Tax 11.33 NoteNote: Refer to s. Tax 11.35 regarding the occasional sales exemption for nonprofit organizations. Tax 11.33(5)(5) Sales which are not exempt occasional sales. Sales which are not exempt occasional sales, except as provided in sub. (4), include: Tax 11.33(5)(a)(a) Sales by a person who holds or is required to hold a seller’s permit. Tax 11.33 NoteExample: Sales of used equipment by a retail store or vending machine retailer are not occasional sales and would be subject to sales or use tax.
Tax 11.33(5)(b)(b) Sales of a business or the assets of a business when the seller holds or is required to hold a seller’s permit. The tax applies to the portion of the sales price reasonably attributable to the taxable personal property such as equipment, furniture and fixtures. Tax 11.33 NoteExample: The sale by a sole proprietor holding a seller’s permit of a motor vehicle used in the sole proprietor’s business is taxable unless it qualifies as an exempt occasional sale under s. Tax 11.33 (4) (a) 1. or 2. Tax 11.33(5)(c)(c) Sales of motor vehicles, aircraft, boats, recreational vehicles as defined in s. 340.01 (48r), Stats., snowmobiles, trailers, semitrailers, all-terrain vehicles, utility terrain vehicles, and off-highway motorcycles. Unless exempt, a use tax or sales tax pursuant to s. Tax 11.14 (2) (c) shall be paid by the purchaser at the time the motor vehicle, aircraft, boat, recreational vehicle as defined in s. 340.01 (48r), Stats., snowmobile, trailer, semitrailer, all-terrain vehicle, utility terrain vehicle, or off-highway motorcycle is registered or titled within Wisconsin. Tax 11.33(5)(d)(d) Sales made by persons who hold themselves out to the public as engaged in business, even though their sales may be few and infrequent. This includes the sales of works of art, handmade articles, antiques or used property by artists or others who are pursuing a vocation or part-time business as a seller of this property. Tax 11.33(5)(e)(e) Sales of bingo supplies to players or the sale, rental or use of regular bingo cards, extra regular cards and special bingo cards. Tax 11.33(5)(f)(f) Sales by persons engaged primarily in the business of making nontaxable sales of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., such as manufacturers and wholesalers. Since these persons are in the business of selling tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., the mere fact that only a small fraction of their total sales are taxable retail sales does not make these sales exempt occasional sales. Tax 11.33 NoteNote: The interpretations in s. Tax 11.33 are effective under the general sales and use tax law on and after September 1, 1969, except: (a) The exemption in sub. (3) (b) became effective March 1, 1979; (b) Non-retailer sales of all-terrain vehicles as described in sub. (4) (c) became taxable and the sale of an all-terrain vehicle as described in sub. (3) (c) and (d) became exempt effective September 1, 1987, pursuant to 1987 Wis. Act 27; (c) The exemption for the sale of a business or business assets in sub. (3) (e) became effective May 17, 1988, pursuant to 1987 Wis. Act 399; (d) The exemption for transfers of motor vehicles, boats, etc., to in-laws became effective August 15, 1991, pursuant to 1991 Wis. Act 39; (e) The occasional sales exemption for 5 or fewer auctions became effective January 1, 2000, pursuant to 1999 Wis. Act 9; (f) The term “mobile home” was changed to “recreational vehicle, as defined in s. 340.01 (48r), Stats.” effective January 1, 2008, pursuant to 2007 Wis. Act 11; (g) The change of the term “gross receipts” to “sales price” and the separate impositions of tax on coins and stamps sold above face value under s. 77.52 (1) (b), Stats., certain leased property affixed to real property under s. 77.52 (1) (c), Stats., and digital goods under s. 77.52 (1) (d), Stats., became effective October 1, 2009, pursuant to 2009 Wis. Act 2; and (h) The threshold for exempt occasional sales was changed to less than $2,000 in annual sales, effective for sales beginning January 1, 2018, pursuant to 2017 Wis. Act 59. Tax 11.33 HistoryHistory: Cr. Register, June, 1991, No. 426, eff. 7-1-91; am. (2), (4) (c) and (g), Register, April, 1993, No. 448, eff. 5-1-93; am. (4) (a) and (g), Register, August, 1999, No. 524, eff. 9-1-99; EmR0924: emerg. am. (2), (4) (a) to (d), (f), (g), (5) (b) to (d) and (f), eff. 10-1-09; CR 09-090: am. (2), (4) (a) to (d), (f), (g), (5) (b) to (d) and (f) Register May 2010 No. 653, eff. 6-1-10; CR 10-094: am. (4) (c) Register November 2010 No. 659, eff. 12-1-10; CR 12-014: r. and