Wis. Admin. Code § Tax 2.49 — Apportionment of apportionable income of interstate financial institutions

Tax 2.49(1) (1) Scope. A financial institution that is engaged in business both in and outside this state shall apportion its apportionable income as provided in this section, except if the financial institution is in a combined group, its Wisconsin share of the combined group’s apportionable income is computed as provided in s. 71.255 (5) , Stats., and further detailed in s. Tax 2.61 (7) . Nonapportionable income shall be allocated as provided in s. 71.25 (5) (b) , Stats.

Tax 2.49(2) (2) Definitions. In this section:

Tax 2.49(2)(a) (a) “Billing address” means the address indicated in the taxpayer’s books and records on the first day of the taxable year, or on a later date in the taxable year when the customer relationship began, to which a taxpayer under this section regularly sends any notice, statement, or bill to the taxpayer’s customer. The billing address of a customer who is a natural person means the address of that person’s domicile.

Tax 2.49(2)(b) (b) “Borrower located in this state” means either of the following:

Tax 2.49(2)(b)1. 1. A borrower that is engaged in a trade or business and uses the loan proceeds in trade or business activities in this state. If it cannot be determined where the funds are used, “borrower located in this state” means a borrower whose billing address is in this state.

Tax 2.49(2)(b)2. 2. A borrower whose billing address is in this state, but is not engaged in a trade or business.

Tax 2.49(2)(c) (c) “Commercial domicile” means the location from which a trade or business is principally managed and directed. If the taxpayer is organized under the laws of a foreign country, the commonwealth of Puerto Rico, or any territory or possession of the United States, “commercial domicile” shall be deemed for the purposes of this section to be the state of the United States or the District of Columbia from which the taxpayer’s trade or business in the United States is principally managed and directed. It shall be rebuttably presumed that the location from which a trade or business is principally managed and directed is the state of the United States or the District of Columbia at which the greatest number of the taxpayer’s employees work, have their office or base of operations, or are directed or controlled, as of the last day of the taxable year.

Tax 2.49(2)(d) (d) “Credit card” includes a credit card, debit card, purchase card, charge card, and a travel or entertainment card.

Tax 2.49(2)(dm) (dm) “Credit card bank” means an institution that is primarily engaged in credit card operations, which does not accept demand deposits or deposits that the depositor may withdraw by check or similar means for payment to third parties or others, and which does not engage in the business of making commercial loans.

Tax 2.49(2)(e) (e) “Credit card issuer’s reimbursement fee” means the fee that a taxpayer receives from a merchant’s bank because a person to whom the taxpayer has issued a credit card has paid for merchandise or services sold by the merchant with the credit card.

Tax 2.49(2)(f) (f) “Domicile” means a natural person’s true, fixed, and permanent home where that person intends to remain permanently and indefinitely and to which, whenever absent, that person intends to return. A natural person may have only one domicile at any time.

Tax 2.49(2)(fm) (fm) “Engaged in business in and outside this state” has the same meaning as in s. Tax 2.39 (2) (b) .

Tax 2.49(2)(g) (g) “Financial institution” means any financial organization whether incorporated or organized under federal law or under the laws of any state or foreign country that is one of the following:

Tax 2.49(2)(g)1. 1. A bank holding company as defined in s. 221.0901 (2) (c) , Stats., including a federal bank holding company, an in-state bank holding company, an out-of-state bank holding company, and a foreign bank holding company.

Tax 2.49(2)(g)2. 2. A bank as defined under 12 USC 1841 (c), including a national bank organized and existing as a national bank association pursuant to the provisions of 12 USC ch. 2 and a state bank organized and operating under ch. 221 , Stats.

Tax 2.49(2)(g)3. 3. A savings and loan holding company as defined under 12 USC 1467a (1) (D) or s. 215.01 (24m) , Stats.

Tax 2.49(2)(g)4. 4. A savings bank holding company as defined in s. 214.01 (1) (tm) , Stats.

Tax 2.49(2)(g)5. 5. A savings association or federal savings bank as defined in 12 USC 1813 (b), including a savings and loan association, building and loan association, or cooperative bank, and an association as defined in s. 215.01 (1) , Stats., and a savings bank as defined in s. 214.01 (1) (t) , Stats.

Tax 2.49(2)(g)6. 6. A trust company operating as a fiduciary under ch. 223 , Stats., or a corporation, limited liability company, association, partnership, business trust, or other legal entity authorized to act as a trustee, personal representative, executor, administrator, guardian, conservator, assignee, or agent or in any other fiduciary capacity for individuals and businesses in the administration of trust funds, estates, and custodial arrangements, in stock and bond transfer and registration, in fiduciary investment and estate planning, and other related services.

