Bill Text: MS HB1227 | 2010 | Regular Session | Introduced
Bill Title: Taxation; require the Department of Revenue to establish a tax amnesty program.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2010-02-02 - Died In Committee [HB1227 Detail]
Download: Mississippi-2010-HB1227-Introduced.html
MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Ways and Means
By: Representative Watson
House Bill 1227
AN ACT TO REQUIRE THE DEPARTMENT OF REVENUE TO IMPLEMENT A TAX AMNESTY PROGRAM; TO REQUIRE THE COMMISSIONER OF REVENUE TO PUBLICIZE THE TAX AMNESTY PROGRAM IN ORDER TO MAXIMIZE THE PUBLIC AWARENESS OF AND PARTICIPATION IN THE PROGRAM; TO PROVIDE THAT THE AMNESTY PROGRAM SHALL BE EFFECTIVE FOR A PERIOD NOT TO EXCEED TWO CONSECUTIVE CALENDAR MONTHS BETWEEN JULY 1, 2010, AND JUNE 30, 2011, AT THE DISCRETION OF THE COMMISSIONER OF REVENUE; TO PROVIDE THAT THE AMNESTY PROGRAM SHALL APPLY TO ALL TAXES ADMINISTERED BY THE DEPARTMENT, EXCEPT FOR MOTOR FUEL TAXES, THAT WERE DUE AFTER JULY 1, 2001, AND BEFORE JANUARY 1, 2010; TO PROVIDE THAT TAXPAYERS INVOLVED IN AUDITS OR LITIGATION THAT PARTICIPATE IN THE AMNESTY PROGRAM MUST AGREE TO ABIDE BY THE INTERPRETATION OF THE LAW BY THE DEPARTMENT OF REVENUE WITH RESPECT TO ISSUES INVOLVED IN THE AUDIT OR LITIGATION RESOLVED THROUGH AMNESTY FOR ALL TAXABLE PERIODS BEGINNING IN 2011, 2012 AND 2013, AND AGREE TO PAY ALL APPLICABLE ATTORNEY FEES AND ITS OWN COSTS OF LITIGATION; TO PROVIDE THAT TAXPAYERS WITH EXISTING TAX LIENS ON THEIR PROPERTY, AS WELL AS TAXPAYERS THE DEPARTMENT HAS INITIATED PROCEEDINGS AGAINST, ARE ELIGIBLE FOR AMNESTY AND TO PROVIDE THAT IF SUCH TAXPAYERS PARTICIPATE IN THE AMNESTY PROGRAM THEY ARE REQUIRED TO PAY ANY AND ALL LIEN FEES ASSOCIATED WITH THE TAX PERIODS FOR WHICH AMNESTY IS APPLIED; TO PROVIDE THAT AMNESTY SHALL NOT BE GRANTED TO TAXPAYERS WHO ARE PARTIES TO ANY CRIMINAL INVESTIGATION OR CRIMINAL LITIGATION IN ANY COURT OF THE UNITED STATES OR THE STATE OF MISSISSIPPI PENDING ON THE EFFECTIVE DATE OF THIS ACT FOR NONPAYMENT, DELINQUENCY, OR FRAUD IN RELATION TO ANY STATE TAX IMPOSED BY A LAW OF THE STATE OF MISSISSIPPI AND ADMINISTERED BY THE DEPARTMENT; TO PROVIDE THAT A TAXPAYER WHO DELIVERS OR DISCLOSES ANY FALSE OR FRAUDULENT APPLICATION, DOCUMENT, RETURN, OR OTHER STATEMENT TO THE DEPARTMENT IN CONNECTION WITH AN AMNESTY APPLICATION SHALL BE INELIGIBLE FOR AMNESTY AND SHALL BE SUBJECT TO A PENALTY; TO AMEND SECTIONS 27-3-79, 27-7-7, 27-7-51, 27-7-327, 27-7-345, 27-9-27, 27-9-43, 27-13-23, 27-13-25, 27-65-33, 27-65-39, 27-69-41 AND 27-71-331, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO BRING FORWARD SECTIONS 31-19-27 AND 31-19-29, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE COMPROMISE OF DOUBTFUL CLAIMS, FOR THE PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) As used in this section:
(a) "Courier" means a messenger other than the United States Postal Service that delivers parcels, packages, and the like, containing returns, reports, and other documents or
payments.
(b) "Department" means the Department of Revenue.
(c) "Postmark" means an official mark made by the United States Postal Service on a piece of mail to cancel the stamp and to indicate the place and date of sending.
(d) "Tax period" means any period for which a tax return is required by law to be filed with the department.
(e) "Taxpayer" means any individual or entity subject to any tax imposed by any law of the State of Mississippi, payable to the State of Mississippi, and collected by the department.