recr. (4), am. (5) (title), cr. (5) (b) (Example) Register August 2012 No. 680, eff. 9-1-12; CR 14-006: am. (4) (f) (Example 1) Register August 2014 No. 704, eff. 9-1-14; CR 16-053: am. (4) (a) (intro.), 3., (5) (c) Register June 2018 No. 750, eff. 7-1-18; CR 19-112: am. (4) (a) (intro.), 3., (5) (c) Register June 2020 No. 774, eff. 7-1-20; CR 20-018: am. (4) (f), (Example 1), (Example 2) Register July 2021 No. 787, eff. 8-1-21. Tax 11.34Tax 11.34 Occasional sales exemption for sale of a business or business assets. Tax 11.34(2)(a)(a) The sale of business assets, consisting of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., by a person who holds or is required to hold a seller’s permit at the time of the sale is subject to sales tax, except as provided in sub. (3) (c). Tax 11.34(2)(b)2.2. A single transaction or series of transactions prior to termination of a business. Tax 11.34(2)(b)3.3. Piecemeal sales, whether part of a continuing business or prior to termination. Tax 11.34(2)(c)(c) The tax does not apply to merchandise inventory sold to another retailer who purchases it for resale and sells it in the regular course of that retailer’s business. Tax 11.34(3)(a)(a) Pursuant to s. 77.51 (9) (a) and (am), Stats., a person holding or required to hold a seller’s permit at the time of disposition of business assets may not claim that a sale of a business asset is an occasional sale, except as provided in par. (b). Tax 11.34(3)(b)(b) A sale, other than a sale described in par. (bg) or (br), is exempt from sales and use tax as an occasional sale if all of the following conditions are met: Tax 11.34(3)(b)1.1. The sale is of personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., other than inventory held for sale, previously used by a person to conduct a trade or business at a location. Tax 11.34(3)(b)2.2. The sale occurs after the person ceased actively operating in the regular course of business as a seller of tangible personal property, items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., or taxable services at that location. Tax 11.34(3)(bg)(bg) A sale of a motor vehicle, snowmobile, recreational vehicle as defined in s. 340.01 (48r), Stats., trailer, semitrailer, all-terrain vehicle, utility terrain vehicle, off-highway motorcycle, or aircraft that is registered or titled in Wisconsin or required to be registered or titled in Wisconsin, is subject to tax unless s. Tax 11.33 (4) (a) 1. or 2. apply. Tax 11.34 NoteExample: A business has four business locations in Wisconsin and has ceased all of its business activities at one location. All of the business assets at the location where the business has ceased operating, including one motor vehicle that it used in its business, are being sold. The business is required to continue to hold a seller’s permit for its other three locations. The motor vehicle is sold, but the purchaser is not a person described in s. Tax 11.33 (4) (a) 1. or 2. The sale of the motor vehicle is not an exempt occasional sale of a business asset and the seller is required to collect tax on its sale of the motor vehicle. Tax 11.34(3)(br)(br) A sale of a boat that is registered or titled or required to be registered or titled in Wisconsin or under the laws of the United States is subject to tax unless s. Tax 11.33 (4) (b) 1. applies. Tax 11.34(3)(c)(c) A sale meeting the conditions in par. (b) is exempt from sales or use tax even though the person holds a seller’s permit for one or more other locations. Tax 11.34(3)(d)(d) The holder of a seller’s permit shall wait until ceasing business before requesting the inactivation of the permit because a person may not continue regular business operations without a permit. Tax 11.34(4)(a)(a) A permit holder may request that the department inactivate its seller’s permit by providing the department with the permit holder’s name, address, seller’s permit number, and the date the permit holder ceased business. The request may be made in any one of the following ways: Tax 11.34(4)(a)1.1. A permit holder may make a written request for seller’s permit inactivation. The department shall presume that the request was made at 12:01 a.m. on the postmark date of a postpaid properly addressed envelope, if the envelope and its contents are actually received by the department. If the retailer desires assurance that the department has received the request, the permit holder may use certified mail, return receipt requested. Tax 11.34 NoteNote: A person making a written request for seller’s permit inactivation should send its request to Wisconsin Department of Revenue, P.O. Box 8902, Madison, WI 53708-8902.
