Wis. Stat. § 76.28 — License fee for light, heat and power companies

76.28(1) (1) Definitions. In this section:

76.28(1)(a) (a) “Apportionment factor” means a fraction the numerator of which is the sum of the property factor, the payroll factor and the sales factor and the denominator of which is the number 3.

76.28(1)(b) (b) “Book cost of utility plant” has the meaning set forth in the uniform system of accounts established by the public service commission.

76.28(1)(c) (c) “Department” means the department of revenue.

76.28(1)(d) (d) “Gross revenues” for a light, heat and power company other than a qualified wholesale electric company or a transmission company means total environmental control charges paid to the company under a financing order issued under s. 196.027 (2) and total operating revenues as reported to the public service commission except revenues for interdepartmental sales and for interdepartmental rents as reported to the public service commission and deductions from the sales and use tax under s. 77.61 (4) , except that the company may subtract from revenues either the actual cost of power purchased for resale, as reported to the public service commission, by a light, heat and power company, except a municipal light, heat and power company, that purchases under federal or state approved wholesale rates more than 50 percent of its electric power from a person other than an affiliated interest, as defined in s. 196.52 (1) , if the revenue from that purchased electric power is included in the seller’s gross revenues or the following percentages of the actual cost of power purchased for resale, as reported to the public service commission, by a light, heat and power company, except a municipal light, heat and power company that purchases more than 90 percent of its power and that has less than $50,000,000 of gross revenues: 10 percent for the fee assessed on May 1, 1988, 30 percent for the fee assessed on May 1, 1989, and 50 percent for the fee assessed on May 1, 1990, and thereafter. For a qualified wholesale electric company, “gross revenues” means total business revenues from those businesses included under par. (e) 1. to 4. For a transmission company, “gross revenues” means total operating revenues as reported to the public service commission, except revenues for transmission service that is provided to a public utility that is subject to the license fee under sub. (2) (d) , to a public utility, as defined in s. 196.01 (5) , or to a cooperative association organized under ch. 185 for the purpose of providing electricity to its members only. For an electric utility, as defined in s. 16.957 (1) (g) , “gross revenues” does not include low-income assistance fees collected by the electric utility under s. 16.957 (4) (a) or (5) (a) . For a generator public utility, “gross revenues” does not include any grants awarded to the generator public utility under s. 16.958 (2) (b) . For a wholesale supplier, as defined in s. 16.957 (1) (w) , “gross revenues” does not include any low-income assistance fees that are received from a municipal utility or retail electric cooperative or under a joint program established under s. 16.957 (5) (f) . For a municipal utility, “gross revenues” does not include low-income assistance fees received by the municipal utility from a municipal utility or retail electric cooperative under a joint program established under s. 16.957 (5) (f) .

76.28(1)(e) (e) “Light, heat and power companies” means any person, association, company or corporation, including corporations described in s. 66.0813 , qualified wholesale electric companies and transmission companies and except only business enterprises carried on exclusively either for the private use of the person, association, company or corporation engaged in them, or for the private use of a person, association, company or corporation owning a majority of all outstanding capital stock or who control the operation of business enterprises and except electric cooperatives taxed under s. 76.48 that engage in any of the following businesses:

76.28(1)(e)1. 1. Generating and furnishing gas for lighting or fuel or both.

76.28(1)(e)2. 2. Supplying water for domestic or public use or for power or manufacturing purposes.

76.28(1)(e)3. 3. Generating, transforming, transmitting or furnishing electric current for light, heat or power.

76.28(1)(e)4. 4. Generating and furnishing steam or supplying hot water for heat, power or manufacturing purposes.

76.28(1)(e)5. 5. Transmitting electric current for light, heat or power.

76.28(1)(eg) (eg) “Municipal utility” has the meaning given in s. 16.957 (1) (q) .

76.28(1)(em) (em) “Net production of electricity” means the total of electricity generated minus the power used to operate the generating plant.