(2) The department shall develop and implement a tax amnesty program in accordance with the provisions of this act. The Commissioner of Revenue shall provide by regulation as necessary for the administration and implementation of this amnesty program. The Commissioner of Revenue shall publicize the tax amnesty program in order to maximize the public awareness of and participation in the program. The Commissioner of Revenue may, for purpose of publicizing the tax amnesty program, contract with any advertising agency within or outside this state and use public service announcements, pamphlets, mail notices, and print, television, and radio announcements.
(3) The amnesty program shall be effective for a period not to exceed four (4) consecutive calendar months between July 1, 2010, and June 30, 2011, at the discretion of the Commissioner of Revenue. The tax amnesty program shall apply to all taxes administered by the department except for motor fuel taxes and penalties for failure to submit information reports that are not based on an underpayment of tax.
(4) Except as provided in subsection (3) of this section, the following taxes are eligible for amnesty:
(a) Taxes due prior to January 1, 2010, for which the department has issued an individual or a business a proposed assessment, notice of assessment, bill, notice, or demand for payment on or after July 1, 2001, and before May 31, 2010; or
(b) Taxes that became due on or after July 1, 2001, and before January 1, 2010.
(5) Participation in the amnesty program shall be conditioned upon the agreement of the taxpayer that the right to protest or initiate an administrative or judicial proceeding is barred. The agreement shall only apply to the specific tax and the tax period for which amnesty is granted.
(6) (a) Taxpayers involved in audits or litigation that participate in the amnesty program shall agree to abide by the department's interpretation of the law with respect to issues involved in the audit or litigation resolved through amnesty for all taxable periods beginning in 2011, 2012 and 2013. Taxpayers shall agree to abide by the department's interpretation of the law at the time the returns for these periods are filed. Failure to abide by the department's interpretation of the law for these periods shall subject the taxpayer to a penalty of not more than Five Hundred Dollars ($500.00).
(b) Taxpayers involved in litigation that elect to participate in amnesty shall agree to pay all applicable attorney fees and its own costs of litigation.
(c) Taxpayers electing to participate in amnesty who have paid under protest and filed suit agree that upon approval of their amnesty application, the department shall apply their payment in accordance with the grant of amnesty. Any refunds resulting from the application of the payment shall be made in accordance with subsection (11) of this section. The application for amnesty shall be subject to the provisions of paragraphs (a) and (b) of this subsection.
(7) Taxpayers with existing tax liens on their property as well as taxpayers the department has initiated proceedings against are eligible for amnesty; however, taxpayers are required to pay any and all lien fees associated with the tax periods for which amnesty is applied.
(8) Amnesty will be granted only for eligible taxes to eligible taxpayers who apply for amnesty during the amnesty period on forms prescribed by the Commissioner of Revenue and who pay all of the tax, all fees and costs, if applicable, and half of the interest due upon filing the amnesty application. The amnesty application for taxpayers involved in audits or litigation shall include all issues and all eligible periods involved in the audit or litigation. The Commissioner of Revenue reserves the right to require taxpayers to file tax returns with the amnesty application. If the amnesty application is approved, the Commissioner of Revenue shall waive the remaining half of the interest and all of the penalties associated with the tax periods for which amnesty is applied. An amnesty payment or application submitted in a properly addressed envelope with sufficient postage delivered by the United States Postal Service is deemed paid on the date it is postmarked. An amnesty payment or application delivered by courier or taxpayer is deemed paid on the date it is delivered to the department. No installment agreements will be entered into for tax periods that are approved for amnesty.
(9) Amnesty shall not be granted to taxpayers who are parties to any criminal investigation or criminal litigation in any court of the United States or the State of Mississippi pending on the effective date of this act for nonpayment, delinquency, or fraud in relation to any state tax imposed by a law of the State of Mississippi and administered by the department. Further, a taxpayer who delivers or discloses any false or fraudulent application, document, return, or other statement to the department in connection with an amnesty application shall be ineligible for amnesty and shall be subject to a penalty of Ten Thousand Dollars ($10,000.00) in addition to any other penalty authorized by law.
(10) Amnesty applications shall include a written waiver of all rights, restrictions and delays for assessing, collecting, or protesting taxes and interest due. The filing of such applications shall make the tax, interest, and penalty immediately due and payable and ineligible for refund, credit, or claim against the state; however, a taxpayer shall be eligible for a refund or credit if the overpayment arises after the amnesty application is submitted and is attributable to a properly claimed Mississippi net operating loss or attributable to an adjustment made by the Internal Revenue Service to the taxpayer's federal income tax, and the taxpayer provides notice of the adjustment to the Commissioner of Revenue within sixty (60) days of receipt of the adjustment from the Internal Revenue Service. A taxpayer who files an application for amnesty retains all administrative and judicial rights of appeal with respect to any additional tax assessed by the department.
