Chapter 77

77.51(3rm)(b) (b) Paintings.

77.51(3rm)(c) (c) Designs.

77.51(3rm)(d) (d) Photographs.

77.51(3rm)(e) (e) Lettering.

77.51(3rm)(f) (f) Paste-ups.

77.51(3rm)(g) (g) Mechanicals.

77.51(3rm)(h) (h) Assemblies.

77.51(3rm)(i) (i) Charts.

77.51(3rm)(j) (j) Graphs.

77.51(3rm)(k) (k) Illustrative materials.

77.51(3rn) (3rn) “Fixed wireless service” means a telecommunications service that provides radio communication between fixed points.

77.51(3t) (3t) “Food and food ingredient” means a substance in liquid, concentrated, solid, frozen, dried, or dehydrated form, that is sold for ingestion, or for chewing, by humans and that is ingested or chewed for its taste or nutritional value. “Food and food ingredient” does not include alcoholic beverages or tobacco.

77.51(4m) (4m) “Gun club” includes a trapshooting club, skeet-shooting club, sporting-clay club, rifle and pistol club, sportsmen’s club, hunting club, rod and gun club, hunting and fishing club, and conservation club. “Gun club” does not include a wild animal farm or bird hunting preserve licensed under ch. 169.

77.51(5) (5) For purposes of subs. (13) (e) and (f) and (15a) and s. 77.52 (2m), “incidental” means depending upon or appertaining to something else as primary; something necessary, appertaining to, or depending upon another which is termed the principal; or something incidental to the main purpose of the service. Tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) transferred by a service provider is incidental to the service if the purchaser’s main purpose or objective is to obtain the service rather than the property, items, or goods, even though the property, items, or goods may be necessary or essential to providing the service.

77.51(5d) (5d) “International telecommunications services” means telecommunications services that originate or terminate in the United States, including the District of Columbia and any U.S. territory or possession and originate or terminate outside of the United States, including the District of Columbia and any U.S. territory or possession.

77.51(5f) (5f) “Internet access services” means sending messages and information transmitted through the use of local, toll and wide-area telephone service; channel services; telegraph services; teletypewriter; computer exchange services; cellular mobile telecommunications service; specialized mobile radio; stationary two-way radio; paging service; or any other form of mobile and portable one-way or two-way communications; or any other transmission of messages or information by electronic or similar means between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities. “Internet access services” does not include telecommunications services to the extent that such services are taxable under s. 77.52 (2) (a) 5. am.

77.51(5n) (5n) “Interstate telecommunications services” means telecommunications services that originate in one state or U.S. territory or possession and terminate in a different state or U.S. territory or possession.

77.51(5r) (5r) “Intrastate telecommunications services” means telecommunications services that originate in one state or U.S. territory or possession and terminate in the same state or U.S. territory or possession.

77.51(6) (6) “In this state” or “in the state” means within the exterior limits of the state of Wisconsin.

77.51(7) (7) 

77.51(7)(a) (a) “Lease or rental” means any transfer of possession or control of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) for a fixed or indeterminate term and for consideration and includes:

77.51(7)(a)1. 1. A transfer that includes future options to purchase or extend.

77.51(7)(a)2. 2. Agreements related to the transfer of possession or control of motor vehicles or trailers, if the amount of any consideration may be increased or decreased by reference to the amount realized on the sale or other disposition of such motor vehicles or trailers, consistent with section 7701 (h) (1) of the Internal Revenue Code.

77.51(7)(b) (b) “Lease or rental” does not include any of the following:

77.51(7)(b)1. 1. A transfer of possession or control of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) under a security agreement or deferred payment plan, if such agreement or plan requires transferring title to the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) after making all required payments.

77.51(7)(b)2. 2. A transfer of possession or control of tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) under any agreement that requires transferring title to the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) after making all required payments and after paying an option price that does not exceed the greater of $100 or 1 percent of the total amount of the required payments.

77.51(7)(b)3. 3. Providing tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) along with an operator, if the operator is necessary for the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d) to perform in the manner for which it is designed and if the operator does more than maintain, inspect, or set up the tangible personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d).

77.51(7)(c) (c)

77.51(7)(c)1. 1. Transfers described under par. (a) are considered a lease or rental, regardless of whether such transfer is considered a lease or rental under generally accepted accounting principles, or any provision of federal or local law, or any other provision of state law.

77.51(7)(c)2. 2. Transfers described under par. (b) are not considered a lease or rental, regardless of whether such transfer is considered a lease or rental under generally accepted accounting principles, or any provision of federal or local law, or any other provision of state law.

77.51(7g) (7g) “Load-and-leave” means delivery to a purchaser by using a tangible storage media that is not physically transferred to the purchaser.

