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H0445...............................................by REVENUE AND TAXATION INCOME TAX - Amends existing law relating to state income tax to define "pass-through entity," "members of pass-through entities" and "nonresidents"; to authorize composite returns for members of pass-through entities; to require withholding of state income tax from specified payments made to certain nonresident members of pass-through entities; and to apply the highest individual rate, rather than the corporate tax rate, in certain cases of failure to file or pay tax. 01/23 House intro - 1st rdg - to printing 01/24 Rpt prt - to Rev/Tax
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature Second Regular Session - 2006IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 445 BY REVENUE AND TAXATION COMMITTEE 1 AN ACT 2 RELATING TO INCOME TAXES; AMENDING SECTION 63-3022L, IDAHO CODE, TO DEFINE 3 "PASS-THROUGH ENTITY," "MEMBER" OF PASS-THROUGH ENTITIES AND 4 "NONRESIDENTS," TO AUTHORIZE COMPOSITE RETURNS FOR MEMBERS OF PASS-THROUGH 5 ENTITIES, TO REVISE APPLICATION, TO REQUIRE WITHHOLDING OF STATE INCOME 6 TAX FROM SPECIFIED PAYMENTS MADE TO CERTAIN NONRESIDENT MEMBERS OF PASS- 7 THROUGH ENTITIES AND TO APPLY THE HIGHEST INDIVIDUAL RATE RATHER THAN THE 8 CORPORATE TAX RATE IN CERTAIN CASES OF FAILURE TO FILE OR PAY TAX; DECLAR- 9 ING AN EMERGENCY AND PROVIDING RETROACTIVE APPLICATION. 10 Be It Enacted by the Legislature of the State of Idaho: 11 SECTION 1. That Section 63-3022L, Idaho Code, be, and the same is hereby 12 amended to read as follows: 13 63-3022L.INDIVIDUALS WHO AREOFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS 14 OR MEMBERS OF A CORPORATION OR PARTNERSHIP OR BENEFICIARIES OF A TRUST OR 15 ESTATE -- COMPOSITE RETURNS -- WITHHOLDING REQUIRED. (1) For purposes of this 16 section: 17 (a) "Member" means a shareholder of an S corporation, a partner in a 18 partnership, a member of a limited liability company or a beneficiary of a 19 trust. 20 (b) "Nonresident" means: 21 (i) An individual who is a nonresident as defined in section 22 63-3014, Idaho Code; 23 (ii) A business entity, other than an individual, that does not have 24 its commercial domicile in the state; 25 (iii) A trust not organized in the state. 26 (c) "Pass-through entity" means a corporation that for the applicable tax 27 year is treated as an S corporation under section 1362(a) of the Internal 28 Revenue Code, partnership, trust, or limited liability company that for 29 the applicable tax year is not taxed as a corporation and which has income 30 during a taxable year from doing or transacting business in this state or 31 derived income from sources within this state. 32 (2) (a) Individuals who are members of a pass-through entity and indi- 33 viduals who are officers,or directors, shareholders, partners or members34of a corporation or partnership transacting business in Idaho or who are35beneficiaries of a trust or estate with income taxable in Idahoof a pass- 36 through entity may elect to haveIdahotax due under this chapter relating 37 to income described in subsection (23) of this section reported and paid 38 by thecorporation, partnership, trust or estate. Income subject to the39election in this subsection shall be taxed at the rate applicable to cor-40porationspass-through entity. The election in this section is not avail- 41 able to an individual who has Idaho taxable income in addition to income 42 described in subsection (3) of this section. 43 (b) In the event that the election provided in subsection (2)(a) of this 2 1 section is made, the pass-through entity shall file a composite income tax 2 return on behalf of electing members who are individuals, officers and 3 directors reporting and paying income tax at the highest tax rate provided 4 in section 63-3024, Idaho Code, for individuals, estates and trusts, on 5 the income described in subsection (3) of this section. 6 (c) The election shall be madeon the return of the corporation, partner-7ship, trust or estateby each individual in writing by notice, in the man- 8 ner required by rules of the state tax commission, to the pass-through 9 entity from which the income is received.The election in this section is10not available to an individual who has Idaho taxable income in addition to11income described in subsection (2) of this section.12 (d) An individual who has been included in a composite return may file an 13 individual income tax return and shall receive credit for tax paid on that 14 individual's behalf by the pass-through entity. 15 (23)The election in subsection (1) of tThis section applies to: 16 (a) Wages, salary and other compensation paid bythe corporation, part-17nership, trust or estatea pass-through entity to such officers, 18 directors, shareholders, partners,or membersor beneficiarieswho are 19 individuals to the extent the compensation is Idaho taxable income of the 20 individual to whom it is paid; and 21 (b) Theshare of any income, loss, deduction or credit of an S corpora-22tion, partnership, trust or estate required to be included on such23shareholder's, partner's, member's or beneficiary's Idaho return24 individual's pro rata or distributive shares of income of a pass-through 25 entity from transacting business in, or deriving income from sources 26 within Idaho. 