Chapter Tax 2

Tax 2.49(2)(o) (o) “Participation” means an extension of credit in which an undivided ownership interest is held on a pro rata basis in a single loan or pool of loans and related collateral.

Tax 2.49 Note Note: In a loan participation, the credit originator initially makes the loan and subsequently resells all or a portion of it to other lenders. The participation may or may not be known to the borrower.

Tax 2.49(2)(p) (p) “Person” means a natural person, estate, trust, partnership, limited liability company, corporation, or any other business entity.

Tax 2.49(2)(q) (q) “Regular place of business” means an office at which the taxpayer carries on its business in a regular and systematic manner and which is regularly maintained, occupied, or used by employees of the taxpayer.

Tax 2.49(2)(r) (r) “State” means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico, or any territory or possession of the United States.

Tax 2.49(2)(s) (s) “Syndication” means an extension of credit in which 2 or more persons fund and each person is at risk only up to a specified percentage of the total extension of credit or up to a specified dollar amount.

Tax 2.49(2)(t) (t) “Taxpayer” means a financial organization that is subject to apportionment under this section.

Tax 2.49(3) (3) Apportionment formula computation. For taxable years beginning after December 31, 2005, a financial institution that is engaged in business in and outside this state shall determine its net income for state franchise or income tax purposes as provided in this section. The financial institution shall first deduct from its total net income its nonapportionable income, less related expenses. Nonapportionable income shall be allocated as provided in s. 71.25 (5) (b), Stats. The financial institution shall apportion its remaining net income to this state as follows:

Tax 2.49(3)(a) (a) For taxable years beginning after December 31, 2005, and before January 1, 2007, apportionable income shall be apportioned using an apportionment fraction composed of a receipts factor under sub. (4) representing 60% of the fraction and a payroll factor under sub. (5) representing 40% of the fraction.

Tax 2.49(3)(b) (b) For taxable years beginning after December 31, 2006, and before January 1, 2008, apportionable income shall be apportioned using an apportionment fraction composed of a receipts factor under sub. (4) representing 80% of the fraction and a payroll factor under sub. (5) representing 20% of the fraction.

Tax 2.49(3)(c) (c) For taxable years beginning before January 1, 2008, in any case in which the financial institution has no employees nor pays management or service fees to a related entity, or in which the department determines that employees are not a substantial income producing factor, the department may order or permit the elimination of the payroll factor.

Tax 2.49(3)(d) (d) For taxable years beginning after December 31, 2007, apportionable income shall be apportioned using an apportionment fraction composed of the receipts factor under sub. (4).

Tax 2.49 Note Note: Financial institutions that are in combined groups use the receipts factor numerator and denominator to compute the modified sales factor, which then determines the financial institution’s Wisconsin share of the combined group’s apportionable income. See s. 71.255 (5), Stats., and s. Tax 2.61 (7) for details.

Tax 2.49(4) (4) Receipts factor. The receipts factor is the ratio of the taxpayer’s receipts in this state to the taxpayer’s total receipts everywhere during the taxable year. Interest, dividends, gross receipts or net gains from sales of securities held for investment purposes, and other income from investment assets may not be included in the receipts factor. The receipts factor shall include all of the following items:

Tax 2.49 Note Note: A financial institution that is a combined group member must adjust its receipts factor numerator and denominator as described in s. Tax 2.61 (7).

Tax 2.49(4)(a) (a) Gross receipts from the lease of real property. The numerator of the receipts factor includes gross receipts from the lease, rental, or licensing of real property owned by the taxpayer if the real property is located in this state and gross receipts from the sublease of real property if the real property is located in this state.

Tax 2.49(4)(b) (b) Gross receipts from the lease of tangible personal property.

Tax 2.49(4)(b)1. 1. Except as described in subd. 2., the numerator of the receipts factor includes gross receipts from the lease, rental, or licensing of tangible personal property owned by the taxpayer and the sublease of tangible personal property if the property is located in this state during the entire period of lease, rental, licensing, sublease, or other use. If the property is used in and outside this state during the period of lease, rental, licensing, or sublease, gross receipts are included in the numerator of the receipts factor to the extent that the property is used in this state. The proportion of use in this state is determined by multiplying the gross receipts from the lease, rental, licensing, sublease, or other use of the property by a fraction having as a numerator the number of days the property is in this state while leased, rented, licensed, or subleased in the taxable year and having as a denominator the total number of days that the property is leased, rented, licensed, or subleased in all states having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in the taxable year.

