Section 11.66. Telecommunications and telecommunications message services.

 

(1)   Definitions. In this section:

(a) "Air-to-ground radio telephone service" means a radio service in which common carriers are authorized to offer and provide radio telecommunications service for hire to subscribers in aircraft.

(b) "Ancillary services" are those services that are associated with or incidental to providing telecommunications services, including detailed telecommunications billing, directory assistance, vertical service, and voice mail services.

(c) "Call-by-call basis" means any method of charging for telecommunications services by which the price of such services is measured by individual calls.

(d) "Communications channel" means a physical or virtual path of communications over which signals are transmitted between or among customer channel termination points.

(e) "Conference bridging service" means an ancillary service that links 2 or more participants of an audio or video conference call and may include providing a telephone number, but does not include the telecommunications services used to reach the conference bridge.

(f) "Customer," for purposes of this section, means a person who enters into a contract with the seller of telecommunications services or, in any transaction for which the end user is not the person who entered into a contract with a seller of telecommunications services, the end user of the telecommunication services. "Customer" does not include a person who resells telecommunications services or, for mobile telecommunications services, a serving carrier under an agreement to serve a customer outside the home service provider's licensed service area.

(g) "Customer channel termination point" means the location where a customer inputs or receives communications.

(h) "Detailed telecommunications billing service" means an ancillary service that separately indicates information pertaining to individual calls on a customer's billing statement.

(i) "Directory assistance" means an ancillary service that provides telephone numbers or addresses.

(j) "Eight hundred service" means a telecommunications service that allows a caller to dial a toll-free number without incurring a charge for the call and is marketed under "800," "855," "866," "877," or "888" toll-free calling, or any other number designated as toll-free by the federal communications commission.

(k) "End user" means the person who uses a telecommunications service. In the case of an entity, "end user" means the individual who uses the telecommunications service on the entity's behalf.

(L) "Fixed wireless service" means a telecommunications service that provides radio communications between fixed points.

(m) "Home service provider" means a home service provider under section 124 (5) of P.L. 106-252 , the Mobile Telecommunications Sourcing Act. Section 124 (5) of P.L. 106-252 provides that "home service provider" means the facilities-based carrier or reseller with which the customer contracts for the provision of mobile telecommunications services.

(n) "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.

(o) "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 services; 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. , Stats.

(p) "Interstate telecommunications services" means telecommunications services that originate in one state or U.S. territory or possession and terminate in a different U.S. state or territory or possession.

(q) "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.

(r) "Mobile telecommunications service" means a mobile telecommunications service under 4 USC 116 to 126 , as amended by P.L. 106-252 , the Mobile Telecommunications Sourcing Act. "Mobile telecommunications service" is defined in 4 USC 116 to 126 , as amended by P.L. 106-252 , to mean commercial mobile radio service, as defined in 47 CFR 20.3 as in effect on June 1, 1999. "Commercial mobile radio service" is defined in 47 CFR 20.3 to mean a mobile service that is either of the following:

1. A mobile service that is all of the following:

a. Provided for profit, that is, with the intent of receiving compensation or monetary gain.

b. An interconnected service.

c. Available to the public, or to such classes of eligible users as to be effectively available to a substantial portion of the public.

2. The functional equivalent of a mobile service described in subd. 1.

(s) "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.

(t) "Paging service" means a telecommunications service that transmits coded radio signals to activate specific pagers and may include messages or sounds.

(u) "Place of primary use" means the residential street address or the primary business street address of the customer. In the case of mobile telecommunications services, "place of primary use" means a street address within the licensed service area of the home service provider.

(v) "Postpaid calling service" means a telecommunications service that is obtained by paying for it on a call-by-call basis using a bankcard, travel card, credit card, debit card, or similar method, or by charging it to a telephone number that is not associated with the location where the telecommunications service originates or terminates. "Postpaid calling service" includes a telecommunications service, not including a prepaid wireless calling service, that would otherwise be a prepaid calling service except that the service provided to the customer is not exclusively a telecommunications service.

