Fiscal Estimate
The rules specify that use of the criteria for significant developmental delay could only occur after consideration had been given to identifying a child's disability under criteria for the other specified handicapping conditions, and that a delay would need to be present in two or more areas of development and not just one area. These delays must be at least one and one-half standard deviations below the mean using standardized assessment instruments. Further, the department will provide training on a statewide basis to special education teachers, psychologists, directors of special education and others involved in the evaluation of young children to ensure understanding of the intent of this category as well as consistency in interpretation of the eligibility criteria.
Because of the restrictive eligibility criteria in addition to the staff training provisions in the rule, it is not anticipated there would be an increase in the number of children identified with exceptional educational needs as a result of the addition of this new category of significant developmental delay.
Administrative costs associated with providing inservice training for early childhood special education teachers, directors and pupil services personnel in identifying children with significant developmental delays will be absorbed by the agency.
Initial Regulatory Flexibility Analysis
The proposed rules are not anticipated to have a fiscal effect on small businesses as defined under s. 227.114(1)(a), Stats.
Notice of Hearings
Public Instruction
Notice is hereby given that pursuant to s. 227.11(2)(a), Stats., and interpreting s. 115.81, Stats., the department of public instruction will hold public hearings as follows to consider emergency and proposed permanent rules, relating to the method of resolving disputes concerning children with exceptional educational needs between school boards and the parents of those children. Emergency rules were promulgated by the department effective June 25, 1996.
Hearing Information
September 9, 1996 Wausau
4:00-6:00 p.m. North Central Technical College
1000 Campus Drive
Room 451
September 10, 1996 Madison
4:00-6:00 p.m. GEF 3 Building
125 South Webster Street
Room 041
The hearing sites are fully accessible to people with disabilities. If you require reasonable accommodation to access any meeting, please call Elliot Weiman, Consultant, Exceptional Education Team, at (608) 266-3648 or leave a message with the Teletypewriter (TTY) at (608) 267-2427 at least 10 days prior to the hearing date. Reasonable accommodation includes materials prepared in an alternative format, as provided under the Americans with Disabilities Act.
Copies of Rule and Contact Person
A copy of the proposed rule and the fiscal estimate may be obtained by writing to:
Lori Slauson,
Administrative Rules & Federal Grants Coordinator
Department of Public Instruction
125 South Webster Street
P.O. Box 7841
Madison, WI 53707
Written comments on the proposed rules received by Ms. Slauson at the above address no later than September 16, 1996, will be given the same consideration as testimony presented at the hearing.
Analysis by the Department of Public Instruction
1996 Wis. Act 431 eliminates the two-tier system for resolving disputes concerning a child with exceptional educational needs who is enrolled in the school district and the parents of the child. The Act eliminates the initial hearing conducted by a hearing officer appointed by a school board. Instead, the Act provides that the school board or the parent of the child may initiate the process by filing a written request for a hearing with the department. The department must appoint a hearing officer who is not employed by or under contract with a school board (or otherwise employed by the department) to conduct the hearing. The school board must pay the cost of the hearing. Either party may appeal the decision of the hearing officer to circuit court or federal district court.
The proposed rules have been modified to conform to statutory language amended as a result of the Act.
Fiscal Estimate
Local Fiscal Effect: Elimination of the second tier appeal prior to appeal to circuit court will result in savings to school districts which have first-tier decisions appealed. Although only a few second tier appeals are made each year (usually less than 6), the costs to the school districts involved can be significant. Making the initial appeal directly to the department is also expected to save time in resolving the appeal, which would result in savings to school districts in staff time and attorney fees. The provision requiring the school board to pay the costs of the hearing officer does not result in increased cost to school boards since they are already required to pay first-tier hearing officer costs under current law.
State Fiscal Effect: There may be some additional work to the department to receive requests for hearings and appointing a hearing officer. Any additional work will be accomplished with existing resources, however, due to staff reductions, any additional work may result in delay or reduction of other department activities.
Initial Regulatory Flexibility Analysis
The proposed rules are not anticipated to have a fiscal effect on small businesses as defined under s. 227.114(1)(a), Stats.
