State Bar of Wisconsin Return to wisbar.org Wisconsin Tax Appeals Commission


[WP]

STATE OF WISCONSIN

TAX APPEALS COMMISSION


BROWNING-FERRIS INDUSTRIES

OF WISCONSIN, INC.

c/o Attorney James R. Lowe

Whyte Hirschboeck Dudek, S.C.

111 E. Wisconsin Ave., Suite 2100

Milwaukee, WI 53202-4894

Petitioner,

vs.

WISCONSIN DEPARTMENT OF REVENUE

P.O. Box 8933

Madison, WI 53708

Respondent.

DOCKET NO. 97-S-282

DECISION AND ORDER


MUSOLF, CHAIRPERSON:

This case was submitted to the Commission on stipulated facts and briefs.

Petitioner, Browning-Ferris Industries of Wisconsin, Inc., is represented by Attorney James R. Lowe of Whyte Hirschboeck Dudek, S.C., of Milwaukee, Wisconsin. Respondent, Wisconsin Department of Revenue ("Department"), is represented by Attorney Linda M. Mintener.

Based on the stipulated facts, related exhibits, and briefs of the parties, the Commission finds, concludes, and orders as follows:

FINDINGS OF FACT

For its Findings of Fact, the Commission adopts the following stipulated findings, making minor modifications and omitting references to exhibits:

Jurisdictional Facts

1. On or about May 1, 1995, the Department issued a Notice of Field Audit Action and a Notice of Amount Due against petitioner, assessing $392,140.32 sales and use tax, plus interest, for the period October 1, 1989 through September 30, 1993.(1)

2. On or about June 29, 1995, petitioner filed a petition for redetermination objecting to the Department's assessment.

3. On or about May 29, 1997, the Department denied petitioner's petition for redetermination in its entirety. The Office of Appeals sent to petitioner its Redetermination Notice of Amount Due of $464,554.24, with interest updated to July 31, 1997.

4. On July 28, 1997, petitioner filed a petition for review ("petition") with the Tax Appeals Commission.

General Facts

5. Petitioner was incorporated as a Wisconsin corporation in 1973. Its corporate headquarters and principal place of business was located at W144 S6350 College Court, Muskego, Wisconsin 53150. Petitioner had operations at four business sites: Green Bay, Germantown (which did business as A-1 Service Company), and two in Madison. One Madison site was a landfill, known as "Madison Prairie Landfill;" the other Madison site was a hauling service known as "Madison Hauling." Petitioner still operates the Germantown site, but, subsequent to the period under review, sold its other locations and merged into BFI Waste Systems of North America, Inc.

6. Petitioner was primarily engaged in the business of collecting discarded materials from its Wisconsin residential and commercial customers and transporting these discarded materials to landfills, recycling centers or material recycling facilities ("Petitioner's Business"). The types of items collected and hauled included trash, garbage, and recyclables.

7. Petitioner was a wholly-owned subsidiary of Browning-Ferris Industries ("BFI").

8. Petitioner held Seller's Permit No. 456398.

9. Petitioner leased or sold compactors to some of its hauling customers. It also provided its customers, without additional charge, bins, dumpsters, and containers. At its Green Bay location, petitioner leased compactors to some of its customers. These customers deposited their recyclable items in bins, dumpsters, and containers that were specifically labeled to collect recyclable items and their nonrecyclable waste items in dumpsters that were specifically labeled to collect waste materials. Petitioner picked up and transported the recyclable items to either recycling centers or material recycling facilities and the non-recyclable items to landfills.

10. Petitioner does not object to the measure of sales and use tax, but objects only to its liability for the tax in the Stipulated Issues. Petitioner does not object to the sales tax on the sales of fixed assets by Madison Hauling and by Madison Prairie Landfill.

Facts Relating To Intercompany Transfers

11. BFI and/or its subsidiaries ("BFI affiliates") transferred to petitioner items of tangible personal property, including such items as trucks, tractors, tractor trailers (none of which is exempt from sales/use tax under Wis. Stat. § 77.54(5)(b) or (c)), and containers. These transfers to petitioner, referred to as "intercompany transfers", included all rights to, and ownership of, the transferred assets. The motor vehicles transferred by intercompany transfers were re-titled in petitioner's name with the Wisconsin Department of Transportation. Capital assets transferred were depreciated on petitioner's income/franchise tax returns. The Department contends that those transfers were taxable purchases from BFI and/or BFI affiliates, and petitioner contends they were nontaxable.