Tax 11.34(4)(a)2.2. A permit holder may make a request for seller’s permit inactivation by telephone. The department shall presume that the request was made at 12:01 a.m. on the day the department received the telephone call. Tax 11.34 NoteNote: A person requesting seller’s permit inactivation by telephone should call (608) 266-2776.
Tax 11.34(4)(a)3.3. A permit holder may make a request for seller’s permit inactivation by electronic mail. The department shall presume that the request was made at 12:01 a.m. on the day the department received the electronic mail message. Tax 11.34(4)(a)4.4. A permit holder may make a request for seller’s permit inactivation in person at one of the department’s income, sales and excise tax division offices. The department shall presume that the request was made at 12:01 a.m. on the day the department received the request. Tax 11.34(4)(b)(b) A person who has requested inactivation of its seller’s permit may not qualify for the occasional sale exemption if the person contemplates resumption of those activities which would require that the person hold a seller’s permit, unless the person qualifies for exemption under sub. (3) (b). Tax 11.34(4)(c)(c) The fact that a business ceases operating and no longer conducts its day-to-day sales of tangible personal property, items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., or taxable services does not result in the automatic inactivation of its seller’s permit. Tax 11.34(5)(a)(a) Although a seller’s permit may be deemed to have been delivered and canceled on a postmark date under sub. (4), cancellation shall not be effective prior to the postmark date. Tax 11.34(5)(b)(b) If a permit is delivered to the department for cancellation, the permittee shall immediately qualify for the occasional sales exemption, even though the person contemplates a subsequent sale of fixtures or equipment. The person shall not qualify for the occasional sale exemption if the person contemplates resumption of those activities which would require that person to hold a seller’s permit. Tax 11.34(5)(c)(c) The fact that a business ceases operating and no longer conducts its day-to-day sales of tangible personal property, items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., or taxable services may not result in the automatic cancellation of a seller’s permit. Tax 11.34 NoteNote: Refer to s. Tax 11.33 regarding the general occasional sales exemption. Refer to s. Tax 11.35 regarding the occasional sales exemption for nonprofit organizations. Tax 11.34 NoteNote: The interpretations in s. Tax 11.34 are effective under the general sales and use tax law on and after September 1, 1969, except: (a) The procedure in sub. (3) became effective May 4, 1976, and reflects the Wisconsin supreme court’s decision in Three Lions Supper Club, Ltd. vs. Dept. of Revenue (May 4, 1976), 72 Wis. 2d 546; (b) The exemption described in sub. (2) (b) became effective May 17, 1988, pursuant to 1987 Wis. Act 399; (c) The requirement that a person surrender its seller’s permit within 10 days after the last sale of tangible personal property for the sale of business assets to qualify as an occasional sale was repealed effective August 12, 1993, pursuant to 1993 Wis. Act 16; and (d) The change of the term “gross receipts” to “sales price” and the separate impositions of tax on coins and stamps sold above face value under s. 77.52 (1) (b), Stats., certain leased property affixed to real property under s. 77.52 (1) (c), Stats., and digital goods under s. 77.52 (1) (d), Stats., became effective October 1, 2009, pursuant to 2009 Wis. Act 2. Tax 11.34 HistoryHistory: Cr. Register, June, 1991, No. 426, eff. 7-1-91; am. (2) (b) 2., 3. and (5) (c), r. (3) (b) 