WEST virginia legislature
2018 regular session
Introduced
Senate Bill 338
By Senators Blair and Boso
[Introduced January
22, 2018; Referred
to the Committee on Finance]
A BILL to amend and reenact §11-21-74 of the Code of West Virginia, 1931, as amended, relating generally to employer withholding taxes; changing due date for employers to file annual reconciliation and withholding statements with Tax Commissioner to January 31; requiring certain employers to file withholding return information electronically with the Tax Commissioner; and deleting obsolete language.
Be it enacted by the Legislature of West Virginia:
Article 21. PERSONAL INCOME TAX.
§11-21-74. Filing of employer’s withholding return and payment of withheld taxes; annual reconciliation; e-filing required for certain tax preparers and employer.
(a) General. — Every
employer required to deduct and withhold tax under this article shall for
each calendar quarter, on or before the last day of the month following the
close of the calendar quarter, file a withholding return as prescribed by the
Tax Commissioner and pay over to the Tax Commissioner the taxes required to be
deducted and withheld. Where the average quarterly amount deducted and withheld
by any employer is less than $150 and the aggregate for the calendar year can
reasonably be expected to be less than $600, the Tax Commissioner may by rule
permit an employer to file an annual return and pay over to the Tax
Commissioner the taxes deducted and withheld on or before the last day of the
month following the close of the calendar year. The Tax Commissioner may, by
nonemergency legislative rules promulgated pursuant to article three, chapter
twenty-nine-a of this code, change the minimum amounts established by this
subsection. The Tax Commissioner may, if he or she determines necessary for the
protection of the revenues, require any employer to make the return and pay to
him or her the tax deducted and withheld at any time or from time to time.
Notwithstanding the provisions of this subsection, after December 31, 2008,
every employer required to deduct and withhold tax under this article shall
file a withholding return as prescribed by the Tax Commissioner and pay over to
the Tax Commissioner the taxes required to be deducted and withheld, in
accordance with the procedures established by the Internal Revenue Service
pursuant to Section 3402 of the Internal Revenue Code.
(b) Monthly returns
and payments of withheld tax after December 31, 2000. --
Notwithstanding the
provisions of subsection (a) of this section, after December 31, 2000, every employer
required to deduct and withhold tax under this article shall, for each of the
first eleven months of the calendar year, by the twentieth day of the
succeeding month, and for the last calendar month of the year, by the last day
of the succeeding month, file a withholding return as prescribed by the Tax
Commissioner and pay over to the Tax Commissioner the taxes required to be
deducted and withheld, if the withheld taxes aggregate $ 250 or more for the
month, except any employer with respect to whom the Tax Commissioner may have
by rule provided otherwise in accordance with the provisions of subsection (a)
of this section. Notwithstanding the provisions of this subsection, after
December 31, 2008, every employer required to deduct and withhold tax under
this article shall file a withholding
return as prescribed by the Tax Commissioner and pay over to the Tax
Commissioner the taxes required to be deducted and withheld. The due dates for
returns and payments shall be established by the Tax Commissioner to match as
closely as practicable the due dates in effect for federal income tax purposes,
in accordance with the procedures established by the Internal Revenue Service
pursuant to Section 3402 of the Internal Revenue Code except as otherwise
provided in this section: Provided, That not later than January 31, 2019,
and January 31 of each year thereafter, employers and payers shall submit to
the Tax Commissioner the annual reconciliation of West Virginia income tax
withheld, together with state copies of all withholding tax statements
reflecting West Virginia tax withholding, including, but not limited to, forms
W-2, W-2G, and 1099, furnished to each employee or payee for the preceding
calendar year, notwithstanding the fact that the employer or payer may have a
calendar tax year ending on December 31 or a fiscal tax year ending on a date
other than December 31. Notwithstanding
the provisions of this section, where
the average quarterly amount deducted and withheld by any employer is less than
$150 and the aggregate for the calendar year can reasonably be expected to be
less than $600, the Tax Commissioner may by rule permit an employer to file an
annual return and pay over to the Tax Commissioner the taxes deducted and
withheld on or before the last day of the month following the close of the
calendar year.