27 (c) When the gross income attributable to an individual under paragraphs 28 (a) and (b) of this subsection (23) is less than the filing requirement of 29 the individual under section 63-3030, Idaho Code, the income is notincome30under this subsectionrequired to be included as income in the composite 31 return. 32 (34) (a) A pass-through entity shall withhold income tax at the highest 33 tax rate provided in section 63-3024, Idaho Code, for individuals, estates 34 and trusts, or section 63-3025, Idaho Code, for corporations on the share 35 of income of the entity distributed to each nonresident member and shall 36 report and pay the withheld amount in the manner prescribed by the state 37 tax commission. The pass-through entity shall be liable to this state for 38 the payment of the tax required to be withheld under this section and 39 shall not be liable to such member for the amount withheld and paid over 40 in compliance with this section. A member of a pass-through entity that is 41 itself a pass-through entity or a "lower-tier pass-through entity" shall 42 be subject to this same requirement to withhold and pay over income tax on 43 the share of income distributed by the lower-tier pass-through entity to 44 each of its nonresident members at the rate applicable to corporations in 45 section 63-3025, Idaho Code. The state tax commission shall apply tax 46 withheld and paid over by a pass-through entity on distributions to a 47 lower-tier pass-through entity to the withholding required of that lower- 48 tier pass-through entity. 49 (b) A pass-through entity shall, at the time of payment made pursuant to 50 this section, deliver to the state tax commission a return upon a form 51 prescribed by the state tax commission showing the total amounts paid or 52 credited to its nonresident members, the amount withheld in accordance 53 with this section, and any other information the state tax commission may 54 require. A pass-through entity shall furnish to its nonresident member 55 annually, but not later than the fifteenth day of the third month after 3 1 the end of its taxable year, a record of the amount of tax withheld on 2 behalf of such member on a form prescribed by the state tax commission. 3 (c) Notwithstanding subsection (4)(a) or (4)(b) of this section, a pass- 4 through entity is not required to withhold tax for a nonresident member 5 if: 6 (i) The individual member elects to have the tax due paid as part 7 of a composite return filed by the pass-through entity under subsec- 8 tion (2) of this section; or 9 (ii) The member has a pro rata or distributive share of income of 10 the pass-through entity from doing business in, or deriving income 11 from sources within, this state of less than one thousand dollars 12 ($1,000) per taxable year; or 13 (iii) The entity is a publicly traded partnership as defined in sec- 14 tion 7704(b) of the Internal Revenue Code that is treated as a part- 15 nership for the purposes of the Internal Revenue Code and that has 16 agreed to file an annual information return reporting the name, 17 address, taxpayer identification number and other information 18 requested by the state tax commission of each unit holder with an 19 income in the state in excess of five hundred dollars ($500); or 20 (iv) The state tax commission has determined that the member's 21 income is not subject to withholding. 22 (5) (a) (i) If no election under subsection (2) of this section is 23 made, or 24 (ii) If the election was made, the amount due on a composite return 25 is not paid, or 26 (iii) If any amounts required under subsection (4) of this section to 27 be withheld and paid to the commission are not paid to the commis- 28 sion; and 29 (b) If an officer, director,shareholder, partner, member, or beneficiary30of a corporation, partnership, trust or estate transacting business in31Idahoor individual member of a pass-through entity fails to file an Idaho 32 income tax return reporting all or any part of the items described in sub- 33 section (23) of this section or fails to pay any tax due thereon, such 34corporation, partnership, trust or estatepass-through entity shall be 35 liable fortaxall taxes due under this chapter on such items at the high- 36 est rateapplicable to corporationsprovided in section 63-3024, Idaho 37 Code, for individuals. 38(4) The provisions of this section shall not apply to a corporation,39other than an S corporation, with less than fifty percent (50%) of its income40taxable within this state.41 SECTION 2. An emergency existing therefor, which emergency is hereby 42 declared to exist, this act shall be in full force and effect on and after its 43 passage and approval, and retroactively to January 1, 2006.
STATEMENT OF PURPOSE RS 15388 This bill addresses income taxation of "pass-through entities" (S-Corporations, partnerships, limited liability companies, and trusts). It authorizes the use of "composite returns", which codifies a long-standing practice of the State Tax Commission. It also adds a withholding requirement when making payments of taxable income to their shareholders, partners, members, or beneficiaries. The withholding is not required when these persons elect to participate in a composite income tax return by which the entity reports the income and pays the tax of its members. FISCAL NOTE Additional one million dollars to the general fund. CONTACT Name: Dan John Agency: State Tax Commission Phone: 334-7530 STATEMENT OF PURPOSE/FISCAL NOTE H 445