Notice of Proposed Rule
Revenue
Notice is hereby given that pursuant to s. 227.11(2)(a), Stats., and interpreting ss.77.51(14), 77.52(14), 77.53(11), 77.54(20) and 77.56(3), Stats., and according to the procedure set forth in s. 227.16(2)(e), Stats., the Department of Revenue will adopt the following rules as proposed in this notice without public hearing unless, within 30 days after publication of this notice on August 15, 1996, it is petitioned for a public hearing by 25 natural persons who will be affected by the rule, a municipality which will be affected by the rule, or an association which is representative of a farm, labor, business or professional group which will be affected by the rule:
Contact Person
Please contact Mark Wipperfurth at (608) 266-8253, if you have any questions regarding this proposed rule order.
Analysis by the Department of Revenue
Statutory authority: s. 227.11(2)(a)
Statutes interpreted: ss. 77.51(14), 77.52(14), 77.53(11),
77.54(20) and 77.56(3)
SECTION 1. Tax 11.28(title), relating to gifts and other advertising specialties given away, is amended to more generally reflect the content of the rule.
Tax 11.28(1)(a), relating to definitions of “sale” and related terms, is amended to conform punctuation to Legislative Council Rules Clearinghouse standards.
Tax 11.28(2)(title), relating to gifts and sales incentive plans, is amended to more clearly reflect the text of the subsection.
SECTIONS 2, 3 AND 4. Tax 11.28(2)(intro.), relating to gifts, is renumbered Tax 11.28(2)(a) and a title is created, to conform to Legislative Council Rules Clearinghouse standards. Similarly, Tax 11.28(2)(a) through (e) are renumbered Tax 11.28(b) through (f).
Tax 11.28(2)(b), as renumbered, relating to the purchase of grand opening gifts, is amended to reflect:
a. The department's current position with respect to determining whether a retailer has accepted an exemption certificate in “good faith.”
b. Section 77.56(3), Stats., which provides an exemption from use tax for property purchased without tax for resale which is donated to an entity exempt from sales or use tax under s. 77.54(9a), Stats.
c. Correct punctuation, per Legislative Council Rules Clearinghouse standards.
Tax 11.28(2)(e), as renumbered, relating to purchases of awards, is amended to create a title and to change punctuation, to conform to Legislative Council Rules Clearinghouse standards.
SECTION 5. Tax 11.28(3)(b), relating to cents-off coupons, is amended to conform punctuation to Legislative Council Rules Clearinghouse standards.
SECTION 6. Tax 11.28(3)(c), relating to items redeemed from a retailer, is repealed and recreated to reflect the department's current position that a resale exemption applies to property given away with a required purchase of another item, regardless of whether the item purchased is subject to, or exempt from, Wisconsin sales tax. There is no provision in the sales and use tax law that supports the position that a resale exemption is not allowed based on whether the related property purchased is taxable or exempt.
SECTION 7. Tax 11.28(4)(c), relating to items given away, is amended to clarify the department's position that food products given away are not subject to tax, assuming exemption applies under s. 77.54(20), Stats.
Tax 11.28(5), relating to trading stamps, is amended to conform language to Legislative Council Rules Clearinghouse standards.
SECTION 8. Tax 11.46(3)(c), relating to sales by summer camps, is repealed and recreated to clarify that groceries sold at camps, which are not subject to tax, are only those that are exempt from tax under s. 77.54(20), Stats.
SECTION 9. Tax 11.46(5)(intro.), relating to combined charges, is amended to conform grammar, punctuation and style to Legislative Council Rules Clearinghouse standards.
SECTION 10. Tax 11.51(1), relating to sales by grocers, is amended to reflect the proper reading of s. 77.54(20), Stats., which in no way requires that, for food, food products, and beverages to be exempt from tax, they must be used in the “home preparation of meals.” The statute provides that food, food products, and beverages sold for direct consumption on the premises of the seller are subject to tax.
Tax 11.51(2)(a) and (b), relating to sales by grocers, are amended to reflect the Wisconsin Tax Appeals Commission decision in Artesian Water Company v. Wisconsin Department of Revenue (April 8, 1994), which held that bottled water was exempt from Wisconsin sales or use tax. Section 77.54(20)(b), Stats., specifically excludes from exemption soft drinks and soda water beverages (which would include carbonated or flavored bottled water).
Both subunits are also amended to conform punctuation and style to Legislative Council Rules Clearinghouse standards.
