Tax 2.12 Note2) Taxpayer J files timely 1998 and 1999 returns. The department completes an office audit of these returns by issuing a notice of refund dated March 30, 2003. The notice of refund allows an additional itemized deduction credit resulting in a refund for 1998 and disallows a portion of the claimed business expenses for an assessment for 1999, with the net result being a refund for the two years combined. The taxpayer does not file a petition for redetermination. The notice of refund is final, and the taxpayer is not entitled to any refund on a subsequent claim for refund for 1998 or 1999.
Tax 2.12(4)(b)4.4. A claim for refund of an overpayment attributable to a capital loss carryback may be filed by a corporation, or designated agent of a combined group, within 4 years after the due date, or extended due date, for filing the return for the taxable year of the capital loss that is carried back. Tax 2.12 NoteNote: For combined groups, see s. Tax 2.61 (6) (c) for rules applicable to capital gains and losses. Tax 2.12(4)(b)5.5. If the limitation period for making an assessment or refund has been extended by written agreement between a taxpayer and the department, a claim for refund relating to the year or years covered by the extension agreement may be filed during the extension period. Tax 2.12 NoteNote: For combined groups, refer to s. Tax 2.65 for rules applicable to the designated agent of a combined group. Tax 2.12(4)(b)6.6. An amended Wisconsin return filed under the provisions of sub. (3) (c) shall be filed with the department within 90 days after the date the amended federal or other state return is filed. Tax 2.12(4)(b)7.7. An amended Wisconsin return filed under the provisions of sub. (3) (d) shall be filed with the department within 90 days of the date on which the federal audit adjustments become final. Tax 2.12(4)(b)8.8. An amended Wisconsin return filed under the provisions of s. 71.30 (4), Stats., to claim a reduction of income resulting from a renegotiation or price redetermination of a defense contract or subcontract shall be filed within one year of the final determination. Tax 2.12 NoteNote: Refer to s. Tax 2.105 for additional information regarding amended Wisconsin returns required as a result of filing amended federal or other state returns, or reports required as a result of federal audit adjustments made by the internal revenue service. Tax 2.12(5)(a)(a) Beginning on or after January 1, 2015, except as provided in par. (c), a claim for refund shall be filed on the same form as the original form, in the manner prescribed in sub. (6). Tax 2.12(5)(c)(c) The department may prescribe a special form for taxpayers to use in claiming a refund, to address a specific tax issue. In this situation, the special form may be used in lieu of the amended form prescribed in par. (a). Tax 2.12 NoteExample: Wisconsin form 1X-R was developed in 1993 to address the issue of the flow-through of interest exempt from Wisconsin taxes received from a qualified retirement plan.
Tax 2.12(5)(d)(d) An amended Wisconsin return or credit claim filed for a purpose other than to request a refund is not required to be filed on a specific form. Tax 2.12(6)(a)(a) An amended return or credit claim shall be in writing, indicate the reporting period for which the change was made and contain a statement setting forth the specific grounds upon which the amended form is based. Tax 2.12(6)(b)(b) An amended return or credit claim other than form 1X shall be identified as an amended form by checking the “amended return” box if one is provided on the form or by marking “AMENDED” across the top of the first page of the amended form. Tax 2.12(6)(c)(c) A claim for refund may not be made a part of or attached to any original Wisconsin return or credit claim. Tax 2.12(6)(d)(d) An amended return or credit claim shall be mailed to the department at the address specified on the form or in its instructions. Tax 2.12 NoteNote: Subchapter VII of ch. 77, Stats., was amended by 1999 Wis. Act 9 to create a recycling surcharge effective for taxable years beginning on or after January 1, 2000, and by 2011 Wis. Act 32 to change the recycling surcharge to the economic development surcharge effective July 1, 2011. For taxable years ending before April 1, 1999, subch. VII of ch. 77, Stats., provided for a temporary recycling surcharge; the term “economic development surcharge” as used in this section refers to the “temporary recycling surcharge” for those years and to the “recycling surcharge” prior to July 1, 2011. Tax 2.12 NoteNote: Section Tax 2.12 interprets ss. 71.255 (1), (4), and (7), 71.30 (4), 71.738 (2m), 71.74, 71.75, 71.76, 71.77, 71.80 (18) and 77.96 (4), Stats. Tax 2.12 HistoryHistory: Cr. Register, August, 1976, No. 248, eff. 9-1-76; am. (1) (a), Register, September, 1983, No. 333, eff. 10-1-83; am, (1) (a) and (b), r. and recr. (1) (c) and (2), Register, February, 1990, No. 410, eff. 3-1-90; r. and recr. Register, May, 1996, No. 485, eff. 6-1-96; CR 02-033:am. (1), (3) (a), (b), (c) and (e), (4) (b) 1., 2., 4., 5., and (6) (b) to (d), r. and recr. (2), (4) (b) 3., and (5) (a), renum. and am. (5) (b) to be (5) (c), cr. (5) (b) and (d), Register October 2002 No. 562, eff. 11-1-02; CR 10-095: am. (1), (4) (b) 4. Register November 2010 No. 659, eff. 12-1-10; CR 12-011: am. (1), (3) (a) to (c), (e) Register July 2012 No. 679, eff. 8-1-12; CR 17-019: am. (5) (a), (b) Register June 2018 No. 750 eff. 7-1-18; CR 19-141: am. (3) (c) Register September 2020 No. 777, eff. 10-1-20; CR 21-085: am (4) (b) 2. (Examples), 3. a. (Examples), (5) (a), r. (5) (b), am. (5) (c) Register August 2022 No. 800, eff. 9-1-22. Tax 2.12 AnnotationCross Reference: See s. Tax 2.67 (2) (e) for rules relating to amended returns for combined groups.
