If a sales and use tax return is never filed, the statute of limitations under sub. (3) never begins to run. Zignego Co., Inc. v. DOR, 211 Wis. 2d 819
, 565 N.W.2d 590
(Ct. App. 1997), 96-1965
Sub. (3) did not preclude the Department of Revenue (DOR) from raising before the tax appeals commission an alternative legal basis for taxation simply because it was not first asserted in DOR's written notices of determination. Sub. (3) only requires the notice of determination to “be in writing” and to “specify whether the determination is an office audit determination or a field audit determination.” DOR's general practice of including the legal theory on which the tax liability is based is just that, a practice, not a statutory requirement. Tetra Tech EC, Inc. v. DOR, 2017 WI App 4
, 373 Wis. 2d 287
, 890 N.W.2d 598
Interest and penalties. 77.60(1)(a)
Except as provided in par. (b)
, unpaid taxes shall bear interest at the rate of 12 percent per year from the due date of the return until paid or deposited with the department. Taxes refunded to the seller shall bear interest at 3 percent per year from the due date of the return to the date on which the refund is certified on the refund rolls. An extension of time within which to file a return shall not extend the due date of the return for purposes of interest computation. Taxes refunded to the buyer shall bear interest at 3 percent per year from the last day of the month following the month during which the buyer paid the tax to the date on which the refund is certified on the refund rolls.
Any unpaid taxes for a calendar year or a fiscal year resulting from a field audit shall bear interest at the rate of 12 percent per year from the due date of the taxpayer's Wisconsin income or franchise tax return for that calendar or fiscal year or, if exempt, from the 15th day of the 4th month of the year after the close of the calendar or fiscal year for which the taxes are due to the date on which the taxes are paid or, if unpaid, become delinquent, whichever is earlier.
All nondelinquent payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.
Upon a showing by the department under s. 73.16 (4)
, delinquent sales and use tax returns shall be subject to a $20 late filing fee unless the return was not timely filed because of the death of the person required to file. The fee shall not apply if the department has failed to issue a seller's permit or a use tax registration within 30 days of the receipt of an application for a seller's permit or use tax registration accompanied by the fee established under s. 73.03 (50)
, if the person does not hold a valid certificate under s. 73.03 (50)
, and the security required under s. 77.61 (2)
has not been placed with the department. Delinquent sales and use taxes shall bear interest at the rate of 1.5 percent per month until paid. The taxes imposed by this subchapter shall become delinquent if not paid:
In the case of a timely filed return, on or before the due date of the return, or on or before the expiration of an extension period if one has been granted.
In the case of no return filed or a return filed late, by the due date of the return.
In the case of deficiency determinations, on or before the due date specified in the notice of deficiency, except that if the determination is contested before the tax appeals commission or in the courts, on or before the 30th day following the date on which the order or judgment representing the final determination becomes final.
If an incorrect return is filed, and upon a showing by the department under s. 73.16 (4)
, the entire tax finally determined shall be subject to a penalty of 25 percent, or 50 percent in the case of returns under s. 77.61 (1) (c)
, of the tax exclusive of interest or other penalty.
In case of failure to file any return required under authority of s. 77.58
by the due date, determined with regard to any extension of time for filing, and upon a showing by the department under s. 73.16 (4)
, there shall be added to the amount required to be shown as tax on such return 5 percent of the amount of such tax if the failure is not for more than one month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate. For purposes of this subsection, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the due date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return.
If a person fails to file a return when due or files a false or fraudulent return with intent in either case to defeat or evade the tax imposed by this subchapter, a penalty of 50 percent shall be added to the tax required to be paid, exclusive of interest and other penalties.
Any person who fails to furnish any return required to be made or who fails to furnish any data required by the department is guilty of a misdemeanor.
Any person, including an officer of a corporation, required to make, render, sign or verify any report or return required by this subchapter who makes a false or fraudulent report or return or who fails to furnish a report or return when due with the intent, in either case, to defeat or evade the tax imposed by this subchapter, is guilty of a misdemeanor.
