Section 77.60. Interest and penalties.

 

(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.

(b) 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.

(1m)  All nondelinquent payments of additional amounts owed shall be applied in the following order: penalties, interest, tax principal.

(2)  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:

(a) 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.

(b) In the case of no return filed or a return filed late, by the due date of the return.

(c) 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.

(3)  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.

(4)  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.

(5)  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.

(6)  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.

(7)  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.

(8)  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 or 77.53 on the receipts of both or all of the person's businesses, occupations or professions.

(9)  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.

(10)  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.

(11)  Whenever a person collects tax moneys imposed under s. 77.52 , 77.53 or 77.71 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.

(12)  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.

(13)  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:

(a) An exemption certificate described under ss. 77.52 (13) and 77.53 (10) .

(b) A direct pay permit under s. 77.52 (17m) .

(c) An exemption certificate claiming direct mail.

1975 c. 39 , 186 ; 1979 c. 110 s. 60 (13) ; 1979 c. 221 , 230 ; 1981 c. 20 ; 1983 a. 27 ; 1985 a. 29 ; 1987 a. 399 ; 1991 a. 39 , 269 , 316 ; 1993 a. 16 , 112 , 408 , 437 ; 1995 a. 27 , 428 ; 1997 a. 237 , 314 ; 1999 a. 9 ; 2009 a. 2 ; 2011 a. 68 ; 2013 a. 20 . 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. Department of Revenue, 2014 WI App 7 , 352 Wis. 2d 527 , 842 N.W.2d 487 , 13-0366 .