Tax 2.30Tax 2.30 Property located outside Wisconsin — depreciation and sale. Tax 2.30(1)(1) Scope. This section applies only with respect to resident individuals, estates, and trusts. Tax 2.30(2)(2) Definition. In this section, “Internal Revenue Code” means the Internal Revenue Code in effect for the taxable year specified in s. 71.01 (6), Stats. Tax 2.30 NoteExample: For taxable year 2017, “Internal Revenue Code” means the Internal Revenue Code in effect on December 31, 2016.
Tax 2.30(3)(3) Resident individuals, estates, and trusts. Income or loss derived from property and business located outside Wisconsin by resident individuals, estates, and trusts, is taxable or deductible as appropriate under ch. 71, Stats. Except as provided in sub. (4), the basis for depreciation and for determining gain or loss on disposition of property for these taxpayers is the same as the basis determined under the Internal Revenue Code, whether the property was acquired before becoming or while a resident of this state. Tax 2.30(4)(a)(a) When an individual acquires a new residence, the adjusted basis of the new residence is not reduced for nonrecognized gain from the sale or exchange of an old residence located outside Wisconsin if: Tax 2.30(4)(a)1.1. The sale or exchange of the old residence occurred in taxable year 1975 or thereafter when the individual was not a resident of Wisconsin; or Tax 2.30(4)(a)2.2. The sale or exchange of the old residence occurred before taxable year 1975, whether the individual was a resident or not at the time of the sale or exchange. Tax 2.30(4)(b)(b) When an individual sells or exchanges a principal residence located outside Wisconsin and the nonrecognition of gain provisions do not apply, the adjusted basis of the residence sold or exchanged is not reduced for nonrecognized gain from any previous sale or exchange of a principal residence located outside Wisconsin if: Tax 2.30(4)(b)1.1. The previous sale or exchange occurred in taxable year 1975 or thereafter when the individual was not a resident of Wisconsin; or Tax 2.30(4)(b)2.2. The previous sale or exchange occurred before taxable year 1975, whether the individual was a resident or not at the time of the sale or exchange. Tax 2.30 NoteExample: A taxpayer becomes a Wisconsin resident on July 1, 1988. Prior to becoming a Wisconsin resident the taxpayer had owned several different homes. Each time a new home was acquired, the federal nonrecognition of gain provisions applied with respect to the gain realized from the sale of the previous home. Upon becoming a Wisconsin resident, the taxpayer owned a home in Missouri with a federal adjusted basis of $65,000 ($95,000 cost, less $30,000 of gains postponed from prior sales). The Missouri home was sold for $97,000 in August 1988. The taxpayer decides not to purchase a new residence. The Wisconsin adjusted basis of the Missouri home is $95,000.
