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AB-2120 Income taxes: failure to withhold. (2019-2020)

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Date Published: 02/06/2020 09:00 PM
AB2120:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2120


Introduced by Assembly Member Patterson

February 06, 2020


An act to amend Section 18668 of the Revenue and Taxation Code, relating to taxation.


LEGISLATIVE COUNSEL'S DIGEST


AB 2120, as introduced, Patterson. Income taxes: failure to withhold.
Existing law requires specified persons to withhold and pay to the Franchise Tax Board specified amounts as taxes due under the Personal Income Tax Law or Corporate tax law by taxpayers, including the withholding by employers on wages paid to employees and withholding by transferees of real property on the sales price of property. Existing law also authorizes the Franchise Tax Board, by regulation, to require any person having the control, receipt, custody, disposal, or payment of items of income, as specified, to withhold an amount determined to reasonably represent the amount of tax due under the Personal Income Tax Law or Corporate Tax Law when the items of income are included with other income of the taxpayer, and to transmit the amount withheld to the Franchise Tax Board.
Under existing law, unless it is shown that the failure is due to reasonable cause, any person who fails to withhold from any payments any amount required to be withheld or who fails to transmit the withheld amounts to the Franchise Tax Board on or before the due date is liable for the amount actually withheld, or the amount of taxes due from the taxpayer to whom the payments are made, whichever is greater, but not in excess of the amount required to be withheld. Existing law also requires interest to be assessed if any amount required to be withheld is not paid to the Franchise Tax Board on or before the due date, computed from the due date to the date paid.
This bill would specify that interest is assessed as specified unless it shown that the failure to pay is due to reasonable cause and not willful neglect.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 18668 of the Revenue and Taxation Code is amended to read:

18668.
 (a) Every person required under this article to deduct and withhold any tax is hereby made liable for that tax, to the extent provided by this section. Any amount required to be deducted and paid to the Franchise Tax Board under this article shall be considered the tax of that person. Unless it is shown that the failure is due to reasonable cause, any person who fails to withhold from any payments any amount required to be withheld under this article or who fails to transmit the withheld amounts to the Franchise Tax Board on or before the due date required by regulations is liable for the amount actually withheld, or the amount of taxes due from the taxpayer to whom the payments are made, whichever is greater, but not in excess of the amount required to be withheld.
(b) If any amount required to be withheld under this article is not paid to the Franchise Tax Board on or before the due date required by regulations, unless it is shown that the failure to pay is due to reasonable cause and not willful neglect, interest shall be assessed at the adjusted annual rate established pursuant to Section 19521, computed from the due date to the date paid.
(c) Whenever any person has withheld any amount pursuant to this article, the amount so withheld shall be held to be a special fund in trust for the State of California.
(d) In lieu of the amount provided for in subdivision (a), unless it is shown that the failure to withhold is due to reasonable cause, whenever any transferee is required to withhold any amount pursuant to subdivision (e) of Section 18662, the transferee is liable for the greater of the following amounts for failure to withhold only after the transferee, as specified, is notified in writing of the requirements under subdivision (e) of Section 18662:
(1) Five hundred dollars ($500).
(2) Ten percent of the amount required to be withheld under subdivision (e) of Section 18662.
(e) (1) Unless it is shown that the failure to notify is due to reasonable cause, the real estate escrow person is liable for the amount specified in subdivision (d), when written notification of the withholding requirements of subdivision (e) of Section 18662 is not provided to the transferee, other than a transferee that is an intermediary or accommodator in a deferred exchange, and the California real property disposition is subject to withholding under subdivision (e) of Section 18662.
(2) The real estate escrow person shall provide written notification to the transferee (other than a transferee that is an intermediary or accommodator in a deferred exchange) in substantially the same form as follows:

“In accordance with Section 18662 of the Revenue and Taxation Code, a buyer may be required to withhold an amount equal to 31/3 percent of the sales price or the amount that is specified in a written certificate executed by the transferor in the case of a disposition of California real property interest by either:
1. A seller who is an individual, trust, or estate or when the disbursement instructions authorize the proceeds to be sent to a financial intermediary of the seller, OR
2. A corporate or partnership seller that has no permanent place of business in California immediately after the transfer of title to the California real property.
The buyer may become subject to penalty for failure to withhold an amount equal to the greater of 10 percent of the amount required to be withheld or five hundred dollars ($500).
However, notwithstanding any other provision included in the California statutes referenced above, no buyer will be required to withhold any amount or be subject to penalty for failure to withhold if:
1. The sales price of the California real property conveyed does not exceed one hundred thousand dollars ($100,000), OR
2. The seller executes a written certificate, under the penalty of perjury, certifying that the seller is a corporation or a partnership with a permanent place of business in California, OR
3. The seller, who is an individual, trust, estate, partnership, or a corporation without a permanent place of business in California executes a written certificate, under the penalty of perjury, of any of the following:
A. The California real property being conveyed is the seller’s or decedent’s principal residence, within the meaning of Section 121 of the Internal Revenue Code.
B. The last use of the property being conveyed was use by the transferor as the transferor’s principal residence within the meaning of Section 121 of the Internal Revenue Code.
C. The California real property being conveyed is or will be exchanged for property of like kind, within the meaning of Section 1031 of the Internal Revenue Code, but only to the extent of the amount of gain not required to be recognized for California income tax purposes under Section 1031 of the Internal Revenue Code.
D. The California real property has been compulsorily or involuntarily converted, within the meaning of Section 1033 of the Internal Revenue Code, and that the seller intends to acquire property similar or related in service or use so as to be eligible for nonrecognition of gain for California income tax purposes under Section 1033 of the Internal Revenue Code.
E. The California real property transaction will result in a loss or a net gain not required to be recognized for California income tax purposes.
The seller is subject to penalty for knowingly filing a fraudulent certificate for the purpose of avoiding the withholding requirement.”

(3) The real estate escrow person is not liable under this subdivision if the tax due as a result of the disposition of California real property is paid by the original or extended due date of the transferor’s return for the taxable year in which the disposition occurred.
(4) The real estate escrow person or transferee is not liable under paragraph (1) or subdivision (d), if the failure to withhold is the result of his or her their reliance, based on good faith and on all the information of which he or she has they have knowledge, upon a written certificate executed by the transferor under penalty of perjury pursuant to subparagraph (D) of paragraph (3) of subdivision (e) of Section 18662.
(5) Any transferor who for the purpose of avoiding the withholding requirements of subdivision (e) of Section 18662 knowingly executes a false certificate pursuant to that section is liable for twice the amount specified in subdivision (d).
(f) The amount of tax required to be deducted, withheld, and remitted under this article shall be assessed, collected, and paid upon notice and demand. Article 3 (commencing with Section 19031), relating to deficiency assessments, shall not apply with respect to the assessment or collection of any amount due under this article.