(11) No interest shall be paid on refunds for those amounts previously collected by the department from the taxpayer for a tax period for which amnesty is granted.
(12) If, following the termination of the tax amnesty period, the Commissioner of Revenue issues a deficiency assessment for a period for which amnesty was taken, the Commissioner of Revenue shall have the authority to impose penalties and institute civil proceedings or criminal proceedings as authorized by law only with respect to the difference between the amount shown on the amnesty application and the correct amount of tax due. The Commissioner of Revenue may by regulation impose after the expiration of the tax amnesty period a cost of collection penalty not to exceed twenty percent (20%) of any additional deficiency assessed for any taxable period for which amnesty was taken. This penalty shall be in addition to all other applicable penalties, fees, or costs. The Commissioner of Revenue shall have the right to waive any or all of the collection penalty when it is demonstrated that any of the deficiency of the taxpayer was not due to negligence, intentional disregard of administrative rules and regulations or fraud. The imposition of penalties or civil proceedings or criminal proceedings shall not invalidate the amnesty that was previously granted. No penalty shall be imposed if the deficiency results from an adjustment made by the Internal Revenue Service to the taxpayer's federal income tax and the taxpayer provides notice of the adjustment to the Commissioner of Revenue within sixty (60) days of receipt of the adjustment from the Internal Revenue Service, or if the taxpayer's application for amnesty was based on a proposed assessment or notice of assessment.
(13) For taxable periods beginning on or after January 1, 2010, and before December 31, 2015, taxpayers that participate in amnesty and later fail to comply with any payment and filing provision administered by the Commissioner of Revenue shall be subject to a penalty of One Hundred Dollars ($100.00) in addition to any other penalty provided by law.
SECTION 2. Section 27-3-79, Mississippi Code of 1972, is amended as follows:
27-3-79. * * *
(1) Any person eligible for the tax amnesty program established pursuant to Section 1 of this act and who fails to make total payment of the taxes due during the tax amnesty period, or any person who willfully attempts in any manner to evade or defeat any tax imposed by the State Tax Commission or the Department of Revenue, or assists in the evading of that tax or the payment thereof, including violations determined under Section 27-3-80, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than Two Hundred Thousand Dollars ($200,000.00) and, in the case of a corporation, not more than One Million Dollars ($1,000,000.00), or imprisoned not more than five (5) years, or both.
(2) Any prosecutions for tax evasion as described in this section shall be begun within six (6) years next after the statutory due date for the taxes in issue.
SECTION 3. Section 27-7-7, Mississippi Code of 1972, is amended as follows:
27-7-7. The tax imposed by this article, and all increases, interest and penalties provided for in connection with such tax, shall be in addition to all other taxes imposed by law. The tax imposed pursuant to this article, and the increases, interest and penalties provided in connection with such tax shall, in addition to being a tax against the property, business, trade, profession or occupation, be and become from the time same is due and payable a personal debt of the taxpayer liable to pay the same to the state and said increases, interest and penalties which shall accrue shall be recoverable as a part of the tax with respect to which they are imposed; however, interest and penalties shall not be a personal debt of the taxpayer if the taxpayer participates in the tax amnesty program authorized under Section 1 of this act.
SECTION 4. Section 27-7-51, Mississippi Code of 1972, is amended as follows:
27-7-51. (1) If, upon examination of a return made under the provisions of this article, it appears that the correct amount of tax is greater or less than that shown in the return, the tax shall be recomputed. Any overpayment of tax so determined shall be credited or refunded to the taxpayer. If the correct amount of tax is greater than that shown in the return of the taxpayer, the commissioner shall make his assessment of additional tax due by mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment. The taxpayer shall be given a period of sixty (60) days from the date of the notice in which to pay the additional tax due, including penalty and interest as hereinafter provided, and if the sum is not paid within the period of sixty (60) days, the commissioner shall proceed to collect it under the provisions of Sections 27-7-55 through 27-7-67, provided that within the period of sixty (60) days the taxpayer may appeal to the board of review as provided by law.
(2) In the case of an overpayment of tax, interest shall be computed under the provisions of Section 27-7-315. In the case of an underpayment of tax, interest at the rate of one percent (1%) per month from the due date of the return may be added or assessed in addition to the additional tax due as hereinabove provided in subsection (1) of this section.
(3) In case of failure to pay any additional taxes as assessed under this section, there may be added to the additional amount assessed a penalty of one-half of one percent (1/2 of 1%) of the amount of the additional tax if the failure is for not more than one (1) month, with an additional one-half of one percent (1/2 of 1%) for each additional month or fraction thereof during which the failure continues, not to exceed twenty-five percent (25%) in the aggregate.