12. Petitioner has paid no sales or use tax on the intercompany transfers.

13. BFI and the BFI affiliates which transferred assets to petitioner were separate, legal, corporate entities from petitioner and were not divisions or units of petitioner.

14. Petitioner's bookkeeping entry for the receipt of the intercompany transfers was to debit the specific asset account and credit an intercompany account. The bookkeeping entry for the BFI affiliates/transferors was to credit the specific asset account and to debit the intercompany account.

15. No money was exchanged between the BFI affiliates and petitioner for the intercompany transfers petitioner received from them.

16. Petitioner received no invoice or other bill in connection with its receipt of intercompany assets.

17. Petitioner also transferred motor vehicles, bins, and containers to BFI and/or BFI affiliates. When petitioner transferred these assets, petitioner's bookkeeping entry was to debit the intercompany account and credit the asset account.

18. There was never an elimination of the balance of the inter-company account, nor were payments made to reduce the intercompany account by either petitioner or the BFI affiliates.

19. When petitioner sold its Madison locations to Waste Management of Wisconsin, Inc., on January 1, 1998, the sales price was allocated among the various assets sold, including assets that were received by petitioner pursuant to the intercompany transfers at issue. The sales price allocated to these various assets was petitioner's net book value of those assets.

20. When petitioner sold the assets of its Green Bay location in April 1997, the sales price was allocated among the various assets sold based upon petitioner's net book value of the assets. Included in the assets sold were assets transferred to petitioner pursuant to its intercompany transfers.

Facts Relating To Claimed Waste Reduction And Recycling

21. The tangible personal property at issue is the compactors, bins, and containers in which petitioner's customers collected their disposed recyclable items, which were then picked up by petitioner and transported to either material recycling facilities or recycling centers (both of which were operated by third parties), and motor vehicles and the equipment, attachments, and repairs therefor, used to transport recyclables to processing facilities, as well as various other items.

22. Petitioner paid no sales or use tax when purchasing this tangible personal property.

23. Petitioner hauled waste products with no value to landfill sites for disposal. Petitioner hauled recylables that could be reused in some capacity to recycling centers and material recycling facilities, not to landfills.

24. Separate bins and trucks were used to collect and transport recyclable items from those used to collect and transport nonrecyclables.

Facts Relating To Sales Tax On Motor Fuel Tax Refunds

25. The motor fuel excise tax refunds upon which use tax has been assessed ("motor fuel tax refunds") involve motor fuel for which petitioner paid excise tax under Wis. Stat. Chapter 78 and which was later refunded, under Wis. Stat. § 78.75, because petitioner did not use the fuel for operation upon the public highways.

26. Petitioner does not object to the full amount of the use tax related to its motor fuel purchases, but objects to the application of use tax to the refunded state excise tax.

27. Petitioner has paid no sales or use tax on its purchase of motor fuel related to the motor fuel tax refunds upon which the use tax has been assessed.

Facts Relating To Sales And Leases Of Compactors

28. Petitioner sold and rented compactors to some of its hauling and potential customers. Those compactors were stationary hand-fed, shoot-fed compactors that were placed on the premises of petitioner's customers. Customers used these to compress recyclables into recycling containers for petitioner to haul away.

29. More than 99% of petitioner's hauling services customers did not lease or buy compactors from petitioner. A few owned their own compactors and/or dumpsters, and some rented compactors and/or dumpsters from sources other than petitioner.

30. A customer was not required to use or to rent petitioner's compactors to obtain petitioner's hauling services.

31. Most, if not all, of petitioner's compactor lease agreements allowed the customer to purchase the compactor at the termination of the lease.

32. Petitioner sometimes contracted for its hauling services separately from its compactor rentals and sales, and sometimes both were included on the same contract. Petitioner's hauling contracts did not refer to petitioner's sales or rentals of compactors. Petitioner's contracts for the sale or rental of compactors did not refer to petitioner's hauling services.

33. When a customer rented or bought a compactor from petitioner and purchased petitioner's hauling services, 80-90% of the time petitioner billed for the rental and/or purchase on a separate invoice from the billing for hauling. The rental or sale was always stated separately from the hauling services.

34. Petitioner's sale price for the purchase or lease of compactors was influenced by whether petitioner's hauling services were also purchased by these customers. Petitioner calculated a profit factor into the price it charged for the lease and sale of its compactors.