77.51(7h) (7h) 

77.51(7h)(a) (a) “Manufacturing” means the production by machinery of a new article of tangible personal property or item or property under s. 77.52 (1) (b) or (c) with a different form, use, and name from existing materials, by a process popularly regarded as manufacturing, and that begins with conveying raw materials and supplies from plant inventory to the place where work is performed in the same plant and ends with conveying finished units of tangible personal property or item or property under s. 77.52 (1) (b) or (c) to the point of first storage in the same plant. “Manufacturing” includes:

77.51(7h)(a)1. 1. Crushing, washing, grading and blending sand, rock, gravel and other minerals.

77.51(7h)(a)2. 2. Ore dressing, including the mechanical preparation, by crushing and other processes, and the concentration, by flotation and other processes, of ore, and beneficiation, including the preparation of ore for smelting.

77.51(7h)(a)3. 3. Conveying work in progress directly from one manufacturing process to another in the same plant; testing or inspecting, throughout the manufacturing process, the new article of tangible personal property or item or property under s. 77.52 (1) (b) or (c) that is being manufactured; storing work in progress in the same plant where the manufacturing occurs; assembling finished units of tangible personal property or item or property under s. 77.52 (1) (b) or (c); and packaging a new article of tangible personal property or items or property under s. 77.52 (1) (b) or (c), if the manufacturer, or another person on the manufacturer’s behalf, performs the packaging and if the packaging becomes part of the new article as it is customarily offered for sale by the manufacturer.

77.51(7h)(b) (b) “Manufacturing” does not include storing raw materials or finished units of tangible personal property or items or property under s. 77.52 (1) (b) or (c), research or development, delivery to or from the plant, or repairing or maintaining plant facilities.

77.51(7i) (7i) “Marketplace provider” means any person who facilitates a retail sale by a seller by listing or advertising for sale by the seller, in any manner, tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or a service specified under s. 77.52 (2) (a) and, who directly or indirectly, through agreements or arrangements with 3rd parties, processes the payment from the purchaser for the retail sale, regardless of whether the person receives compensation or other consideration in exchange for the services provided by the person.

77.51(7j) (7j) “Marketplace seller” means a seller who sells products through a physical or electronic marketplace operated by a marketplace provider, regardless of whether the seller is required to be registered with the department.

77.51(7k) (7k) “Mobile wireless service” means a telecommunications service for which the origination or termination points of the service’s transmission, conveyance, or routing are not fixed, regardless of the technology used to transmit, convey, or route the service. “Mobile wireless service” includes a telecommunications service provided by a commercial mobile radio service provider.

77.51(7m) (7m) “Mobility-enhancing equipment” means equipment, including the repair parts and replacement parts for the equipment, that is primarily and customarily used to provide or increase the ability of a person to move from one place to another; that may be used in a home or motor vehicle; and that is generally not used by a person who has normal mobility. “Mobility-enhancing equipment” does not include a motor vehicle or any equipment on a motor vehicle that is generally provided by a motor vehicle manufacturer. “Mobility-enhancing equipment” does not include durable medical equipment.

77.51(8) (8) “Newspaper” means those publications which are commonly understood to be newspapers and which are printed and distributed periodically at daily, weekly or other short intervals for the dissemination of current news and information of a general character and of a general interest to the public. In addition, any publication which qualifies as a newspaper under s. 985.03 (1) is a newspaper. “Newspaper” also includes advertising supplements if they are printed by a newspaper and distributed as a component part of one of that newspaper’s publications or if they are printed by a newspaper or a commercial printer and sold to a newspaper for inclusion in publications of that newspaper. A “newspaper” does not include handbills, circulars, flyers, or the like, advertising supplements not described in this subsection which are distributed with a newspaper, nor any publication which is issued to supply information on certain subjects of interest to particular groups, unless such publication otherwise qualifies as a newspaper within this subsection. In this subsection, advertising is not considered news of a general character and of a general interest.

77.51(8m) (8m) “Nine hundred service” means an inbound toll telecommunications service purchased by a subscriber that allows the subscriber’s customers to call the subscriber’s prerecorded announcement or live service. “Nine hundred service” does not include any charge for collection services provided by the seller of the telecommunications services to the subscriber or for any product or service the subscriber sells to the subscriber’s customers. A “nine hundred service” is designated with the “900” number or any other number designated by the federal communications commission.

77.51(9) (9) “Occasional sales” includes:

77.51(9)(a) (a)

77.51(9)(a)1. 1. Isolated and sporadic sales of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services where the infrequency, in relation to the other circumstances, including the sales price and the gross profit, support the inference that the seller is not pursuing a vocation, occupation or business or a partial vocation or occupation or part-time business as a vendor of personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services. No sale of any tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable service may be deemed an occasional sale if at the time of such sale the seller holds or is required to hold a seller’s permit, except that this provision does not apply to an organization required to hold a seller’s permit solely for the purpose of conducting bingo games and except as provided in par. (am).