(4) Except as otherwise provided in Section 1 of this act, where the reported net income of a taxpayer is increased by the Internal Revenue Service, a taxpayer who, without action by the commissioner, amends a return filed under this article on the basis of a change in taxable income made by the Internal Revenue Service, and pays the additional tax due within thirty (30) days after agreeing to the federal change (and has received statement of the federal changes to which agreement has been made or payment thereof), shall add interest to the additional tax at the rate of one percent (1%) per month from due date of the original return. If the additional tax, based on changes in taxable income by the Internal Revenue Service, is assessed by the commissioner under subsection (1) of this section, in addition to the interest there may be added a penalty of one-half of one percent (1/2 of 1%) of the additional tax due if the failure is for not more than one (1) month, with an additional one-half of one percent (1/2 of 1%) for each additional month or fraction thereof during which the failure to pay continues, not to exceed twenty-five percent (25%) in the aggregate, unless it is shown that the failure is due to reasonable cause and not due to willful neglect.
(5) In the case of a taxpayer who files a bond when appealing the decision of the Board of Tax Appeals instead of paying the amount of the additional tax found to be due by the Board of Tax Appeals, and the tax assessment or a part of the assessment is upheld by the chancery court and/or the Supreme Court, the assessment shall bear interest at the rate of one percent (1%) per month from the due date until paid.
(6) (a) Nothing in this section shall be construed as authorizing a refund of taxes for claims pursuant to the United States Supreme Court decision of Davis v. Michigan Department of Treasury, 109 S.Ct. 1500 (1989). These taxes were not incorrectly and/or erroneously collected as contemplated by this chapter.
(b) In the event a court of final jurisdiction determines the above provision to be void for any reason, it is hereby declared the intent of the Legislature that affected taxpayers shall be allowed a credit against future income tax liability as opposed to a tax refund.
SECTION 5. Section 27-7-327, Mississippi Code of 1972, is amended as follows:
27-7-327. Taxpayers subject to the requirements of estimated tax payments for an income year ending after December 31, 1983, shall estimate an amount not less than eighty percent (80%) of the tax actually due in the case of an individual or, except as otherwise provided in Section 27-7-329(f), an amount not less than ninety percent (90%) of the tax actually due in the case of a corporation. Except as otherwise provided in Section 1 of this act, any corporate taxpayer which either fails to file the required estimated tax returns and pay the tax within the time prescribed, or, except as otherwise provided in Section 27-7-329(f), which underestimates the required amount of the estimated tax shall be liable for a penalty in the amount of ten percent (10%) of the amount unpaid plus interest at the rate of one percent (1%) per month on such amount. Except as otherwise provided in Section 1 of this act, any individual taxpayer who either fails to file the required estimated tax returns and pay the tax within the time prescribed, or who underestimates the required amount of the estimated tax shall be liable for interest at the rate of one percent (1%) per month on such amount.
SECTION 6. Section 27-7-345, Mississippi Code of 1972, is amended as follows:
27-7-345. Except as otherwise provided in Section 1 of this act, any taxpayer who either fails to file a required return within the time prescribed, or who fails to remit the tax or remits less than the amount due under the return, shall be liable for the following penalties:
(a) If the failure to file a return within the time prescribed, or the failure to pay the tax or any part thereof, was not the result of any fraudulent intent, the taxpayer shall be liable for a penalty in the amount of ten percent (10%) for the first offense, fifteen percent (15%) for the second offense, twenty-five percent (25%) for the third offense, and not less than twenty-five percent (25%) up to a maximum of fifty percent (50%) for any subsequent offense, of the total amount of deficiency or delinquency in the tax, plus interest on the amount of tax due at the rate of one percent (1%) per month on the amount not paid, from the date such tax was due until paid, and such amount shall be added to the liability of the taxpayer unless such failure was due to reasonable cause.
(b) If the failure to file the return or to remit the tax or any part thereof was the result of a fraudulent intent to evade the payment to the commissioner, the taxpayer, in addition to the criminal penalty provided in Section 27-7-347, shall be liable for a penalty of fifty percent (50%) of the tax due, plus interest on the amount of tax due at the rate of one percent (1%) per month on the amount not paid.
(c) If the failure to file an information return or to furnish a required statement within the time prescribed was not the result of any fraudulent intent, the taxpayer shall be liable for a penalty of Five Dollars ($5.00) per statement, with a minimum of Two Hundred Fifty Dollars ($250.00) up to a maximum of Ten Thousand Dollars ($10,000.00) per reporting account.
(d) If the failure to file an information return or to furnish a required statement was the result of intentional disregard of filing requirements, the taxpayer shall be liable for a penalty of Twenty-five Dollars ($25.00) per statement, with a minimum of Two Hundred Fifty Dollars ($250.00) up to a maximum of Fifty Thousand Dollars ($50,000.00) per reporting account.
