Member Wins

(2017 SB 291\AB 387 & 2017 SB 292\AB 386)

During the 20170-2018 legislative session, WIB spent a considerable amount of time lobbying against two legislative proposals which alter the way in which property is assessed in Wisconsin. Collectively, these are referred to as the “Dark Stores” legislation. If they were to become law, we believe the result would be an increase in the property tax burden for small businesses which own or lease their property.

The assessment of real property is guided by the Uniformity Clause of Wisconsin’s Constitution and state law. The Uniformity Clause requires the method or mode of taxing real property to be applied uniformly.

State law requires assessors to use a three-step process to assess the value of real property – the land and all buildings and improvements affixed to the land. The first step is to base the assessment on any recent arm’s-length sale of the property. If the property has not been recently sold, an assessor must consider sales of reasonably comparable properties. If there are no such comparable sales, an assessor may use a “cost” or “income” assessment approach, considering all factors which have a bearing on the value of the property.

2017 Assembly Bill 386/Senate Bill 292 specifies new property tax assessment practices for the use of the comparable sales approach. More specifically, a property may not be considered comparable if the property is a dark property. The term “dark property” is defined as a property that is vacant or unoccupied beyond the normal period for property in the same real estate market segment.

Proponents of this legislation claim these new assessment practices are needed to prevent big-box retailers from having their fully-operational stores assessed at the same value as a vacant property in a different location. While this legislation may accomplish that objective, the Uniformity Clause requires assessors to apply this assessment practices to the sale of property owned by a small, hometown business.

In communities throughout Wisconsin, there are many vacant commercial properties. These vacancies adversely impact the value of occupied commercial property. We believe restricting assessors from even using vacant property to discern the value of occupied property will lead to higher assessments for hometown businesses.

2017 Assembly Bill 387/Senate Bill 291 redefines real property to include any leases, rights, and privileges pertaining to the property, including assets that cannot be taxed separately but that are inextricably intertwined with the real property.

The stated intent of this legislation is to reverse the 2008 decision by the Wisconsin Supreme Court in Walgreen Company v. City of Madison. In this case, the Wisconsin Supreme Court unanimously ruled that a property tax assessment of retail property leased at above market rent values should be based on market rents.

From our perspective, the key commentary from this ruling was:

“If we were to expand the law in the direction the City (Madison) requests, property assessments would in essence become business value assessments, with assessors improperly equating financial arrangements with property value. This is in contravention of the general principle that real property assessments should not be based on business value. Rather, the valuation of the fair market value of property for purposes of property taxes is by its nature different from business, or income tax assessment. “[A]n assessor’s task is to value the real estate, not the business concern which may be using the property.”

We agree with the Wisconsin Supreme Court. The job of the assessor is to value the real estate, not the business using the property. Therefore, we do not believe it is appropriate to overturn the unanimous ruling of the Wisconsin Supreme Court.

State lawmakers failed to reach consensus on either of the so-called “Dark Stores” proposals during the 2017-2018 legislative session. As a result, local assessors must continue to follow the existing law process for the assessment of commercial property.

(2017 Wisconsin Act 327)

Over the past decade, local elected officials representing large American cities have enacted expensive regulations which interfere with private sector employer-employee relationships.

For example, “fair scheduling” ordinances mandate employers post work schedules for their hourly employees up to four weeks in advance, “wage equity” ordinances restrict the ability of employers to seek prior wage history from job applicants and “commuter benefit” ordinances require employers to pay a portion of their worker’s transit expenses.

Local governments in Wisconsin could enact any of these types of ordinances. 2017 Wisconsin Act 327 prevents such action. Under this new law, Wisconsin cities, villages, towns and counties are prohibited from enacting or enforcing an ordinance regarding:

• regulation of employee hours and overtime;
• employment benefits an employer may be required to provide to its employees; or an employer’s right to solicit information regarding the salary history of prospective employees.

(2017 Wisconsin Act 108)

One of the most significant flaws in the process by which state government agencies carry out their regulatory duties is the absence of formalized procedures to continuously review and\or revise existing regulations to ensure marketplace conditions, current business practices as well as technology and innovation are considered. This institutional shortcoming can force small employers to spend time and money complying with state government regulations that are outdated, obsolete, unnecessary or overly burdensome.