77.51(9)(a)2. 2. For purposes of subd. 1., it is presumed that a seller is not pursuing a vocation, occupation, or business or a partial vocation or occupation or part-time business as a vendor of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services if the seller’s total taxable sales price from sales of tangible personal property, items, property, and goods under s. 77.52 (1) (b), (c), and (d), and taxable services is less than $2,000 during a calendar year.

77.51(9)(am) (am) The sale of personal property or items, property, or goods under s. 77.52 (1) (b), (c), or (d), other than inventory held for sale, previously used by a seller to conduct its trade or business at a location after that person has ceased actively operating in the regular course of business as a seller of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services at that location, even though the seller holds a seller’s permit for one or more other locations.

77.51(9)(e) (e) Five or fewer auctions that are the sale of personal farm property or household goods and that are held by the same auctioneer at the same location during the year. In this paragraph, with respect to indoor locations, “location” means a building, except that in the case of a shopping center or a shopping mall “location” means a store.

77.51(9p) (9p) “One nonitemized price” does not include a price that is separately identified by product on a binding sales document, or other sales-related document, that is made available to the customer in paper or electronic form, including an invoice, a bill of sale, a receipt, a contract, a service agreement, a lease agreement, a periodic notice of rates and services, a rate card, or a price list.

77.51(9r) (9r) 

77.51(9r)(a) (a) “Other direct mail” means any direct mail that is not advertising and promotional direct mail, regardless of whether advertising and promotional direct mail is included in the same mailing. “Other direct mail” includes all of the following:

77.51(9r)(a)1. 1. Transactional direct mail that contains personal information specific to the addressee, including invoices, bills, account statements, and payroll advices.

77.51(9r)(a)2. 2. Any legally required mailings, including privacy notices, tax reports, and stockholder reports.

77.51(9r)(a)3. 3. Other nonpromotional direct mail, including newsletters and informational pieces, that is delivered to existing or former shareholders, customers, employees, or agents.

77.51(9r)(b) (b) “Other direct mail” does not include printed materials that result from developing billing information or providing any data processing service that is more than incidental, as defined in sub. (5), to producing the other direct mail.

77.51(9s) (9s) “Paging service” means a telecommunications service that transmits coded radio signals to activate specific pagers and may include messages or sounds.

77.51(10) (10) “Person” includes any natural person, firm, partnership, limited liability company, joint venture, joint stock company, association, public or private corporation, the United States, the state, including any unit or division of the state, any county, city, village, town, municipal utility, municipal power district or other governmental unit, cooperative, unincorporated cooperative association, estate, trust, receiver, personal representative, any other fiduciary, any other legal entity, and any representative appointed by order of any court or otherwise acting on behalf of others.

77.51(10b) (10b) For purposes of sub. (7h), “plant” means a parcel of property or adjoining parcels of property, including parcels that are separated only by a public road, and the buildings, machinery, and equipment that are located on the parcel, that are owned by or leased to the manufacturer.

77.51(10c) (10c) For purposes of sub. (7h), “plant inventory” does not include unsevered mineral deposits.

77.51(10d) (10d) “Prepaid calling service” means the right to exclusively access telecommunications services, if that right is paid for in advance of providing such services, requires using an access number or authorization code to originate calls, and is sold in predetermined units or dollars that decrease with use in a known amount.

77.51(10f) (10f) “Prepaid wireless calling service” means a telecommunications service that provides the right to utilize mobile wireless service as well as other nontelecommunications services, including the download of digital products delivered electronically, content, and ancillary services, and that is paid for prior to use and sold in predetermined units or dollars that decrease with use in a known amount.

77.51(10m) (10m) 

77.51(10m)(a) (a) “Prepared food” means:

77.51(10m)(a)1. 1. Food and food ingredients sold in a heated state.

77.51(10m)(a)2. 2. Food and food ingredients heated by the retailer, except as provided in par. (b).

77.51(10m)(a)3. 3. Food and food ingredients sold with eating utensils that are provided by the retailer of the food and food ingredients, including plates, bowls, knives, forks, spoons, glasses, cups, napkins, or straws. In this subdivision, “plate” does not include a container or packaging used to transport food and food ingredients. For purposes of this subdivision, a retailer provides utensils if any of the following applies:

77.51(10m)(a)3.a. a. The utensils are available to purchasers and the retailer’s sales of prepared food under subds. 1., 2., and 4., and food for which plates, bowls, glasses, or cups are necessary to receive the food, are more than 75 percent of the retailer’s total sales of all food and food ingredients, as determined under par. (c).

77.51(10m)(a)3.b. b. For retailers not described under subd. 3. a., the retailer’s customary practice is to physically give or hand the utensils to the purchaser, except that plates, bowls, glasses, or cups that are necessary for the purchaser to receive the food and food ingredients need only be made available to the purchaser.