Any person engaged in the business of making sales at retail who is at the same time engaged in some other kind of business, occupation or profession not taxable under this subchapter, shall keep books to show separately the transactions used in determining the tax herein levied. In the event of such person failing to keep such separate books, there shall be levied upon the person a tax at the rate provided in s. 77.52
on the receipts of both or all of the person's businesses, occupations or professions.
Any person who is required to collect, account for or pay the amount of tax imposed under this subchapter and who willfully fails to collect, account for or pay to the department shall be personally liable for such amounts, including interest and penalties thereon, if that person's principal is unable to pay such amounts to the department. The personal liability of such person as provided in this subsection shall survive the dissolution of the corporation or other form of business association. Personal liability may be assessed by the department against such person under this subchapter for the making of sales tax determinations against retailers and shall be subject to the provisions for review of sales tax determinations against retailers, but the time for making such determinations shall not be limited by s. 77.59 (3)
. “Person", in this subsection, includes an officer, employee or other responsible person of a corporation or other form of business association or a member, employee or other responsible person of a partnership, limited liability company or sole proprietorship who, as such officer, employee, member or other responsible person, is under a duty to perform the act in respect to which the violation occurs.
It is unlawful for any person to aid, abet or assist another in making any false or fraudulent return or false statement in any return required by this subchapter, with intent to defraud the state or evade payment of the tax, or any part thereof, imposed by this subchapter. Anyone in violation hereof shall be guilty of a misdemeanor.
Whenever a person collects tax moneys imposed under s. 77.52
from a consumer, user or purchaser, the person receives those tax moneys as trust funds and state property. Any person who intentionally fails or refuses to pay over those tax moneys to the state at the time required by this subchapter or who fraudulently withholds, appropriates or uses any of those tax moneys is guilty of theft under s. 943.20
, punishable as specified in s. 943.20 (3)
according to the amount of tax moneys involved. This subsection applies regardless of the person's interest in those tax moneys. Payment to creditors in preference to the payment of those tax moneys to the state by any person is prima facie evidence of an intent to fraudulently use those tax moneys.
A person who negligently files an incorrect and excessive claim for a refund under s. 77.59
is subject to a penalty of 25 percent of the difference between the amount claimed and the amount that should have been claimed. A person who fraudulently files an incorrect claim for a refund under s. 77.59
is subject to a penalty of 100 percent of the difference between the amount claimed and the amount that should have been claimed.
A person who uses any of the following documents in a manner that is prohibited by or inconsistent with this subchapter, or provides incorrect information to a seller or certified service provider related to the use of such documents or regarding an exemption to the taxes imposed under this subchapter, shall pay a penalty of $250 for each invoice or bill of sale related to the prohibited or inconsistent use or incorrect information:
An exemption certificate claiming direct mail.
The petitioner did not identify an equal protection problem when arguing that the absence of a limitations period in sub. (9), when compared with the general 4-year limitations period applicable to liability under s. 77.59 (3), lacked a rational basis. Rashaed v. DOR, 2014 WI App 7
, 352 Wis. 2d 527
, 842 N.W.2d 487
Administrative provisions. 77.61(1)(a)
No motor vehicle, boat, snowmobile, recreational vehicle, as defined in s. 340.01 (48r)
, trailer, semitrailer, all-terrain vehicle, utility terrain vehicle, off-highway motorcycle, or aircraft shall be registered or titled in this state unless the registrant presents proof that the sales or use taxes imposed by this subchapter have been paid.
In the case of motor vehicles, boats, snowmobiles, recreational vehicles, as defined in s. 340.01 (48r)
, trailers, semitrailers, all-terrain vehicles, utility terrain vehicles, off-highway motorcycles, or aircraft purchased from a retailer, the registrant shall present proof that the tax has been paid to such retailer.
In the case of motor vehicles, boats, snowmobiles, recreational vehicles, as defined in s. 340.01 (48r)
, trailers, semitrailers, all-terrain vehicles, utility terrain vehicles, off-highway motorcycles, or aircraft registered or titled, or required to be registered or titled, in this state purchased from persons who are not retailers, the purchaser shall file a sales tax return and pay the tax prior to registering or titling the motor vehicle, boat, snowmobile, recreational vehicle, as defined in s. 340.01 (48r)
, semitrailer, all-terrain vehicle, utility terrain vehicle, or aircraft in this state.