3., Register, April, 1994, No. 460, eff. 5-1-94; EmR0924: emerg. am. (2) (a), (3) (b) 1., 2., (4) (a) and (5) (c), eff. 10-1-09; CR 09-090: am. (2) (a), (3) (b) 1., 2., (4) (a) and (5) (c) Register May 2010 No. 653, eff. 6-1-10; CR 10-094: am. (3) (d), r. and recr. (4) Register November 2010 No. 659, eff. 12-1-10; CR 12-014: am. (1), (3) (a), (b) (intro.), cr. (3) (bg), (br) Register August 2012 No. 680, eff. 9-1-12; CR 16-053: am. (3) (bg) Register June 2018 No. 750, eff. 7-1-18; CR 19-112: am. (3) (bg) Register June 2020 No. 774, eff. 7-1-20. Tax 11.35Tax 11.35 Occasional sales by nonprofit organizations. Tax 11.35(1)(1) Scope. This section describes the occasional sales exemption for nonprofit organizations as provided in s. 77.54 (7m), Stats. Tax 11.35(2)(a)(a) “Admission event” means that access to the event involving entertainment is generally restricted to only those who pay a required fee, who make a required donation or who are required to make a purchase of some kind such as a meal or raffle ticket. Tax 11.35(2)(b)(b) “Entertainment” means entertainment provided at an admission event by all persons or groups who are paid in the aggregate more than $10,000 per event by all persons for performing, for reimbursement of expenses or for prize money. Tax 11.35(2)(c)(c) “Nonprofit organization” includes a neighborhood association, church, civic group, garden club, social club or similar organization not operated or organized for profit where no part of the net income inures to the benefit of any private shareholder or individual. A governmental unit described in s. 77.54 (9a), Stats., is considered a “similar organization” for purposes of this paragraph. Tax 11.35(2)(d)(d) “Sales price” means sales price as defined in s. 77.51 (15b), Stats., from all sales in Wisconsin of otherwise taxable tangible personal property, items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., and services after subtracting allowable exemptions. Tax 11.35(3)(3) General. A nonprofit organization shall charge Wisconsin sales tax on sales of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., and taxable services, unless the sales qualify as exempt occasional sales or are otherwise exempt. The occasional sales exemption does not apply to the sales price from the sale of bingo supplies to players or to the sale, rental or use of regular bingo cards, extra regular cards and special bingo cards. Tax 11.35(4)(4) Standards. Under s. 77.54 (7m), Stats., a nonprofit organization shall meet all of the following standards for its sales to qualify as exempt occasional sales: Tax 11.35(4)(b)(b) Entertainment is not involved at an event for which charges by the organization constitute admissions. Tax 11.35(4)(c)(c) The organization does not have and is not required to have a Wisconsin seller’s permit, except for conducting bingo. Tax 11.35(5)(5) Not engaged in a trade or business. A nonprofit organization is not engaged in a trade or business for purposes of sub. (4) (a) if it meets at least one of the following: Tax 11.35(5)(a)(a) Its sales of otherwise taxable tangible personal property, items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., or services or its events occur on 75 days or less during the calendar year, regardless of the dollar amount of sales. For events involving the sales of tickets, only the actual days of the events are counted, not the days of ticket sales. Tax 11.35 NoteExample: A boy scout troop takes orders for Christmas wreaths from August 1 through November 1. The wreaths are delivered by the troop on December 15 and 16. For purposes of determining whether its events meet the 75-day test, the troop should use the days of delivery rather than days orders are taken.
