139.31 Tax imposed; exceptions.

(1) An excise tax is imposed on the sale, offering or exposing for sale, possession with intent to sell or removal for consumption or sale of cigarettes or other disposition for any purpose whatsoever. The tax is imposed at the time and place of the first taxable event occurring in this state. The tax shall be passed on to the ultimate consumer of the cigarettes. All cigarettes received in this state for sale or distribution within this state, except cigarettes actually sold as provided in sub. (3), shall be subject to such tax. Any person licensed under ch. 100 and this chapter to have untaxed cigarettes in his or her possession which are lost, stolen, destroyed or which have mysteriously disappeared shall be liable for and shall pay the tax thereon. The tax shall be at the following rates:

(a) On cigarettes weighing not more than 3 pounds per thousand, 126 mills on each cigarette.

(b) On cigarettes weighing more than 3 pounds per thousand, 252 mills on each cigarette.

(c) In addition to the rate under par. (a), on cigarettes weighing not more than 3 pounds per thousand, on each cigarette 8 mills minus the tax imposed on that cigarette under 26 USC 5701, but not less than zero.

(d) In addition to the rate under par. (b), on cigarettes weighing more than 3 pounds per thousand, on each cigarette, 16.8 mills minus the tax imposed on that cigarette under 26 USC 5701, except that if the cigarette is more than 6.5 inches in length it shall be taxed at the rate under par. (c) rather than at the rate under this paragraph, counting each 2.75 inches or fraction thereof of the length as one cigarette. The amount under this paragraph shall not be less than zero.

(3) Cigarettes sold to post exchanges of the armed forces of the United States and to federally operated veterans hospitals in this state and cigarettes sold to an interstate carrier of passengers for hire to be resold to bona fide passengers actually being transported and cigarettes sold for shipment outside this state in interstate commerce are not subject to the tax.

(4) No person may sell or distribute in this state, acquire, store, possess, or transport for sale or distribution in this state, import or cause to be imported into this state for sale or distribution in this state, or affix stamps as described under s. 139.32 to, any of the following:

(a) A cigarette package on which a statement, label, stamp, sticker, or notice indicates that the manufacturer did not intend the cigarettes in the package to be sold, distributed, or used in the United States, including labels stating “for export only," “U.S. tax exempt," “for use outside U.S.," or similar wording.

(b) A cigarette package that does not comply with 15 USC 1333 and 15 USC 1335 or other federal law.

(c) A cigarette package that has been altered as described in sub. (5).

(d) Any cigarettes that are imported into the United States in violation of federal law.

(5)

(a) No person may alter a cigarette package before the sale or distribution to the ultimate consumer so as to remove, conceal, or obscure any of the following:

1. Any statement, label, stamp, sticker, or notice described in sub. (4) (a).

2. Any health warning that is not specified in or that does not conform with the requirements under 15 USC 1333.

(b) No person may affix stamps, as described in s. 139.32, to any cigarette package that is altered as described in par. (a).

(6) Subsections (4) and (5) do not apply to cigarettes that may be brought into the United States for personal use and cigarettes that are sold or intended for sale by a duty-free enterprise, as provided under 19 USC 1555, not including cigarettes that are brought into a customs territory, as defined under 19 USC 1555 (2) (b) (C), for resale within the customs territory.

History: 1971 c. 125; 1981 c. 20, 317, 390; 1983 a. 2, 27; 1985 a. 29; 1987 a. 27; 1991 a. 269; 1995 a. 27; 1997 a. 27; 2001 a. 16; 2005 a. 22; 2007 a. 20; 2009 a. 28.

State cigarette tax laws do not apply to Indian persons or Indian tribes selling cigarettes on Indian reservations. 68 Atty. Gen. 151.