Chapter 78

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.

78.71 History History: 1981 c. 20; 1993 a. 16.

78.72 78.72 Preference given actions to enforce this chapter. All proceedings and hearings, civil or criminal, arising under this chapter shall be given preference.

78.72 History History: 1983 a. 219.

78.73 78.73 Criminal penalties.

78.73(1) (1) Acts forbidden. Any person who does any of the following may be fined not more than $500 or imprisoned not more than 6 months or both:

78.73(1)(a) (a) Displays, or causes or permits to be displayed, or has possession of, any license knowing the same to be fictitious, or to have been suspended, canceled, revoked or altered;

78.73(1)(b) (b) Lends to, or knowingly permits the use by, one not entitled thereto, any license issued to the person lending it or permitting it to be used;

78.73(1)(c) (c) Displays or represents as the person’s own any license not issued to the person displaying the same;

78.73(1)(d) (d) Uses a false or fictitious name or gives a false or fictitious address in any application or form required by this chapter, or otherwise commits a fraud in any application, record, report or claim for refund;

78.73(1)(dm) (dm) Presents an exemption certificate under s. 78.01 (2) (e) or obtains motor vehicle fuel tax-free under s. 78.01 (2) (f), and uses the fuel obtained tax-free on the basis of the certificate in a manner other than the manner for which the certificate was issued;

78.73(1)(dr) (dr) Uses motor vehicle fuel purchased tax-free and obtained from the storage tank of a general aviation fuel dealer, as defined in s. 78.55 (4), in a motor vehicle for highway purposes;

78.73(1)(e) (e) Uses any false or fictitious name or address when purchasing or obtaining motor vehicle fuel or general aviation fuel or alternate fuels from any source for sale or consumption in this state; or

78.73(1)(f) (f) Violates a provision of this chapter, except as provided in pars. (a) to (e) and subs. (2) to (4).

78.73(2) (2) Selling without a license. Each day in which any person acts as a licensee without a license shall constitute a separate offense, and for each such offense may be fined not more than $5,000 or imprisoned in the county jail for not more than one year or both.

78.73(3) (3) Attempt to assign license. Any person who assigns or attempts to assign a license issued under this chapter, or who fails to display the license conspicuously at the person’s place of business, shall be fined not more than $25 or imprisoned for not more than 10 days for each such offense.

78.73(4) (4) Failure to report or pay. Any person who fails or refuses to make a report or payment as provided in this chapter shall be fined not more than $5,000 or imprisoned in the county jail for not more than one year or both.

78.73 History History: 1981 c. 20; 1985 a. 153; 1987 a. 27; 1989 a. 31; 1991 a. 316; 1993 a. 16; 1997 a. 27, 237.

78.74 78.74 Remedies and penalties are cumulative. All of the remedies, prosecutions and penalties under this chapter shall be cumulative; no action for recovery of one penalty shall be a bar to or affect the recovery of any other penalty or be a bar to any criminal prosecution.

78.75 78.75 Refund; procedure; claim unassignable.

78.75(1) (1) In this section, “invoice” means the top copy and not a carbon copy.

78.75(1m) (1m) 

78.75(1m)(a) (a)

78.75(1m)(a)1. 1. Except as provided under subds. 2. and 2m., a person who uses motor vehicle fuel or an alternate fuel upon which has been paid the tax required under this chapter, for the purpose of operating a taxicab for the transportation of passengers, for the purpose of operating a motorboat exempt from registration as a motor vehicle under s. 341.05 (20) on privately owned land or for any purpose other than operating a motor vehicle upon the public highways, shall be reimbursed and repaid the amount of the tax paid upon making and filing a claim if the claim is for the tax on 100 gallons or more.

78.75(1m)(a)2. 2. A person who uses motor vehicle fuel or an alternate fuel upon which has been paid the tax required under this chapter for the purpose of operating a snowmobile, as defined under s. 340.01 (58a), an aircraft, as defined under s. 78.55 (2), or a motorboat, as defined under s. 30.50 (6), unless the motorboat is not a recreational motorboat, may not be reimbursed or repaid the amount of tax paid.