Tax 2.49(4)(b)2. 2. Gross receipts from the lease, rental, or licensing of moving property, including motor vehicles, rolling stock, aircraft, vessels, or mobile equipment, owned by the taxpayer and the sublease of moving property are included in the numerator of the receipts factor to the extent that the property is used in this state. The proportion of use of moving property in this state is determined as follows:

Tax 2.49(4)(b)2.a. a. The proportion of use of a motor vehicle or rolling stock in this state is determined by multiplying the gross receipts from the lease, rental, licensing, or sublease of the motor vehicle or rolling stock by a fraction having as a numerator the number of miles traveled within this state by the motor vehicle or rolling stock while leased, rented, licensed, or subleased in the taxable year and having as a denominator the total number of miles traveled by the motor vehicle or rolling stock while leased, rented, licensed, or subleased in the taxable year.

Tax 2.49(4)(b)2.b. b. The proportion of use of an aircraft in this state is determined by multiplying the gross receipts from the lease, rental, licensing, or sublease of the aircraft by a fraction having as a numerator the number of takeoffs and landings of the aircraft in this state while leased, rented, licensed, or subleased in the taxable year and having as a denominator the total number of takeoffs and landings of the aircraft while leased, rented, licensed, or subleased in the taxable year.

Tax 2.49(4)(b)2.c. c. The proportion of use of a vessel or mobile equipment in this state is determined by multiplying the gross receipts from the lease, rental, licensing, or sublease of the vessel or mobile equipment by a fraction having as a numerator the number of days that the vessel or mobile equipment is in this state while leased, rented, licensed, or subleased in the taxable year and having as a denominator the total number of days that the vessel or mobile equipment is leased, rented, licensed, or subleased in the taxable year.

Tax 2.49(4)(b)2.d. d. If the taxpayer is unable to determine the use of moving property under subd. 2. a., b., or c. while the property is leased, rented, licensed, or subleased in the taxable year, the moving property is conclusively deemed to be used in the state in which the property is located at the time that the lessee, renter, licensee, or sublessee takes possession of the property.

Tax 2.49(4)(c) (c) Gross interest and other fees from loans secured by real property.

Tax 2.49(4)(c)1. 1. The numerator of the receipts factor includes gross interest, fees, points, charges, and penalties from loans secured by real property if the real property securing the loan is located in this state. If the real property securing the loan is located in both this state and one or more other states or foreign countries, the gross interest, fees, points, charges, and penalties shall be divided among those states or foreign countries having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in proportion to the fair market value of the real property securing the loan located in each state or foreign country.

Tax 2.49(4)(c)2. 2. The determination of whether the real property securing a loan is located in this state shall be made at the time the original agreement was made and for each subsequent taxable year.

Tax 2.49(4)(d) (d) Gross interest and other fees from loans secured by tangible personal property.

Tax 2.49(4)(d)1. 1. The numerator of the receipts factor includes gross interest, fees, points, charges, and penalties from loans secured by tangible personal property if the tangible personal property securing the loan is located in this state as described in par. (b). If the tangible personal property securing the loan is located in both this state and one or more other states or foreign countries, the gross interest, fees, points, charges, and penalties shall be divided among those states or foreign countries having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in proportion to the fair market value of the tangible personal property securing the loan located in each state or foreign country.

Tax 2.49(4)(d)2. 2. The determination of whether the tangible personal property securing a loan is located in this state shall be made at the time the original agreement was made and for each subsequent taxable year.

Tax 2.49(4)(e) (e) Gross interest and other fees from loans not secured by real or tangible personal property. The numerator of the receipts factor includes interest, fees, points, charges, and penalties from loans that are not secured by real or tangible personal property if the loan borrower is located in this state.

