Section 71.83. Penalties.

 

(1)   Civil.

(a) Negligence.

1. `Failure to file.' In case of failure to file any return required under s. 71.03 , 71.24 , 71.44 , or 71.775 on the due date prescribed therefor, including any applicable 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 the return 5 percent of the amount of the tax if the failure is for not more than one month, with an additional 5 percent for each additional month or fraction thereof during which the failure continues, not exceeding 25 percent in the aggregate. For purposes of this subdivision, 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 and by the amount of any credit against the tax which may be claimed upon the return.

1m. `Failure to file information return.' If a person fails to file a return required under subch. XI by the prescribed due date, including any extension, or files an incorrect or incomplete return, that person may be subject to a penalty of $10 for each violation. A penalty shall be waived except upon a showing by the department under s. 73.16 (4) .

2. `Incomplete or incorrect return.' If any person required under this chapter to file an income or franchise tax return files an incomplete or incorrect return, and upon a showing by the department under s. 73.16 (4) , there shall be added to such person's tax for the taxable year 25 percent of the amount otherwise payable on any income subsequently discovered or reported. The amount so added shall be assessed, levied and collected in the same manner as additional normal income or franchise taxes, and shall be in addition to any other penalties imposed by this chapter. In this subdivision, “return" includes a separate return filed by a spouse with respect to a taxable year for which a joint return is filed under s. 71.03 (2) (g) to (L) after the filing of that separate return, and a joint return filed by the spouses with respect to a taxable year for which a separate return is filed under s. 71.03 (2) (m) after the filing of that joint return.

3. `Incomplete or incorrect deposit or withholding report.' If any person required under subch. X to file a deposit report or withholding report files an incomplete or incorrect report, or fails to properly withhold or fails to properly deposit or pay over withheld funds, and upon a showing by the department under s. 73.16 (4) , there shall be added to the tax 25 percent of the amount not reported or not withheld, deposited or paid over. The amount so added shall be assessed, levied and collected in the same manner as additional income or franchise taxes, and shall be in addition to any other penalties imposed in this subchapter. “Person", in this subdivision, includes an officer or employee of a corporation or other responsible person or a member or employee of a partnership or limited liability company or other responsible person 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.

4. `Late filing of withholding report.' In case of failure to file any withholding deposit or payment report required under s. 71.65 (3) on the due date prescribed therefor, upon a showing by the department under s. 73.16 (4) , there shall be added to the amount required to be shown as withheld taxes on the report 5 percent of the amount if the failure is not for more than one month, with an additional 5 percent for each additional month or fraction thereof during which the failure continues, not exceeding 25 percent in the aggregate.

5. `Failure to notify.' Any employee who fails to notify the department as required by s. 71.64 (2) (b) 2. shall be subject to a penalty of $10.

6. `Retirement plans.' Any natural person who is liable for a penalty for federal income tax purposes under section 72 (m) (5), (q), (t), and (v), 4973 , 4974 , 4975 , or 4980A of the Internal Revenue Code is liable for 33 percent of the federal penalty unless the income received is exempt from taxation under s. 71.05 (1) (a) or (ae) . The penalties provided under this subdivision shall be assessed, levied, and collected in the same manner as income or franchise taxes.

7. `Failure to keep records required by the department.' Any taxes assessed upon information not contained in records required by the department under s. 71.80 (9) to be kept by any person subject to an income or franchise tax shall carry a penalty of 25 percent of the amount of the tax. The penalty shall be in addition to all other penalties provided in this chapter.

8. `Joint return replacing separate returns.' If the amount shown as the tax by the husband and wife on a joint return filed under s. 71.03 (2) (g) to (L) exceeds the sum of the amounts shown as the tax upon the separate return of each spouse and if any part of that excess is attributable to negligence or intentional disregard of this chapter, but without intent to defraud, at the time of the filing of that separate return, then 25 percent of the total amount of that excess shall be added to the tax.

10. `Failure to provide schedules.' If a person who is required to provide a schedule under s. 71.13 (1m) , 71.20 (1m) , or 71.36 (4) fails to provide the schedule by the due date, including any extension, or provides an incorrect or incomplete schedule, the person is subject to a $50 penalty for each violation, except that the department shall waive the penalty if the person shows the department that a violation resulted from a reasonable cause and not from willful neglect.