76.28(1)(f) (f) “Payroll factor” means a fraction the numerator of which is the total amount paid in this state during the tax period by the taxpayer for compensation and the denominator of which is the total compensation paid everywhere during the tax period, except that compensation solely related to the production of nonoperating revenues shall be excluded from the numerator and denominator of the payroll factor and except that compensation related to the production of both operating and nonoperating revenue shall be partially excluded from the numerator and denominator of the payroll factor so as to exclude as near as possible the portion of compensation related to the production of nonoperating revenue. Compensation is paid in this state if the individual’s service is performed entirely within this state, or if the individual’s service is performed both within and outside this state but the service performed outside this state is incidental to the individual’s service within this state, or if some of the service is performed in this state and the base of operations or, if there is no base of operations, the place from which the service is directed or controlled is in this state or the base of operations or the place from which the service is directed or controlled is not in any state in which part of the service is performed and the individual’s residence is in this state. In this paragraph, “compensation” includes management and service fees paid to an affiliated service corporation pursuant to 15 USC 79 .

76.28(1)(g) (g) “Property factor” means a fraction the numerator of which is the average book cost of utility plant located in this state for the tax period and the denominator of which is the average book cost of utility plant located everywhere for the tax period. The average book cost of utility plant shall be determined by averaging the beginning and year end balances at original cost, including construction work in progress, but the secretary of revenue may require the averaging of monthly book costs during the tax period if that is reasonably required to reflect properly the average value of the taxpayer’s property.

76.28(1)(gm) (gm) “Qualified wholesale electric company” means all of the following:

76.28(1)(gm)1. 1. Any person that owns or operates facilities for the generation and sale of electricity to a public utility, as defined in s. 196.01 (5) , or to any other entity that sells electricity directly to the public, except that “qualified wholesale electric company” does not include any person that sells less than 95 percent of its net production of electricity or that does not own, operate, or control electric generating facilities that have a total power production capacity of at least 50 megawatts.

76.28(1)(gm)2. 2. A wholesale merchant plant, as defined in s. 196.491 (1) (w) , that has a total power production capacity of at least 50 megawatts.

76.28(1)(gr) (gr) “Retail electric cooperative” has the meaning given in s. 16.957 (1) (t) .

76.28(1)(h) (h) “Sales factor” means a fraction the numerator of which is the taxpayer’s total sales of electricity, gas, water and steam in this state reported to the public service commission for the tax period and the denominator of which is the taxpayer’s total sales of electricity, gas, water and steam everywhere as reported to the public service commission for the tax period.

76.28(1)(i) (i) “Tax period” means the calendar year preceding the year for which the license fee is assessed.

76.28(1)(j) (j) “Transmission company” has the meaning given in s. 196.485 (1) (ge) .

76.28(2) (2) Imposition.

76.28(2)(a) (a) Except as provided in s. 76.29 , there is imposed on every light, heat and power company an annual license fee to be assessed by the department on or before May 1, 1985, and every May 1 thereafter measured by the gross revenues of the preceding year; excluding for the tax period, as defined in s. 76.29 (1) (f) , gross revenues that are subject to the license fee under s. 76.29 ; at the rates and by the methods set forth under pars. (b) to (d) . The fee shall become delinquent if not paid when due and when delinquent shall be subject to interest at the rate of 1.5 percent per month until paid. Payment in full of the May 1 assessment constitutes a license to carry on business for the 12-month period commencing on the preceding January 1.

76.28(2)(b) (b) For private light, heat and power companies, for 1985, an amount equal to the apportionment factor multiplied by the sum of:

76.28(2)(b)1. 1. Gross revenues from the sale of gas services multiplied by 0.47 percent; and

76.28(2)(b)2. 2. All other gross revenues multiplied by 1.63 percent.

76.28(2)(c) (c) Except as provided under par. (e) , for private light, heat and power companies for 1986 and thereafter, an amount equal to the apportionment factor multiplied by the sum of:

76.28(2)(c)1. 1. Gross revenues from the sale of gas services multiplied by 0.97 percent; and

76.28(2)(c)2. 2. All other gross revenues multiplied by 3.19 percent.