Tax 2.49(4)(f) (f) Net gains from the sale of loans. The numerator of the receipts factor includes net gains from the sale of loans, determined as follows:

Tax 2.49(4)(f)1. 1. The amount of net gains, but not less than zero, from the sale of loans secured by real property located in this state. If the real property securing the loan is located in both this state and one or more other states or foreign countries, the net gain shall be divided among those states or foreign countries having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in proportion to the fair market value of the real property securing the loan located in each state or foreign country.

Tax 2.49(4)(f)2. 2. The amount of net gains, but not less than zero, from the sale of loans secured by tangible personal property located in this state as described in par. (b). If the tangible personal property securing the loan is located in both this state and one or more other states or foreign countries, the net gain shall be divided among those states or foreign countries having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in proportion to the fair market value of the tangible personal property securing the loan located in each state or foreign country.

Tax 2.49(4)(f)3. 3. The amount of net gains, but not less than zero, from the sale of loans not secured by real or tangible personal property if the loan borrower is located in this state.

Tax 2.49(4)(g) (g) Gross receipts from credit card receivables. The numerator of the receipts factor includes gross interest, fees, points, charges, and penalties from credit card receivables and gross receipts from annual fees and other fees charged to credit card holders if the billing address of the credit card holder is in this state.

Tax 2.49(4)(h) (h) Net gains from the sale of credit card receivables. The numerator of the receipts factor includes net gains, but not less than zero, from the sale of credit card receivables if the billing address of the credit card holder is in this state.

Tax 2.49(4)(i) (i) Credit card issuer’s reimbursement fees. The numerator of the receipts factor includes the taxpayer’s credit card issuer’s reimbursement fees if the billing address of the credit card holder is in this state.

Tax 2.49(4)(j) (j) Gross receipts from merchant discount. The numerator of the receipts factor includes gross receipts from merchant discount if the merchant’s trade or business is located in this state. If the merchant’s trade or business is located in and outside this state, the numerator includes only receipts from merchant discounts on sales made in this state. If the location of a sale cannot be determined, the numerator includes the merchant discount on the sale if the merchant’s commercial domicile is in this state. The receipts shall be computed net of any credit card holder charge backs but may not be reduced by any interchange transaction fees or by any issuer’s reimbursement fees paid to another for charges made by its credit card holders.

Tax 2.49(4)(k) (k) Loan servicing fees.

Tax 2.49(4)(k)1. 1. The numerator of the receipts factor includes loan servicing fees derived from loans owned by the taxpayer or another person, including servicing participations, and secured by real property located in this state. If the real property securing the loan is located in both this state and one or more other states or foreign countries, the loan servicing fees shall be divided among those states or foreign countries having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in proportion to the fair market value of the real property securing the loan located in each state or foreign country. If the location of the real property securing the loan cannot be determined, the numerator includes the loan servicing fees if the loan borrower or guarantor of the loan is located in this state.

Tax 2.49(4)(k)2. 2. The numerator of the receipts factor includes loan servicing fees derived from loans owned by the taxpayer or another person, including servicing participations, and secured by tangible personal property located in this state as described in par. (b). If the tangible personal property securing the loan is located in both this state and one or more other states or foreign countries, the loan servicing fees shall be divided among those states or foreign countries having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in proportion to the fair market value of the tangible personal property securing the loan located in each state or foreign country. If the location of the tangible personal property securing the loan cannot be determined, the numerator includes the loan servicing fees if the loan borrower or guarantor of the loan is located in this state.

Tax 2.49(4)(k)3. 3. The numerator of the receipts factor includes loan servicing fees derived from loans owned by the taxpayer or another person, including servicing participations, and not secured by real or tangible personal property if the loan borrower or guarantor of the loan is located in this state.

Tax 2.49(4)(L) (L) Gross receipts from travelers checks, cashiers checks, certified checks, and money orders. The numerator of the receipts factor includes gross fees or other charges for the issuance of travelers checks, cashiers checks, certified checks, and money orders if the checks or money orders are purchased in this state.

Tax 2.49(4)(m) (m) Gross receipts from automated teller machines. The numerator of the receipts factor includes gross receipts from the usage of automated teller machines located in this state.

