5 percent per month until paid. The taxes imposed by this chapter are delinquent if not paid as follows:

78.68(2)(a) (a) In the case of a timely filed return, no return or a late return, on or before the due date of the tax; or

78.68(2)(b) (b) In the case of a deficiency determination of taxes, within 2 months after the date of demand.

78.68(3) (3) If an incorrect return is filed, and upon a showing by the department under s. 73.16 (4), the entire tax finally determined is subject to a penalty of 25 percent of the tax exclusive of interest or other penalty.

78.68(4) (4) In case of failure to file any return required under ss. 78.12, 78.49, and 78.58 by the due date, and upon a showing by the department under s. 73.16 (4), there shall be added to the amount required to be shown as tax on that return 5 percent of the amount of the tax if the failure is for not more than one month, and an additional 5 percent of the tax for each additional month or fraction thereof during which the failure continues, not exceeding 25 percent of the tax in the aggregate. For purposes of this subsection, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the due date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return.

78.68(5) (5) If a person fails to file a return when due or files a false or fraudulent return with intent in either case to defeat or evade the taxes imposed by this chapter, a penalty of 50 percent of the tax shall be added to the tax required to be paid, exclusive of interest and other penalties.

78.68(6) (6) Any person who fails to furnish any return required to be made or who fails to furnish any data required by the department may be fined not more than $500 or imprisoned for not more than 30 days or both.

78.68(7) (7) Any person, including an officer of a corporation or a manager of a limited liability company, who is required to make, render, sign or verify any report or return required by this chapter and who makes a false or fraudulent report or return or who fails to furnish a report or return when due with the intent, in either case, to defeat or evade the tax imposed by this subchapter may be fined not more than $500 or imprisoned for not more than 30 days or both.

78.68(8) (8) No person may aid, abet or assist another in making any false or fraudulent return or false statement in any return required by this chapter with intent to defraud the state or evade payment of the tax, or any part thereof, imposed by this chapter. Any person who violates this subsection may be fined not more than $500 or imprisoned for not more than 30 days or both.

78.68(9) (9) Before any tax becomes due, if the department has reason to believe that any licensee intends or is likely to evade or attempt to evade payment of the tax when due, or intends or is likely to convey, dispose of, or conceal his or her property or abscond from the state, or do any other act which would render the state insecure in collecting the tax when due, the department may demand payment forthwith of all taxes upon all motor vehicle fuel received under s. 78.07, general aviation fuel placed in the fuel supply tank of an aircraft or in bulk storage facilities or alternate fuel used, as defined in s. 78.39 (7), by the licensee, which shall immediately become payable and collectible as if delinquent, and the property of the licensee shall be subject to attachment as provided in s. 78.70.

78.68(10) (10) Except as provided in ss. 78.19 and 78.75 (1m) (b), s. 71.75 (2) and (4) to (7) as it applies to the taxes under ch. 71 applies to the taxes under this chapter. Sections 71.74 (13), 71.75 (9) and (10), 71.80 (3), 71.93, 71.935, and 73.03 (52), (52m), and (52n), as they apply to refunds of the taxes under ch. 71 apply to the refund of the taxes under this chapter.

78.68 History History: 1973 c. 333; 1977 c. 29, 289, 418; 1981 c. 20; 1983 a. 368; 1987 a. 399; 1991 a. 39; 1993 a. 16, 112, 205, 437; 2011 a. 68; 2013 a. 20; 2019 a. 9.

78.68 Cross-reference Cross-reference: See also s. Tax 4.51, Wis. adm. code.

78.69 78.69 Appeals. Sections 71.88 (1) (a) and (2) (a), 71.89 and 71.90 as they apply to the taxes under ch. 71 apply to the taxes under this chapter.

78.69 History History: 1977 c. 29 s. 1654 (1); 1977 c. 273; 1991 a. 39.

78.70 78.70 Actions to collect tax and penalties.

78.70(1) (1) Department authority. The department may collect delinquent motor vehicle fuel, alternate fuel and general aviation fuel taxes in the manner provided for the collection of delinquent income and franchise taxes under ss. 71.80 (12), 71.82 (2), 71.91 (1) (a) and (c) and (2) to (7), 71.92 and 73.0301, including proceeding under the authority incorporated by reference in s. 71.91 (5) (j) and the authority to:

78.70(1)(a) (a) Use the warrant procedures under ss. 71.74 (14), 71.80 (12), 71.82 (2), 71.91 (1) (a) and (c) and (2) to (5m) and 71.92.