Tax 2.30(4)(c)(c) For residential real property and certain agricultural real property placed in service during taxable year 1986, depreciation and gain or loss on disposition of the property shall be computed under the Internal Revenue Code in effect on December 31, 1980 unless: Tax 2.30(4)(c)1.1. The property is placed in service out-of-state by a taxpayer during taxable year 1986 before the taxpayer becomes a Wisconsin resident. In this case, the property’s adjusted basis and depreciation are the same as the amounts allowable for federal tax purposes. Tax 2.30 NoteExample: A taxpayer becomes a Wisconsin resident on January 1, 1987. Prior to that date, the taxpayer is an Illinois resident. On July 1, 1986, the taxpayer purchases and places in service residential real property located in Illinois. On the taxpayer’s 1987 Wisconsin return, the taxpayer’s adjusted basis and depreciation on this property will be the same as the amounts shown on the taxpayer’s 1987 federal return. The taxpayer does not have to recompute the basis of the property and depreciate it using one of the methods permitted under the December 31, 1980 Code.
Tax 2.30(4)(c)2.2. The property located out-of-state is acquired in a transaction occurring in taxable year 1986 or thereafter where the basis of the property in the hands of the transferee is the same as the adjusted basis of the property in the hands of the transferor. The adjusted basis of the property on the date of the transfer is the same as the federal adjusted basis. Tax 2.30 NoteExample: A taxpayer is a Wisconsin resident. The taxpayer receives by gift on January 1, 1986, residential real property located in Illinois. The adjusted basis of the property to the donor, transferor, is $200,000. In acquiring the property by gift, the taxpayer, transferee, receives the same adjusted basis in the property as the transferor. The Wisconsin adjusted basis will be the federal adjusted basis on January 1, 1986.
Tax 2.30 NoteNote: In the case of Wisconsin Department of Revenue vs. Romain A. Howick, 100 Wis. 2d 274 (1981), the Wisconsin supreme court held that for the purpose of determining a loss on a sale, the basis of property located outside Wisconsin acquired before the owner became a Wisconsin resident is the basis determined under the Internal Revenue Code. In this section the same principle is applied to gains realized on the disposition of such property. This principle was codified into s. 71.05 (1) (m), Stats., by 1985 Wis. Act 261, effective for the earliest taxable year in respect to which additional assessments or refunds may be made. Section 71.05 (1) (n) and (o), Stats., was also created by 1985 Wis. Act 261 to provide exceptions with respect to a principal residence effective for the same period of time. Section 71.05 (l), (m), (n), and (o), Stats., was renumbered s. 71.05 (12) (a), (b), and (c), Stats., by 1987 Wis. Act 312. Tax 2.30 NoteNote: Section 71.07 (1), Stats., was amended by Chapter 39, Laws of 1975, effective with the 1975 taxable year. Prior to the 1975 taxable year, income or loss derived from real property or tangible personal property followed the situs of the property from which derived. Section 71.07 (1), Stats., was renumbered ss. 71.04 (1) (a) and 71.362 (1), Stats., by 1987 Wis. Act 312. Tax 2.30 HistoryHistory: Cr. Register, April, 1978, No. 268, eff. 5-1-78; r. and recr. (3), Register, July, 1982, No. 319, eff. 8-1-82; r. (2), renum. (1) to be (2) and am., cr. (1) and (4), am. (3), Register, June, 1990, No. 414, eff. 7-1-90; CR 19-141: am. (2) (Example) Register September 2020 No. 777, eff. 10-1-20. Tax 2.31Tax 2.31 Compensation received by nonresident members of professional athletic teams. Tax 2.31(1)(1) Scope. This section apportions and allocates to Wisconsin, in a fair and equitable manner, a nonresident employee’s total compensation for services rendered in Wisconsin as a member of a professional athletic team. The section does not apply to employees domiciled in a state with which Wisconsin has a reciprocity agreement. Tax 2.31 NoteNote: Wisconsin has reciprocity agreements with Illinois, Indiana, Kentucky, and Michigan.