Tax 2.49(4)(n) (n) Gross receipts from safety deposit boxes. The numerator of the receipts factor includes gross receipts from the rental of safety deposit boxes if the boxes are located in this state.

Tax 2.49(4)(o) (o) Gross receipts from maintaining accounts. The numerator of the receipts factor includes gross receipts from the maintenance of accounts, including but not limited to service charges for maintaining accounts, overdraft charges, charges for copies of statements and checks, and fees for account reconciliation, if either of the following applies:

Tax 2.49(4)(o)1. 1. The service is provided to an account holder that is not engaged in a trade or business, and the account holder’s billing address is in this state.

Tax 2.49(4)(o)2. 2. The service is provided to an account holder that is engaged in a trade or business, the account holder maintains a regular place of business in this state, and the service received relates to the business in this state. If the account holder receives the service in more than one state or the state in which the service is received cannot be determined, the service is received in this state if the account holder, in the regular course of the account holder’s business, ordered the service from an office in this state. If the ordering office cannot be determined, the services are received in this state if the account holder’s billing address is in this state.

Tax 2.49(4)(p) (p) Gross receipts from electronic funds transfer. The numerator of the receipts factor includes electronic funds transfer fees if either of the following applies:

Tax 2.49(4)(p)1. 1. The service is provided to a customer that is not engaged in a trade or business, and the customer’s billing address is in this state.

Tax 2.49(4)(p)2. 2. The service is provided to a customer that is engaged in a trade or business, the customer maintains a regular place of business in this state, and the service received relates to the business in this state. If the customer receives the service in more than one state or the state in which the service is received cannot be determined, the service is received in this state if the customer, in the regular course of the customer’s business, ordered the service from an office in this state. If the ordering office cannot be determined, the services are received in this state if the customer’s billing address is in this state.

Tax 2.49(4)(q) (q) Gross receipts from cash management services. The numerator of the receipts factor includes the gross amount of any fees or charges generated from cash management services, including but not limited to lockbox services, depository transfer checks, and payables management, if the service is provided to a customer that is engaged in a trade or business, the customer maintains a regular place of business in this state, and the service received relates to the business in this state. If the customer receives the service in more than one state or the state in which the service is received cannot be determined, the service is received in this state if the customer, in the regular course of the customer’s business, ordered the service from an office in this state. If the ordering office cannot be determined, the services are received in this state if the customer’s billing address is in this state.

Tax 2.49(4)(r) (r) Gross receipts from international trade services. The numerator of the receipts factor includes the gross receipts from international trade services, including but not limited to letters of credit and bankers acceptance notes, if the service is provided to a customer that is engaged in a trade or business, the customer maintains a regular place of business in this state, and the service received relates to the business in this state. If the customer receives the service in more than one state or the state in which the service is received cannot be determined, the service is received in this state if the customer, in the regular course of the customer’s business, ordered the service from an office in this state. If the ordering office cannot be determined, the services are received in this state if the customer’s billing address is in this state.

Tax 2.49(4)(s) (s) Gross receipts from data processing services, document imaging services, and microfilming services. The numerator of the receipts factor includes the gross receipts from data processing services, document imaging services, and microfilming services if the service is provided to a customer that is engaged in a trade or business, the customer maintains a regular place of business in this state, and the service received relates to the business in this state. If the customer receives the service in more than one state or the state in which the service is received cannot be determined, the service is received in this state if the customer, in the regular course of the customer’s business, ordered the service from an office in this state. If the ordering office cannot be determined, the services are received in this state if the customer’s billing address is in this state.

Tax 2.49(4)(t) (t) Gross receipts from research services. The numerator of the receipts factor includes gross receipts from research services if either of the following applies:

Tax 2.49(4)(t)1. 1. The service is provided to a customer that is not engaged in a trade or business, and the customer’s billing address is in this state.

Tax 2.49(4)(t)2. 2. The service is provided to a customer that is engaged in a trade or business, the customer maintains a regular place of business in this state, and the service received relates to the business in this state. If the customer receives the service in more than one state or the state in which the service is received cannot be determined, the service is received in this state if the customer, in the regular course of the customer’s business, ordered the service from an office in this state. If the ordering office cannot be determined, the services are received in this state if the customer’s billing address is in this state.