2017 Wisconsin Act 108 establishes formalized procedures for the continuous review of existing state government regulations. Of note, this new law:

• creates an expedited procedure to repeal obsolete and unnecessary state government regulations which should reduce the amount of time it takes to repeal an existing regulation from years to months;
• requires state government agencies to submit a report to the Wisconsin State Legislature every two years listing all existing regulations under their jurisdiction that are deemed to be obsolete, unnecessary or economically burdensome. State government agencies just also provide legislators with a “plan of action” to address existing regulations that obsolete, unnecessary or economically burdensome; and
• allows state legislators to request and receive retrospective Economic Impact Analysis of existing state government agency regulations thereby allowing lawmakers to know the true compliance costs of an older regulation.

(2017 Wisconsin Act 139)

For over 100 years, a “grand bargain” has been applied to workplace injuries in Wisconsin. Employers must compensate their employees for work-related injuries and in return employees give up the right to sue the employer.

Over the past two years, a Worker’s Compensation-related lawsuit – Rivera v. West Bend Mutual Insurance – has been winding its way through Wisconsin’s court system. The relevant facts of the case are:

The Alex Drywall Company employed Carlos Rivera and provided him as a temporary, skilled worker to the Alpine Insulation Company. An Alpine-owned vehicle in which Rivera was traveling from one job site to another was involved in an accident. Rivera was killed in the accident.

Rivera’s estate did not make a claim for death benefits under Wisconsin’s Worker’s Compensation law but instead filed a wrongful death action against Alpine and its insurance carrier (West Bend Mutual Insurance).

On January 9, 2018, the District III of the Wisconsin Court of Appeals issued its ruling in this case. The three-judge panel concluded a temporary employee who has not made a claim for worker’s compensation is permitted to sue his or her temporary employer for damages. This ruling fundamentally altered the guiding principles of Wisconsin’s Worker’s Compensation program.

WIB joined with other business advocacy organizations to lobby for legislation which would close this “loophole.” Our efforts were successful.

Under 2017 Wisconsin Act 139, an injured employee of a temporary help agency engaged in work for the employer to which the employee is placed or leased may not sue the employer to which the employee is placed or leased if the employee has the right to make a claim for compensation under Wisconsin’s Worker’s Compensation law.

The 2017-2018 session of the Wisconsin State Legislature has adjourned. For Wisconsin Independent Businesses (WIB) and its members, it has been a productive session. Outlined below is a summary of our “Member Wins.”

• Partial Repeal of Wisconsin’s Personal Property Tax
• Regulations in Need of Executive Scrutiny (REINS) Act
• Wisconsin Health Care Stability Plan
• Broadband Expansion and Deployment throughout Rural Wisconsin
• Stiffer Criminal Penalties for UI Benefit Fraud
• Temporary Employee “Loophole” in Worker’s Compensation law
• Expedited Process to Eliminate Unnecessary Regulations
• Employment Law Standardization Act
• “Dark Stores” Legislation
• Construction Sales Tax Law Simplification
• Eliminated Wisconsin’s Alternative Minimum Tax
• Personal Property Tax Reporting
• Taxpayer Reliance on Past State Tax Audit Guidance
• Repealed Wisconsin’s Forestry Mill Tax
• Small Employer Access to Statistical Sampling in Sales Tax Audits
• Increased Funding for School Levy Tax Credit
• Work Permits for Minors
• Reduced Transactional Costs Relating to Discovery in Civil Lawsuits
• Oversight and Fiscal Management of State Highway Program

(2017 Wisconsin Act 147)

The existing penalties for Unemployment Insurance (UI) benefit fraud include repayment of fraudulently obtained benefits, reductions in future UI benefits, civil forfeitures, court fines and jail time. Even with this array of penalties, UI benefit fraud continues to be a multimillion dollar problem in Wisconsin.

The Wisconsin Department of Workforce Development (DWD) has advised state lawmakers that the current criminal penalties for UI benefit fraud – a maximum fine of $500, 90 days in jail, or both – are not enough to convince local District Attorneys to prosecute UI benefit fraud cases.

2017 Wisconsin Act 147 created a new criminal penalty structure based on the amount of money that a person fraudulently receives in UI benefit payments and provides that multiple violations can be charged as a single crime. The new penalties range from a fine of up to $10,000 and\or 9 months in prison to a $25,000 fine and\or 10 years in prison.

Local prosecutors have a new, powerful tool to combat UI benefit fraud and we hope they will put it to good use.

