Bill Text: CA AB1719 | 2017-2018 | Regular Session | Introduced

California Assembly Bill 1719 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Taxation.

Spectrum: Committee Bill

Status: (Passed) 2017-08-07 - Chaptered by Secretary of State - Chapter 176, Statutes of 2017. [AB1719 Detail]

Download: California-2017-AB1719-Introduced.html

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill

No. 1719

Introduced by Committee on Revenue and Taxation (Assembly Members Ridley-Thomas (Chair), Bocanegra, Burke, Dababneh, Gipson, Mullin, and Quirk)

March 16, 2017

An act to amend Sections 19191 and 24872.6 of, to amend the heading of Article 8 (commencing with Section 19191) of Chapter 4 of Part 10.2 of Division 2 of, and to repeal Section 19174 of, the Revenue and Taxation Code, relating to taxation.

LEGISLATIVE COUNSEL'S DIGEST

AB 1719, as introduced, Committee on Revenue and Taxation. Taxation.

Existing law requires a person to pay a penalty as specified, if he or she has a duty to file information returns as a material advisor on certain reportable transactions and fails to keep the records.

This bill would repeal that provision.

Existing law requires a voluntary disclosure agreement entered into by the Franchise Tax Board and a qualified entity, qualified shareholder, qualified member, or qualified beneficiary to specify that the Franchise Tax Board shall, with respect to the qualified entity, qualified shareholder, qualified member, or qualified beneficiary for each of the 6 taxable years ending immediately preceding the signing date of the agreement, waive specified penalties, including a specified penalty for a partnership failing to make certain returns.

This bill would expand the types of partnership penalties waived to include a penalty related to a limited liability company classified as a partnership that fails to make specified returns and would waive a penalty related to “S” corporations that fail to make specified returns. The bill would apply these provisions to voluntary disclosure agreements entered into on or after January 1, 2017.

The Corporation Tax Law requires the termination or revocation of an election to be a real estate investment trust for federal purposes to be treated as a termination or revocation for state purposes. The Internal Revenue Code provides for an exception to the termination of an election to be a real estate investment trust if the corporation, trust, or association meets specified requirements, including paying a $50,000 penalty.

This bill would provide that the requirement to pay that penalty does not apply for state purposes of meeting this exception for taxable years beginning on or after January 1, 2005. The bill would state that the Legislature finds and declares that this change serves a public purpose and does not constitute a prohibited gift of public funds.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO

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

SECTION 1.

Section 19174 of the Revenue and Taxation Code is repealed.

19174.
(a)Any person who has a duty to file returns under Section 18648 and fails to keep the records required by subdivision (d) of Section 18648 shall pay a penalty for each calendar year for which there is any failure to keep those records, unless it is shown that the failure is due to reasonable cause.
(b)The penalty for any person for any calendar year shall be one thousand dollars ($1,000), multiplied by the number of investors with respect to whom that failure occurs in the calendar year reporting period. If the number of investors cannot be determined by the Franchise Tax Board, the amount determined under this subdivision for any calendar year reporting period shall be one hundred thousand dollars ($100,000).
~~(c)The penalty under this section shall be assessed against the person required to file a return under Section 18648.~~
(d)Article 3 (commencing with Section 19031) of this chapter (relating to deficiency assessments) shall not apply with respect to the assessment or collection of any penalty imposed by subdivision (a).

SEC. 2.

The heading of Article 8 (commencing with Section 19191) of Chapter 4 of Part 10.2 of Division 2 of the Revenue and Taxation Code is amended to read:

Article 8. Voluntary Disclosure Program For Business Entities

SEC. 3.

Section 19191 of the Revenue and Taxation Code is amended to read:

19191.

(a) The Franchise Tax Board may enter into a voluntary disclosure agreement with any qualified entity, qualified shareholder, qualified member, or qualified beneficiary as defined in Section 19192, that is binding on both the Franchise Tax Board and the qualified entity, qualified shareholder, qualified member, or qualified beneficiary.

(b) The Franchise Tax Board shall do all of the following:

(1) Provide guidelines and establish procedures for qualified entities and their qualified shareholders, qualified members, or qualified beneficiaries to apply for voluntary disclosure agreements.

(2) Accept applications on an anonymous basis from qualified entities and their qualified shareholders, qualified members, or qualified beneficiaries for voluntary disclosure agreements.

(3) Implement procedures for accepting applications for voluntary disclosure agreements through the National Nexus Program administered by the Multistate Tax Commission.

