Chapter 71

71.70 History History: 1987 a. 312; 1989 a. 31; 1991 a. 39; 1997 a. 27, 291; 2017 a. 59.

71.70 Cross-reference Cross-reference: See also s. Tax 2.04, Wis. adm. code.

71.71 71.71 Wages subject to withholding.

71.71(1) (1) Statement employer must furnish to employee.

71.71(1)(a) (a) Every person, partnership or limited liability company required to deduct and withhold from an employee under the general withholding provisions of subch. X shall furnish to each such employee in respect of the remuneration paid by such person, partnership or company to such employee during the calendar year, on or before January 31 of the succeeding year, or if his or her employment is terminated before the close of any such calendar year on the day on which the last payment of remuneration is made, 2 legible copies of a written statement showing the following:

71.71(1)(a)1. 1. The name of such person, partnership or limited liability company, and that person’s, partnership’s or company’s Wisconsin income tax identification number, if any.

71.71(1)(a)2. 2. The name of the employee and the employee’s social security number, if any, or other number required by the department.

71.71(1)(a)3. 3. The total amount of wages as defined in s. 71.63 (6).

71.71(1)(a)4. 4. The total amount deducted and withheld as required by the general withholding provisions of subch. X.

71.71(1)(b) (b) The employee shall furnish the department of revenue one copy of such written statement along with his or her return for the year.

71.71(2) (2) Statement employer must file. Every person required to deduct and withhold from an employee under subch. X shall file, in respect to remuneration paid by the person to the employee during the calendar year, on or before January 31 of the succeeding year, one copy of the statement under sub. (1), except that, if the statement includes a number other than the employee’s social security number, the statement filed shall include the employee’s social security number.

71.71 History History: 1987 a. 312; 1991 a. 39; 1993 a. 112; 1997 a. 27; 2017 a. 59, 324.

71.71 Cross-reference Cross-reference: See also s. Tax 2.04, Wis. adm. code.

71.715 71.715 Wages not subject to withholding.

71.715(1) (1) Statement employer must furnish to employee.

71.715(1)(a) (a) Every employer, as defined in s. 71.63 (3), that pays in any calendar year wages, as defined in s. 71.63 (6), to an employee, as defined in s. 71.63 (2), from which the employer was not required to deduct and withhold from the employee under the general withholding provisions of subch. X., shall furnish to the employee, with respect to the wages paid by the employer to the employee during a calendar year, on or before January 31 of the year following the year in which the wages are paid, or, if the employee’s employment is terminated before the close of a calendar year, on the day on which the last payment of wages is made, 2 legible copies of a written statement showing all of the following:

71.715(1)(a)1. 1. The name of the employer and the employer’s Wisconsin income tax identification number, if any.

71.715(1)(a)2. 2. The name of the employee and the employee’s social security number, if any, or other number required by the department.

71.715(1)(a)3. 3. The total amount of wages the employer paid in the calendar year to the employee.

71.715(1)(b) (b) An employee that receives a statement under par. (a) shall furnish the department one copy of the statement along with the employee’s return for the year.

71.715(2) (2) Statement employer must file. Every employer required to furnish a statement under sub. (1) (a) shall file, with respect to the wages paid by the employer to an employee as described in sub. (1) during the calendar year, on or before January 31 of the succeeding year, one copy of the statement, except that, if the statement includes a number other than the employee’s social security number, the statement filed shall include the employee’s social security number.

71.715 History History: 2017 a. 59, 324.

71.72 71.72 Statement of nonwage payments. Every resident of this state and every nonresident carrying on activities within this state, whether taxable or not under this chapter, who pays in any calendar year for services performed within this state by an individual remuneration that is excluded from the definition of wages in s. 71.63 (6), in the amount of $600 or more, shall, on or before January 31 of the year following the year in which the payments are made, file a statement disclosing the name of the payor, the name and address of the recipient of the payment, and the total amount paid in the calendar year to the recipient. The person who pays for the services shall, on or before that deadline, furnish the recipient of the payment with a copy of the statement. In any case in which an individual receives wages, as defined in s. 71.63 (6), and also remuneration for services which remuneration is excluded from such definition, both from the same payor, the wages and the excluded remuneration shall both be reported in the statement required by s. 71.71 (2) in a manner satisfactory to the department, regardless of the amount of the excluded remuneration.

71.72 History History: 1987 a. 312; 1991 a. 39; 1997 a. 27, 291; 2017 a. 59.

71.72 Cross-reference Cross-reference: See also s. Tax 2.04, Wis. adm. code.

71.73 71.73 General provisions.