(w) "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.

(x) "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.

(y) "Private communication service" means a telecommunications service that entitles the customer to exclusive or priority use of a communications channel or group of communications channels, regardless of the manner in which the communications channel or group of communications channels is connected, and includes switching capacity, extension lines, stations, and other associated services that are provided in connection with the use of such channel or channels.

(z) "Radio service" means a communication service provided by the use of radio, including radiotelephone, radiotelegraph, paging, and facsimile service.

(zb) "Radiotelegraph service" means transmitting messages from one place to another by means of radio.

(zf) "Radiotelephone service" means transmitting sound from one place to another by means of radio.

(zk) "Service address" as defined in s. 77.51 (17m) , Stats., means any of the following:

1. The location of the telecommunications equipment to which a customer's telecommunications service is charged and from which the telecommunications service originates or terminates, regardless of where the telecommunications service is billed or paid.

2. If the location under subd. 1. is not known by the seller who sells the telecommunications service, the location where the signal of the telecommunications service originates, as identified by the seller's telecommunications system or, if the signal is not transmitted by the seller's telecommunications system, by information that the seller received from the seller's service provider.

3. If the locations described under subds. 1. and 2. are not known by the seller who sells the telecommunications service, the customer's place of primary use.

(zp) "Telecommunications services" as defined in s. 77.51 (21n) , Stats., means electronically transmitting, conveying, or routing voice, data, audio, video, or other information or signals to a point or between or among points. "Telecommunications services" includes the transmission, conveyance, or routing of such information or signals in which computer processing applications are used to act on the content's form, code, or protocol for transmission, conveyance, or routing purposes, regardless of whether the service is referred to as a voice over Internet protocol service or classified by the federal communications commission as an enhanced or value-added nonvoice data service. "Telecommunications services" does not include any of the following:

1. Data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered to a purchaser by an electronic transmission, if the purchaser's primary purpose for the underlying transaction is the processed data.

2. Installing or maintaining wiring or equipment on a customer's premises.

3. Tangible personal property.

4. Advertising, including directory advertising.

5. Billing and collection services provided to 3 rd parties.

6. Internet access services.

7. Radio and television audio and video programming services, regardless of the medium in which the services are provided, including cable service, as defined in 47 USC 522 (6), audio and video programming services delivered by commercial mobile radio service providers, as defined in 47 CFR 20.3 , and the transmitting, conveying, or routing of such services by the programming service provider.

8. Ancillary services.

9. Digital products delivered electronically, including software, music, video, reading materials, or ringtones.

(zs) "Value-added nonvoice data service" means a service that otherwise meets the definition of telecommunications services, in which computer processing applications are used to act on the form, content, code, or protocol of the information or data provided by the service and are used primarily for a purpose other than for transmitting, conveying, or routing data.

(zw) "Vertical service" means an ancillary service that is provided with one or more telecommunications services and allows customers to identify callers and to manage multiple calls and call connections, including conference bridging services.

(zy) "Voice mail service" means an ancillary service that allows a customer to store, send, or receive recorded messages, not including any vertical service that the customer must have to use the voice mail service.

(2)   Taxable services. Receipts that are subject to Wisconsin sales and use tax include receipts from the following services, if the services are sourced to Wisconsin as provided in sub. (3) :

(a) Telecommunications services, including the following:

1. Intrastate telecommunications services.

2. Interstate telecommunications services.

3. International telecommunications services.

4. Private communication services.

5. 800 services, except interstate 800 services.

6. 900 services.

7. Fixed wireless services.

8. Mobile wireless services.

10. Stationary two-way radio services.

11. Paging services.

12. Facsimile, or FAX, transmission services.

13. Prepaid wireless calling services.

14. Value-added non-voice data services.

15. Residential communications services.

16. Coin-operated telephone services.

(b) Ancillary services, including the following:

1. Conference bridging services.

2. Directory assistance services.

3. Call forwarding services.

4. Voice mail services.

5. Caller ID services.

6. Call waiting services.

(c) Internet access services.

