Wis. Admin. Code § Tax 3.10 — Commercial loan income exemption

Tax 3.10(1) (1) Purpose. This section clarifies the commercial loan income exemption under ss. 71.05 (1) (i) and 71.26 (1) (i) , Stats., and prescribes how the $5,000,000 loan limitation is computed.

Tax 3.10(2) (2) Definitions. In this section and in ss. 71.05 (1) (i) and 71.26 (1) (i) , Stats.:

Tax 3.10(2)(a) (a) “Agricultural purpose” means the preparation of plant or animal products for use in a business or for sale or distribution to markets. “Agricultural purpose” includes agriculture, horticulture, viticulture, dairy, livestock, wildlife, poultry, bees, forest products, fish and shellfish, and any products thereof, and all products raised or produced on farms and any processed products thereof. “Agricultural purpose” does not include fishing preserves, recreational uses, or personal uses.

Tax 3.10(2)(b) (b) “Business purpose” means activities undertaken for an industrial, commercial, or professional purpose. “Business purpose” does not include any of the following:

Tax 3.10(2)(b)1. 1. Investment in stocks, bonds, and other securities or ownership interests in entities including the borrower’s own stock or ownership interests, unless such assets are regularly held for sale in a trade or business.

Tax 3.10(2)(b)2. 2. Personal or consumer expenditures.

Tax 3.10(2)(b)3. 3. The purchase, expansion, or improvement by an owner of a one- to four-unit residential facility if such owner or their parent or child uses all or a portion of the facility as their personal residence.

Tax 3.10(2)(b)4. 4. Activities conducted by any unit of government or any agency or instrumentality of one or more units of government.

Tax 3.10(2)(b)5. 5. Activities conducted by nonprofit organizations, unless one of the following apply:

Tax 3.10(2)(b)5.a. a. The commercial loan proceeds are used in this state for activities in which the nonprofit organization reports unrelated business taxable income on Form 990-T to the federal department of the treasury.

Tax 3.10(2)(b)5.b. b. The nonprofit organization has over 50 full-time employees in the calendar year immediately preceding the calendar year in which the commercial loan is issued, and the loan proceeds are used in this state for activities regularly conducted by such employees.

Tax 3.10(2)(c) (c) “Commercial domicile” means the location where the greatest number of the business’s employees have their office or their base of operations from which they regularly work and are directed or controlled.

Tax 3.10(2)(d) (d) “Commercial loan” means a loan issued to a borrower and the proceeds of which are used primarily for a business or agricultural purpose in this state.

Tax 3.10(2)(e) (e) “Financial institution” means a financial institution, as defined in s. 69.30 (1) (b) , Stats., that is authorized to do business under state or federal laws relating to financial institutions and is one of the following:

Tax 3.10(2)(e)1. 1. A bank, as defined under 12 USC 1841 (c), including a national bank organized and existing as a national bank association pursuant to provisions of 12 USC ch. 2 and a state bank organized and operating under ch. 221 , Stats., or a comparable law in another state.

Tax 3.10(2)(e)2. 2. A savings bank organized under ch. 214 , Stats., or a comparable law in another state.

Tax 3.10(2)(e)3. 3. A savings and loan association organized and operating under ch. 215 , Stats., or a comparable law in another state; or organized according to federal law.

Tax 3.10(2)(e)4. 4. Any credit union to the extent not exempt under ss. 71.26 (1) (a) , and 186.113 (20) , Stats.

Tax 3.10(2)(f) (f) “Income” means all income, including interest, fees, and penalties, derived from a commercial loan. “Income” does not include income derived from persons other than the borrower of the commercial loan, including income derived from the sale of a commercial loan or income derived from another financial institution for a loan participation agreement.

Tax 3.10(2)(g) (g) “Loan” means money given in exchange for an obligation to pay back such money that results from direct negotiation between a financial institution and a borrower. “Loans” do not include unsecured open-end lines of credit such as credit cards and other unsecured revolving credit plans and letters of credit; conversions; sales or leases of property; futures or forward contracts; options; notional principal contracts such as swaps; credit card receivables, including credit card relationships; non-interest bearing balances; cash items in the process of collection; federal funds sold; securities purchased under agreements to resell; assets held in a trading account; securities; interest in a real estate mortgage investment conduit, or other mortgage-backed or asset-backed security; and other similar items.

Tax 3.10(2)(h) (h) “Located in this state” means a person, including a natural person or fiduciary, who has a fixed business location in this state such as a commercial office, warehouse, or manufacturing facility.

Tax 3.10(2)(i) (i) “Primarily” means the loan proceeds are used 75 percent or more for a business or agricultural purpose in this state.

Tax 3.10(2)(j) (j) “Residing in this state” means any of the following, determined for the person’s taxable year in which the loan origination occurs:

Tax 3.10(2)(j)1. 1. A natural person or fiduciary who is a resident of this state as determined under s. 71.01(1n) or 71.14 , Stats.