77.51(10m)(a)4. 4. Except as provided in par. (b), 2 or more food ingredients mixed or combined by a retailer for sale as a single item.

77.51(10m)(b) (b) “Prepared food” does not include:

77.51(10m)(b)1. 1. For purposes of par. (a) 2. and 4., 2 or more food ingredients mixed or combined by a retailer for sale as a single item, if the retailer’s primary classification in the North American Industry Classification System, 2002 edition, published by the federal office of management and budget, is manufacturing under subsector 311, not including bakeries and tortilla manufacturing under industry group number 3118.

77.51(10m)(b)2. 2. For purposes of par. (a) 2. and 4., 2 or more food ingredients mixed or combined by a retailer for sale as a single item, sold unheated, and sold by volume or weight.

77.51(10m)(b)3. 3. For purposes of par. (a) 2. and 4., bakery items made by a retailer, including breads, rolls, pastries, buns, biscuits, bagels, croissants, donuts, danish, cakes, tortes, pies, tarts, muffins, bars, cookies, and tortillas.

77.51(10m)(b)4. 4. For purposes of par. (a) 4., food and food ingredients that are only sliced, repackaged, or pasteurized by a retailer.

77.51(10m)(b)5. 5. For purposes of par. (a) 4., eggs, fish, meat, and poultry, and foods containing any of them in raw form, that require cooking by the consumer, as recommended by the food and drug administration in chapter 3, part 401.11 of its food code to prevent food-borne illnesses.

77.51(10m)(c) (c)

77.51(10m)(c)1. 1. The percentage specified under par. (a) 3. a. shall be determined using the following:

77.51(10m)(c)1.a. a. A numerator that includes sales of prepared food, as defined in par. (a) 1., 2., and 4., and food for which plates, bowls, glasses, or cups are necessary to receive the food, but not including alcoholic beverages.

77.51(10m)(c)1.b. b. A denominator that includes all food and food ingredients, including prepared food, candy, dietary supplements, and soft drinks, but not including alcoholic beverages.

77.51(10m)(c)2. 2.

77.51(10m)(c)2.a. a. If the percentage determined under subd. 1. is 75 percent or less, utensils are considered to be provided by the retailer if the retailer’s customary practice is to physically give or hand the utensils to the purchaser or, in the case of plates, bowls, glasses, or cups that are necessary to receive the food, to make such items available to the purchaser.

77.51(10m)(c)2.b. b. If the percentage determined under subd. 1. is greater than 75 percent, utensils are considered to be provided by the retailer if the utensils are made available to the purchaser.

77.51(10m)(c)3. 3. For a retailer whose percentage determined under subd. 1. is greater than 75 percent, an item sold by the retailer that contains 4 or more servings packaged as one item and sold for a single price does not become prepared food simply because the retailer makes utensils available to the purchaser of the item, but does become prepared food if the retailer physically gives or hands utensils to the purchaser of the item, except that plates, bowls, glasses, or cups necessary for the purchaser to receive the food need only be made available to the purchaser. For purposes of this subdivision 3., serving sizes are based on the information contained on the label of each item sold, except that, if the item has no label, the serving size is based on the retailer’s reasonable determination.

77.51(10m)(c)4. 4.

77.51(10m)(c)4.a. a. Except as provided in subd. 4. b., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer, the utensils are considered to be provided by the retailer.

77.51(10m)(c)4.b. b. Except as provided in subds. 2. and 3., if a retailer sells food items that have a utensil placed in a package by a person other than the retailer and the person’s primary classification in the North American Industry Classification System, 2002 edition, published by the federal office of management and budget, is manufacturing under subsector 311, the utensils are not considered to be provided by the retailer.

77.51(10m)(c)5. 5. For purposes of par. (a) 3., a retailer shall determine the percentage for the retailer’s tax year or business fiscal year, based on the retailer’s data from the retailer’s prior tax year or business fiscal year, as soon as practical after the retailer’s accounting records are available, but not later than 90 days after the day on which the retailer’s tax year or business fiscal year begins. For a retailer with more than one establishment in this state, a single determination under subd. 1. that combines the information for all of the retailer’s establishments in this state shall be made annually, as provided in this subdivision, and apply to each of the retailer’s establishments in this state. A retailer that has no prior tax year or business fiscal year shall make a good faith estimate of its percentage for purposes of par. (a) 3. for the retailer’s first tax year or business fiscal year and shall adjust the estimate prospectively after the first 3 months of the retailer’s operations if the actual percentage is materially different from the estimated percentage.

77.51(10n) (10n) “Prescription” means an order, formula, or recipe that is issued by any oral, written, electronic, or other means of transmission and by a person who is authorized by the laws of this state to issue such an order, formula, or recipe.