35. In its internal accounting system, petitioner accounted separately for the revenue attributable to its waste hauling services from the revenue attributable to its sales and/or leases of compactors.

36. Petitioner used resale exemption certificates to purchase the compactors it leased to its customers, and has paid no sales or use tax on them. Petitioner did not collect or pay to the Department any sales or use tax on its compactor lease or sale receipts.

APPLICABLE WISCONSIN STATUTES

77.51 Definitions. Except where the context requires otherwise, the definitions given in this section govern the construction of terms in this subchapter.

* * *

(14) "Sale", "sale, lease or rental", "retail sale", "sale at retail", or equivalent terms include any one or all of the following: the transfer of the ownership of, title to, possession of, or enjoyment of tangible personal property or services for use or consumption but not for resale as tangible personal property or services ....

(1993-1994)

(15)(a) "Sales price" means the total amount for which tangible personal property is sold, leased or rented, valued in money, whether paid in money or otherwise, without any deduction on account of any of the following:

* * *

4. Any tax included in or added to the purchase price including the taxes imposed by ss. 78.,01, 87.40, 139.02, 139.03 and 139.31 and the federal motor fuel tax and including also any manufacturers' or importers' excise tax; but not including any tax imposed by the United States, any other tax imposed by this state, or any tax imposed by any municipality of this state upon or with respect to retail sales whether imposed on the retailer or consumer, if that federal, state or municipal tax is measured by a stated percentage of sales price or gross receipts For the purposes of this subdivision, a tax shall be deemed "imposed upon or with respect to retail sales" only if the retailer is the person who is required to make the payment of the tax to the governmental unit levying the tax.

(1997-1998)

(15)(a) Except as provided in par. (cm), "sales price" means the total amount for which tangible personal property is sold, leased or rented, valued in money, whether paid in money or otherwise, without any deduction on account of any of the following:

* * *

4. Any tax included in or added to the purchase price including the taxes imposed by s. 78.01 unless the tax is refunded, ss. 78.40, 139.02, 139.03 and 139.31 and the federal motor fuel tax unless the tax is refunded and including also any manufacturers' or importers' excise tax; but not including any tax imposed by the United States, any other tax imposed by this state, or any tax imposed by any municipality of this state upon or which respect to retail sales whether imposed on the retailer or consumer, if that federal, state or municipal tax is measured by a stated percentage of sales price or gross receipts, and not including the federal communications tax imposed upon the services set forth in s. 77.52(2)(a)5. For the purposes of this subdivision, a tax shall be deemed "imposed upon or with respect to retail sales" only if the retailer is the person who is required to make the payment of the tax to the governmental unit levying the tax.

77.53 Imposition of use tax.

(1) ... an excise tax is levied and imposed ... on the storage, use or other consumption of tangible personal property purchased from any retailer ....

(2) Every person storing, using or otherwise consuming in this state tangible personal property ... purchased from a retailer is liable for the tax imposed by this section. The person's liability is not extinguished until the tax has been paid to this state, but a receipt with the tax separately stated from a retailer engaged in business in this state or from a retailer who is authorized by the department, under such rules as it prescribes, to collect the tax and who is regarded as a retailer engaged in business in this state for purposes of the tax imposed by this section given to the purchaser under sub. (3) relieves the purchaser from further liability for the tax to which the receipt refers.

77.54 General exemptions. There are exempted from the taxes imposed by this subchapter:

* * *

(26m) The gross receipts from the sale of and the storage, use or other consumption of waste reduction or recycling machinery and equipment, including parts therefor, exclusively and directly used for waste reduction or recycling activities which reduce the amount of solid waste generated, reuse solid waste, recycle solid waste, compost solid waste or recover energy from solid waste. The exemption applies even though an economically useful end product results from the use of the machinery and equipment. For the purposes of this subsection, "solid waste" means garbage, refuse, sludge or other materials or articles, whether these materials or articles are discarded or purchased, including solid, semisolid, liquid or contained gaseous materials or articles resulting from industrial, commercial, mining or agricultural opera-tions or from domestic use or from public service activities.

CONCLUSIONS OF LAW

1. Petitioner is liable for use tax on the compactors, bins, and containers it purchased and that were used by its customers to reduce the size of or to collect disposed items, and on motor vehicles and related items used to transport recyclables to processing facilities. These items are not exempt as machinery and equipment used for waste reduction or recycling activities under Wis. Stat. § 77.54(26m).

