73 Op. Att'y Gen. 36 (1984)
 
73 OAG 36  37  END

Wisconsin Attorney General Opinions

Opinion # OAG 9-84,

17 February 1984

PUBLIC RECORDS; TAXATION;
Fees charged for furnishing copies of
public records are subject to sales tax.

Fees charged for records searches and
for certifying copies of records
are not subject to sales tax.

LINDA REIVITZ, Secretary
Department of Health and Social Services

You request my opinion on whether the fee
charged for furnishing copies of public
records is subject to Wisconsin's sales tax.

In my opinion such fees are
subject to sales tax.

Section 77.52, Stats., imposes a sales tax
on, among other things, the sale of
tangible personal property.

By virtue of the definition of "sale of
tangible personal property" found in
Section 77.51(4)(h), the furnishing
of copies of records for a fee makes the
transaction subject to the sales tax.

See
Harold W. Fuchs Agency v. Dept. of Revenue,
91 Wis.2d 283,
282 N.W.2d 625 (1979)
(gross receipts of photocopy
machines are taxable).

Section 19.35(3)(a) provides that the fee
charged for reproduction of public records
may not exceed the "actual, necessary and
direct cost . . unless a fee is otherwise
specifically established . . . by law."

The sales tax imposed by Section 77.52
is not part of the fee for furnishing
copies of records.

Thus, the charge of the sales tax in addition
to the actual cost of furnishing copies
cannot be excessive within the meaning of
Section 19.37(4), which provides a penalty
for charging excessive fees for furnishing
copies of public records.

You also ask whether a charge made by a
public custodian for a search for
records would be subject to
Wisconsin's sales tax law.

Since I find no provision for taxing charges
made in connection with these searches, it
is my opinion that any fee charged for such
search is not subject to a sales tax.

73 OAG 36  37  END

Searching records is not the furnishing of
tangible personal property and thus fees
charged for such searches are not subject
to a sales tax.

See
Janesville Data Center v. Dept. of Revenue,
84 Wis.2d 341,
267 N.W.2d 656 (1978).

The same reasoning applies to certifications
of copies of public records.

Fees for certifying would not be subject to
the sales tax but fees for providing the
certified copy would be.

If the record custodian does not charge a fee
for the provision of copies of records, a
sales tax cannot be imposed because there is
a failure of consideration requisite under
Section 77.51(4)(h).

Thus, when the custodian waives the fee
for reproduction, the sales tax,
in effect, is waived.

But the record custodian may not waive
the sales tax if a fee is charged
for reproduction.

While the current law dictates the conclusion
that fees charged for furnishing copies of
public records are subject to sales tax, I
find it somewhat anomalous that members of
the public must pay tax on fees for
providing copies of records which
are already public property.

I therefore am recommending to the
Legislature that the law be changed to exempt
the furnishing of copies of public records
from the imposition of Wisconsin's sales tax.

BCL:WHW

73 OAG 36  37  END