Tax 2.49(2)(g)7. 7. An industrial bank, industrial loan company, or similar organization as described in 12 USC 1841 (c) (2) (H).

Tax 2.49(2)(g)8. 8. A safe deposit company that maintains vaults for the deposit and safe-keeping of valuables and rents compartments or boxes to customers who have exclusive access to these compartments or boxes, subject to the oversight and under the rules and regulations of the company.

Tax 2.49(2)(g)9. 9. A private banker including an unincorporated entity operated as a partnership that specializes in investing and managing the money of private clients.

Tax 2.49(2)(g)10. 10. Any corporation engaged in international or foreign banking that is organized under the provisions of 12 USC 611 to 633 .

Tax 2.49(2)(g)11. 11. Any agency or branch of a foreign depository as defined in 12 USC 3101 .

Tax 2.49(2)(g)12. 12. Any credit union to the extent not exempt under s. 71.26 (1) (a) , Stats., and s. 186.113 (20) , Stats.

Tax 2.49(2)(g)13. 13. A production credit association organized under 12 USC 2071 or a land bank created under the Federal Farm Loan Act.

Tax 2.49(2)(g)14. 14. A consumer finance company, small loan company, or a sales finance company licensed under ch. 218 , Stats.

Tax 2.49(2)(g)15. 15. A mortgage banker as defined in s. 224.71 (3) , Stats.

Tax 2.49(2)(g)16. 16. A credit card bank.

Tax 2.49(2)(g)17. 17. Any subsidiary of an entity described in subds. 1. to 16. , if a significant purpose for the subsidiary is to hold investments or if the subsidiary primarily functions to hold investments, as provided in s. 71.25 (10) (a) 2. , Stats.

Tax 2.49(2)(h) (h) “Guarantor of a loan located in this state” means a guarantor whose billing address is in this state.

Tax 2.49(2)(hm) (hm) “Intangible property” has the same meaning as in s. Tax 2.39 (2) (cm) .

Tax 2.49(2)(i) (i) “Investment banking services” include assisting business customers in obtaining new financing by underwriting and selling new securities issued by the customer to the public.

Tax 2.49(2)(j) (j) “Loan” means any extension of credit resulting from direct negotiations between the taxpayer and its customer, or the purchase, in whole or in part, of an extension of credit from another. “Loans” include participations, syndications, and leases treated as loans for federal income tax purposes. “Loans” do not include properties treated as loans under section 595 of the Internal Revenue Code prior to its repeal by P.L. 104-188 ; futures or forward contracts; options; notional principal contracts such as swaps; credit card receivables, including purchased credit card relationships; non-interest bearing balances due from depository institutions; cash items in the process of collection; federal funds sold; securities purchased under agreements to resell; assets held in a trading account; securities; interests in a real estate mortgage investment conduit, or other mortgage-backed or asset-backed security; and other similar items.

Tax 2.49(2)(k) (k) “Loan secured by real property” means that any of the collateral used to secure a loan or other obligation at the time the original loan or obligation was incurred or during the current taxable year is real property. A loan secured by real property includes an installment sales contract for real property. An “agricultural lien” as defined in s. 409.102 (1) (b) , Stats., or a “fixture filing” as defined in s. 409.102 (1) (js) , Stats., does not by itself constitute a loan secured by real property.

Tax 2.49(2)(L) (L) “Loan secured by tangible personal property” means that any of the collateral used to secure a loan or other obligation, other than a loan secured by real property, at the time the original loan or obligation was incurred or during the current taxable year is tangible personal property. A loan secured by tangible personal property includes an installment sales contract for tangible personal property.

Tax 2.49(2)(m) (m) “Loan servicing fees” include fees or charges for originating and processing loan applications, such as prepaid interest and loan discounts, and for collecting, tracking, and accounting for loan payments received. “Loan servicing fees” also include gross receipts from the sale of loan servicing rights.

Tax 2.49(2)(n) (n) “Merchant discount” means the fee or negotiated discount that is charged to a merchant for accepting a credit card as payment for merchandise or services that are sold to the credit card holder.

Tax 2.49(2)(o) (o) “Participation” means an extension of credit in which an undivided ownership interest is held on a pro rata basis in a single loan or pool of loans and related collateral.

Tax 2.49(2)(p) (p) “Person” means a natural person, estate, trust, partnership, limited liability company, corporation, or any other business entity.