SECTION 7. Section 27-9-27, Mississippi Code of 1972, is amended as follows:
27-9-27. The tax shall constitute a debt due the state and shall be due and payable nine (9) months after the decedent's death but in any case where the commissioner finds that payment of the tax within such period would impose undue hardship on the estate he may grant an extension or extensions of time for payment not to exceed six (6) months in any one (1) extension from the due date of the return or the expiration of a previous extension, if any, and, except as otherwise provided in Section 1 of this act, all unpaid balances shall bear interest at the rate of one-half of one percent (1/2 of 1%) per month, or major fraction thereof, from the due date until paid.
SECTION 8. Section 27-9-43, Mississippi Code of 1972, is amended as follows:
27-9-43. (1) As soon as practicable after the return is filed, the commissioner shall examine it, if it then appears that the correct amount of tax is greater or less than that shown in the return, the tax shall be recomputed. If the amount already paid exceeds that which should have been paid on the basis of the return so recomputed, the excess so paid shall be credited or refunded to the taxpayer in accordance with the provisions of this chapter.
(2) If the amount already paid is less than the amount which should have been paid, the difference, together with interest thereon at the rate of one-half of one percent (1/2 of 1%) per month from the time the tax was due, shall be paid within sixty (60) days upon written notice and demand by the commissioner. The department, for good reason shown, may waive all or any part of the interest imposed pursuant to this subsection.
(3) Except as otherwise provided in Section 1 of this act, if any part of the deficiency is due to negligence or intentional disregard to authorized rules and regulations with knowledge thereof but without intent to defraud, there shall be added as damages ten percent (10%) of the total amount of the deficiency in the tax, and interest in such a case shall be collected at the rate of one percent (1%) per month on the amount of such deficiency in the tax from the time it was due, which interest and damages shall become due and payable upon notice and demand by the commissioner and such executor shall be liable to the estate personally and on his official bond, if any, for any damages accruing under the above provisions through his negligence or willful neglect.
SECTION 9. Section 27-13-23, Mississippi Code of 1972, is amended as follows:
27-13-23. (1) If a return is timely filed by the taxpayer but the tax is not paid, the commissioner shall make his assessment of tax due by mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment. The taxpayer shall be given a period of sixty (60) days from the date of the notice in which to pay the tax due, including penalty and interest as provided in this section, and if the sum is not paid within the sixty-day period, the commissioner shall proceed to collect it under the provisions of Sections 27-13-29 through 27-13-41 of this chapter; provided that within the sixty-day period the taxpayer may appeal to the board of review as provided by law.
(2) If no return is made by a taxpayer required by this chapter to make a return, the commissioner shall determine the taxpayer's liability from the best information available, which determination shall be prima facie correct for the purpose of this chapter, and the commissioner shall forthwith make an assessment of the tax so determined to be due by mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment. The taxpayer shall be given a period of sixty (60) days from the date of the notice in which to pay the tax due, including penalty and interest as provided in this section, and if the sum is not paid within the sixty-day period, the commissioner shall proceed to collect it under the provisions of Sections 27-13-29 through 27-13-41 of this chapter; provided that within the sixty-day period the taxpayer may appeal to the board of review as provided by law.
(3) Except as otherwise provided in Section 1 of this act, interest at the rate of one percent (1%) per month from the due date of the return shall be added or assessed in addition to the tax due as provided in subsections (1) and (2) of this section.
(4) Except as otherwise provided in Section 1 of this act, in case of failure to file a return as required by this chapter, unless it can be shown that the failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on the return a penalty of five percent (5%) of the amount of the tax if the failure is for not more than one (1) month, with an additional five percent (5%) for each additional month or fraction thereof during which the failure continues, not to exceed twenty-five percent (25%) in the aggregate.
(5) Except as otherwise provided in Section 1 of this act, in case of failure to pay the amount shown as tax on any return specified in subsections (1) and (2) of this section on or before the date prescribed for payment of the tax, determined with regard to any extension of time for payment, unless it is shown that the failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount shown as tax on the return one-half of one percent (1/2 of 1%) of the amount of the tax if the failure is for not more than one (1) month, with an additional one-half of one percent (1/2 of 1%) for each additional month or fraction thereof during which the failure continues, not to exceed twenty-five percent (25%) in the aggregate.
SECTION 10. Section 27-13-25, Mississippi Code of 1972, is amended as follows:
27-13-25. (1) If, upon examination of a return made under the provisions of this chapter, it appears that the correct amount of tax is greater or less than that shown in the return, the tax shall be recomputed. Any overpayment of tax so determined shall be credited or refunded to the taxpayer. If the correct amount of tax is greater than that shown in the return of the taxpayer, the commissioner shall make his assessment of additional tax due by mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment. The taxpayer shall be given a period of sixty (60) days from the date of the notice in which to pay the additional tax due, including penalty and interest as provided in this section, and if the sum is not paid within the sixty-day period, the commissioner shall proceed to collect it under the provisions of Sections 27-13-29 through 27-13-41, provided that within the sixty-day period the taxpayer may appeal to the board of review as provided by law.