SECTIONS 11, 12 AND 13. Tax 11.87(1)(a) through (g), relating to sales of meals, are renumbered Tax 11.87(1)(b) through (h) and Tax 11.87(1)(a) is created to reflect the amendment to s. 77.54(20)(c)4, Stats., by 1993 Wisconsin Act 332, which exempted from sales or use tax meals sold on premises by community-based residential facilities. Tax 11.87(1)(b) as renumbered is amended to clarify that whether food is exempt from tax is determined under s. 77.54(20), Stats.
SECTION 14. Tax 11.87(3)(a), relating to sales of meals, is amended to reflect the amendment to s. 77.54(20)(c)4, Stats., by 1993 Wisconsin Act 332, which exempted from sales or use tax meals sold on premises by community-based residential facilities.
Tax 11.87(3)(d) is amended to reflect the proper reading of s. 77.54(20), Stats., which in no way requires that, for food, food products, and beverages to be exempt from tax, they must be used in the “home preparation of meals.” The statute only requires that food, food products, and beverages sold for direct consumption on the premises of the seller are subject to tax.
Tax 11.87(3)(e) is amended to correct terminology.
Text of Rule
SECTION 1. Tax 11.28(title), (1)(a) and (2)(title) are amended to read:
Tax 11.28(title) GIFTS AND OTHER ADVERTISING SPECIALTIES. (ss. 77.51(4)(a) and (14)(k) and 77.56(3), Stats.)
(1)(a) Section 77.51(14)(k), Stats., provides that “sale”
,“ ”sale, lease or rental“,” “retail sale”,“ ”sale at retail“ or equivalent terms includes the sale of tangible personal property to a purchaser even though the property may be used or consumed by another person to whom the purchaser transfers the property without valuable consideration, such as gifts and other advertising specialties distributed gratis apart from the sale of other tangible personal property or services.
(2)(title) GIFTS AND SALES INCENTIVE PLANS.
SECTION 2. Tax 11.28(2)(intro.) is renumbered Tax 11.28(2)(a).
SECTION 3. Tax 11.28(2)(a)(title) is created to read:
Tax 11.28(2)(a)(title) General.
SECTION 4. Tax 11.28(2)(a), (b), (c), (d) and (e) are renumbered Tax 11.28(2)(b), (c), (d), (e) and (f) and Tax 11.28(2)(b) and (e) as renumbered are amended to read:
Tax 11.28(2)(b) Grand opening gifts. A person who sells tangible personal property to a retailer who uses the property as gifts at a “grand opening” or similar event, such as an open house, celebrity appearance or “farm days,” cannot accept a resale certificate in good faith if the seller is aware, or should be aware with the exercise of reasonable diligence, of how the property will be used. The seller shall be deemed to be aware of how the property is to be used if the retailer does not normally purchase this type of item or if the retailer does not normally purchase from the seller in this volume. In cases where a seller furnishes free property to a retailer for use as gifts at a “grand opening” or similar event, the person seller furnishing the property to the retailer without charge is subject to the sales or use tax pursuant to s. Tax 11.14(2)(c) on its cost of the property donated, unless the property is exempt from use tax under s. 77.56(3), Stats., because it is donated to an entity exempt from sales or use tax under s. 77.54(9a), Stats.
(e)(title) Awards. Persons transferring tangible personal property to salespersons or distributors or both in redemption of awards, such as “points”, given under a sales incentive plan shall pay the tax on their purchases of the property.
SECTION 5. Tax 11.28(3)(b) is amended to read:
Tax 11.28(3)(b)(title) Cents-off coupons redeemable by manufacturers. A common arrangement between manufacturers and retailers involves the use of “cents-off”
coupons. The coupons are distributed as part of a retailer's advertisements and are used by consumers toward the purchase of tangible personal property. The retailer then is reimbursed by the manufacturer. In this situaiton, a retailer's taxable gross receipts include the amount which the retailer is reimbursed and the amount paid by the customer presenting the coupon, less any coupon handling fees paid by the manufacturer.
SECTION 6. Tax 11.28(3)(c) is repealed and recreated to read:
Tax 11.28(3)(c) Coupons issued and redeemable by retailers. 1. When a retailer distributes coupons which its customer may use to obtain free tangible personal property, the following shall apply:
a. When purchasing tangible personal property which will be given away to customers who must purchase other property to obtain the free property, a retailer may use a resale certificate to purchase the free property withoutpayment of the sales tax, since the transaction is deemed a sale of both the free property and the other property. The sale of the free property and other property by the retailer is subject to Wisconsin sales or use tax, unless an exemption applies.