Tax 3.10(2)(j)2. 2. A person whose commercial domicile of their business or agricultural activity is in this state.

Tax 3.10(3) (3) Qualifying borrowers. In order for a commercial loan to qualify for the exemption in ss. 71.05 (1) (i) and 71.26 (1) (i) , Stats., the loan must be provided to a person residing or located in this state.

Tax 3.10(4) (4) Proceeds used in this state. In order for a commercial loan to qualify for the exemption in ss. 71.05 (1) (i) and 71.26 (1) (i) , Stats., the loan proceeds must be used primarily for a business or agricultural purpose in this state.

Tax 3.10(5) (5) Commercial loan limitation. In order for a commercial loan to qualify for the exemption in ss. 71.05 (1) (i) and 71.26 (1) (i) , Stats., the commercial loan must be $5,000,000 or less. All of the following apply to the $5,000,000 limitation:

Tax 3.10(5)(a) (a) General.

Tax 3.10(5)(a)1. 1. The original full amount of the loan obligation is used to determine the $5,000,000 limitation. In the case of secured open-end lines of credit and other secured revolving credit plans and letters of credit, the full amount of the loan obligation is the maximum amount of credit available to the borrower at any one time.

Tax 3.10(5)(a)2. 2. Costs and fees rolled into the loan are included as part of the original loan obligation.

Tax 3.10(5)(a)3. 3. Charge-offs or amounts not expected to be recoverable from a borrower do not reduce the original loan obligation.

Tax 3.10(5)(b) (b) Commercial loan refinancing. A commercial loan that is refinanced is considered a new original loan obligation and the $5,000,000 limitation is computed based on the facts contained in the refinanced loan documentation.

Tax 3.10(5)(c) (c) Loan participation and assignment. A commercial loan with an original loan obligation over $5,000,000 to a single borrower does not qualify for the exemption, regardless of whether the loan is sold or assigned, in whole or in part, to another financial institution for $5,000,000 or less. A financial institution that acquires a commercial loan through a purchase, assignment, or participation agreement may not exempt the income derived from the acquired loan if the original loan obligation is more than $5,000,000.

Tax 3.10(5)(d) (d) Loan syndication. If one or more financial institutions enter a loan syndication where both financial institutions will be originating the loans, the total loan amount provided to the borrower is used to determine the original loan obligation, not each financial institution’s portion of the syndicated loan. If the original loan obligation is $5,000,000 or less, each financial institution may qualify for the exemption in proportion to the financial institution’s interest in the syndicated loan.

Tax 3.10(5)(e) (e) Aggregating multiple commercial loans. All of the following apply to aggregating multiple commercial loans:

Tax 3.10(5)(e)1. 1. A financial institution may not create separate commercial loan agreements for $5,000,000 or less for a borrower that seeks a commercial loan over $5,000,000, including refinancing a single loan into separate loans.

Tax 3.10(5)(e)2. 2. A financial institution may have multiple qualifying commercial loans of $5,000,000 or less with the same borrower if the loans are obtained for a different use and qualifying purpose.

Tax 3.10(5)(e)3. 3. A commercial loan over $5,000,000 does not qualify, regardless of whether a portion of the loan is used for purposes outside this state.

Tax 3.10(6) (6) Record keeping.

Tax 3.10(6)(a) (a) A financial institution shall keep electronic records in easily accessible and usable form to substantiate the exemption from income for each loan, including electronic data that can be queried and analyzed for each of the following data elements:

Tax 3.10(6)(a)1. 1. Borrower’s legal name.

Tax 3.10(6)(a)2. 2. Borrower’s state of residence.

Tax 3.10(6)(a)3. 3. Loan ID number.

Tax 3.10(6)(a)4. 4. Name of originating underwriter of the loan if someone other than the financial institution.

Tax 3.10(6)(a)5. 5. Loan origination date.

Tax 3.10(6)(a)6. 6. Original loan obligation amount, including costs and fees rolled into the loan obligation.

Tax 3.10(6)(a)7. 7. Detailed description of the purpose of the loan, including whether there is more than one purpose, and where the loan proceeds will be used.

Tax 3.10(6)(b) (b) Financial institutions shall keep records to substantiate whether the borrower is a person who is a resident of this state, such as tax returns and trust agreements.

Tax 3.10(6)(c) (c) A financial institution shall keep the records described in pars. (a) and (b) for as long as any period of limitation for assessment for the taxable year in which the exemption is claimed has not expired under ss. 71.76 and 71.77 , Stats. If the taxable year results in a net loss, the records described in pars. (a) and (b) shall be kept for as long as the period of limitation for assessment for the taxable year in which the loss carryforward is used, as described in ss. 71.05 (8) (b) 1. and 71.26 (4) (a) , Stats., has not expired.