(2) In the case of an overpayment of tax, interest shall be computed under the provisions of Section 27-7-315. Except as otherwise provided in Section 1 of this act, in the case of an underpayment of tax, interest at the rate of one percent (1%) per month from the due date of the return shall be added or assessed in addition to the additional tax due as provided in subsection (1) of this section.
(3) Except as otherwise provided in Section 1 of this act, in case of failure to pay any additional taxes as assessed under this section, unless it is shown that the failure is due to reasonable cause and not due to willful neglect, there shall be added to the additional amount assessed a penalty of one-half of one percent (1/2 of 1%) of the amount of the additional tax if the failure is for not more than one (1) month, with an additional one-half of one percent (1/2 of 1%) for each additional month or fraction thereof during which the failure continues, not to exceed twenty-five percent (25%) in the aggregate.
SECTION 11. Section 27-65-33, Mississippi Code of 1972, is amended as follows:
27-65-33. (1) Except as otherwise provided in this section, the taxes levied by this chapter shall be due and payable on or before the twentieth day of the month next succeeding the month in which the tax accrues, except as otherwise provided. Returns and payments placed in the mail must be postmarked by the due date in order to be considered timely filed, except when the due date falls on a weekend or holiday, returns and payments placed in the mail must be postmarked by the first working day following the due date in order to be considered timely filed. The taxpayer shall make a return showing the gross proceeds of sales or the gross income of the business, and any and all allowable deductions, or exempt sales, and compute the tax due for the period covered.
As compensation for collecting sales and use taxes, complying fully with the applicable statutes, filing returns and supplements thereto and paying all taxes by the twentieth of the month following the period covered, the taxpayer may discount and retain two percent (2%) of the liability on each return subject to the following limitations:
(a) The compensation or discount shall not apply to taxes levied under the provisions of Sections 27-65-19 and 27-65-21, or on charges for ginning cotton under Section 27-65-23.
(b) The compensation or discount shall not apply to taxes collected by a county official or state agency.
(c) The compensation or discount shall not exceed Fifty Dollars ($50.00) per month, or Six Hundred Dollars ($600.00) per calendar year, per business location on each state sales tax return, or on each use tax return.
(d) The compensation or discount shall not apply to any wholesale tax, the rate of which is equal to or greater than the tax rate applicable to retail sales of the same property or service. The retailer of such items shall be entitled to the compensation based on the tax computed on retail sales before application of the credit for any tax paid to the wholesaler, jobber or other person.
(e) The compensation or discount allowed and taken for any filing period may be reassessed and collected when an audit of a taxpayer's records reveals a tax deficiency for that period.
(2) A taxpayer required to collect sales taxes under this chapter and having an average monthly sales tax liability of at least Fifty Thousand Dollars ($50,000.00) for the preceding calendar year shall pay to the State Tax Commission on or before June 25, 2011, and on or before the twenty-fifth day of June of each succeeding year thereafter, an amount equal to at least seventy-five percent (75%) of such taxpayer's estimated sales tax liability for the month of June of the current calendar year, or an amount equal to at least seventy-five percent (75%) of the taxpayer's sales tax liability for the month of June of the preceding calendar year. For the purposes of calculating a taxpayer's estimated sales tax liability for the month of June of the current calendar year, the taxpayer does not have to include taxes due on credit sales for which the taxpayer has not received payment before June 20. Payments required to be made under this subsection must be received by the State Tax Commission no later than June 25 in order to be considered timely made. A taxpayer that fails to comply with the requirements of this subsection may be assessed a penalty in an amount equal to ten percent (10%) of the difference between any amount the taxpayer pays pursuant to this subsection and the taxpayer's actual sales tax liability for the month of June for which the estimated payment was required to be made. Payments made by a taxpayer under this subsection shall not be considered to be collected for the purposes of any sales tax diversions required by law until the taxpayer files a return for the actual sales taxes collected during the month of June. This subsection shall not apply to any agency, department or instrumentality of the United States, any agency, department, institution, instrumentality or political subdivision of the State of Mississippi, or any agency, department, institution or instrumentality of any political subdivision of the State of Mississippi.
(3) All returns shall be sworn to by the taxpayer, if made by an individual, or by the president, vice president, secretary or treasurer of a corporation, or authorized agent, if made on behalf of a corporation. If made on behalf of a partnership, joint venture, association, trust, estate, or in any other group or combination acting as a unit, any individual delegated by such firm shall swear to the return on behalf of the taxpayer. The commissioner may prescribe methods by which the taxpayer may swear to his return.
(4) The commissioner may promulgate rules and regulations to require or permit filing periods of any duration, in lieu of monthly filing periods, for any taxpayer or group thereof.
