Wisconsin Law Relating to Types of Retailers in Auction for Tax Purposes

Wisconsin Administrative Code:
Department of Revenue
Chapter Tax 11. Sales and Use Tax
Subchapter VII. Types of Retailers

Tax 11.50 Auctions.

(1) STATUTE. Section 77.51 (13) (b), Stats., provides that every person engaged in the business of making sales at auction of tangible personal property and items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., owned by the person making the sale or others is a “retailer”. The definition of “sale” contained in s. 77.51 (14) (a), Stats., includes any sale at an auction.
(2) RETAILER. If an auction company provides complete auction service, it is the retailer. If an auctioneer contracts with the owner of the auctioned property and arranges for clerking the auction, the auctioneer is the retailer. Auctioneers and auction companies who are retailers are responsible for reporting the sales tax on auction receipts even if the owner of the property has a seller's permit.
(3) TAXABLE AUCTION RECEIPTS. Taxable receipts from auctions include the sales price received from:
(a) Auction sales of heavy equipment and going-out-of-business auction sales of retail stores, motels, wholesalers, manufacturers, contractors, and service enterprises, but not certain sales of personal farm property, as explained in sub. (4) (a). The household goods exemption does not apply to these sales.
(b) Auction sales, including radio and television auction sales held at a location where the auctioneer holds more than 5 auctions during the calendar year.
(c) Auctions sponsored by a nonprofit organization, except as provided in sub. (4) (c). The household goods exemption does not apply to these auctions.
(d) Auction sales of antiques and works of art except when sold with other household goods of which they were a part.
(e) Auction sales of professional or business inventories or equipment, except certain personal farm property as explained in sub. (4) (a), even though they may consist of household goods.
(f) Sheriffs' sales and other auction sales made pursuant to orders of a Wisconsin court.
(g) Liquidation sales of an insolvent debtor's assets which are made pursuant to the order of a federal bankruptcy court.
(h) All other auction sales which are not specifically exempt under the law.
(4) EXEMPT AUCTION RECEIPTS. The receipts from the following auction sales are exempt:
(a) Except as provided in sub. (5), auction sales of personal farm property or household goods which are held at a location where the auctioneer holds 5 or fewer auctions during the calendar year. In this paragraph:
1. “Household goods” includes tangible personal property and items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., which is associated with maintaining a household and is for family use. “Household goods” does not include:
a. Highway motor vehicles or trailers, snowmobiles, all-terrain vehicles, mini bikes, aircraft and boats.
b. Professional or business inventory or equipment.
Example: Household goods include furniture necessary or ornamental to a house in furnishing or fitting it for use by members of the household. Thus household goods include goods removed from a family home, such as tables, chairs, lamps, appliances, beds, clocks, musical instruments, dressers, lawn and garden equipment, jugs and fruit jars, sporting goods or hobby equipment including bats, balls, tennis racquets, golf clubs, guns and ammunition, and related hunting equipment, fishing equipment, camping equipment, photographic equipment, tools, bicycles, and personal collections of those items.
2. “Personal farm property” includes tractors, implements of husbandry, machines, equipment or other tangible personal property and items, property, and goods under s. 77.52 (1) (b), (c), and (d), Stats., used by the owner in the business of farming. “Personal farm property” does not include racing, pleasure riding, or show horses, pets or other recreational animals not used in farming, highway vehicles and boats.
(b) Sales for resale or sales that are otherwise exempt. If such a sale is made at an auction, the person conducting the auction should obtain a properly completed exemption certificate from the purchaser.
(c) Auction sales by religious, charitable, educational, or civic organizations and other nonprofit organizations that conduct a fund raising event, if both of the following apply:
1. The auctioneer is not the retailer, because the auctioneer's services are donated.
2. The sales qualify as exempt occasional sales under s. Tax 11.35 (4).
(5) AUCTION SALES OF MOTOR VEHICLES, BOATS, SNOWMOBILES, RECREATIONAL VEHICLES AS DEFINED IN S. 340.01 (48R), STATS., TRAILERS, SEMI-TRAILERS, ALL-TERRAIN VEHICLES, AND AIRCRAFT. (a) An auctioneer shall collect, report, and remit tax on its sales of any of the following items if the auctioneer is a retailer, unless an exemption applies:
1. Motor vehicles.
2. Boats.
3. Snowmobiles.
4. Recreational vehicles as defined in s. 340.01 (48r), Stats.
5. Trailers.
6. Semi-trailers.
7. All-terrain vehicles.
8. Aircraft.
(b) 1. A buyer who purchases any of the items listed in par. (a) 1. to 8. from an auctioneer who is a retailer shall pay the tax to the auctioneer, unless an exemption applies. If the buyer does not pay the tax to the auctioneer, the buyer shall file a return and pay the tax, as prescribed by the department, prior to registering or titling the item in Wisconsin.
2. Auction sales of the items listed in par. (a) 1. to 8. do not qualify for exemption as occasional sales of personal farm property or household goods if the items are registered or titled or required to be registered or titled in Wisconsin. Auction sales of boats also do not qualify for exemption as occasional sales of personal farm property or household goods if the boats are registered or titled or required to be registered or titled under the laws of the United States.
Note: Section Tax 11.50 interprets ss. 77.51 (9) (e), (13) (b), and (14) (intro.) and (a), 77.52 (1), 77.54 (7), and 77.61 (1), Stats.
Note: The interpretations in s. Tax 11.50 are effective under the general sales and use tax law on and after September 1, 1969, except: (a) The standard in sub. (4) (d) 2. became effective January 1, 1989, pursuant to 1987 Wis. Act 399; (b) The occasional sale exemption for five or fewer auctions at a location became effective January 1, 2000, pursuant to 1999 Wis. Act 9; (c) The requirement for auctioneers to collect, report, and remit tax on sales of motor vehicles, boats, snowmobiles, recreational vehicles as defined in s. 340.01 (48r), Stats., trailers, semi-trailers, all-terrain vehicles, and aircraft, regardless of whether the auctioneer is a dealer of such items became effective October 1, 2009; and (d) The change of the term “gross receipts” to “sales price” and the separate impositions of tax on coins and stamps sold above face value under s. 77.52 (1) (b), Stats., certain leased property affixed to real property under s. 77.52 (1) (c), Stats., and digital goods under s. 77.52 (1) (d), Stats., became effective October 1, 2009, pursuant to 2009 Wis. Act 2.

Cite as Wis. Admin. Code Tax § 11.50