2. The sales tax applies to petitioner's sales and rentals of compactors to customers of its hauling service. These sales and rentals are not incidental to its hauling services under Wis. Stat. § 77.51(5) and 77.52(2m).

3. The use tax does not apply to the tangible personal property petitioner received by intercompany transfer from separately organized affiliated entities.

4. Petitioner is liable for use tax on the state motor fuel tax that the Department refunded to petitioner.

OPINION

Claimed Waste Reduction or Recycling Activities

To qualify for the sales and use tax exemption in Wis. Stat. § 77.54(26m), the items here under review must be used "exclusively and directly for waste reduction or recycling activities...." The respondent disputes petitioner's contention that these items are used "directly" for such activities.

The petitioner has the burden of showing that the disputed items are clearly within the terms of this tax exemption, and doubts are to be resolved against the exemption and in favor of taxability. Revenue Dept. v. Greiling, 112 Wis. 2d 602, 605 (1983).

The Wisconsin Court of Appeals analyzed this exemption language in Revenue Dept. v. Parks-Pioneer, 170 Wis.2d 44 (Ct. App. 1992), which involved the taxability of lugger and roll-off boxes used to collect scrap metal from the premises of Parks-Pioneer's suppliers, which it then transported to its own premises for recycling and sale.

The court determined that, even though the items were used "exclusively" for recycling activities, they were not also used "directly" for such activities because they did not perform an "integral function" in those activities since the actual recycling took place after the scrap was collected and transported to the plant. Id., at 50.

Relying on Parks-Pioneer, this commission similarly held in Ruef's Sanitary Service, Inc. v. WDOR, Wis. Tax Rep. (CCH) ¶ 400-064 (WTAC 1994) that curb-sorters mounted on motor vehicles and used to collect, sort and transport recyclable materials were not tax exempt because they did not perform an "integral function" in recycling activities and were therefore not "directly" used for recycling.

Bins and Storage Containers

The bins and storage containers which petitioner sells and leases to its customers are simply receptacles into which recyclable and waste material is placed prior to petitioner's collecting and transporting it to a facility where the actual recycling occurs. These items do not perform an "integral function" in recycling activities and are therefore not "directly" used in recycling activities under the test articulated in Parks-Pioneer.

Motor Vehicles

Petitioner's motor vehicles used to transport recyclables are similarly not used "directly" for recycling because they fail the "integral function" test as well. The items collected are recycled after they are transported to the recycling facility by the petitioner's vehicles, just as they were in Ruef's Sanitary Service, Inc.

Compactors

The compactors in question were sold or rented to a few of petitioner's customers and were used to compress recyclables into recycling containers for petitioner to haul away. The compactors also fail the "integral function" test and are not "directly" used for recycling activities because the actual recycling occurred after the compressed items were hauled away.

But petitioner argues that the compactors (as well as the bins, storage containers, and motor vehicles) qualify for the exemption because § 77.54(26m) applies to "waste reduction" or "recycling" activities, and the compactors are used exclusively and directly in "waste reduction" activities. Again, we disagree.

The exemption in § 77.54(26m) applies only to "waste reduction or recycling activities which reduce the amount of solid waste generated, reuse solid waste, recycle solid waste, compost solid waste or recover energy from solid waste." (Emphasis supplied.) Neither the compactors nor the other items at issue do any of those things. Compressing solid waste does not reduce the amount of waste generated into the waste stream; it simply reduces the volume of solid waste already generated. Compactors perform no integral function in either waste reduction or recycling as defined in the exemption statute. Volume reduction of waste previously generated is not included in the statutory language.

Sales and Leases of Compactors

Nor do we agree with petitioner that the compactors were merely incidental to petitioner's collection and disposal services provided to its customers. Each rental or sale of a compactor was a discrete transaction whereby the customer obtained the compactor and was billed for it at a profit to petitioner. The compactors were not included in or incidental to petitioner's hauling and disposal service; they were simply sold at retail to a few of petitioner's hauling customers whose objective was to obtain them for their own use. The language cited by petitioner in Wis. Stat. § 77.51(5) and in Wis. Adm. Code § TAX 11.67(1) contemplates a property transfer subsumed as an element of a service transaction, not a separate sale transaction of the type present here.

Intercompany Transfers

BFI and its affiliates (other subsidiary corporations of BFI, petitioner's parent corporation) transferred tangible personal property to petitioner. Transferred items included containers, bins, trucks, tractors, and tractor trailers. Upon receipt of the property, petitioner began depreciating the items on its income/franchise tax returns.