(5) The commissioner may require the execution and filing by the taxpayer with the commissioner of a good and solvent bond with some surety company authorized to do business in Mississippi as surety thereon in an amount double the aggregate tax liability by such taxpayer for any previous three-month period within the last calendar year or estimated three (3) months' tax liability. The bond is to be conditioned for the prompt payment of such taxes as may be due for each such return.
(6) The commissioner, for good cause, may grant such reasonable additional time within which to make any return required under the provisions of this chapter as he may deem proper, but, except as otherwise provided in Section 1 of this act, the time for filing any return shall not be extended beyond the twentieth of the month next succeeding the regular due date of the return without the imposition of interest at the rate of one percent (1%) per month or fractional part of a month from the time the return was due until the tax is paid.
(7) For persistent, willful or recurring failure to make any return and pay the tax shown thereby to be due by the time specified, there shall, except as otherwise provided in Section 1 of this act, be added to the amount of tax shown to be due ten percent (10%) damages, or interest at the rate of one percent (1%) per month, or both.
(8) Any taxpayer may, upon making application therefor, obtain from the commissioner an extension of time for the payment of taxes due on credit sales until collections thereon have been made. When such extension is granted, the taxpayer shall thereafter include in each monthly or quarterly report all collections made during the preceding month or quarter, and shall pay the taxes due thereon at the time of filing such report. Such permission may be revoked or denied at the discretion of the commissioner when, in his opinion, a total sales basis will best reflect the taxable income or expedite examination of the taxpayer's records.
(9) Any taxpayer reporting credit sales before collection thereof has been made may take credit on subsequent returns or reports for bad debts actually charged off, if such amounts charged off have previously been included in taxable gross income or taxable gross proceeds of sales, as the case may be, and the tax paid thereon. However, any amounts subsequently collected on accounts that have been charged off as bad debts shall be included in subsequent reports and the tax shall be paid thereon.
(10) In cases where an extension of time has been granted by the commissioner for payment of taxes due on credit sales and the taxpayer thereafter discontinues the business, such taxpayer shall be required to file with the commissioner within ten (10) days, or such further time as the commissioner may direct, from the date of the discontinuance of such business, a special report showing the amounts of any credit sales which have not been included in determining the measure of the tax previously paid and any other information with reference to credit sales as the commissioner may require. The commissioner shall thereupon investigate the facts with reference to credit sales and the condition of the accounts, and shall determine, from the best evidence available, the value of all open accounts, notes or other evidence of debt arising from credit sales. The value of all notes, open accounts and other evidence of debt, as thus determined by the commissioner, shall be used in determining the amount of the tax for which such taxpayer shall be liable. When the amount of the tax shall have been ascertained, the taxpayer shall be required to pay the same within ten (10) days or such further time as the commissioner may allow, notwithstanding the fact that such note or accounts may still remain uncollected.
SECTION 12. Section 27-65-39, Mississippi Code of 1972, is amended as follows:
27-65-39. If any part of the deficient or delinquent tax is due to negligence or failure to comply with the provisions of this chapter or authorized rules and regulations promulgated under the provisions of this chapter without intent to defraud, there may be added as damages ten percent (10%) for the first offense, fifteen percent (15%) for the second offense, twenty-five percent (25%) for the third offense, and fifty percent (50%) for any subsequent offense of the total amount of deficiency or delinquency in the tax, or interest at the rate of one percent (1%) per month, or both, from the date such tax was due until paid, and said tax, damages and interest shall become payable upon notice and demand by the commissioner.
If any part of the deficient or delinquent tax is due to intentional disregard of the provisions of this chapter or authorized rules and regulations promulgated under the provisions of this chapter, or to fraud with intent to evade the law, then there shall, except as otherwise provided in Section 1 of this act, be added as damages fifty percent (50%) of the total amount of the deficiency or delinquency of the tax, and in such case the whole amount of tax unpaid, including the charges so added, shall become due and payable upon notice and demand by the commissioner, and, except as otherwise provided in Section 1 of this act, interest of one percent (1%) per month of the tax shall be added from the date such tax was due until paid.
If the deficient or delinquent tax is not paid pursuant to the commissioner's notice and it is necessary to resort to the issuance of the notice of tax lien or a warrant, the damages may be increased to fifteen percent (15%) for the first offense, twenty-five percent (25%) for the second offense and fifty percent (50%) for any subsequent offense.