11. `Negligently filed claims.' A person who negligently files an incorrect claim for refund of tax, or credits, under this chapter is subject to a penalty of 25 percent of the difference between the amount claimed and the amount that should have been claimed.

(b) Intent to defeat or evade.

1. `Income and franchise; all persons.' With respect to calendar year 1985 or corresponding fiscal year and subsequent calendar or fiscal years, any person making an incorrect, or failing to make a, report, including a separate return filed by a spouse with respect to a taxable year for which a joint return is filed under s. 71.03 (2) (g) to (L) after the filing of that separate return, and including a joint return filed by the spouses with respect to a taxable year for which a separate return is filed under s. 71.03 (2) (m) after the filing of that joint return, with intent, in either case, to defeat or evade the income or franchise tax assessment required by law, shall have added to the tax an amount equal to 100 percent of the tax on the entire underpayment. No amount paid under this subdivision may be deducted from gross income and assessments hereunder may be made with respect to decedents. Amounts added to the tax under this subdivision shall be treated as additional taxes for all purposes of assessment and collection. Repeated late filing of an income or franchise tax return evinces an intent to defeat or evade the income or franchise tax assessment required by law.

2. `Personal liability.' The penalties provided by this subdivision shall be paid upon notice and demand of the secretary of revenue or the secretary's designee and shall be assessed and collected in the same manner as income or franchise taxes, except that the time limits under s. 71.77 do not apply to the assessment of personal liability under this subdivision if the corporation, other form of business association, partnership, limited liability company or sole proprietorship with which the person is associated is assessed within the time period under s. 71.77 . Any person required to withhold, account for or pay over any tax imposed by this chapter, whether exempt under s. 71.05 (1) to (3) , 71.26 (1) or 71.45 or not, who intentionally fails to withhold such tax, or account for or pay over such tax, shall be liable to a penalty equal to the total amount of the tax, plus interest and penalties on that tax, that is not withheld, collected, accounted for or paid over. The personal liability of such person as provided in this subdivision shall survive the dissolution of the corporation or other form of business association. “Person", in this subdivision, 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.

3. `Employees' statements.' Any person, whether exempt under s. 71.05 (1) to (3) , 71.26 (1) or 71.45 or not, required under s. 71.65 (1) to furnish a written statement to an employee, who furnishes a false or fraudulent statement, or who intentionally fails to furnish a statement in the manner, at the time and showing the information required under s. 71.65 (1) , or rules prescribed with respect thereto, shall, for each such failure, be subject to a penalty of $20. “Person", in this subdivision, includes an officer or employee of a corporation or other responsible person or a member or employee of a partnership or limited liability company or other responsible person 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.

4. `Exemption documents.' Any employee who files a withholding exemption certificate, form or agreement under s. 71.64 (2) (b) or 71.66 (1) (a) , (2) or (3) with the intent to defeat or evade the proper withholding of tax under subch. X shall be subject to a penalty equal to the difference between the amount required to be withheld and the amount actually withheld for the period that the incorrect certificate, form or agreement was in effect.

5. `Joint return after separate returns.' If the amount shown as the tax by the husband and wife on a joint return filed under s. 71.03 (2) (g) to (L) exceeds the sum of the amounts shown as the tax on the separate return of each spouse and if any part of that excess is attributable to fraud with intent to evade tax at the time of the filing of that separate return, then 50 percent of the total amount of that excess shall be added to the tax.

6. `Corporations.' If a corporation or limited liability company files a false declaration of complete inactivity, or, after filing a declaration, becomes activated or reactivated and fails to file timely statements and information under this chapter covering such year or years of activity or reactivity its officers or managers at the time of such filing or failure shall be jointly and severally liable for a civil penalty of $25 for such filing or each such failure, which penalty may be assessed and collected as income or franchise taxes are assessed and collected.

7. `Fraudulently filed claims.' A person who fraudulently files an incorrect claim for refund of tax, or credits, under this chapter is subject to a penalty of 100 percent of the difference between the amount claimed and the amount that should have been claimed.