Petitioner paid no sales or use tax on the tangible personal property it received by Intercompany Transfers. When petitioner registered the acquired motor vehicles, petitioner stated on the tax form that the sales tax had already been paid. The Department assessed use tax on petitioner's received assets at the net book value at the time of transfer. Petitioner asserts that since no money changed hands, and since there were no retail sales, there were no sales subject to sales or use tax.

"Use tax" is defined in Wis. Stat. § 77.51(23) as the tax imposed by Wis. Stat. § 77.53. The principal language imposing the use tax is found, in pertinent part, in Wis. Stat. § 77.53(1) and (2) and reads as follows:

(1) ... an excise tax is levied and imposed ... on the storage, use or other consumption of tangible personal property purchased from any retailer ....

(2) Every person storing, using or otherwise consuming in this state tangible personal property ... purchased from a retailer is liable for the tax imposed by this section. The person's liability is not extinguished until the tax has been paid to this state, but a receipt with the tax separately stated from a retailer engaged in business in this state or from a retailer who is authorized by the department, under such rules as it prescribes, to collect the tax and who is regarded as a retailer engaged in business in this state for purposes of the tax imposed by this section given to the purchaser under sub. (3) relieves the purchaser from further liability for the tax to which the receipt refers. [Emphasis supplied.]

"Retailer" is defined in part in § 77.51(13) as:

"Retailer" includes:

(a) Every seller who makes any sale of tangible personal property or [a] taxable service." [Emphasis supplied.]

Eleven of the remaining 12 paragraphs(2) of § 77.51(13) define "retailer" using a form of the word "sale" (ex., "making sales" in par. (b), "making the sales" in par. (c), "sells" in par. (d), and "a person selling" in par. (e)).

The definition of "sale" and similar terms begins in § 77.51(14)(intro.), an "inclusive" definition (i.e., uses the word "includes"), as follows:

77.51 Definitions. Except where the context requires otherwise, the definitions given in this section govern the construction of terms in this subchapter.

* * *

(14) "Sale", "sale, lease or rental", "retail sale", "sale at retail", or equivalent terms include any one or all of the following: the transfer of the ownership of, title to, possession of, or enjoyment of tangible personal property or services for use or consumption but not for resale as tangible personal property or services ....

This language implies a transfer for remuneration or consideration, as do the eleven subsequent paragraphs (ex., "sold to a successful bidder" in par. (a), "for a consideration" in pars. (b) and (h), "payment of the price" in par. (c), and "retail selling price" in par. (d)). We reject the Department's assertion that these transfers fit within § 77.51(14)(intro). This statute lists some aspects of a sale but not all factors, and follows with a list of "sales" which involve a transfer for consideration.

The stipulated facts here state that the transfers of tangible personal property resulted in bookkeeping entries on the receipt of the assets, involved no exchange of money, and resulted in petitioner's receiving no invoice or other bill.

Therefore, we conclude that the use tax imposition language of § 77.51 does not apply to these transfers because no property was "purchased" from a "retailer" within the meaning of § 77.53(1) and (2).

The Department asserts that, rather than exchanging money, petitioners made bookkeeping entries to show the value of transferred assets. The Department's use tax assessment is imposed on each "net book value" (petitioner's brief, p. 24) entered on petitioner's records. But this is no substitute for remuneration or consideration.

The Department states that the Commission has already determined that transactions between related corporations are not exempt simply due to their relationship. Wis. Electric Power Co. and Wis. Natural Gas Co. v. WDOR, Wis. Tax Rep. (CCH) ¶ 200-689 (WTAC 1971). However, that case involved actual billings for services rendered between the related corporations, not simply the transfer of assets without consideration.

The Department also argues that when a transfer of ownership of tangible personal property occurs, § 77.51(14r) deems a purchase and sale to have been made. Not so. That statute merely specifies the time and place of a transaction when a sale or purchase has taken place.

Use Tax On Motor Fuel

Petitioner purchased motor vehicle fuel and paid the Wisconsin excise tax imposed on these fuel purchases by Wis. Stat. § 78.01(1). When petitioner did not use some of the fuel on public highways, it applied for and received from the Department a refund of the excise tax under Wis. Stat. § 28.75.

