Wis. Admin. Code § Tax 2.82 — Nexus

Tax 2.82(1) (1) Background and scope.

Tax 2.82(1)(a) (a) Every domestic corporation, one incorporated under Wisconsin’s laws, except those exempt under ss. 71.26 (1) and 71.45 (1) , Stats., and every licensed foreign corporation, one not incorporated in Wisconsin, is required to file a complete corporation franchise or income tax return, Form 4, 5S, or 6, regardless of whether or not business was transacted.

Tax 2.82(1)(b) (b) A foreign corporation is “licensed” if it has obtained a Certificate of Authority from the department of financial institutions to transact business in this state pursuant to s. 180.1501 , Stats. A licensed foreign corporation is presumed to be subject to Wisconsin franchise or income taxes.

Tax 2.82(1)(c) (c) An unlicensed foreign corporation is subject to Wisconsin franchise or income taxes if it has nexus with Wisconsin. The purpose of this rule is to provide guidelines for determining what constitutes nexus, that is, what business activities are needed for a foreign corporation to be subject to Wisconsin franchise or income taxes. The rule also explains how nexus applies to a foreign corporation in the context of s. 71.255 , Stats., relating to combined reporting, and s. 77.93 , Stats., relating to the economic development surcharge.

Tax 2.82(2) (2) Definitions. In this section:

Tax 2.82(2)(a) (a) “Business location” includes a repair shop, parts department, purchasing office, employment office, warehouse, meeting place for directors, sales office, permanent sample or display room, research facility or a recreational facility for use of employees or customers. A residence of an employee or representative is not ordinarily considered a business location of the employer unless the facts indicate otherwise. Facts that may indicate a residence of an employee or representative is a business location include the following: a portion of the residence is used exclusively for the business of the employer, the employee is reimbursed or paid a flat fee for the use of this space by the employer; the employee’s phone number is listed in the yellow pages or on the Internet under the name of the employer; the employee uses supplies, equipment or samples furnished by the employer; or the space is used by the employee to interview prospective employees, hold sales meetings, or discuss business with customers.

Tax 2.82(2)(b) (b) “Loans” include 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; or interests in a real estate mortgage investment conduit or other mortgage-backed or asset-backed security.

Tax 2.82(2)(bm) (bm) “Regular” and “regularly” mean 15 or more days of activity. Fifteen days of activity means one person for 15 days or 15 persons for one day, or any combination of persons and days that results in at least 15 person-days of activity. “Days of activity” include any day, or portion thereof, upon which business activity took place. “Days of activity” do not include travel days, holidays, or weekends, unless business activities were conducted on those days.

Tax 2.82(2)(c) (c) “Representative” includes an employee, independent contractor, or any other person or entity engaged in substantial activities that helped the taxpayer to establish or maintain a market in this state.

Tax 2.82(3) (3) Federal limitations on taxation of foreign corporations.

Tax 2.82(3)(a) (a) Federal constitutional provisions.

Tax 2.82(3)(a)1. 1. Article I, Section 8 of the U.S. Constitution grants congress the power to regulate commerce with foreign nations and among the several states. States are prohibited from levying a tax which imposes a burden on interstate or foreign commerce. However, this does not mean states may not impose any tax on interstate commerce. A state tax on net income from interstate commerce which is fairly attributable to the state is constitutional. ( Northwestern States Portland Cement Co.

Tax 2.82(3)(a)1.v. v. Minnesota; Williams v. Stockham Valves & Fittings, Inc. , 358 U.S. 450 , 79 S. Ct. 357 .)

Tax 2.82(3)(a)2. 2. Section I of the 14th Amendment protects taxpayers within any class against discrimination and guarantees a remedy against illegal taxation.

Tax 2.82(3)(b) (b) Federal Public Law 86-272.

Tax 2.82(3)(b)1. 1. Under Public Law 86-272, a state may not impose its franchise or income tax on a business selling tangible personal property, if the only activity of that business is the solicitation of orders by its salesperson or representative which orders are sent outside the state for approval or rejection, and are filled by delivery from a point outside the state. The activity must be limited to solicitation. If there is any activity which exceeds solicitation, the immunity from taxation under P.L. 86-272 is lost.

Tax 2.82(3)(b)2. 2. This law, enacted by congress in 1959, does not extend to:

Tax 2.82(3)(b)2.a. a. Those businesses which sell services, real estate or intangibles in more than one state;

Tax 2.82(3)(b)2.b. b. Domestic corporations; or

Tax 2.82(3)(b)2.c. c. Foreign nation corporations, that is, those not incorporated in the United States.

Tax 2.82(3)(b)3. 3. If the following activities are the only activities in Wisconsin of a foreign corporation selling tangible personal property, the corporation is not subject to Wisconsin franchise or income taxes under P.L. 86-272 :

Tax 2.82(3)(b)3.a. a. Activity in Wisconsin by employees or representatives soliciting orders for tangible personal property which orders are sent outside this state for approval or rejection.

Tax 2.82(3)(b)3.b. b. Solicitation activity by non-employee independent contractors, conducted through their own office or business location in Wisconsin.

Tax 2.82(4) (4) What constitutes nexus. If a foreign corporation undertakes one or more of the following activities, it is considered to have nexus and shall be subject to Wisconsin franchise or income taxes:

Tax 2.82(4)(a) (a) General. Any of the following activities constitute nexus:

Tax 2.82(4)(a)1. 1. Maintenance of any business location in Wisconsin, including any kind of office.