Tax 2.49(4)(u) (u) Gross receipts from trust services. The numerator of the receipts factor includes gross receipts from trust services if either of the following applies:

Tax 2.49(4)(u)1. 1. The service is provided to a customer that is not engaged in a trade or business, and the customer’s billing address is in this state.

Tax 2.49(4)(u)2. 2. The service is provided to a customer that is engaged in a trade or business, the customer maintains a regular place of business in this state, and the service received relates to the business in this state. If the customer receives the service in more than one state or the state in which the service is received cannot be determined, the service is received in this state if the customer, in the regular course of the customer’s business, ordered the service from an office in this state. If the ordering office cannot be determined, the services are received in this state if the customer’s billing address is in this state.

Tax 2.49(4)(v) (v) Gross receipts from investment banking services. The numerator of the receipts factor includes gross receipts, including commissions, management fees, or underwriting fees, earned from investment banking services if either of the following applies:

Tax 2.49(4)(v)1. 1. The issuer of the securities is not engaged in a trade or business, and the issuer’s billing address is in this state.

Tax 2.49(4)(v)2. 2. The issuer of the securities is engaged in a trade or business, the issuer of the securities maintains a regular place of business in this state, and the securities relate to that person’s business in this state. If the securities relate to that person’s regular place of business in more than one state, the receipts from the performance of the service are included in the numerator of the receipts factor according to the portion of the service received in this state. If the regular place of business to which the securities relate cannot be determined, the service is received in this state if the issuer of the securities, in the regular course of the issuer’s business, ordered the service from an office in this state. If the ordering office cannot be determined, the service is received in this state if the issuer’s billing address is in this state.

Tax 2.49(4)(w) (w) Gross receipts from security brokerage services.

Tax 2.49(4)(w)1. 1. The numerator of the receipts factor includes fees, commissions, margin interest, and other gross receipts from security brokerage services if the customer’s billing address is in this state.

Tax 2.49(4)(w)2. 2. The numerator of the receipts factor includes net gains, net of commissions, but not less than zero, from sales of trading assets if the customer’s billing address is in this state. “Trading assets” include securities, commodities, and related financial instruments that a taxpayer acquires and holds for sale in its inventory account. The receipts factor does not include gross receipts or net gains from sales or other dispositions of investment assets.

Tax 2.49(4)(x) (x) Gross receipts from other services. The numerator of the receipts factor includes gross receipts from services that are not described in pars. (a) to (w) if the purchaser of the service received the benefit of the service in this state under any of the following circumstances:

Tax 2.49(4)(x)1. 1. The benefit of a service is received in this state if any of the following applies:

Tax 2.49(4)(x)1.a. a. The service relates to real property that is located in this state.

Tax 2.49(4)(x)1.b. b. The service relates to tangible personal property that is delivered directly or indirectly to customers in this state.

Tax 2.49(4)(x)1.c. c. The service is purchased by an individual who is physically present in this state at the time that the service is received.

Tax 2.49(4)(x)1.d. d. The service is provided to a person engaged in a trade or business in this state and relates to that person’s business in this state.

Tax 2.49(4)(x)2. 2. If the purchaser of a service receives the benefit of a service in more than one state, the gross receipts from the performance of the service are included in the numerator of the receipts factor according to the portion of the service received in this state.

Tax 2.49(4)(y) (y) Gross receipts from computer software.

Tax 2.49(4)(y)1. 1. The numerator of the receipts factor includes gross receipts from the use of computer software if the purchaser or licensee uses the computer software at a location in this state.

Tax 2.49(4)(y)2. 2. Computer software is used at a location in this state if the purchaser or licensee uses the computer software in the regular course of business operations in this state, for personal use in this state, or if the purchaser or licensee is an individual whose domicile is in this state. If the purchaser or licensee uses the computer software in more than one state, the gross receipts shall be divided among those states having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in proportion to the use of the computer software in those states. To determine computer software use in this state, the department may consider the number of users in each state where the computer software is used, the number of site licenses or workstations in this state, and any other factors that reflect the use of computer software in this state.

Tax 2.49(4)(z) (z) Gross royalties and other gross receipts from intangibles.