In order to protect the revenue of the state:
Except as provided in par. (b)
, the department may require any person who is or will be liable to it for the tax imposed by this subchapter to place with it, before or after a permit is issued, the security, not in excess of $15,000, that the department determines. In determining the amount of security to require under this subsection, the department may consider the person's payment of other taxes administered by the department and any other relevant facts. If any taxpayer fails or refuses to place that security, the department may refuse or revoke the permit. If any taxpayer is delinquent in the payment of the taxes imposed by this subchapter, the department may, upon 10 days' notice, recover the taxes, interest, costs and penalties from the security placed with the department by the taxpayer in the following order: costs, penalties, delinquent interest, delinquent tax. No interest may be paid or allowed by the state to any person for the deposit of security. Any security deposited under this subsection shall be returned to the taxpayer if the taxpayer has, for 24 consecutive months, complied with all the requirements of this subchapter.
A certified service provider who has contracted with a seller, and filed an application, to collect and remit sales and use taxes imposed under this subchapter on behalf of the seller shall submit a surety bond to the department to guarantee the payment of sales and use taxes, including any penalty and interest on such payment. The department shall approve the form and contents of a bond submitted under this paragraph and shall determine the amount of such bond. The surety bond shall be submitted to the department within 60 days after the date on which the department notifies the certified service provider that the certified service provider is registered to collect sales and use taxes imposed under this subchapter. If the department determines, with regard to any one certified service provider, that no bond is necessary to protect the tax revenues of this state, the secretary of revenue or the secretary's designee may waive the requirements under this paragraph with regard to that certified service provider. Any bond submitted under this paragraph shall remain in force until the secretary of revenue or the secretary's designee releases the liability under the bond.
A retailer shall use a straight mathematical computation to determine the amount of the tax that the retailer may collect from the retailer's customers. The retailer shall calculate the tax amount by combining the applicable tax rates under this subchapter and subch. V
and multiplying the combined tax rate by the sales price or purchase price of each item or invoice, as appropriate. The retailer shall calculate the tax amount to the 3rd decimal place, disregard tax amounts of less than 0.5 cent, and consider tax amounts of at least 0.5 cent but less than 1 cent to be an additional cent. The use of a straight mathematical computation, as provided in this subsection, shall not relieve the retailer from liability for payment of the full amount of the tax levied under this subchapter.
Every seller and retailer and every person storing, using or otherwise consuming in this state tangible personal property, or items, property, or goods under s. 77.52 (1) (b)
, or (d)
, or taxable services purchased from a retailer shall keep such records, receipts, invoices, and other pertinent papers and records, including machine-readable records, in such form as the department requires. The department may, after giving notice, require any person to keep whatever records are needed for the department to compute the sales or use taxes the person should pay. Thereafter, the department shall add to any taxes assessed on the basis of information not contained in the records required a penalty of 25 percent of the amount of the tax so assessed in addition to all other penalties under this chapter.
For reporting the sales tax and collecting and reporting the use tax imposed on the retailer under s. 77.53 (3)
and the accounting connected with it, retailers, not including certified service providers that receive compensation under s. 73.03 (61) (h)
, may deduct 0.5 percent of those taxes payable or $10 for that reporting period required under s. 77.58 (1)
and not more than $1,000 for that reporting period, whichever is greater, but not more than the amount of the sales taxes or use taxes that is payable under ss. 77.52
and 77.53 (3)
for that reporting period required under s. 77.58 (1)
, as administration expenses if the payment of the taxes is not delinquent. For purposes of calculating the retailer's discount under this paragraph, the taxes on retail sales reported by retailers under subch. V
, including taxes collected and remitted as required under s. 77.785
, shall be included if the payment of those taxes is not delinquent.