Tax 2.82(4)(a)2. 2. Ownership of real estate in Wisconsin.

Tax 2.82(4)(a)3. 3. Ownership of tangible personal property in Wisconsin, including inventory held by a distributor, consignee, or other non-employee representative, whether or not used to fill orders for the owner’s account, but not including personal property for use in an employee’s or representative’s home, residential office or automobile that is solely limited to conducting the activities protected by P.L. 86-272 .

Tax 2.82(4)(a)5. 5. Regular activity in Wisconsin by employees or representatives soliciting orders with authority to approve them.

Tax 2.82(4)(a)5m. 5m. Regular activity in Wisconsin by employees or representatives performing services related to the sale of tangible personal property. Services related to the sale of tangible personal property may include consulting, design, engineering, construction, installation, and assembly of equipment.

Tax 2.82(4)(a)7. 7. Regular activity in Wisconsin by employees or representatives engaged in purchasing activities, credit investigations, collection of delinquent accounts, or conducting training or seminars for customer personnel in the operation, repair, or maintenance of the taxpayer’s products.

Tax 2.82(4)(a)8. 8. Operation of mobile stores in Wisconsin, such as trucks with driver-salespersons, regardless of frequency, or whether the driver-salesperson is an employee.

Tax 2.82(4)(a)9. 9. Leasing of tangible property in Wisconsin, but not including personal property for use in an employee’s or representative’s home, residential office or automobile that is solely limited to conducting the activities protected by P.L. 86-272 .

Tax 2.82(4)(a)9m. 9m. Licensing of intangible rights for use in Wisconsin.

Tax 2.82(4)(a)10. 10. The sale of other than tangible personal property such as real estate, services and intangibles in Wisconsin.

Tax 2.82(4)(a)11. 11. The performance of services in Wisconsin by employees or representatives, the services of which are unrelated to the sale of tangible personal property.

Tax 2.82(4)(a)12. 12. Engaging in substantial activities that help to establish and maintain a market in Wisconsin.

Tax 2.82(4)(b) (b) “Doing business in this state”. Additionally, if a corporation has any of the activities that are specifically included in the statutory definition of “doing business in this state” (s. 71.22 (1r) , Stats.), the corporation has nexus except where prohibited by P.L. 86-272 . Therefore, the following activities constitute nexus in Wisconsin to the extent sub. (3) (b) 3. does not apply:

Tax 2.82(4)(b)1. 1. Issuing credit cards, debit cards, or travel and entertainment cards to customers in Wisconsin.

Tax 2.82(4)(b)2. 2. Regularly selling products or services of any kind or nature to customers in Wisconsin that receive the product or service in Wisconsin.

Tax 2.82(4)(b)3. 3. Regularly soliciting business from potential customers in Wisconsin.

Tax 2.82(4)(b)4. 4. Regularly performing services outside Wisconsin for which the benefits are received in Wisconsin.

Tax 2.82(4)(b)5. 5. Regularly engaging in transactions with customers in Wisconsin that involve intangible property and result in receipts flowing to the corporation from within Wisconsin.

Tax 2.82(4)(b)6. 6. Holding loans secured by real or tangible personal property located in Wisconsin.

Tax 2.82(4)(b)7. 7. Owning, directly or indirectly, a general or limited partnership interest in a partnership that does business in Wisconsin, regardless of the percentage of ownership.

Tax 2.82(4)(b)8. 8. Owning, directly or indirectly, an interest in a limited liability company that does business in Wisconsin, regardless of the percentage of ownership, if the limited liability company is treated as a partnership for federal income tax purposes.

Tax 2.82(4)(c) (c) Nexus for entire taxable year. If a corporation has nexus in Wisconsin for any part of its taxable year, it is considered to have nexus in Wisconsin for its entire taxable year, regardless of whether the activity that created the nexus took place throughout the year.

Tax 2.82(4)(d) (d) How to obtain ruling. Paragraph (a) and the statutory definitions summarized in par. (b) as to what activities constitute nexus are not all-inclusive. A ruling may be requested about a particular foreign corporation as to whether it is subject to Wisconsin franchise or income taxes by writing to the Wisconsin Department of Revenue, Audit Bureau, Nexus Unit, P.O. Box 8906, Madison, WI 53708.

Tax 2.82(5) (5) Nexus for combined group members.

Tax 2.82(5)(a) (a) General. For a combined group, nexus is determined for the unitary business as a whole, as provided in s. 71.255 (5) (a) , Stats. Therefore, if a member of a combined group has nexus in Wisconsin and that nexus is attributable to the combined group’s unitary business, all members of the combined group have nexus in Wisconsin.

Tax 2.82(5)(b) (b) Effect of controlled group election. For a combined group that has made the controlled group election provided in s. 71.255 (2m) , Stats., the entire commonly controlled group’s business is deemed to be a single unitary business, and the commonly controlled group becomes a combined group. Therefore, if a combined group has made the controlled group election and at least one member of the combined group has nexus in Wisconsin, all members of the combined group have nexus in Wisconsin.

Tax 2.82(6) (6) Nexus for economic development surcharge. If a corporation has nexus under this section, the corporation is considered to be doing business in this state for purposes of s. 77.93 , Stats., relating to the economic development surcharge. Therefore, if a corporation, other than a corporation exempt from taxation, has nexus and has at least $4,000,000 of gross receipts from all activities for the taxable year, the corporation is subject to the economic development surcharge. The economic development surcharge applies to each member of a combined group separately.