(4) For purposes of considering offers from qualified entities and their qualified shareholders, qualified members, or qualified beneficiaries to enter into voluntary disclosure agreements, take into account the following criteria:

(A) The nature and magnitude of the qualified entity’s previous presence and activity in this state and the facts and circumstances by which the nexus of the qualified entity or qualified shareholder, qualified member, or qualified beneficiary was established.

(B) The extent to which the weight of the factual circumstances demonstrates that a prudent business person exercising reasonable care would conclude that the previous activities and presence in this state were or were not immune from taxation by this state by reason of Public Law 86-272 or otherwise.

(C) Reasonable reliance on the advice of a person in a fiduciary position or other competent advice that the qualified entity or qualified shareholder, qualified member, or qualified beneficiary activities were immune from taxation by this state.

(D) Lack of evidence of willful disregard or neglect of the tax laws of this state on the part of the qualified entity or qualified shareholder, qualified member, or qualified beneficiary.

(E) Demonstrations of good faith on the part of the qualified entity, qualified shareholder, qualified member, or qualified beneficiary.

(F) Benefits that will accrue to the state by entering into a voluntary disclosure agreement.

(5) Act on any application of a voluntary disclosure agreement within 120 days of receipt.

(6) Enter into voluntary disclosure agreements with qualified entities, qualified shareholders, qualified members, or qualified beneficiaries, as authorized in subdivision (a) and based on the criteria set forth in paragraph (4).

(c) Before any voluntary disclosure agreement becomes binding, the Franchise Tax Board, itself, shall approve the agreement in the following manner:

(1) The Executive Officer and Chief Counsel of the Franchise Tax Board shall recommend and submit the voluntary disclosure agreement to the Franchise Tax Board for approval.

(2) Each voluntary disclosure agreement recommendation shall be submitted in a manner as to maintain the anonymity of the taxpayer applying for the voluntary disclosure agreement.

(3) A recommendation for approval of a voluntary disclosure agreement shall be approved or disapproved by the Franchise Tax Board, itself, within 45 days of the submission of that recommendation to the board.

(4) A recommendation of a voluntary disclosure agreement that is not either approved or disapproved by the board within 45 days of the submission of that recommendation shall be deemed approved.

(5) Disapproval of a recommendation of a voluntary disclosure agreement shall be made only by a majority vote of the Franchise Tax Board.

(6) The members of the Franchise Tax Board shall not participate in any voluntary disclosure agreement except as provided in this subdivision.

(d) The voluntary disclosure agreement entered into by the Franchise Tax Board and the qualified entity, qualified shareholder, qualified member, or qualified beneficiary as provided for in subdivision (a) shall to the extent applicable specify that:

(1) The Franchise Tax Board shall with respect to a qualified entity, qualified shareholder, qualified member, or qualified beneficiary, except as provided in paragraph (4), (6), or (9) of subdivision (a) of Section 19192:

(A) Waive its authority under this part, Part 10 (commencing with Section 17001), or Part 11 (commencing with Section 23001) to assess or propose to assess taxes, additions to tax, fees, or penalties with respect to each taxable year ending prior to six years from the signing date of the voluntary disclosure agreement.

(B) With respect to each of the six taxable years ending immediately preceding the signing date of the voluntary disclosure agreement, based on its discretion, agree to waive any or all of the following:

(i) A penalty related to a failure to make and file a return, as provided in Section 19131.

(ii) A penalty related to a failure to pay any amount due by the date prescribed for payment, as provided in Section 19132.

(iii) An addition to tax related to an underpayment of estimated tax, as provided in Section 19136.

(iv) A penalty related to Section 6810 or subdivision (a) of Section 8810 of the Corporations Code, as provided in Section 19141 of this code.

(v) A penalty related to a failure to furnish information or maintain records, as provided in Section 19141.5.

(vi) An addition to tax related to an underpayment of tax imposed under Part 11 (commencing with Section 23001), as provided in Section 19142.

(vii) A penalty related to a partnership required to file a return under Section ~~18633,~~ 18633 or 18633.5, as provided in Section 19172.

(viii) A penalty related to an “S” corporation required to file a return under Section 18601, as provided in Section 19172.5.
~~(viii)~~

(ix) A penalty related to a failure to file information returns, as provided in Section 19183.

~~(ix)~~

(x) A penalty related to relief from contract voidability, as provided in Section 23305.1.

(2) The qualified entity, qualified shareholder, qualified member, or qualified beneficiary shall:

(A) With respect to each of the six taxable years ending immediately preceding the signing date of the written agreement:

(i) Voluntarily and fully disclose on the qualified entity’s application all material facts pertinent to the qualified entity’s, shareholder’s, member’s, or beneficiary’s liability for any taxes imposed under Part 10 (commencing with Section 17001) or Part 11 (commencing with Section 23001).