It is unlawful for the department or any person having an administrative duty under this subchapter to make known in any manner whatever the business affairs, operations or information obtained by an investigation of records and equipment of any retailer or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any return, or to permit any return or copy thereof to be seen or examined by any person. This paragraph does not prohibit the department of revenue from publishing statistics classified so as not to disclose the identity of particular returns or reports and the items thereof. This paragraph does not prohibit employees or agents of the department of revenue from offering or submitting information obtained by investigation or any return or any schedule, exhibit or writing pertaining to a return or any copy of, or information derived from, any of those documents as evidence into the record of any contested matter involving the department in proceedings or litigation on state tax matters if that evidence has reasonable probative value. This paragraph does not prohibit employees or agents of the department of revenue from informing a buyer or seller who has filed a claim for a refund that a refund has been paid to a seller or buyer with respect to the same transaction.
Subject to pars. (c)
and to the rules of the department, any sales tax or use tax returns or any schedules, exhibits, writings or audit reports pertaining to the returns, on file with the department, shall be open to examination by any of the following persons or the contents thereof divulged or used as provided in the following cases and only to the extent therein authorized:
The secretary of revenue, or any officer, agent or employee of the department of revenue.
The attorney general and department of justice employees.
Members of the senate committee on organization or its authorized agents or the assembly committee on organization or its authorized agents provided the examination is approved by a majority vote of a quorum of its members and the tax return information is disclosed only in a meeting closed to the public. The committee may disclose tax return information to the senate or assembly or to other legislative committees if the information does not disclose the identity of particular returns or reports and the items of particular returns or reports. The department of revenue shall provide assistance to the committees or their authorized agents in order to identify returns that are considered necessary by them to accomplish the review and analysis of tax policy.
Public officers of the federal government or other state governments or the authorized agents of those officers, where necessary in the administration of the laws of the federal government or other state governments, to the extent that the federal government or other state governments accord similar rights of examination or information to officials of this state.
The person who filed or submitted the return, or to whom the return relates or by that person's authorized agent or attorney.
The person required to file reports on collection or taxes withheld from another.
Any person examining a return pursuant to a court order duly obtained upon a showing to the court that the information contained in the return is relevant to a pending court action or pursuant to a subpoena signed by a judge of a court of record ordering the department's custodian of returns to produce a return in open court in a court action pending before the judge.
Any person against whom the department asserts liability under this subchapter, including a successor, guarantor or surety.
Employees of this state, to the extent that the department deems the examination necessary for the employees to perform their duties under contracts or agreements between the department and any other department, division, bureau, board or commission of this state relating to the administration of tax laws.
The state auditor and the employees of the legislative audit bureau to the extent necessary for the bureau to carry out its duties under s. 13.94
The administrator of the lottery division in the department for the purpose of withholding of lottery winnings under s. 565.30 (5)
A licensing department or the supreme court, if the supreme court agrees, for the purpose of denial, nonrenewal, discontinuation and revocation of a license based on tax delinquency under s. 73.0301
The secretary of revenue and employees of that department for the purposes of preparing and maintaining the list of persons with unpaid tax obligations as described in s. 73.03 (62)
so that the list of such persons is available for public inspection.
For purposes of obtaining the outstanding liability secured by a tax warrant, any person, or authorized agent of any person, who provides satisfactory evidence to the department, as determined by the department, that the person has a material interest, or intends to obtain a material interest, in a property that is subject to a tax warrant filed by the department under s. 77.62 (1)
For purposes of determining whether a retailer is liable for any amount of tax under this subchapter and obtaining the outstanding liability of the retailer in order to comply with s. 77.52 (18)
, any person, or authorized agent of any person, who provides satisfactory evidence to the department, as determined by the department, that the person intends to purchase or has purchased the retailer's business or stock of goods, or that the retailer will quit the business and the person will be the successor or assignee of the retailer. For purposes of providing satisfactory evidence to the department under this subdivision, the person shall provide to the department written documentation, signed by the retailer, that acknowledges the person as a purchaser or potential purchaser, successor, or assignee.
Copies of sales tax or use tax returns, schedules, exhibits, writings or audit reports shall not be furnished to the persons listed under par. (b)
, except persons under par. (b) 5.
or under an agreement between the department and another agency of government.
The use of information obtained under par. (b)
is restricted to the discharge of duties imposed upon the persons by law or by the duties of their office or by order of a court as specified under par. (b) 6.
The department may charge for the reasonable cost of divulging information under this subsection.