Tax 2.49(4)(z)1. 1. The numerator of the receipts factor includes gross royalties and other gross receipts received for the use of intangible property if the user, purchaser, or licensee uses the intangible property at a location in this state.

Tax 2.49(4)(z)2. 2. Intangible property is used at a location in this state if the user, purchaser, or licensee uses the property in the operation of a trade or business at a location in this state, for personal use in this state, or if the user, purchaser, or licensee is an individual whose domicile is in this state. If the user, purchaser, or licensee uses the intangible property in more than one state, the gross royalties and other gross receipts from the sale or use of the intangible property shall be divided among those states having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in proportion to the use of the intangible property in those states. To determine intangible property use in this state, the department may consider the number of licensed sites in each state, the volume of property manufactured, produced, or sold at locations in this state, or any other factors that reflect the use of the intangible property in this state.

Tax 2.49(4)(ze) (ze) Gross receipts from services provided to regulated investment companies.

Tax 2.49(4)(ze)1. 1. Except as provided in subd. 2., the numerator of the receipts factor includes gross receipts and net gain described under pars. (a) to (z) from services provided to or on behalf of a regulated investment company, as defined in section 851 of the Internal Revenue Code. The regulated investment company is considered the purchaser or consumer of the services.

Tax 2.49(4)(ze)2. 2. At the taxpayer’s option, the portion of the gross receipts received from a regulated investment company from the sale of administration, distribution, or management services shall be included in the numerator of the receipts factor as described in subd. 3. A taxpayer that makes this election shall use this method to determine the receipts included in the numerator of the receipts factor from each regulated investment company for or on behalf of which it performs services and shall compute the receipts from each regulated investment company separately. For purposes of this subdivision:

Tax 2.49(4)(ze)2.a. a. “Administration services” include clerical, accounting, participant record keeping, transfer agency, bookkeeping, data processing, custodial, internal auditing, legal, and tax services provided for a regulated investment company but only if the provider of the services also provides, or is affiliated with a person that provides, distribution or management services to the regulated investment company.

Tax 2.49(4)(ze)2.b. b. “Distribution services” include advertising, servicing investor accounts, marketing, or selling shares of the regulated investment company. In the case of advertising, servicing, or marketing shares, the services shall be performed by a person that is or, in the case of a closed end company, was either engaged in the service of selling the shares or affiliated with a person that is engaged in the service of selling the shares. In the case of an open end company, the service of selling shares shall be performed pursuant to a contract entered into under 15 USC 80a-15(b).

Tax 2.49(4)(ze)2.c. c. “Management services” include rendering investment advice directly or indirectly to a regulated investment company, determining when sales and purchases of securities are to be made on behalf of the regulated investment company, selling or purchasing securities constituting assets of a regulated investment company, and related activities, but only if the activities are performed pursuant to a contract with the regulated investment company entered into under 15 USC 80a-15(a), for a person that has entered into the contract with the regulated investment company or for a person that is affiliated with a person that has entered into the contract with a regulated investment company.

Tax 2.49(4)(ze)2.d. d. A person is affiliated with another person if each person is a member of the same affiliated group, as defined under section 1504 of the Internal Revenue Code without regard to sub. (b) of section 1504.

Tax 2.49(4)(ze)2.e. e. Receipts received from a regulated investment company include amounts received directly or indirectly from the regulated investment company and amounts received from shareholders in the regulated investment company.

Tax 2.49(4)(ze)3. 3. The numerator of the receipts factor includes the sum of receipts determined by multiplying the gross receipts from the sale of administration, distribution, and management services provided to or on behalf of each separate regulated investment company by a fraction, computed as follows:

Tax 2.49(4)(ze)3.a. a. The numerator of the fraction is the sum of the monthly percentages determined for each month of the regulated investment company’s taxable year for federal income tax purposes, which taxable years ends within or at the same time as the taxpayer’s taxable year, but excluding any month during which the regulated investment company had no outstanding shares. The monthly percentage for each month is determined by dividing the number of shares in the regulated investment company that are owned on the last day of the month by shareholders whose domicile or commercial domicile is in this state by the total number of shares in the regulated investment company outstanding on that date.