Tax 2.49(2)(q) (q) “Regular place of business” means an office at which the taxpayer carries on its business in a regular and systematic manner and which is regularly maintained, occupied, or used by employees of the taxpayer.

Tax 2.49(2)(r) (r) “State” means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico, or any territory or possession of the United States.

Tax 2.49(2)(s) (s) “Syndication” means an extension of credit in which 2 or more persons fund and each person is at risk only up to a specified percentage of the total extension of credit or up to a specified dollar amount.

Tax 2.49(2)(t) (t) “Taxpayer” means a financial organization that is subject to apportionment under this section.

Tax 2.49(3) (3) Apportionment formula computation. For taxable years beginning after December 31, 2005, a financial institution that is engaged in business in and outside this state shall determine its net income for state franchise or income tax purposes as provided in this section. The financial institution shall first deduct from its total net income its nonapportionable income, less related expenses. Nonapportionable income shall be allocated as provided in s. 71.25 (5) (b) , Stats. The financial institution shall apportion its remaining net income to this state as follows:

Tax 2.49(3)(a) (a) For taxable years beginning after December 31, 2005, and before January 1, 2007, apportionable income shall be apportioned using an apportionment fraction composed of a receipts factor under sub. (4) representing 60% of the fraction and a payroll factor under sub. (5) representing 40% of the fraction.

Tax 2.49(3)(b) (b) For taxable years beginning after December 31, 2006, and before January 1, 2008, apportionable income shall be apportioned using an apportionment fraction composed of a receipts factor under sub. (4) representing 80% of the fraction and a payroll factor under sub. (5) representing 20% of the fraction.

Tax 2.49(3)(c) (c) For taxable years beginning before January 1, 2008, in any case in which the financial institution has no employees nor pays management or service fees to a related entity, or in which the department determines that employees are not a substantial income producing factor, the department may order or permit the elimination of the payroll factor.

Tax 2.49(3)(d) (d) For taxable years beginning after December 31, 2007, apportionable income shall be apportioned using an apportionment fraction composed of the receipts factor under sub. (4) .

Tax 2.49(4) (4) Receipts factor. The receipts factor is the ratio of the taxpayer’s receipts in this state to the taxpayer’s total receipts everywhere during the taxable year. Interest, dividends, gross receipts or net gains from sales of securities held for investment purposes, and other income from investment assets may not be included in the receipts factor. The receipts factor shall include all of the following items:

Tax 2.49(4)(a) (a) Gross receipts from the lease of real property. The numerator of the receipts factor includes gross receipts from the lease, rental, or licensing of real property owned by the taxpayer if the real property is located in this state and gross receipts from the sublease of real property if the real property is located in this state.

Tax 2.49(4)(b) (b) Gross receipts from the lease of tangible personal property.

Tax 2.49(4)(b)1. 1. Except as described in subd. 2. , the numerator of the receipts factor includes gross receipts from the lease, rental, or licensing of tangible personal property owned by the taxpayer and the sublease of tangible personal property if the property is located in this state during the entire period of lease, rental, licensing, sublease, or other use. If the property is used in and outside this state during the period of lease, rental, licensing, or sublease, gross receipts are included in the numerator of the receipts factor to the extent that the property is used in this state. The proportion of use in this state is determined by multiplying the gross receipts from the lease, rental, licensing, sublease, or other use of the property by a fraction having as a numerator the number of days the property is in this state while leased, rented, licensed, or subleased in the taxable year and having as a denominator the total number of days that the property is leased, rented, licensed, or subleased in all states having jurisdiction to impose an income tax or franchise tax measured by net income on the taxpayer in the taxable year.

Tax 2.49(4)(b)2. 2. Gross receipts from the lease, rental, or licensing of moving property, including motor vehicles, rolling stock, aircraft, vessels, or mobile equipment, owned by the taxpayer and the sublease of moving property are included in the numerator of the receipts factor to the extent that the property is used in this state. The proportion of use of moving property in this state is determined as follows:

Tax 2.49(4)(b)2.a. a. The proportion of use of a motor vehicle or rolling stock in this state is determined by multiplying the gross receipts from the lease, rental, licensing, or sublease of the motor vehicle or rolling stock by a fraction having as a numerator the number of miles traveled within this state by the motor vehicle or rolling stock while leased, rented, licensed, or subleased in the taxable year and having as a denominator the total number of miles traveled by the motor vehicle or rolling stock while leased, rented, licensed, or subleased in the taxable year.