Tax 2.31(2)(a)(a) Except as provided in subds. 1. and 2., “duty days” means all days during the taxable year from the beginning of a professional athletic team’s official pre-season training period through the last game in which the team competes or is scheduled to compete and days on which a member of a professional athletic team renders a service for a team on a date outside this time period. Rendering a service includes conducting training and rehabilitation activities at the facilities of the team. Included within duty days shall be game days, practice days, days spent at team meetings, promotional caravans and preseason training camps, days spent participating in instructional leagues, days spent at special games such as the “Pro Bowl” or an “all-star” game and days served with the team through all post-season games in which the team competes or is scheduled to compete. The following exceptions to this definition apply: Tax 2.31(2)(a)1.1. Duty days for any person who joins a professional athletic team after the beginning of the team’s official pre-season training period shall begin on the day the person joins the team. Conversely, duty days for any person who leaves a professional athletic team before the last scheduled game shall end on the day the person leaves the team. Where a person switches professional athletic teams during a taxable year, separate duty day calculations shall be made for the periods the person was with each team. Tax 2.31(2)(a)2.2. Days for which a member of a professional athletic team is not compensated and is not rendering services for the team in any manner, including days when the member has been suspended without pay and prohibited from performing any services for the team, may not be treated as duty days. Tax 2.31(2)(b)(b) “Member of a professional athletic team” includes employees who are active players, players on the disabled list or any other persons such as coaches, managers and trainers, and who are required to and do travel with and perform services on behalf of a professional athletic team on a regular basis. Tax 2.31(2)(c)(c) “Professional athletic team” includes, but is not limited to, any professional baseball, basketball, football, hockey or soccer team. Tax 2.31(2)(d)(d) “Total compensation for services rendered as a member of a professional athletic team” means the total compensation received during the taxable year by the member for services rendered from the beginning of the official pre-season training period through the last game in which the team competes or is scheduled to compete during that taxable year, and during the taxable year on a date outside this time period. The compensation includes, but is not limited to, salaries, wages, bonuses as described in sub. (3) (c) and any other type of compensation paid during the taxable year to a member of a professional athletic team for services performed in that year. The compensation may not include strike benefits, severance pay, termination pay, contract or option year buy-out payments, expansion or relocation payments or any other payments not related to services rendered for the team. Tax 2.31 NoteExamples: Services rendered on a date that does not fall within the regular season include participation in:
Tax 2.31 Note1) Instructional leagues.
Tax 2.31 Note2) The “Pro Bowl.”
Tax 2.31 Note3) Promotional caravans.
Tax 2.31(3)(a)(a) General. The allocation to Wisconsin of income earned by a nonresident employee as total compensation for services rendered as a member of a professional athletic team shall be made on the basis of a fraction, the numerator of which is the number of duty days spent within Wisconsin rendering services for the team in any manner during the taxable year and the denominator of which is the total number of duty days spent both within and outside Wisconsin during the taxable year. Tax 2.31(3)(b)(b) Duty days during the taxable year. Duty days shall be included in the fraction described in par. (a) for the taxable year in which they occur, including where a team’s official pre-season training period through the last game in which the team competes, or is scheduled to compete, occurs during more than one taxable year. The following additional provisions apply: Tax 2.31(3)(b)1.1. Days during which a member of a professional athletic team is on the disabled list, does not conduct rehabilitation activities at facilities of the team and is not otherwise rendering services for the team in Wisconsin, may not be considered duty days spent in Wisconsin. However, all days on the disabled list shall be included in the total duty days spent both within and outside Wisconsin. Tax 2.31(3)(b)2.2. Travel days that do not involve either a game, practice, team meeting, promotional caravan or other similar team event may not be considered duty days spent in Wisconsin but shall be considered in the total duty days spent both within and outside Wisconsin. Tax 2.31(3)(c)(c) Bonuses. Bonuses which shall be included for purposes of the allocation described in par. (a) are: Tax 2.31(3)(c)1.1. Performance bonuses earned as a result of play during the season, including bonuses paid for championship, playoff or “bowl” games played by a team or for selection to all-star league or other honorary positions. Tax 2.31(3)(c)2.2. Bonuses paid for signing a contract, unless all of the following conditions are met: Tax 2.31(3)(c)2.a.a. The payment of the signing bonus is not conditional upon the signee playing any games for the team or performing any subsequent services for the team, or even making the team. Tax 2.31(3)(c)2.b.b. The signing bonus is payable separately from the salary and any other compensation. Tax 2.31 NoteExamples: The following examples illustrate the provisions of this subsection:
Tax 2.31 Note1) Player A, a member of a professional athletic team, is a nonresident of Wisconsin. Player A’s contract for the team requires A to report to the team’s training camp and to participate in all exhibition, regular season, and playoff games. Player A has a two-year contract which covers seasons that occur during taxable year 1/taxable year 2, and taxable year 2/taxable year 3. Player A’s contract provides that A receive $500,000 for the season which occurs during taxable year 1/taxable year 2, and $600,000 for the season which occurs during taxable year 2/taxable year 3. Player A receives $550,000 from the contract during taxable year 2 ($250,000 for one-half the year 1/year 2 season and $300,000 for one-half the year 2/year 3 season). The portion of the compensation received by Player A for taxable year 2 which is allocable to Wisconsin is determined by multiplying the compensation Player A receives during the taxable year ($550,000) by a fraction, the numerator of which is the total number of duty days Player A spends rendering services for the team in Wisconsin during taxable year 2 (attributable to both the year 1/year 2 season and the year 2/year 3 season) and the denominator of which is the total number of Player A’s duty days spent both within and outside Wisconsin for the entire taxable year 2.