(cm) Prepaid calling services.

(d) Telecommunications message services that consist of recording telecommunications messages and transmitting them to the purchaser of the service or at that purchaser's direction, but not including services that are taxable under par. (a) , (b) , or (c) , or services that are incidental, as defined in s. 77.51 (5) , Stats., to another service that is not taxable under subch. III of ch. 77 , Stats., and sold to the purchaser of the incidental service. Telecommunications message services include the following:

1. Nonmechanical telephone answering services.

Examples: 1) A real estate business, whose employees spend considerable periods of time away from its office, contracts with Company A to answer incoming telephone calls during periods when employees are not available to answer the telephone. Employees of Company A receive the calls to the real estate office by telephone, take messages from incoming callers, and transmit the messages to the real estate company or particular employees in that company. The service provided by Company A is not incidental to another service sold by the company that is not a taxable service. Company A's charge for this service is subject to Wisconsin sales or use tax.

2) Company B employs an office management service that provides receptionist, typing, filing, scheduling, bookkeeping, and similar services. Employees of the office management service also answer and route incoming telephone calls. When calls cannot be routed, the office management service takes and transmits messages to the appropriate person. This answering service is only a small part of the total services provided.

The telephone answering service provided as a part of the office management service is not subject to Wisconsin sales or use tax because it is incidental to the office management service provided and that office management service is not taxable.

2. Security monitoring services that consist of recording a telecommunications message and notifying the customer or local authorities of the message.

3. Electronic mail services.

4. Mechanical or electronic voice messaging and telephone answering services, except ancillary services.

Example: Company A provides its customers access to an office message system computer through which a customer can deposit or retrieve telephone messages using a touch-tone telephone. The service may be used as a message center, a call forwarding service, or an answering service. Messages are stored in the computer, and the customer may send or retrieve messages, reply to a message directly, reroute messages to others, broadcast messages to a wider group, save selected messages, and cancel messages no longer needed. The service is available 24 hours a day, and the customer accesses the computer through either a toll-free telephone number or a local telephone number. The service provided by Company A is not incidental to another service sold by the company that is not a taxable service and is not associated with or incidental to providing telecommunications services. Company A's charges for this service are subject to Wisconsin sales or use tax.

(3)   Sourcing. This subsection describes the sourcing of telecommunications services, ancillary services, Internet access services, and telecommunications message services.

(a) Telecommunications services.

1. Except as provided in subds. 3. to 7. , the sale of a telecommunications service that is sold on a call-by-call basis is sourced to the taxing jurisdiction:

a. where the call originates and terminates, if the call originates and terminates in the same taxing jurisdiction; or

b. where the call either originates or terminates and where the service address is located, if the call does not originate and terminate in the same taxing jurisdiction.

2. Except as provided in subds. 3. to 7. , the sale of a telecommunications service that is sold on a basis other than a call-by-call basis is sourced to the customer's place of primary use, as defined in sub. (1) (u) .

3. The sale of a mobile telecommunications service, except an air-to-ground radiotelephone service and a prepaid calling service, is sourced to the customer's place of primary use, as defined in sub. (1) (u) .

4. The sale of a postpaid calling service is sourced to the location where the signal of the telecommunications service originates, as first identified by the seller's telecommunications system or, if the signal is not transmitted by the seller's telecommunications system, by information that the seller received from the seller's service provider.

5. The sale of a prepaid calling service or a prepaid wireless calling service is sourced to the location determined under s. Tax 11.945 (2) .

6. The sale of a prepaid wireless calling service is sourced to the location determined under s. Tax 11.945 (2) , except that if the location cannot be determined under s. Tax 11.945 (2) (a) to (d) , the prepaid wireless calling service occurs at the location determined under s. Tax 11.945 (2) (e) 3. , or the location associated with the mobile telephone number, as determined by the seller.