Section 77.53(1) imposes the state use tax on the sales price of motor vehicle fuel not subject to the excise tax. It imposes the use tax on tangible personal property, including the motor vehicle fuel here, purchased from a retailer. During the period under review (October 1, 1989 to September 30, 1993), the measure of the use tax (i.e., the amount upon which the use tax is applied) is the "sales price" (see Wis. Stat. 1993-94 § 77.51(15)(a)4) "without any deduction on account of ... any tax included in ... the purchase price including the taxes imposed by ss. 78.01..." [emphasis added].

As an example, assume one gallon of motor vehicle fuel is purchased for $1.30 which includes 30¢ of excise tax. Further assume that the fuel is used for an off-the-road purpose and that the purchaser applies for and receives a refund of the 30¢ motor vehicle fuel tax. To what amount ($1.30 or $1.00) is the use tax applied? The $1.30. Why? Because the use tax is applied to the sales price ($1.30) with no reduction for the tax imposed by § 78.01.

Petitioner argues that the measure of the use tax in the above example should be $1.00, i.e., the purchase price ($1.30) minus the excise tax (30¢). However, this violates the clear and unambiguous language in 1993-94 § 77.51(15)(a)4 that no deduction to the sales price may be taken for the excise tax.

However, 1993-94 § 77.51(15)(a)4 was amended by 1997 Wis-consin Act 27, secs. 2381m, 2383r, and 9443(18e). The amendment applied to motor vehicle fuel purchases on and after December 1, 1997. It did not apply to transactions during the period under review.

The 1997 amendment is reflected in the current version of § 77.51(15)(a)4. The new law provides that, in calculating the measure of the use tax on motor vehicle fuel, the sales price of the motor vehicle fuel is the amount paid, "unless the tax is refunded". Under this added language, the use tax would be calculated on $1.00 when the fuel tax is refunded, as petitioner asserts. But this is not the method of calculating use tax during the period under review.

Petitioner argues that imposing the use tax on an amount that includes motor vehicle fuel excise tax "is illogical and contrary to the entire scheme of Wisconsin's sales and use tax." (Reply brief, p. 13.)(3) Even if that were true, the statute is clear and unambiguous and must be followed.

Petitioner also argues that the Department's Publication 222 (4-98) ("Motor Vehicle Fuel Users: Do You Owe Use Tax?") instructs people to calculate use tax the way petitioner asserts the law should be interpreted. This is true. However, the Publication states that this method should not be used in calculating use tax prior to December 1, 1997 (under the heading "How to Compute Use Tax", exception 1).

Petitioner further argues that the statutory amendment "merely clarified the proper interpretation of the statutes". (Reply brief, p. 13.) No proof is offered to support this position. In fact, the record shows just the opposite.

A document prepared for the legislature, summarizing the changes in the bill enacted as 1997 Act 27, shows that the legislature intended this change to be more than a clarification. This document estimates that the amendment would cost $260,000 in fiscal year 1997-98 and $450,000 in fiscal year 1998-99.(4) On its face, the new statute has a new meaning that resulted in a state fiscal impact. This contradicts petitioner's assertion that the amendment "merely clarified the proper interpretation of the statutes."

ORDER

Respondent's action on petitioner's petition for redetermination is modified in accordance with Conclusion of Law 3 and is affirmed as modified.

Dated at Madison, Wisconsin, this 13th day of January, 2000.

WISCONSIN TAX APPEALS COMMISSION

___________________________________________

Mark E. Musolf, Chairperson

___________________________________________

Don M. Millis, Commissioner

___________________________________________

Thomas M. Boykoff, Commissioner

ATTACHMENT: "NOTICE OF APPEAL INFORMATION"

February 3, 2000 Department of Revenue nonacquiesced under s. 73.01(4)(e)2

Feruary 14, 2000 Appealed to Dane County Circuit Court (00CV418)

1 Facts pertain to the time period October 1, 1989 to September 30, 1993 unless otherwise specified.

2 Paragraph K does not use a form of "sale"; it refers to leases and rentals, not sales, of tangible personal property.

3 The policy argument would have been better made to the legislature and governor, requesting the law be changed. However, retroactive tax statutes are generally not favored.

4 Legislative Fiscal Bureau, "1997-99 Wisconsin State Budget; Comparative Summary of Budget Provisions Enacted as 1997 Act 27", volume 1, p. 90 (December 1997). This information was available earlier, during the Legislature's consideration of the amendment. Legislative Fiscal Bureau, "1997-99 Wisconsin State Budget; State Assembly; Modifications to Recommendations of the Joint Committee on Finance", September 17, 1997.