71.73(1) (1) Penalties. Unless specifically provided in this subchapter, the penalties under subch. XIII apply for failure to comply with this subchapter, unless the context requires otherwise.

71.73(2) (2) Extensions. If a person applies for an extension and shows good cause why an extension should be granted, the department may grant a 30-day extension for filing a rent and royalty statement under s. 71.70, a wage statement under s. 71.71, a wage statement under s. 71.715, or a statement of nonwage payments under s. 71.72.

71.73 History History: 1987 a. 312; 1991 a. 39; 1997 a. 291; 2017 a. 59.

subch. XII of ch. 71 SUBCHAPTER XII

ADMINISTRATIVE PROVISIONS APPLICABLE
TO ALL ENTITIES

71.738 71.738 Definitions. In this subchapter:

71.738(1m) (1m) “Department” means the department of revenue.

71.738(2m) (2m) “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.

71.738(3) (3) “Last day prescribed by law” means the unextended due date of the return or of the claim made under subch. VIII.

71.738(3d) (3d) “Pass-through entity” means a partnership, a limited liability company, a tax-option corporation, an estate, or a trust that is treated as a pass-through entity for federal income tax purposes.

71.738(3e) (3e) “Pass-through item” means a tax-option item under s. 71.34 (3) or an item of income, gain, loss, deduction, credit, or any other item that originates with a pass-through entity and is required to be reported by one or more pass-through members under this chapter.

71.738(3f) (3f) “Pass-through member” means a person who is a partner in a partnership, member of a limited liability company, shareholder in a tax-option corporation, beneficiary of an estate or a trust, or any other person whose tax liability under this chapter is determined in whole or in part by taking into account the person’s share of pass-through items, directly or indirectly, from a pass-through entity.

71.738(4) (4) “Sign” means write one’s signature or, if the department prescribes another method of authenticating, use that other method.

71.738 History History: 1995 a. 428; 1997 a. 27; 2005 a. 362; 2007 a. 20; 2021 a. 262.

71.74 71.74 Department audits, additional assessments and refunds.

71.74(1) (1) Office audit. The department shall, as soon as practicable, office audit such returns as it deems advisable and if it is found from such office audit that a person has been over or under assessed, or found that no assessment has been made when one should have been made, the department shall correct or assess the income of such person. Any assessment, correction or adjustment made as a result of such office audit shall be presumed to be the result of an audit of the return only, and such office audit shall not be deemed a verification of any item in said return unless the amount of such item and the propriety thereof shall have been determined after hearing and review as provided in s. 71.88 (1) (a) and (2) (a). Such office audit shall not preclude the department from making field audits of the books and records of the taxpayer and from making further adjustment, correction and assessment of income.

71.74(2) (2) Field audit.

71.74(2)(a) (a) Whenever the department deems it advisable to verify any return directly from the books and records of any person, or from any other sources of information, the department may direct any return to be so verified.

71.74(2)(b) (b) For the purpose of ascertaining the correctness of any return or for the purpose of making a determination of the taxable income of any person, the department may examine or cause to be examined by any agent or representative designated by it, any books, papers, records or memoranda bearing on the income of the person, and may require the production of the books, papers, records or memoranda, and require the attendance of any person having knowledge in the premises, and may take testimony and require proof material for its information. Upon such information as it may be able to discover, the department shall determine the true amount of income received during the year or years under investigation.

71.74(2)(c) (c) If it appears upon such investigation that a person has been over or under assessed, or that no assessment has been made when one should have been made, the department shall make a correct assessment in the manner provided in this chapter.

71.74(3) (3) Default assessment. Any person required to file an income or franchise tax return, who fails, neglects or refuses to do so within the time prescribed by this chapter or files a return that does not disclose the person’s entire net income, shall be assessed by the department according to its best judgment.

71.74(4) (4) Assessment for failure of natural persons and fiduciaries to file information returns. The department may assess as an addition to taxable income the amount of deductions taken in arriving at federal adjusted gross income or federal taxable income by natural persons and fiduciaries for wages, rent or royalties, upon failure to file information returns concerning such payments where required under s. 71.65 (1) and (2) (a) or (b) and 71.70 (1). Such assessments shall be made and reviewed in the same manner as other income tax assessments.

71.74 Cross-reference Cross-reference: See also s. Tax 2.04, Wis. adm. code.

71.74(5) (5) Assessment when prices affect taxable income. When any corporation liable to taxation under this chapter conducts its business in such a manner as either directly or indirectly to benefit the members or stockholders thereof or any person interested in such business, by selling its products or the goods or commodities in which it deals at less than the fair price which might be obtained therefor, or where a corporation, a substantial portion of whose capital stock is owned either directly or indirectly by another corporation, acquires and disposes of the products of the corporation so owning a substantial portion of its stock in such a manner as to create a loss or improper net income, the department may determine the amount of taxable income to such corporation for the calendar or fiscal year, having due regard to the reasonable profits which but for such arrangement or understanding might or could have been obtained from dealing in such products, goods or commodities.

