78.01 Tax imposed; collected; exceptions.

(1) Imposition of tax and by whom paid. An excise tax at the rate determined under ss. 78.015 and 78.017 is imposed on all motor vehicle fuel received by a supplier for sale in this state, for sale for export to this state or for export to this state except as otherwise provided in this chapter. The motor vehicle fuel tax is to be computed and paid as provided in this chapter. Except as otherwise provided in this chapter, a person who receives motor vehicle fuel under s. 78.07 shall collect from the purchaser of the motor vehicle fuel that is received, and the purchaser shall pay to the person who receives the motor vehicle fuel under s. 78.07, the tax imposed by this section on each sale of motor vehicle fuel at the time of the sale, irrespective of whether the sale is for cash or on credit. In each subsequent sale or distribution of motor vehicle fuel on which the tax has been collected as provided in this subsection, the tax collected shall be added to the selling price so that the tax is paid ultimately by the user of the motor vehicle fuel.

(2) Gasoline exemptions. No tax is hereby imposed upon or with respect to the following:

(a) Gasoline exported by a person licensed to export. Gasoline carried out of this state in the ordinary fuel tank of a motor vehicle is not gasoline exported.

(b) Gasoline sold to and used by the United States or its agencies if that sale is evidenced by proper documentation.

(d) Gasoline sold to a common motor carrier as defined in ch. 194, if that carrier certifies to the department that the gasoline is for use in the operation of a motor vehicle for the urban mass transportation of passengers as defined in s. 71.38.

(e) Gasoline sold for nonhighway use in mobile machinery and equipment; other than use in a snowmobile, a limited use off-highway motorcycle that is not registered for private use under s. 23.335 (3) (a), an all-terrain vehicle or utility terrain vehicle that is not registered for private use under s. 23.33 (2) (d), or a recreational motorboat; and delivered directly into the consumer's storage tank in an amount of not less than 100 gallons.

(f) Gasoline sold to a general aviation fuel dealer licensed under s. 78.56 for use in an aircraft, as defined in s. 78.55 (2), and delivered directly into the dealer's storage tank in a volume of at least 100 gallons.

(2m) Diesel fuel exemptions. No tax is imposed under sub. (1), and no supplier, wholesaler or retail dealer may collect a tax, on diesel fuel that is purchased by an end user if that fuel fulfills the requirements under sub. (2p) or fulfills one of the following conditions:

(a) It is exported by a person who is licensed to export.

(b) It is sold to and used by the United States or one of its agencies and that sale is evidenced by proper documentation.

(c) It is sold for use as a heating oil.

(d) It is sold for use in trains.

(e) It is sold to a common motor carrier, as defined in s. 194.01 (1), if that carrier certifies to the department that the diesel fuel is to be used in the operation of a motor vehicle for the urban mass transportation of passengers, as defined in s. 71.38.

(f) It is dyed diesel fuel and is sold for off-highway use other than use in a snowmobile, in a limited use off-highway motorcycle that is not registered for private use under s. 23.335 (3) (a), in an all-terrain vehicle or utility terrain vehicle that is not registered for private use under s. 23.33 (2) (d) or (2g), or in a recreational motorboat or if no claim for a refund for the tax on the diesel fuel may be made under s. 78.75 (1m) (a) 3.

(g) It is exported by an unlicensed person who has paid the tax on it to the state of destination, as evidenced by a bill of lading.

(2n) Personal renewable fuel producer exemption. No tax is imposed under sub. (1) on the first 1,000 gallons of renewable fuel produced or converted from another purpose each year by an individual and used by that individual in his or her personal motor vehicle, if the individual does not sell any such renewable fuel during that year.

(2p) Dyed fuel. If indelible dye has been added to diesel fuel before or upon withdrawal at a terminal or refinery rack, that fuel may be used only for an exempt purpose. At the option of the supplier, the dye may be either dye required to be added under federal environmental protection agency requirements or dye that meets specifications of, and is in an amount required by, the department.

(2r) Refunds for exempt transactions.

(a) The ultimate consumer shall assign his or her claim for a refund on undyed exempt diesel fuel and on all exempt gasoline to the person from whom the ultimate consumer purchased the fuel.

(b) A licensed exporter who has purchased diesel fuel from a supplier, paid the tax on it, removed it from a terminal or a refinery for delivery in this state and exported it may claim a refund for that tax by presenting to the department within 3 years after the date of purchase a written statement, under the penalties for perjury, that lists the amount of diesel fuel purchased and exported and that indicates that the purchase price and the tax have been paid.

(2s) Liability precluded. A licensed supplier who is unable to recover the tax from a purchaser is not liable for the tax and, with proper documentation, may credit the amount of tax against a later remittance of taxes. A wholesaler distributor who is unable to recover the tax from another wholesaler distributor or from a retail dealer is not liable for the tax and, by supplying proper documentation, may apply to the department for a refund.

(2t) Exemption certificates. Exemption certificates used to claim the exemptions under subs. (2) and (2m) are valid for 3 years unless cancelled by the department or the person claiming the exemption.

History: 1979 c. 221; 1981 c. 20; 1983 a. 27; 1985 a. 153; 1987 a. 27; 1987 a. 312 s. 17; 1987 a. 399; 1989 a. 31; 1991 a. 39, 316; 1993 a. 16, 437; 1995 a. 113; 1997 a. 27, 237; 2009 a. 401; 2011 a. 208; 2013 a. 204; 2015 a. 170.