76.28(2)(d) (d) Except as provided under par. (e) , for municipal light, heat and power companies, an amount equal to the gross revenues, except gross revenues from operations within the municipality that operates the company, multiplied by the rates under par. (b) or (c) .

76.28(2)(e) (e) For transmission companies, an amount equal to the gross revenues multiplied by the rates under par. (c) .

76.28(3) (3) Payments.

76.28(3)(a) (a) On or before May 10, 1985, each light, heat and power company shall pay to the department a license fee for 1985 as imposed under sub. (2) .

76.28(3)(b) (b) Beginning with calendar year 1985, a portion of the license fees imposed under sub. (2) shall be paid to the department on an estimated basis. Payment of 45 percent of the total estimated liability of the May 1, 1986, assessment is due on or before May 10, 1985. The remainder of the May 1, 1986, assessment is due on or before November 10, 1985. Settlement for overpayments and underpayments of the May 1, 1986, assessment shall be made by the methods under par. (c) .

76.28(3)(c) (c) Beginning with calendar year 1986, the license fees prescribed by sub. (2) shall be paid to the department on an estimated basis. Remittances of semiannual installments of the total estimated payments for the then current calendar year shall be due on or before May 10 and November 10 of the current year. With respect to the license fee assessment under sub. (2) (a) , each light, heat and power company shall, on each May 10, pay or be credited an amount which is equal to the difference between the May 1 assessment and the sum of the semiannual installment payments made in the preceding calendar year. The additional amount shall be added to the semiannual installment due on May 10; if there has been an overpayment the amount of the overpayment shall be credited to the semiannual installment due May 10. If any light, heat and power company that has a liability for the current year fails to make semiannual payments of at least 55 percent of the assessed liability for the current calendar year or 50 percent of the assessed liability for the subsequent calendar year, any amounts not paid when due shall become delinquent and shall be subject to interest at the rate of 1.5 percent per month.

76.28(3)(d) (d) Light, heat and power companies with a liability under this section of less than $2,000 are not required to make an installment payment but shall pay the full amount of the license fees due on or before May 10 of the year of assessment.

76.28(4) (4) Redetermination.

76.28(4)(a) (a) If after filing the reports specified in sub. (7) and after the department’s computation and assessment of license fees under sub. (2) it is determined that the amount of gross revenues reported is in error, the department shall compute the additional license fee to be paid or the amount of the overpayment of license fee to be refunded, as the case may be. If an additional license fee is due, the department shall give notice to the light, heat and power company against whom the license fee is to be levied. All such additional assessments and claims for refunds for excess license fees paid are subject to the same procedure for review and final determination as additional income or franchise tax assessments and claims for refunds under ch. 71 as far as the same may be applicable, except that appeals of denials of claims for refunds shall be made directly to the tax appeals commission and except that the additional license fees shall become delinquent 60 days after notice provided in this subsection or, if review proceedings are held, 60 days following final determination of the review proceedings. All additional license fees shall bear interest at the rate of 12 percent per year from the time they should have been paid to the date on which the additional fees shall become delinquent if unpaid.

76.28(4)(b) (b) In the case of overpayments of license fees by any light, heat and power company under par. (a) , the department shall certify the overpayments to the department of administration, which shall audit the amount of the overpayments and the secretary of administration shall pay the amounts determined by means of the audit. All refunds of license fees under this subsection shall bear interest at the annual rate of 3 percent from the date of the original payment to the date when the refund is made. The time for making additional levies of license fees or claims for refunds of excess license fees paid, in respect to any year, shall be limited to 4 years after the time the report for such year was filed.

76.28(5) (5) Remedies. Delinquent license fees of any light, heat and power company, together with penalties and interest, for a lien upon all property of such company prior to all other liens, claims and demands, which lien may be enforced in an action in the name of the state in any court of competent jurisdiction against the property of such company within the state as an entirety. The remedies for nonpayment of taxes specified in s. 76.14 apply to nonpayment of license fees, penalties and interest referred to under this section.