71.74(6) (6) Consolidated statements. For the purpose of this chapter, whenever a corporation which is required to file an income or franchise tax return is affiliated with or related to any other corporation through stock ownership by the same interests or as parent or subsidiary corporations, or whose income is regulated through contract or other arrangement, the department may require such consolidated statements as in its opinion are necessary in order to determine the taxable income received by any one of the affiliated or related corporations or to determine whether the corporations are a unitary business.

71.74(7) (7) Additional assessments against dissolved corporation. If all or substantially all of the business or property of a corporation is transferred to one or more persons and the corporation is liquidated, dissolved, merged, consolidated or otherwise terminated, any tax imposed by this chapter on such corporation may be assessed and collected as prescribed in this section against the transferee or transferees of such business or property. Notice shall be given to such transferee or transferees under sub. (11) within the time specified in s. 71.77 irrespective of any other limitations imposed by law. If such corporation has dissolved, such notice may be served on any one of the last officers or members of the board of directors of such corporation.

71.74(8) (8) Adjustment of credits.

71.74(8)(a) (a) If an audit of a claim for a credit under s. 71.07, 71.28 or 71.47 or subch. VIII or IX indicates that an incorrect claim was filed, the department shall make a determination of the correct amount and notify the claimant of the determination and the reasons therefor under sub. (11) within 4 years of the last day prescribed by law for filing the claim. If the claim has been paid, or credited against income or franchise taxes otherwise payable, the credit shall be reduced or canceled, and the proper portion of any amount paid shall be similarly recovered by assessment as income or franchise taxes are assessed.

71.74(8)(b) (b) If a claim for a credit under s. 71.07, 71.28 or 71.47 or subch. VIII or IX is false or excessive and was filed with fraudulent intent, the claim shall be disallowed in full and, if the claim has been paid or a credit has been allowed against income or franchise taxes otherwise payable, the credit shall be canceled and the amount paid may be recovered by assessment as income or franchise taxes are assessed.

71.74(8)(c) (c) If a claim for a credit under s. 71.07, 71.28 or 71.47 or subch. VIII or IX is excessive and was negligently prepared, 10 percent of the corrected claim shall be disallowed and, if the claim has been paid or credited against income or franchise taxes otherwise payable, the credit shall be reduced or canceled and the proper portion of any amount paid shall be similarly recovered by assessment as income or franchise taxes are assessed.

71.74(8)(d) (d) If a claim for a state historic rehabilitation credit under s. 71.07 (9r) is false or excessive, the department shall disallow the claim in full. If a credit has been allowed against income taxes otherwise payable, the credit shall be canceled and the amount may be recovered by assessment as income taxes are assessed. Notwithstanding par. (a) and s. 71.77, the department shall notify the claimant of the determination and shall give reasons for the disallowance under sub. (11) within 4 years after the date that the state historical society notifies the department that the preservation or rehabilitation is not in compliance with s. 71.07 (9r) (b) 3. b. or 4., but that notification must be made within 6 years after the date that the physical work of construction, or destruction in preparation for construction, begins.

71.74(9) (9) Liability may be assessed to more than one person. If the department determines that a liability exists under this chapter and that the liability may be owed by more than one person, the department may assess the entire amount to each person, specifying that it is assessing in the alternative.

71.74(10) (10) Notice to taxpayer of adjustment. The department shall notify the taxpayer, as provided in sub. (11), of any adjustment, correction and assessment made under sub. (1).

71.74(11) (11) Notice of additional assessment. The department shall notify the taxpayer in writing of any additional assessment by office audit or field investigation. The department shall serve that notice as provided in s. 73.03 (73m). In the case of joint returns, notice of additional assessment may be a joint notice, and service on one spouse is proper notice to both spouses. If the spouses have different addresses at the time the department serves the notice of additional assessment and if either spouse notifies the department in writing of those addresses, the department shall serve a duplicate of the original notice on the spouse who has the address other than the address to which the department sent the original notice, if no request for a redetermination or a petition for review has been commenced or finalized. For the spouse who did not receive the original notice, redetermination and appeal rights begin upon the service of a duplicate notice. If the taxpayer is a corporation and the department is unable to serve that taxpayer as provided in s. 73.03 (73m), the department may serve the notice by publishing a class 3 notice, under ch. 985, in the official state newspaper.