Tax 11.35(5)(b)(b) Its taxable sales price for tangible personal property, items, property, and goods under s. 77.52 (1) (b), (c), or (d), Stats., and taxable services for the calendar year are $50,000 or less, regardless of the number of days on which its sales or events occur. Sales that are nontaxable are not included for purposes of the $50,000 sales price test. Tax 11.35 NoteExamples: 1) A church sells frozen pizzas. Since sales of frozen pizzas are exempt from sales tax, the sales of the frozen pizzas are not counted as part of the sales price for purposes of the $50,000 receipts test.
Tax 11.35 Note2) A nonprofit organization, which sells hundreds of Christmas trees, sells 5 Christmas trees for $100 to a public school. Although Christmas trees are taxable tangible personal property, a public school can purchase tangible personal property and items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., exempt from sales tax. As a result, this $100 exempt sale to the school is not counted as part of the sales price for purposes of the $50,000 receipts test. Tax 11.35(6)(a)(a) For a nonprofit organization’s sales to qualify as exempt occasional sales, entertainment may not be involved at an event for which charges by that nonprofit organization constitute admissions. Tax 11.35 NoteExamples: 1) Four different bands are paid $3,000 each to perform at various times during a 3-day event. There is an admission charge for access to the event. Since the total payment for entertainment ($12,000) exceeds the $10,000 limit in sub. (2) (b), entertainment is deemed to be involved. As a result, receipts from the event are taxable.
Tax 11.35 Note2) Two nonprofit organizations co-sponsor an admission event at which a band is hired to perform. Each organization pays the band $5,500. Since the total payment for entertainment ($11,000) exceeds the $10,000 limit in sub. (2) (b), entertainment is deemed to be involved. As a result, receipts from the event are taxable.
Tax 11.35 Note3) A nonprofit organization sponsors a dinner and dance in the high school gymnasium. The dance band is paid in excess of the $10,000 limit in sub. (2) (b). There is no separate admission charge. However, access to the dance is restricted to those who have purchased the meal. The “meal” charge constitutes an admission charge to an event involving entertainment. Therefore, sales by the nonprofit organization at this event are taxable.
Tax 11.35 Note4) A nonprofit organization holds a pig roast at the city park and hires a band to play at the park gazebo so that patrons, if they so wish, can be entertained while they eat. There is no admission charge and access to the band is open to anyone, whether they purchase the meal or not. Entertainment is deemed not to be involved. Therefore, the sales by the nonprofit organization may still qualify as exempt occasional sales.
Tax 11.35 Note5) Nonprofit Organization A sponsors an admission event at which a band is hired to perform. The band is paid more than $10,000. Nonprofit Organization A allows Nonprofit Organization B, a separate entity, to sell soft drinks and food at the event for consumption on the premises of the event. Although Nonprofit Organization A’s sales at the event do not qualify for the occasional sales exemption, Nonprofit Organization B’s sales at the event may qualify as exempt occasional sales. The admission charge to the event involving entertainment is made by Nonprofit Organization A, not Nonprofit Organization B.
Tax 11.35(6)(b)(b) A nonprofit organization that would otherwise qualify for exempt occasional sales, except for the involvement of entertainment, may obtain a seller’s permit from the department for the day or days involving entertainment, pay the sales tax on that event and request inactivation of its seller’s permit after the event, and still have exempt occasional sales on days not covered by the seller’s permit. Days and receipts from events involving admissions to entertainment for which a seller’s permit was obtained are included with all other sales in determining the 75-day test and the $50,000 taxable receipts test described in sub. (5). A nonprofit organization that obtains a seller’s permit for an event and does not request inactivation of its seller’s permit after the event does not qualify for the occasional sale exemption while the seller’s permit is active, regardless of the number of days and dollar amount of its sales. Tax 11.35 NoteExamples: 1) A nonprofit organization plans 5 events covering 3 days each for the year for a total of 15 days. Entertainment will be involved at one event only. The sales by the nonprofit organization would qualify as exempt occasional sales, except for the involvement of entertainment at the one event. The nonprofit organization may obtain a seller’s permit for the one event involving entertainment and request inactivation of its seller’s permit after the event; thus allowing the other 4 events to qualify as exempt occasional sales.