78.70(1)(b) (b) Release real property from the lien of a warrant.

78.70(1)(c) (c) Satisfy warrants.

78.70(1)(d) (d) Approve installment payment agreements.

78.70(1)(e) (e) Compromise on the basis of ability to pay.

78.70(1)(f) (f) Compromise delinquent estimated determinations on the basis of fairness and equity.

78.70(2) (2) Attachment. Delinquent motor vehicle fuel, general aviation fuel or alternate fuel tax shall also be collectible and enforceable by a writ of attachment brought by the attorney general or district attorney in the name of the state against the lands, goods, chattels, credits or other personal property of the licensee, and for the purpose of this section, the licensee shall be deemed to be a nonresident of this state, and such attachment shall be governed in all respects by the provisions of law relating to attachments against nonresidents, but no attachment bond shall be required of the state, nor shall an indemnity bond be required or demanded of any sheriff or constable serving such writ of attachment, and no sheriff or constable shall be liable in damages on account of levying any attachment when acting under the direction of the attorney general or district attorney.

78.70(3) (3) Garnishment. The sheriff or constable shall also summon the persons named in said writ of attachment as garnishees, and all persons within the sheriff’s or constable’s county whom the attorney general or district attorney shall designate as having any property, effects, choses in action or credits in their possession or power, belonging to the defendant, or who are in anywise indebted to such defendant, the same as if their names had been inserted in such writ.

78.70(4) (4) Assessment constitutes prima facie evidence. In any action or proceeding for the collection of the tax from the licensee, or any penalties imposed in connection therewith, an assessment by the department, made pursuant to this chapter, of the amount of the motor vehicle fuel, alternate fuel or general aviation fuel taxes, or any penalties imposed in connection therewith, due from the licensee, shall constitute prima facie evidence of the claim of the state, and the burden of proof shall be upon the licensee to show that the assessment was incorrect and contrary to law.

78.70(5) (5) No waiver. Nothing in this section shall be construed as forfeiting or waiving any right to collect said tax and penalties by an action upon any bond that may be filed with the department under this chapter, or by suit, or otherwise, and in case such suit, action or proceeding has been instituted for the collection of said tax, such suit, action or other proceeding shall not be construed as waiving any other right herein provided.

78.70(6) (6) Personal liability. Any officer, employee, fiduciary or agent who is responsible for paying taxes, interest, penalties or other charges under this chapter incurred by another person, as defined in s. 77.51 (10), is personally liable for those taxes, interest, penalties or other charges. Sections 71.88 (1) (a) and (2) (a), 71.89 and 71.90, as they apply to appeals of income or franchise tax assessments, apply to appeals of assessments under this subsection.

78.70(7) (7) Statutes of limitations. Section 71.77 as it applies to the taxes under ch. 71 applies to the taxes under this chapter, except that the period during which notice of an additional assessment shall be given begins on the due date of the report under this chapter.

78.70 History History: 1977 c. 29, 418; 1981 c. 20; 1985 a. 29 ss. 1502, 3202 (46) (d); 1987 a. 312 ss. 8, 17; 1991 a. 39, 316; 1993 a. 16; 1995 a. 233, 408; 1997 a. 237.

78.71 78.71 Motor vehicle fuel, general aviation fuel and alternate fuels taxes are preferred claims.

78.71(1) (1) If the property of any licensee is seized upon any mesne or final process of any court of this state, or when the business of any licensee is suspended by the action of creditors or put into the hands of any assignee, receiver or trustee, all motor vehicle fuel, general aviation fuel or alternate fuels tax moneys and penalties due the state from the licensee shall be considered preferred claims and the state shall be a preferred creditor and shall be paid in full.

78.71(2) (2) If the property of any consumer of motor vehicle fuel, general aviation fuel or alternate fuel is seized upon any mesne or final process of any court of this state, or when the business of any consumer of motor vehicle fuel, general aviation fuel or alternate fuel is suspended by the action of creditors or put into the hands of any assignee, receiver or trustee, all amounts due any licensee for motor vehicle fuel, general aviation fuel or alternate fuels taxes paid to the state by the licensee on motor vehicle fuel, general aviation fuel or alternate fuel purchased from it by the consumer shall be considered preferred claims and the licensee shall be a preferred creditor to that extent and shall be paid in full for such taxes paid.