(ii) Except as provided in paragraph (3), within 30 days from the signing date of the voluntary disclosure agreement:

(I) File all returns required under this part, Part 10 (commencing with Section 17001), or Part 11 (commencing with Section 23001).

(II) Pay in full any tax, interest, fee, and penalties, other than those penalties specifically waived by the Franchise Tax Board under the terms of the voluntary disclosure agreement, imposed under this part, Part 10 (commencing with Section 17001), or Part 11 (commencing with Section 23001) in a manner as may be prescribed by the Franchise Tax Board. Paragraph (1) of subdivision (f) of Section 23153 shall not apply to qualified entities admitted into the voluntary disclosure program.

(B) Agree to comply with all franchise and income tax laws of this state in subsequent taxable years by filing all returns required and paying all amounts due under this part, Part 10 (commencing with Section 17001), or Part 11 (commencing with Section 23001).

(3) The Franchise Tax Board may extend the time for filing returns and paying amounts due to 120 days from the signing date of the voluntary disclosure agreement or to the latest extended due date of the return for a taxable year for which relief is granted, whichever is later.

(e) An addition to tax under Section 19136 or 19142 shall not be made for any underpayment of estimated tax attributable to the underpayment of an installment of estimated tax due before the signing date of the voluntary disclosure agreement.

(f) The amendments to this section made by Chapter 954 of the Statutes of 1996 shall apply to taxable years beginning on or after January 1, 1997.

(g) The amendments to this section made by Chapter 543 of the Statutes of 2001 shall apply to voluntary disclosure agreements entered into on or after January 1, 2002.

(h) The amendments to this section made by Chapter ~~543~~ 354 of the Statutes of ~~2001~~ 2004 shall apply to voluntary disclosure agreements entered into on or after January 1, 2005.

(i) The amendments to this section made by Chapter 296 of the Statutes of 2011 shall apply to voluntary disclosure agreements entered into on or after January 1, 2011.

(j) The amendments made to this section by the act adding this subdivision shall apply to voluntary disclosure agreements entered into on or after January 1, 2017.

SEC. 4.

Section 24872.6 of the Revenue and Taxation Code is amended to read:

24872.6.

(a) A corporation, trust, or association that is a real estate investment trust for any taxable year for federal purposes under Part II (commencing with Section 856) of Subchapter M of Chapter 1 of Subtitle A of the Internal Revenue Code (as applicable for federal purposes for the taxable year) shall be a real estate investment trust for purposes of this part for the same taxable year.

(b) A corporation, trust, or association that is not a real estate investment trust for any taxable year for federal purposes under Part II (commencing with Section 856) of Subchapter M of Chapter 1 of Subtitle A of the Internal Revenue Code (as applicable for federal purposes for the taxable year) shall not be a real estate investment trust for purposes of this part for the same taxable year.

(c) (1) An election to be a real estate investment trust for federal purposes under Section 856(c)(1) of the Internal Revenue Code (as applicable for federal purposes for the taxable year) shall be treated, for purposes of Part 10 (commencing with Section 17001), Part 10.2 (commencing with Section 18401), and this part, as an election to be a real estate investment trust for state purposes for the same taxable year and a separate election under paragraph (3) of subdivision (e) of Section 23051.5 shall not be allowed.

(2) (A) The termination or revocation of an election described in paragraph (1) for federal purposes under Section 856(g) of the Internal Revenue Code (as applicable for federal purposes for the taxable year) shall be treated, for purposes of Part 10 (commencing with Section 17001), Part 10.2 (commencing with Section 18401), and this part, as a termination or revocation, as the case may be, of an election described in paragraph (1) for state purposes and a separate termination or revocation of an election described in paragraph (1) under paragraph (3) of subdivision (e) of Section 23051.5 shall not be allowed.

(B) Section 856(g)(5)(C) of the Internal Revenue Code shall not apply.

(3) ~~This~~ (A) Except as provided in subparagraph (B), this subdivision shall apply to any election to be a real estate investment trust that is effective for federal purposes for taxable years beginning on or after January 1, 2001.

(B) Subparagraph (B) of paragraph (2) shall apply to taxable years beginning on or after January 1, 2005.

SEC. 5.

The Legislature finds and declares that the waiver of the penalty allowed to taxpayers in connection with the election to be a real estate investment trust, as described in this act, serves a public purpose to simplify the process of becoming a real estate investment trust and does not constitute a prohibited gift of public funds within the meaning of Section 6 of Article XVI of the California Constitution.