76.28(6) (6) Administration.

76.28(6)(a) (a) The records, books, accounts and papers of any light, heat and power company are subject to inspection and examination by the secretary of revenue or by the person that the secretary designates for that purpose.

76.28(6)(b) (b) If any light, heat and power company that is required under this section to file a report fails to file a report within the time prescribed by law or as extended under sub. (7) , and upon a showing by the department under s. 73.16 (4) , there shall be added to the amount required to be shown as license fees on the report 5 percent of the amount of such fees if the failure is for not more than one month, with an additional 5 percent for each additional month or fraction thereof during which the failure continues, not exceeding 25 percent in the aggregate.

76.28(6)(c) (c) If any light, heat and power company fails to make a report as required by sub. (7) within the time required, the department may enter an assessment against such company in a sum representing the approximate amount of the license fees, together with penalties and interest, for which such company may be liable as estimated by the department. Notice of such assessment shall be given by certified mail, and unless a report conforming to the requirements of this section is filed within 15 days of such notice, such estimated assessment shall become final. Thereafter the light, heat and power company assessed shall be forever barred from questioning the correctness of the same in any action or proceeding.

76.28(7) (7) Statements. Every light, heat, and power company shall, on or before March 1 in each year, make and return to the department, in the form and upon the forms that the department prescribes, a true statement of the operation of the company’s business during the preceding calendar year, including provision of the “amount shown in the account plus leased property” for purposes of the payment to municipalities and counties under s. 79.04 . The statement shall be certified by the president and treasurer of the company or 2 of the company’s principal officers. For sufficient reason shown, the department may, upon written request, allow any further time for making and filing the statement that the department considers necessary but not to exceed 30 days. If any company fails to file the statement within the time prescribed or as extended under this subsection, the department shall add to the taxes due from that company $25, and no company may contest the imposition of that penalty in any action or proceeding.

76.28(8) (8) Transfer of ownership. If any light, heat or power company discontinues service through sale, merger or abandonment of its property or otherwise, the company acquiring that property or undertaking to provide service in the area of the former company shall assume the license fees due under this section, but the liability of the acquiring company is limited to those license fees which have accrued from January 1 of the previous calendar year to the date of the order of the public service commission approving the sale, merger or discontinuance of service.

76.28(9) (9) Property subject to local tax. The license fees imposed by this section upon the gross revenues of light, heat and power companies as defined in sub. (1) (e) shall be in lieu of all other taxes on all property used and useful in the operation of the business of such companies in this state, except that the same shall be subject to special assessments for local improvements. If a general structure is used and useful in part in the operation of the business of those companies in this state and in part for nonoperating purposes, the license fees imposed by this section are in place of the percentage of all other taxes on the property that fairly measures and represents the extent of the use and usefulness in the operation of the business of those companies in this state, and the balance is subject to local assessment and taxation, except that the entire general structure is subject to special assessments for local improvements. Property under s. 76.025 (2) shall not be taxed under this section, but shall be subject to local assessment and taxation.

76.28(10) (10) Standing to challenge assessment. In case any light, heat or power company fails to make a report as required by sub. (7) within the time required, the department may enter an assessment against that company in a sum representing the approximate amount of the license fees, together with penalties and interest, for which that company may be liable as estimated by the department. Notice of that assessment shall be given by certified mail, and unless a report conforming to the requirements of this section is filed within 15 days of that notice, that estimated assessment shall become final. Thereafter the light, heat or power company assessed shall be forever barred from questioning the correctness of the assessment in any action or proceeding.

76.28(11) (11) Payment before contesting. No action or proceeding, except a petition for redetermination under sub. (4) , may be brought by a light, heat or power company against this state to contest any assessment of a tax under this section unless the taxpayer first pays to this state the amount of tax assessed. If the taxpayer prevails in an action or proceeding, this state shall settle with the taxpayer, including payment of interest at 3 percent per year on the amount of the money paid from the date of payment until the date of judgment.