AB43,,4102410277.51 (11d) For purposes of subs. (1ag), (1f), (3pf), (7j), and (9p), and (17g) and ss. 77.52 (20) and (21), 77.522, 77.54 (9g), (51), (52), and (60), and 77.59 (5r), “product” includes tangible personal property, and items, property, and goods under s. 77.52 (1) (b), (c), and (d), and services.

AB43,,4104410477.51 (12t) (intro.) “Real property construction activities” means activities that occur at a site where tangible personal property or items or goods under s. 77.52 (1) (b) or (d) that are applied or adapted to the use or purpose to which real property is devoted are permanently affixed to that real property, if the intent of the person who affixes that property is to make a permanent accession to the real property. “Real property construction activities” does not include affixing property subject to tax under s. 77.52 (1) (c) to real property or affixing to real property tangible personal property that remains tangible personal property after it is affixed. The department may promulgate rules to determine whether activities that occur at a site where tangible personal property or items or goods under s. 77.52 (1) (b) or (d) are affixed to real property are real property construction activities for purposes of this subchapter. If the classification of property or an activity is not identified by rule, the department’s determination of whether personal property becomes a part of real property shall be made by considering the following criteria:

AB43,,4106410677.51 (12t) (a) Actual physical annexation to the real property.

AB43,,41074107(b) Application or adaptation to the use or purpose to which the real property is devoted.

AB43,,41084108(c) An intention on the part of the person making the annexation to make a permanent accession to the real property.

AB43,,4110411077.51 (17g) “Separate and optional fee” means a fee charged to receive a distinct and identifiable product if either of the following applies:

AB43,,41114111(a) The fee is in addition to fees that the seller charges for other distinct and identifiable products sold to the same buyer, the fee is separately set forth on the invoice given by the seller to the buyer, and the seller does not require the buyer to pay the fee if the buyer chooses not to receive the additional distinct and identifiable product for which the fee applies.

AB43,,41124112(b) The seller charges a single amount for multiple distinct and identifiable products and offers the buyer the option of paying a lower amount if the buyer chooses not to receive one or more of the distinct and identifiable products. For purposes of this paragraph, the separate and optional fee is the single amount the seller charges for the multiple distinct and identifiable products less the reduced amount the seller charges to the buyer because the buyer chooses not to receive one or more of the products.

AB43,,4114411477.52 (2) (a) 20. The sale of landscaping and lawn maintenance services including landscape planning and counseling, lawn and garden services such as planting, mowing, spraying and fertilizing, and shrub and tree services. For purposes of this subdivision, landscaping and lawn maintenance services do not include planning and counseling services for the restoration, reclamation, or revitalization of prairie, savanna, or wetlands to improve biodiversity, the quality of land, soils, or water, or other ecosystem functions if the planning and counseling services are provided for a separate and optional fee from any other services.

AB43,,4116411677.52 (2) (a) 21. The sale of the right to access and use prewritten computer software, as defined in s. 77.51 (10r), if possession of the prewritten computer software is maintained by the seller or a 3rd party, including sales made on a per use, per user, per license, or subscription basis, or some other basis. This subdivision includes the sale of the right to access and use prewritten computer software to perform data processing and information services, regardless of whether the primary purpose of the transaction is the processed data, including check processing, image processing, form processing, survey processing, payroll processing, claim processing, and similar activities.

AB43,,4118411877.52 (2m) (a) With respect to the services subject to tax under sub. (2), no part of the charge for the service may be deemed a sale or rental of tangible personal property or items, property, or goods under sub. (1) (b), (c), or (d) if the property, items, or goods transferred by the service provider are incidental to the selling, performing or furnishing of the service, except as provided in par. pars. (b) and (c).

AB43,,4120412077.52 (2m) (c) With respect to services subject to tax under sub. (2) (a) 7., 10., 11., and 20. that are provided for a separate and optional fee from the planning and counseling services described under sub. (2) (a) 20., all tangible personal property or items, property, or goods under sub. (1) (b), (c), or (d) physically transferred, or transferred electronically, to the customer in conjunction with the provision of the services subject to tax under sub. (2) (a) 7., 10., 11., and 20. is a sale of tangible personal property or items, property, or goods separate from the selling, performing, or furnishing of the services.

AB43,,4122412277.52 (13) For the purpose of the proper administration of this section and to prevent evasion of the sales tax it shall be presumed that all receipts are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or services is not a taxable sale at retail is upon the person who makes the sale unless that person takes from the purchaser an electronic or a paper certificate, in a manner prescribed by the department, to the effect that the property, item, good, or service is purchased for resale or is otherwise exempt, except that no certificate is required for the sale of tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or services that are exempt under s. 77.54 (5) (a) 3., (7), (7m), (8), (10), (11), (14), (15), (17), (20n), (21), (22b), (31), (32), (35), (36), (37), (42), (44), (45), (46), (51), (52), (66), and (67), (70), (72), and (73).

AB43,,4124412477.53 (10) For the purpose of the proper administration of this section and to prevent evasion of the use tax and the duty to collect the use tax, it is presumed that tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services sold by any person for delivery in this state is sold for storage, use, or other consumption in this state until the contrary is established. The burden of proving the contrary is upon the person who makes the sale unless that person takes from the purchaser an electronic or paper certificate, in a manner prescribed by the department, to the effect that the property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable service is purchased for resale, or otherwise exempt from the tax, except that no certificate is required for the sale of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services that are exempt under s. 77.54 (7), (7m), (8), (10), (11), (14), (15), (17), (20n), (21), (22b), (31), (32), (35), (36), (37), (42), (44), (45), (46), (51), (52), and (67), (70), (72), and (73).