(c) Medical savings account withdrawals. Any person who is liable for a penalty for federal income tax purposes under section 220 (f) (4) of the Internal Revenue Code is liable for a penalty equal to 33 percent of that penalty. The department of revenue shall assess, levy and collect the penalty under this paragraph as it assesses, levies and collects taxes under this chapter.

(ce) Health savings accounts. Any person who is liable for a penalty for federal income tax purposes under section 223 (f) (4) of the Internal Revenue Code is liable for a penalty equal to 33 percent of that penalty. The department of revenue shall assess, levy, and collect the penalty under this paragraph as it assesses, levies, and collects taxes under this chapter.

(d) Sale of certain business assets or assets used in farming.

1. If a person who purchases or otherwise receives business assets or assets used in farming, of which the gains realized by the transferor on the sale or disposition of such assets are exempt from taxation under s. 71.05 (6) (b) 25. , sells or otherwise disposes of the assets within 2 years after the person purchases or receives the assets, the person shall pay a penalty that is calculated under subd. 2.

2. The penalty described under subd. 1. shall be the amount of income tax that would have been imposed under s. 71.02 on the capital gains received by the transferor in the transaction described in subd. 1. if the exemption under s. 71.05 (6) (b) 25. did not apply to the transaction multiplied by a fraction, the denominator of which is 24 and the numerator of which is the difference between 24 and the number of months between the date on which the person who is liable for the penalty purchased or otherwise received the assets described in subd. 1. and the month in which the person sells or otherwise disposes of the assets.

3. The department of revenue shall assess, levy and collect the penalty under this paragraph as it assesses, levies and collects taxes under this chapter.

(2)   Criminal.

(a) Misdemeanor.

1. `All persons.' If any person, including an officer of a corporation or a manager of a limited liability company required by law to make, render, sign or verify any return, willfully fails or refuses to make a return at the time required in s. 71.03 , 71.24 or 71.44 or willfully fails or refuses to make deposits or payments as required by s. 71.65 (3) or willfully renders a false or fraudulent statement required by s. 71.65 (1) and (2) or deposit report or withholding report required by s. 71.65 (3) , such person shall be guilty of a misdemeanor and may be fined not more than $10,000 or imprisoned for not to exceed 9 months or both, together with the cost of prosecution.

2. `Penalties for certain false documents.' Any person who willfully makes and subscribes any return, claim, statement or other document required by this chapter that that person does not believe to be true and correct as to every material matter or who willfully aids in, procures, counsels or advises the preparation of any return, claim, statement or other document that is false or fraudulent as to any material matter related to, or required by, this chapter may be fined not more than $10,000 or imprisoned for not more than 9 months or both, together with the cost of prosecution.

3. `Divulging information.' Any person who violates s. 71.78 shall upon conviction be fined not less than $100 nor more than $500 or imprisoned for not less than one month nor more than 6 months or both.

3m. `Browsing in records.' Any person who violates s. 71.78 (1m) (a) shall upon conviction be fined not less than $100 nor more than $500 or imprisoned for not less than one month nor more than 6 months or both.

4. `Coercing employee to prepay taxes.' Any employer found guilty of violating s. 71.09 (15) (d) may be fined not less than $25 nor more than $200 for each violation.

5. `False withholding agreement.' Any employee who willfully supplies an employer with false or fraudulent information regarding an agreement with the intent to defeat or evade the proper withholding of tax under subch. X may be imprisoned for not more than 6 months or fined not more than $500, plus the costs of prosecution, or both.

6. `Construction contractor surety bond.' Any person who fails or refuses to comply with s. 71.80 (16) shall be fined not less than $300 nor more than $5,000.

(b) Felony.

1. `False income tax return; fraud.' Any person, other than a corporation or limited liability company, who renders a false or fraudulent income tax return with intent to defeat or evade any assessment required by this chapter, or to obtain a refund or credit with fraudulent intent, is guilty of a Class H felony and may be assessed the cost of prosecution. In this subdivision, “return" includes a separate return filed by a spouse with respect to a taxable year for which a joint return is filed under s. 71.03 (2) (g) to (L) after the filing of that separate return, and a joint return filed by the spouses with respect to a taxable year for which a separate return is filed under s. 71.03 (2) (m) after the filing of that joint return.