7.

a. The sale of a private communication service for a separate charge related to a customer channel termination point is sourced to the location of the customer channel termination point.

b. The sale of a private communication service in which all customer channel termination points are located entirely in one taxing jurisdiction for sales and use tax purposes is sourced to the taxing jurisdiction in which the customer channel termination points are located.

Example: Company A contracts with Telecommunications Provider B for private communication service to send data from Company A's bank, located in Milwaukee, Wisconsin, to Company A's automated teller machines or "ATMs," located in Milwaukee, Wisconsin, and to send data from its ATMs in Milwaukee to its bank in Milwaukee. The charge by Telecommunications Provider B to Company A is based on a certain amount of dedicated channel capacity available to Company A on the communications channel, regardless of the volume of data transmitted or number of transmissions made by Company A. Since all of the customer channel termination points are located in Milwaukee, Wisconsin, the entire service is sourced to Milwaukee.

c. If the segments are charged separately, the sale of a private communication service that represents segments of a communications channel between 2 customer channel termination points that are located in different taxing jurisdictions for sales and use tax purposes is sourced in an equal percentage to both jurisdictions.

Example: Company B contracts with Telecommunications Provider C for private communication service to send data from Company B's bank, located in Milwaukee, Wisconsin, to Company B's automated teller machine (ATM) located in Waukesha, Wisconsin. Telecommunications Provider C charges Company B based on the location of the segments of the channel termination points. Since Company B has 2 customer channel termination points that are located in different taxing jurisdictions, one located in Milwaukee and the other located in Waukesha, the charge by Telecommunications Provider C to Company B is sourced equally between the Milwaukee taxing jurisdiction and the Waukesha taxing jurisdiction.

d. If the segments are not charged separately, the sale of a private communication service for segments of a communications channel that is located in more than one taxing jurisdiction for sales and use tax purposes is sourced to each jurisdiction in a percentage determined by dividing the number of customer channel termination points in that jurisdiction by the number of customer channel termination points in all jurisdictions where segments of the communications channel are located.

Example: Company JKL, headquartered in Milwaukee, Wisconsin, has branch offices in Madison, Wisconsin, Green Bay, Wisconsin, Chicago, Illinois and Minneapolis, Minnesota. Company JKL contracts with a telecommunications company for private communication service to send messages between and among its Milwaukee office and the branch offices. Company JKL has exclusive use of the channels while using them. The telecommunications company sells use of the communications channels to other parties while Company JKL is not using them. The charges by the telecommunications company to Company JKL are based on a certain amount of dedicated channel capacity available to Company JKL on the communications channels. The telecommunications company does not bill separately for the segments of the communications channels. Increasing capacity requires a higher charge. The telecommunications company refers to this service as "private line service." Of the charges by the telecommunications company to Company JKL for this service, 60% are subject to Wisconsin sales or use tax because 3 of the 5 customer channel termination points are located in Wisconsin.

e. No credit for tax paid to another state is allowed where the other state apportions the service in a manner similar to that provided in subd. 7. c. and d.

(b) Ancillary services. Except for detailed telecommunications billing services, ancillary services are sourced to the customer's place of primary use, as defined in sub. (1) (u) .

(c) Internet access services. Internet access services are sourced to the customer's place of primary use, as defined in sub. (1) (u) .

(d) Exceptions. For purposes of pars. (a) , (b) , and (c) , if the location of the customer's service address, channel termination point, or place of primary use is not known, the location where the seller receives or hands off the signal shall be considered, for purposes of this rule, the customer's service address, channel termination point, or place of primary use.

(e) Telecommunications message services. Telecommunications message services are sourced to the location determined under s. Tax 11.945 (2) , which will generally result in the sale being sourced to the location where the customer, or someone at the direction of the customer, receives the message.

(4)   Nontaxable services. The sales price from the sale of or charge for the following services are not taxable:

(a) Interstate or international telecommunications service if the service is sourced to a location outside Wisconsin.