71.74(12) (12) Taxes delinquent after due date. Additional income or franchise taxes assessed under subs. (1) to (5), (7) and (8) shall become delinquent if not paid on or before the due date stated in the notice to the taxpayer.

71.74(13) (13) Collection of additional tax and issuance of refunds.

71.74(13)(a) (a) If the tax is increased the department shall proceed to collect the additional tax in the same manner as other income or franchise taxes are collected. If the income or franchise taxes are decreased upon direction of the department the secretary of administration shall refund to the taxpayer such part of the overpayment as was actually paid in cash, and the certification of the overpayment by the department shall be sufficient authorization to the secretary of administration for the refunding of the overpayment. No refund of income or franchise tax shall be made by the secretary of administration unless the refund is so certified. The part of the overpayment paid to the county and the local taxation district shall be deducted by the secretary of administration in the secretary’s next settlement with the county and local treasurer.

71.74(13)(b) (b) No action or proceeding whatsoever shall be brought against the state or the secretary of administration for the recovery, refund, or credit of any income or surtaxes; except in case the secretary of administration shall neglect or refuse for a period of 60 days to refund any overpayment of any income or surtaxes certified, the taxpayer may maintain an action to collect the overpayment against the secretary of administration so neglecting or refusing to refund such overpayment, without filing a claim for refund with the secretary of administration, provided that such action shall be commenced within one year after the certification of such overpayment.

71.74(14) (14) Additional remedy to collect tax. The department may also proceed under s. 71.91 (5) for the collection of any additional assessment of income or franchise taxes or surtaxes, after notice thereof has been given under sub. (11) and before the same shall have become delinquent, when the department has reasonable grounds to believe that the collection of such additional assessment will be jeopardized by delay. In such cases, the department shall give notice of the intention to so proceed to the taxpayer as provided in s. 73.03 (73m), and the warrant of the department shall not issue if the taxpayer within 10 days after such notice furnishes a bond in such amount, not exceeding double the amount of the tax, and with such sureties as the department shall approve, conditioned upon the payment of so much of the additional taxes as shall finally be determined to be due, together with interest thereon as provided by s. 71.82 (1) (a). Nothing in this subsection affects the review of additional assessments provided by ss. 71.88 (1) (a) and (2) (a), 71.89 (2), 73.01, and 73.015, and any amounts collected under this subsection shall be deposited with the department and disbursed after final determination of the taxes as are amounts deposited under s. 71.90 (2).

71.74(15) (15) Payments. All nondelinquent payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.

71.74 History History: 1987 a. 312; 1989 a. 31; 1991 a. 39; 1993 a. 205; 1997 a. 27; 2003 a. 33; 2007 a. 20; 2009 a. 28; 2017 a. 324.

71.74 Annotation The investigative power of the Department of Revenue under s. 71.11 (20) (b) [now sub. (2)] is similar to the power of the Internal Revenue Service under 26 USC 7602. A taxpayer subpoenaed by the department has limited discovery rights under Genser, 595 F.2d 146 (1979). State v. Beno, 99 Wis. 2d 77, 298 N.W.2d 405 (Ct. App. 1980).

71.745 71.745 Pass-through entity audits, additional assessments and refunds at the entity level.

71.745(1) (1) General applicability. Unless specifically provided in subs. (2) to (9), additional assessments and refunds of pass-through entities and pass-through members shall follow the provisions under this chapter. This section shall not apply for taxable years for which a pass-through entity made an election under s. 71.21 (6) (a) or 71.365 (4m) (a) that the pass-through entity did not revoke under s. 71.21 (6) (c) or 71.365 (4m) (c). The department shall not make additional assessments and refunds under this section to an entity treated as a disregarded entity described under U.S. Treasury Regulation 301.7701-2 or to a grantor trust the income of which is reportable under the Internal Revenue Code by the grantor of the trust or by any person other than the trust.

71.745(2) (2) Audit assessments and refunds. Except as provided in sub. (9), for the purpose of performing audit assessments and issuing refunds, the department may do all of the following:

71.745(2)(a) (a) Assess and collect additional tax from a pass-through entity on income otherwise reportable by its pass-through members. In computing the tax to assess to a pass-through entity under this paragraph, the department shall apply the highest tax rate under s. 71.06 on income otherwise reportable by pass-through members that are individuals, estates, or trusts with a direct interest in the pass-through entity and apply the highest tax rate under s. 71.27 on income otherwise reportable by pass-through members, other than individuals, estates, or trusts, with a direct interest in the pass-through entity.