78.75(1m)(a)2m. 2m. A person who uses motor vehicle fuel or an alternate fuel upon which has been paid the tax required under this chapter for the purpose of operating an all-terrain vehicle, as defined under s. 340.01 (2g), or a utility terrain vehicle, as defined under s. 23.33 (1) (ng), may not be reimbursed or repaid the amount of tax paid unless the all-terrain vehicle or utility terrain vehicle is registered for private use under s. 23.33 (2) (d) or (2g). A person who uses motor vehicle fuel or an alternate fuel upon which has been paid the tax required under this chapter for the purposes of operating a limited use off-highway motorcycle, as defined in s. 23.335 (1) (o), that is registered under s. 23.335 (3) may not be reimbursed or repaid the amount of tax paid unless the off-highway motorcycle is registered for private use under s. 23.335 (3) (a).

78.75(1m)(a)3. 3. Claims under subd. 1. shall be made and filed. The forms shall indicate that refunds are not available for motor vehicle fuel or alternate fuels used for motorboats, except motorboats exempt from registration as motor vehicles under s. 341.05 (20) and motorboats that are not recreational motorboats, or motor vehicle fuel or alternate fuels used for snowmobiles and that the estimated snowmobile motor vehicle fuel or alternate fuels tax payments are used for snowmobile trails and areas. The forms shall indicate that refunds are not available for motor vehicle fuel or alternate fuels used for all-terrain vehicles or utility terrain vehicles unless the vehicle is registered for private use under s. 23.33 (2) (d) or (2g) and shall indicate that estimated all-terrain vehicle or utility terrain vehicle motor vehicle fuel or alternate fuels tax payments are used for all-terrain vehicle trails and areas. The forms shall indicate that refunds are not available for motor vehicle fuel or alternate fuels used for limited use off-highway motorcycles unless the motorcycle is registered for private use under s. 23.335 (3) (a) and shall indicate that estimated off-highway motorcycle fuel or alternate fuels tax payments are used for off-highway motorcycle trails and areas. The forms shall also indicate that refunds are not available for the tax on less than 100 gallons. The department shall distribute forms in sufficient quantities to each county clerk.

78.75(1m)(b) (b) Such claim shall be filed not later than 12 months after the date of purchase of the motor vehicle fuel or alternate fuel, or the claim shall not be allowed.

78.75(1m)(c) (c) The seller, upon request, shall furnish each purchaser with an invoice prepared at the time of delivery, and the purchaser shall send that invoice or a list of purchases to the department when making a claim for refund. The invoice shall contain the following information: date of sale; name and address of seller; name of purchaser, which name must be the name of the claimant; number of gallons purchased; the type of fuel; the purchase price; and the amount of Wisconsin motor vehicle fuel or alternate fuels tax as a separate item. If the purchaser sends invoices to the department, the purchaser shall send a separate invoice for each sale and delivery, and the invoice shall be legibly written and shall comply with the foregoing requirements. If the purchaser sends a list of purchases to the department, the purchaser shall retain for 4 years the invoices that are evidence of those purchases and allow the department to inspect them. The claim shall state whether or not the applicant owns an automobile or truck or any other motor-driven machinery or appliance which consumes motor vehicle fuel or an alternate fuel; the total number of gallons of motor vehicle fuel or alternate fuel purchased; the number of gallons of such motor vehicle fuel or alternate fuel purchased on which refund is claimed; a detailed statement of the consumption of such motor vehicle fuel or alternate fuel on which a refund is claimed, describing the machinery, equipment or appliance in which consumed, giving the serial or manufacturer’s number of the motor and the approximate number of gallons consumed in each; or if such fuel were not consumed in any such machinery, equipment or appliance, then a description of the purposes for which the fuel was consumed with the approximate number of gallons consumed for each purpose; a statement whether or not deduction has been made for motor vehicle fuel or alternate fuels consumed in applicant’s automobile or truck; and such other information as the department deems necessary.

78.75(1m)(e) (e) On the filing of a claim under par. (a), accompanied by the invoice or list of purchases, the department shall determine the amount of refund due. The department may make such investigation of the correctness of the facts stated in such claim as it deems necessary and may require a claimant to submit records to substantiate the claim. When the department has approved such claim, it shall reimburse the claimant out of the moneys collected under this chapter to be used for carrying out this section. No refund shall be claimed by or allowed to any person on account of any motor vehicle fuel or alternate fuel carried from this state in the ordinary fuel tank of a motor vehicle.