(b) Revenues collected under s. 256.35 (3) , Stats., the surcharge established by the public service commission under s. 256.35 (3m) (f) , Stats., for customers of wireless providers as defined in s. 256.35 (3m) (a) 6. , Stats., and the police and fire protection fees under s. 196.025 (6) , Stats.

(c) Transfers of telecommunications services to resellers who purchase, repackage and resell the services to customers. The reseller is liable for sales tax on its final retail sales of those services.

(d) Interstate 800 services.

(e) Transfers of services, commonly called "access services," to an interexchange carrier which permit the origination or termination of telephone messages between a customer in Wisconsin and one or more points in another telephone exchange, and which are resold by the interexchange carrier. The interexchange carrier is liable for sales tax on its final retail sales of those services.

(f) Detailed telecommunications billing services, as defined in sub. (1) (h) .

(5)   Credit for tax paid to another state. Any person who is subject to the tax under s. 77.52 (2) (a) 5. , Stats., on telecommunications services that terminate in Wisconsin and who has paid a similar tax on the same services to another state may reduce the amount of the tax remitted to Wisconsin by an amount equal to the similar tax properly paid to another state on those services or by the amount due Wisconsin on those services, whichever is less. That person shall refund proportionally to the persons to whom the tax under s. 77.52 (2) (a) 5. , Stats., was passed on an amount equal to the amounts not remitted.

(6)   Purchases by persons providing service. Persons engaged in the business of providing telecommunications services are consumers, not retailers, of the tangible personal property and items, property, and goods under s. 77.52 (1) (b) , (c) , and (d) , Stats., used by them or transferred incidentally by them in providing those services. The tax applies to the sale of the property, items, or goods to them.

History: Cr. Register, December, 1977, No. 264 , eff. 1-1-78; am. (1) (a), (b), (d) and (e), (2), Register, January, 1983, No. 325 , eff. 2-1-83; cr. (1) (f), Register, July, 1987, No. 379 , eff. 8-1-87; emerg. r. and recr. (1) (a) and (b), eff. 10-1-89; r. and recr. Register, April, 1990, No. 412 , eff. 5-1-90; renum. (3) (d) and (e) to be (4) (f) and (3) (d), Register, March, 1991, No. 423 , eff. 4-1-91; r. and recr., Register, September, 1993, No. 453 , eff. 10-1-93; am. (2) (intro.) and (5), Register, September, 1997, No. 501 , eff. 10-1-97; CR 99-101 : r. and recr. (1) (a) and (3), renum. (1) (b), (2), (4) (intro.) to (c), (f), and (5) to be (1) (d), (2) (a), (5) (intro.) to (c), (e) and (8) and am. (2) (a) (intro.), 1., 2. (intro.), (5) (intro.), (a), (c) and (e), cr. (1) (b), (c) and (e), (2) (intro.) and (b), (4), (5) (d), (6) and (7), r. (4) (d) and (e), Register November 2002 No. 563 , eff. 12-1-02; EmR0924 : emerg. r. and recr. eff. 10-1-09; CR 09-090 : r. and recr. Register May 2010 No. 653 , eff. 6-1-10; correction in (2) (d) (intro.) made under s. 13.92 (4) (b) 7. , Stats., Register May 2010 No. 653 ; CR 10-094 : am. (2) (intro.) Register November 2010 No. 659 , eff. 12-1-10; CR 12-014 : r. (2) (a) 9., cr. (2) (cm), am. (3) (a) 2., 3., (b), (c) Register August 2012 No. 680 , eff. 9-1-12; CR 14-006 : r. and recr. (1) (u), am. (1) (x) Register August 2014 No. 704 , eff. 9-1-14.