71.745(2)(b) (b) Direct the secretary of administration to refund to a pass-through entity that part of an overpayment paid by the pass-through entity and not by the entity’s pass-through members. Pass-through members may claim overpayments not paid by the pass-through entity within one year after the date the determination of the overpayment becomes final or before the end of the period specified under s. 71.75, whichever is later.

71.745(3) (3) Adjustment of credits. Except as provided in sub. (9), for the purpose of adjusting credits, the department may do all of the following:

71.745(3)(a) (a) Assess an adjustment to reduce a credit under s. 71.07, 71.28, or 71.47 to a pass-through entity if the pass-through entity previously computed the credit and reported the credit to its pass-through members. An assessment made under this paragraph may be reduced by the tax effect from the modifications described under ss. 71.05 (6) (a) 15. and 25., 71.21 (4), 71.26 (2) (a) 4. and 11., 71.34 (1k) (g) and (m), and 71.45 (2) (a) 10., if the modification occurs in a taxable year under review, except that the modification shall not pass through to nor be claimed by the pass-through members.

71.745(3)(b) (b) Assess an adjustment to increase a credit under s. 71.07, 71.28, or 71.47 to offset additional tax assessed to a pass-through entity under sub. (2). Any excess credit not used to offset additional tax may be claimed by the pass-through members within one year from the date the determination of the adjustment becomes final or before the end of the period specified under s. 71.75, whichever is later.

71.745(4) (4) Adjustments attributable to members. Adjustments to pass-through items under this section are attributable to each pass-through member in a manner, and for the taxable year, that is consistent with the treatment of the pass-through items if a determination was not made under this section.

71.745(5) (5) Statutes of limitations, interest, and penalties. Statutes of limitations, interest, and penalties under ss. 71.77, 71.82, and 71.83 apply to determinations made under this section without regard to the action or inaction of pass-through members.

71.745(6) (6) Contested adjustments.

71.745(6)(a) (a) Except as provided in par. (b), a determination made by the department under this section is final and conclusive upon receipt by the pass-through entity. Pass-through members shall concede to the accuracy of and shall be bound by a determination made under this section. A pass-through entity shall timely notify all pass-through members of any administrative or judicial proceeding regarding the determination of any pass-through item.

71.745(6)(b) (b) A pass-through entity aggrieved by a determination made by the department under this section may, within 60 days after receipt of the determination, petition the department for redetermination. The department shall make a redetermination on the petition within 6 months after the date on which the petition is filed. If no timely petition for redetermination is filed with the department, the department’s determination shall be final and conclusive.

71.745(7) (7) Liability may be assessed to more than one person. If the department determines that a liability exists under this chapter and that the liability may be owed by more than one pass-through member of a pass-through entity, the department may assess any pass-through member of the pass-through entity for their allocated portion of additional tax otherwise due under this chapter.

71.745(8) (8) Election to reduce assessment. Within 60 days after the department’s determination under this section becomes final, a pass-through entity may elect, in a manner prescribed by the department, to have the pass-through entity’s assessment under this section reduced for pass-through items reported and paid by pass-through members within 60 days of the election. A pass-through entity shall furnish to the department and its pass-through members the adjustments to the each pass-through member’s proportionate share of pass-through items for each taxable year.

71.745(9) (9) Election to preclude assessment. Within 60 days after the department’s determination under this section becomes final, a pass-through entity with 25 or fewer pass-through members for all years under review may elect, in a manner prescribed by the department, to require the department to make an assessment to each of its pass-through members. This subsection does not apply to a pass-through entity if one or more of its pass-through members is a pass-through entity for any year under review. The election under this subsection does not relieve a representative designated by the pass-through entity under s. 71.80 (26) (a) of the representative’s duties under s. 71.80 (26) (b) 2., 3., and 6.

71.745 History History: 2021 a. 262; s. 35.17 correction in (1), (2) (intro.), (5).

71.75 71.75 Claims for refund.

71.75(1) (1) Except as provided in ss. 49.855, 71.77 (5) and (7) (b) and 71.935, the provisions for refunds and credits provided in this section shall be the only method for the filing and review of claims for refund of income and surtaxes, and no person may bring any action or proceeding for the recovery of such taxes other than as provided in this section.

71.75(2) (2) With respect to income taxes and franchise taxes, except as otherwise provided in subs. (5) and (9) and ss. 71.30 (4) and 71.77 (5) and (7) (b), refunds may be made if the claim therefor is filed within 4 years of the unextended date under this section on which the tax return was due.

71.75(3) (3) No refund shall be made on the over-withholding or overpayment of estimated income taxes or franchise taxes with respect to any person for any taxable year in an amount less than $1.