Tax 11.35 Note2) A nonprofit organization holds several events during the year. For one of the events, the nonprofit organization obtains a seller’s permit because entertainment is involved, collects sales tax on its receipts of $5,000 from that event and requests inactivation of its seller’s permit after the event. Taxable receipts from its other events must be combined with the $5,000 of receipts from the event for which it held a seller’s permit for purposes of determining whether the $50,000 taxable receipts test is met.
Tax 11.35(7)(a)(a) A nonprofit organization is not required to hold a seller’s permit if its sales are exempt from sales and use taxation by meeting the provisions of sub. (4) (a) and (b). However, an organization required to hold a seller’s permit solely for the purpose of conducting bingo games may still qualify for the occasional sales exemption on nonbingo sales if it otherwise qualifies under the provisions of sub. (4) (a) and (b). Tax 11.35(7)(b)(b) If a nonprofit organization holds a seller’s permit in the current year, but intends or believes in good faith that its activities in the following year would qualify as exempt occasional sales except for its holding of a seller’s permit, it may request inactivation of its seller’s permit and its sales in the following year will qualify as exempt occasional sales provided it meets the standards in sub. (4) (a) and (b) in that following year. Tax 11.35 NoteExample: A nonprofit organization has held nineteen 4-day events for a total of 76 days each year for the past 5 years. Receipts were always over $50,000, and there were no admissions to entertainment events. One event has lost money for the past 2 years. The organization intends to discontinue that event for the following year; thus, it may anticipate coming under the 75-day standard and request inactivation of its seller’s permit in good faith.
Tax 11.35(7)(c)(c) If a nonprofit organization did not hold or was not required to hold a seller’s permit or requested inactivation of its seller’s permit in good faith but later, due to unforeseen circumstances, exceeds the standards, only the sales occurring after the standards are exceeded do not qualify as exempt occasional sales and are subject to tax. Tax 11.35 NoteExamples: 1) A church held 73 days of events or sales in the current year. Receipts for the events equaled $70,000 and no entertainment was involved. The church expects to hold the same 73 days of events in the following year. It requests inactivation of its seller’s permit. However, in the middle of the following year, the church garage is destroyed by fire. An additional 4-day event is held to raise funds to help replace the garage. Only the receipts from days 76 and 77, the days exceeding the standard, are subject to sales tax.
Tax 11.35 Note2) A garden club is organized in the current year. The garden club is not required to hold a seller’s permit and does not apply for one. In the following year, the garden club holds 77 days of events with taxable receipts from the events of $70,000. Only receipts from days 76 and 77, the days exceeding the standard, are subject to sales tax.
Tax 11.35(7)(d)(d) If a nonprofit organization has sales in the current year and then requests inactivation of its seller’s permit, sales made in the current year before requesting inactivation of the seller’s permit do not qualify as exempt occasional sales, even if the standards for exempt occasional sales in sub. (4) (a) and (b) are met. Tax 11.35 NoteExample: A nonprofit organization holds 70 days of sales in the current year. The organization holds a seller’s permit, files sales and use tax returns and pays sales tax on all its receipts in the current year. At the end of the current year, the organization realizes that its sales would have qualified as exempt occasional sales except for its holding of a seller’s permit. The organization may not claim a refund of taxes paid while it held a seller’s permit.
Tax 11.35(8)(8) When sales do not qualify for occasional sales exemption. If a nonprofit organization has sales of tangible personal property, items, property, or goods under s. 77.52 (1) (b), (c), or (d), Stats., or taxable services, and the sales do not qualify as exempt occasional sales, it is required to obtain a seller’s permit and collect and remit sales tax on its taxable sales.