(2017 Wisconsin Act 59)

In 2013, with the support of WIB, state lawmakers created the Broadband Expansion Grant program administered by the Wisconsin Public Service Commission. This program provides reimbursement for equipment and construction expenses incurred to extend or improve broadband telecommunications service in underserved areas of the state – areas served by fewer than two broadband service providers. Eligible applicants include:

• an organization operated for profit or not for profit, including a cooperative;
• a telecommunications utility; or
• a city, village, town, or county that has established a legal partnership or joint venture arrangement with an otherwise qualified organization or telecommunications utility.

Since then, WIB has successfully lobbied for more grant funding and statutory changes to make the program more responsive to the needs of underserved and unserved communities throughout rural Wisconsin.

2017 Wisconsin Act 59 provided an additional $14 million in funding for Broadband Expansion Grants in 2017-2018.

(2017 Wisconsin Act 138)

Many small, independent business owners and their employees access health care coverage for themselves and their families through the individual health insurance market. After seven years of ObamaCare, this market is collapsing. In its most recent report to the Wisconsin State Legislature, the Office of the Commissioner Insurance (OCI) highlighted that fact by noting:

“There are 16 health insurers – down from 28 prior to the enactment of the ACA – selling individual health coverage plans in the state and even fewer of them (11) are offering plans on the federal health insurance exchange. Throughout much of the state, there are only two health insurance plans available for purchase on the exchange. In Northeast Wisconsin, there is only one exchange-offered plan available. Rate increases for exchange-offered plans in 2018 averaged 38% and in some areas of Wisconsin were as high as 105%.”

Earlier this year, state lawmakers approved a plan to stabilize Wisconsin’s individual health insurance market which in turn should bring at least some modest financial relief to small employers and their employees who purchase health care coverage for themselves and their families on the federal health insurance exchange.
The Wisconsin Health Care Stability Plan (WHCSP) is modeled after similar programs operating in Alaska, Minnesota and Oregon. Under this plan, the State of Wisconsin will operate a health care reinsurance plan. Reinsurance is essentially insurance for insurance companies. It helps insurers manage high cost claims and offers a greater level of market predictability for insurers when setting rates.

The WHCSP will cover between 50% and 80% of an individual’s annual health insurance claims costs between $50,000 and $250,000 (paid directly to the insurer). Annual funding for the WHCSP is a shared responsibility. Federal funding of $166 million is matched by $34 million from the State of Wisconsin.

With the WHCSP in place, the State of Wisconsin estimates the premiums for federal health care exchange-offered plans will be reduced by 10.6% from levels that otherwise would have occurred, resulting in a 5% decrease in 2019 premiums, compared to 2018.

(2017 Wisconsin Act 57)

Reducing the burden of state-imposed government regulations on small, independent businesses requires reform of the processes by which state government agencies create regulations. Prior to the start of the 2017-2018 legislative session, we identified the following material weaknesses in Wisconsin’s regulation-making process:

• state government agencies are required to prepare cost-benefit analyses of proposed regulations, but often lack the technical expertise and private sector experience to discern the actual compliance costs of proposed regulations;
• during the regulation-making process, the compliance costs of a proposed regulation may become far greater than previously expected but there is no formal process in place to address this unforeseen circumstance; and
• state government agencies rely heavily on ad-hoc advisory committees and advocacy organizations for guidance and input in the early stages of the regulation-making process.

The REINS Act effectively addresses these material weaknesses.

Approval by the Governor and the Wisconsin State Legislature is now required for proposed state government agency regulations in which the implementation and\or the compliance costs exceed $10 million over a two-year period. State legislators may request and receive independent cost-benefit analysis performed by trained economists when there is uncertainty regarding the financial impact of a proposed state government agency regulation. Finally, the REINS Act creates a new opportunity for small employers to advise state government agencies of their concerns about a proposed regulation before the agency begins drafting the proposed regulation.

Last year, Governor Walker signed into law the most significant reduction in Wisconsin’s personal property tax in nearly forty years. (2017 Wisconsin Act 59)

Beginning with property tax assessments as of January 1, 2018, machinery, tools and patterns, not including such items used in manufacturing, are exempt from taxation – Schedule C on the Statement of Personal Property. Machinery is defined as a structure or assemblage of parts that transmits force, motion, or energy from one part to another in a predetermined way by electrical, mechanical, or chemical means.

In 2017, the statewide value of personal property categorized as non-manufacturing machinery, tools and patterns was $3.35 billion. The non-partisan Wisconsin Legislative Fiscal Bureau estimates this exemption will reduce statewide personal property taxes by approximately $75 million annually. To prevent a shift in the property tax burden to other classes of property, the State of Wisconsin is required to reimburse local municipalities for the loss of property tax revenue resulting from this personal property tax exemption.