Note

Section Tax 11.66 interprets ss. 77.51 (1ba) , (1r) , (3c) , (3pe) , (3pn) , (3rn) , (5d) , (5f) , (5n) , (5r) , (7k) , (8m) , (9s) , (10d) , (10f) , (10s) , (13rn) , (17m) , (21n) , (24) , (25) , and (26) , 77.52 (2) (a) 5. and 5m. , 77.522 (4) , and 77.525 , Stats. Microsoft Windows NT 6.1.7601 Service Pack 1 The Dane County Circuit Court's decision of May 22, 1981 in Wisconsin Department of Revenue v. North-West Services Corporation and North-West Telephone Company held that a telephone company may purchase without tax tangible personal property leased or rented to customers in conjunction with an activity open to competition with others who are not public utilities. Microsoft Windows NT 6.1.7601 Service Pack 1 Note: The interpretations in s. Tax 11.66 are effective under the general sales and use tax law on or after September 1, 1969, except: (a) Chapter 39, Laws of 1975 , effective July 31, 1975, expanded the telephone services subject to the tax to include "telephone services of whatever nature"; (b) Chapter 317, Laws of 1981 , imposed the tax on interstate telegraph and telephone service, effective May 1, 1982; (c) "911" service became exempt on August 1, 1987, pursuant to 1987 Wis. Act 27 ; (d) Telecommunications services originating in Wisconsin and charged to a subscriber in Wisconsin became taxable October 1, 1989, pursuant to 1989 Wis. Act 31 ; (e) Telecommunications services originating in Wisconsin and charged to a service address in Wisconsin became taxable October 1, 1991, pursuant to 1991 Wis. Act 31 ; (f) The repeal of the exemption for equipment in central offices of telephone companies became effective September 1, 1995, pursuant to 1995 Wis. Act 27 ; (g) Telecommunications services paid for by the insertion of coins in a coin-operated telephone became taxable August, 1, 1996, pursuant to 1995 Wis. Act 351 ; (h) Certain telecommunications message services became taxable December 1, 1997, pursuant to 1997 Wis. Act 27 ; (i) Telecommunications services originating outside Wisconsin, terminating in Wisconsin and charged to a service address in Wisconsin, except certain services obtained by means of a toll-free number, became taxable December 1, 1997, pursuant to 1997 Wis. Act 27 ; (j) Credit for sales tax properly paid to another state on interstate telecommunications services became effective October 14, 1997, pursuant to 1997 Wis. Act 27 ; (k) Sales of rights to purchase telecommunications services became taxable August 1, 1998, pursuant to 1997 Wis. Act 237 ; (L) The exemption for interstate private line services no longer applies, effective December 1, 2002; (m) The definitions of air-to-ground radio telephone service, ancillary services, call-by-call basis, communications channel, conference bridging service, customer, customer channel termination point, detailed telecommunications billing services, directory assistance, eight hundred service, end user, fixed wireless service, home service provider, international telecommunications services, internet access services, interstate telecommunications services, intrastate telecommunications services, mobile telecommunications service, nine hundred service, paging service, place of primary use, postpaid calling service, prepaid calling service, prepaid wireless calling service, private communications service, radio service, radiotelegraph service, radiotelephone service, service address, telecommunications service, value-added nonvoice data service, vertical service, and voice mail service became effective October 1, 2009, pursuant to 2009 Wis. Act 2 ; (n) The specific imposition of tax on ancillary services and interstate, intrastate, and international telecommunications services became effective October 1, 2009, pursuant to 2009 Wis. Act 2 ; (o) The sourcing provisions related to telecommunications services became effective October 1, 2009, pursuant to 2009 Wis. Act 2 ; (p) The change of the term "gross receipts" to "sales price" and the separate impositions of tax on coins and stamps sold above face value under s. 77.52 (1) (b) , Stats., certain leased property affixed to real property under s. 77.52 (1) (c) , Stats., and digital goods under s. 77.52 (1) (d) , Stats., became effective October 1, 2009, pursuant to 2009 Wis. Act 2 ; and (q) The definition of "primary place of use" was amended to replace the reference to federal law with specific language, and the definition of "prepaid wireless calling service" was amended, pursuant to 2013 Wis. Act 20 . Microsoft Windows NT 6.1.7601 Service Pack 1