Tax 2.31 Note2) Player B, a member of a professional athletic team, is a nonresident of Wisconsin. During the season, B is injured and is unable to render services for B’s team. While B is undergoing medical treatment at a clinic, which is not a facility of the team but is located in Wisconsin, B’s team travels to Wisconsin for a game. The days B’s team spends in Wisconsin for practice, games, meetings, etc., while B is present at the clinic, are not considered duty days spent in Wisconsin for Player B for that taxable year, but those days are included within total duty days spent both within and outside Wisconsin.
Tax 2.31 Note3) Player C, a member of a professional athletic team, is a nonresident of Wisconsin. During the season, C is injured and is unable to render services for C’s team. C performs rehabilitation exercises at the facilities of C’s team in Wisconsin as well as at personal facilities in Wisconsin. The days C performs rehabilitation exercises in the facilities of C’s team are considered duty days spent in Wisconsin for Player C for that taxable year. However, days Player C spends at personal facilities in Wisconsin are not considered duty days spent in Wisconsin for Player C for that taxable year, but those days are included within total duty days spent both within and outside Wisconsin.
Tax 2.31 Note4) Player D, a member of a professional athletic team, is a nonresident of Wisconsin. During the season, D travels to Wisconsin to participate in the annual all-star game as a representative of D’s team. The days D spends in Wisconsin for practice, the game, meetings, etc., are considered to be duty days spent in Wisconsin for Player D for that taxable year, as well as included within total duty days spent both within and outside Wisconsin.
Tax 2.31 Note5) Assume the same facts as in example 4, except that Player D is not participating in the all-star game and is not rendering services for D’s team in any manner. Player D is instead traveling to and attending the game solely as a spectator. The days Player D spends in Wisconsin for the game are not considered to be duty days spent in Wisconsin. However, those days are included within total duty days spent both within and outside Wisconsin.
Tax 2.31 Note6) Player E, a member of a professional athletic team, is a nonresident of Wisconsin. During the pre-season, E travels to Wisconsin to participate in a training camp which E’s team conducts in Wisconsin. E performs no further services in Wisconsin. E’s team does not play any regular season or playoff games in Wisconsin. The days E spends in Wisconsin at the team’s training camp are considered to be duty days spent in Wisconsin for Player E for that taxable year.
Tax 2.31(4)(4) Alternative methods of allocation. It is presumed that application of the provisions of this section will result in a fair and equitable apportionment of compensation received by nonresident members of professional athletic teams. Where it is demonstrated that the method provided under this section does not fairly and equitably apportion the compensation, the department may require the member of a professional athletic team to apportion and allocate the compensation under a method which the department prescribes, provided the prescribed method results in a fair and equitable apportionment. A nonresident member of a professional athletic team may submit a proposal for an alternative method to apportion compensation where the member demonstrates that the method provided under this section does not fairly and equitably apportion the compensation. The proposed method shall be fully explained on the member’s Wisconsin income tax return. Tax 2.31 HistoryHistory: Cr. Register, May, 1996, No. 485, eff. 6-1-96. Tax 2.32Tax 2.32 Economic development surcharge — gross receipts defined. Tax 2.32(1)(1) Purpose. This section defines “gross receipts” for purposes of the economic development surcharge under subch. VII of ch. 77, Stats. Tax 2.32 NoteNote: For taxable years beginning before January 1, 2013, an economic development surcharge is imposed on: (a) individuals, estates, trusts, statutory employees and partnerships that have at least $4,000,000 in gross receipts from a trade or business for the taxable year; (b) corporations and insurers that have at least $4,000,000 in gross receipts from all activities for the taxable year; and (c) individuals, estates, trusts and partnerships engaged in farming that have at least $4,000,000 in gross receipts from farming for the taxable year. For taxable years beginning on or after January 1, 2013, an economic development surcharge is only imposed on corporations and insurers that have at least $4,000,000 in gross receipts from all activities for the taxable year.
Tax 2.32(2)(a)(a) “Gross receipts from all activities of corporations” means the sum of the following items reportable by corporations other than those listed in pars. (c) and (d): Tax 2.32(2)(a)1.1. Gross receipts or sales reportable on federal Form 1120, U. S. corporation income tax return.