District attorneys may examine tax information of persons on file with the department of revenue as follows:
Such tax information may be examined for use in preparation for any judicial proceeding or any investigation which may result in a judicial proceeding involving sales or use tax if:
The treatment of an item reflected in such tax information is or may be related to the resolution of an issue in the proceeding or investigation; or
The tax information relates or may relate to a transactional relationship between the taxpayer and a person who is or may be a party to the proceeding which affects or may affect the resolution of an issue in such proceeding or investigation.
When the department of revenue allows examination of tax information under subd. 1.
If the department has referred the case to a district attorney, the department may make disclosure on its own motion.
If a district attorney requests examination of tax information relating to a person, the request must be in writing, clearly identify the requester and the person to whom the information relates and explain the need for the information. The department may then allow the examination of tax information so requested and the information may be examined and used solely for the proceeding or investigation for which it was requested.
Such tax information may be examined for use in preparation for any administrative or judicial proceeding or an investigation which may result in such proceeding pertaining to the enforcement of a specifically designated state criminal statute not involving tax administration to which this state or a governmental subdivision thereof is a party. Such tax information may be used solely for the proceeding or investigation for which it is requested.
The department of revenue may allow an examination of tax information under subd. 3.
only if a district attorney petitions a court of record in this state for an order allowing the examination and the court issues an order after finding:
There is a reasonable cause to believe, based on information believed to be reliable, that a specific criminal act has been committed;
There is reason to believe that such tax information is probative evidence of a matter in issue related to the commission of such criminal act; and
The information sought to be examined cannot reasonably be obtained from any other source, unless it is determined that, notwithstanding the reasonable availability of the information from another source, the tax information constitutes the most probative evidence of a matter in issue relating to the commission of such criminal act.
If the department determines that examination of tax information ordered under subd. 4.
would identify a confidential informant or seriously impair a civil or criminal tax investigation, the department may deny access and shall certify the reason therefor to the court.
The department of revenue shall inform each requester of the amount paid or payable under s. 77.52
for any reporting period and reported on a return filed by any city, village, town, county, school district, special purpose district or technical college district; whether that amount was paid by the statutory due date; the amount of any tax, fees, penalties or interest assessed by the department; and the total amount due or assessed under s. 77.52
but unpaid by the filer, except that the department may not divulge tax return information that in the department's opinion violates the confidentiality of that information with respect to any person other than the units of government and districts specified in this paragraph. The department shall provide to the requester a written explanation if it fails to divulge information on grounds of confidentiality. The department shall collect from the person requesting the information a fee of $4 for each return.
Any person violating this subsection may be fined not less than $100 nor more than $500, or imprisoned not less than one month nor more than 6 months, or both.
See also ss. Tax 1.11
, Wis. adm. code.
In this subsection, “personally identifiable information" means any information that identifies a person.
A certified service provider may use personally identifiable information as necessary only for the administration of its system to perform a seller's sales and use tax functions and shall provide consumers clear and conspicuous notice of its practice regarding such information, including what information it collects, how it collects the information, how it uses the information, how long, if at all, it retains the information, and under what circumstances it discloses the information to states participating in the agreement, as defined in s. 77.65 (2) (a)
A certified service provider may collect, use, and retain personally identifiable information only to verify exemption claims, to document the correct assignment of taxing jurisdictions, to investigate fraud, and to ensure its system's reliability.
A certified service provider shall provide sufficient technical, physical, and administrative safeguards to protect personally identifiable information from unauthorized access and disclosure.
For purposes of this subchapter, the state shall provide to consumers public notice of the state's practices related to collecting, using, and retaining personally identifiable information.
The state shall not retain personally identifiable information obtained for purposes of administering this subchapter unless the state is otherwise required to retain the information by law or as provided under the agreement, as defined in s. 77.65 (2) (a)
For purposes of this subchapter, the state shall provide an individual reasonable access to that individual's personally identifiable information and the right to correct any inaccurately recorded information.
If any person, other than another state that is a signatory to the agreement, as defined in s. 77.65 (2) (a)
, or a person authorized under state law to access the information, requests access to an individual's personally identifiable information, the state shall make a reasonable and timely effort to notify the individual of the request.