SECTION 13. Section 27-69-41, Mississippi Code of 1972, is amended as follows:
27-69-41. If any person subject to the provisions of this chapter, or any rules or regulations promulgated by the commissioner under authority hereof, shall be found to have failed to affix the stamps required, or to have the same affixed as herein provided, or to pay any tax due hereunder, or to have violated any of the provisions of this chapter, or rules and regulations promulgated by the commissioner in the administration of this chapter, there shall, except as otherwise provided in Section 1 of this act, be collected from such person, in addition to the tax that may be due, a penalty of fifty percent (50%) of the tax due; and the commissioner, or his duly authorized representative, may make immediate demand upon such person for the payment of all such taxes and penalties. Provided, that the commissioner, for good reason shown, may remit all or any part of the penalties imposed, but, except as otherwise provided in Section 1 of this act, the taxpayer must pay all taxes due and interest thereon, at the rate of twelve percent (12%) per annum. The keeping of any unstamped cigarettes or untaxed tobacco at a place of business where such articles are sold, shall be prima facie evidence of intent to violate the provisions of this chapter.
All administrative provisions of the Mississippi Sales Tax Law, including those which fix damages, penalties and interest for nonpayment of taxes and for noncompliance with the provisions of said chapter, and all other requirements and duties imposed upon taxpayers, shall apply to all persons liable for taxes under the provisions of this chapter, and the commissioner shall exercise all the power and authority and perform all the duties with respect to taxpayers under this chapter as are provided in the Sales Tax Law, except where there is conflict, then the provisions of this chapter shall control.
SECTION 14. Section 27-71-331, Mississippi Code of 1972, is amended as follows:
27-71-331. If any wholesaler, distributor or brewpub, subject to the provisions of this article, shall fail to pay any tax due under the provisions of this article, within the time, and in the manner, herein provided, the commissioner is authorized, except as otherwise provided in Section 1 of this act, to assess, and collect, such tax, together with interest thereon from the date such tax became due at the rate of one percent (1%) per month, and in addition to the amount of the tax due and the interest accrued thereon, the commissioner may, in his discretion, assess and collect, from such delinquent taxpayer, a penalty equal to the amount of the tax found to be due.
SECTION 15. Section 31-19-27, Mississippi Code of 1972, is brought forward as follows:
31-19-27. A doubtful claim of the state, or of the county, city, town, village, or levee board is one for which judgment has been rendered and for the collection of which the ordinary process of law has been ineffectual; debts due by drainage districts or other taxing districts or sinking funds to counties under the Rehabilitation Act of 1928, being Chapter 88 of the Laws of 1928, and Chapter 16 of the acts of the Special Session of 1931; those debts due counties by drainage districts, which the reconstruction finance corporation has heretofore refused to refinance; debts due for sixteenth section township school fund loans made to churches, where the board of supervisors finds that the value of the security given therefor is insufficient or inadequate to pay or satisfy the principal and interest of said loan, and when the church repays the principal of said loan; and debts due by counties and townships to drainage districts for drainage district assessments or taxes levied and assessed upon sixteenth section lands.
SECTION 16. Section 31-19-29, Mississippi Code of 1972, is brought forward as follows:
31-19-29. The Governor, on the advice of the Attorney General or chairman of the State Tax Commission, may, upon application of the defendant or debtor proposing a compromise, settle and compromise any doubtful claim of the state, or of any county, city, town, or village, or of any levee board against such defendant or debtor, upon such terms as he may deem proper, the board of supervisors in the case of a county, and the municipal authorities in the case of a city, town or village, and the levee board in the case of a claim of a levee board, concurring therein. The Governor, upon application of a drainage district having obligations outstanding to a county under the provisions of Chapter 88, Laws of 1928, and Chapter 16, Laws of the Extraordinary Session of 1931, or obligations which the reconstruction finance corporation has heretofore refused to refinance, may settle and compromise any claim, debt or obligation that said drainage district may owe any county in the State of Mississippi for money loaned said district under the provisions of said Chapter 88, Laws of 1928, or any other claim, debt or obligation that said drainage district may owe the county which the reconstruction finance corporation has heretofore refused to finance, if the board of supervisors of said county concurs in the application of the drainage district. The Governor, upon application by the board of supervisors for any taxing districts of said county or sinking funds of said county under the control and supervision of said board of supervisors having obligations outstanding and due to said county under the provisions of Chapter 88, Laws of 1928, and Chapter 16, Laws of the Extraordinary Session of 1931, may settle and compromise any claim, debt, or obligation that said taxing districts or sinking funds may owe said county for money loaned said taxing districts or sinking funds under the provisions of said Chapter 88, Laws of 1928; and provided that the Governor, on the advice of the Attorney General, and upon application of a church owing a sixteenth section township school fund loan, may settle and compromise such debt or obligation if the board of supervisors of the said county concurs in the application of the said church. The Governor may, on the advice of the Attorney General, in like manner compromise and settle a claim of a drainage district for unpaid assessments or taxes upon sixteenth section lands upon application of the board of supervisors wherein such sixteenth section is situated, if the commissioners of the drainage district concur therein.
SECTION 17. This act shall take effect and be in force from and after July 1, 2010.