2. `Officer of a corporation; false franchise or income tax return.' Any officer of a corporation or manager of a limited liability company required by law to make, render, sign or verify any franchise or income tax return, who makes any false or fraudulent franchise or income tax return, with intent to defeat or evade any assessment required by this chapter is guilty of a Class H felony and may be assessed the cost of prosecution.

3. `Evasion.' Any person who removes, deposits or conceals or aids in removing, depositing or concealing any property upon which a levy is authorized with intent to evade or defeat the assessment or collection of any tax administered by the department is guilty of a Class I felony and may be assessed the cost of prosecution.

4. `Fraudulent claim for credit.' A claimant who files a claim for credit under s. 71.07 , 71.28 or 71.47 or subch. VIII or IX that is false or excessive and filed with fraudulent intent and any person who, with fraudulent intent, assists in the preparation or filing of the false or excessive claim or supplied information upon which the false or excessive claim was prepared is guilty of a Class H felony and may be assessed the cost of prosecution.

(3)   Late filing fees.

(a) If any person required under this chapter to file an income or franchise tax return fails to file a return within the time prescribed by law, or as extended under s. 71.03 (7) , 71.24 (7) , or 71.44 (3) , unless the return is filed under such an extension but the person fails to file a copy of the extension that is granted by or requested of the internal revenue service, the department shall add $50 to the person's tax if the return is filed under subch. I or $150 to the person's tax if the return is filed under subch. IV or VII . If no tax is assessed against any such person the amount of this fee shall be collected as income or franchise taxes are collected. If any person who is required under s. 71.65 (3) to file a withholding report and deposit withheld taxes fails timely to do so and upon a showing by the department under s. 73.16 (4) ; unless the person so required dies; the department of revenue shall add $50 to the amount due except that if the person is subject to taxation under subch. IV or VII the department shall add $150 to the amount due.

(b) A partnership that fails to file a statement under s. 71.20 (1) by the due date, including any extension, is subject to a $50 fee.

(4)   Sales and use tax reporting. This section does not apply to the failure to report, or the incomplete or incorrect reporting of, sales and use taxes due under subch. III of ch. 77 on any return filed under this chapter.

(5)   Ineligibility to claim certain credits.

(a) Definitions. In this subsection:

1. “Credit" means the earned income tax credit under s. 71.07 (9e) , the homestead credit under subch. VIII , the farmland preservation credit under subch. IX , or any refundable credit under s. 71.07 , 71.28 , or 71.47 .

2. “Fraudulent claim" means a claim for a credit, filed by a person, that is false or excessive and filed with fraudulent intent, as determined by the department.

3. “Reckless claim" means a claim for a credit, filed by a person, that is improper, due to reckless or intentional disregard of the provisions in this chapter or of rules and regulations of the department, as determined by the department.

(b) Disallowance period.

1. A person who files a fraudulent claim may not file a claim for a credit for 10 successive taxable years, beginning with the taxable year that begins immediately after the taxable year for which the department determined that the person filed a fraudulent claim.

2. A person who files a reckless claim may not file a claim for a credit for 2 successive taxable years, beginning with the taxable year that begins immediately after the taxable year for which the department determined that the person filed a reckless claim.

(c) Reinstatement. After the period described under par. (b) during which a person may not file a claim for a credit, the person may file a claim for a credit, subject to any requirements that the department may impose on the person to demonstrate that the person is eligible to claim the credit.

1987 a. 312 ; 1989 a. 31 , 90 ; 1991 a. 39 , 190 , 269 , 315 ; 1993 a. 16 , 112 , 213 ; 1995 a. 428 , 453 ; 1997 a. 27 , 237 , 283 , 323 ; 1999 a. 32 ; 2001 a. 109 ; 2007 a. 20 ; 2009 a. 28 ; 2011 a. 1 , 68 ; 2013 a. 20 ; s. 35.17 correction in (3) (a).