(c) (b) Annual returns and payments of withheld
tax of certain domestic and household employees. — Employers of domestic
and household employees whose withholdings of federal income tax are annually
paid and reported by the employer pursuant to the filing of Schedule H of
federal form 1040, 1040A, 1040NR, 1040NR-EZ, 1040SS, or 1041 may shall,
on or before January 31 next succeeding the end of the calendar year for which
withholdings are deducted and withheld, file an annual withholding return with
the Tax Commissioner, and annually remit to the Tax Commissioner, West Virginia
personal income taxes deducted and withheld for the employees together with state
copies of all withholding tax statements reflecting West Virginia tax
withholding, including, but not limited to, forms W-2, W-2G, and 1099,
furnished to each employee or payee for the preceding calendar year,
notwithstanding the fact that the employer or payer may have a calendar tax
year ending on December 31 or a fiscal tax year ending on a date other than
December 31. The Tax Commissioner may promulgate legislative or other rules
pursuant to §29A-3-1 et seq. this code for implementation of
this subsection. Notwithstanding the provisions of this subsection, after
December 31, 2008, every employer required to deduct and withhold tax under
this article shall file a withholding return as prescribed by the Tax Commissioner
and pay over to the Tax Commissioner the taxes required to be deducted and
withheld. The due dates for returns and payments shall be established by the
Tax Commissioner to match as closely as practicable the due dates in effect for
federal income tax purposes, in accordance with the procedures established by
the Internal Revenue Service pursuant to Section 3402 of the Internal Revenue
Code
(d) (c) Deposit in trust for Tax Commissioner.
— Whenever any employer fails to collect, truthfully account for, or pay over
the tax, or to make returns of the tax as required in this section, the Tax
Commissioner may serve a notice requiring the employer to collect the taxes
which become collectible after service of the notice, to deposit the taxes in a
bank approved by the Tax Commissioner, in a separate account, in trust for and
payable to the Tax Commissioner and to keep the amount of the tax in the
separate account until payment over to the Tax Commissioner. The notice remains
in effect until a notice of cancellation is served by the Tax Commissioner.
(e) (d) Accelerated payment. —
(1) Notwithstanding the
provisions of subsections (a) and (b) of this section, after June 30, 2014,
every Every employer required to deduct and withhold tax whose
average payment per calendar month for the preceding calendar year under subsection
(b) §11-21-74(a) of this code exceeded $100,000 shall remit the tax
attributable to the first 15 days of June each year by June 23.
(2) For purposes of
complying with §11-21-74(d)(1) of this code, the employer shall remit an amount
equal to the withholding tax due under this article on employee compensation
subject to withholding tax payable or paid to employees for the first fifteen
15 days of June or, at the employer’s election, the employer may remit
an amount equal to fifty 50 percent of the employer’s liability
for withholding tax under this article on compensation payable or paid to
employees for the preceding month of May.
(3) For an employer which
has not been in business for a full calendar year, the total amount the
employer was required to deduct and withhold under subsection (b) §11-21-74(a)
of this code for the prior calendar year shall be divided by the number of months,
including fractions of a month, that it was in business during the prior
calendar year and if that amount exceeds $100,000, the employer shall remit the
tax attributable to the first fifteen 15 days of June each year
by June 23, as provided in §11-21-74(d)(2) of this code.
(4) When an employer required to make an advanced payment of withholding tax under §11-21-74(d)(1) of this code makes out its return for the month of June, which is due by July 20, that employer may claim as a credit against its liability under this article for tax on employee compensation paid or payable for employee services rendered during the month of June the amount of the advanced payment of tax made under §11-21-74(d)(1) of this code.
(f) The amendments to
this section enacted in the year 2006 are effective for tax years beginning
after December 31, 2005
(g) (e) An annual reconciliation of West Virginia
personal income tax withheld shall be submitted by the employer by February
28 January 31, following the close of the calendar year, together
with Tax Division copies of all withholding tax statements for that preceding
calendar year. The reconciliation shall be accompanied by a list of the amounts
of income withheld for each employee in such form as the Tax Commissioner
prescribes and shall be filed separately from the employer’s monthly or
quarterly return.
(h)
(f) Any employer required to file a withholding return for two
hundred fifty or more employees shall file its return using electronic filing
as defined in section fifty-four of this article: Provided, That for any
tax period beginning after December 31, 2010, any employer with 50 or more
employees shall file its return using electronic filing as defined in section
fifty-four §11-21-54 of this article code: Provided, That for any tax period
beginning after December 31, 2017, any employer that uses a payroll service or
is required to file a withholding return for 25 or more employees shall file
its return using electronic filing as defined in §11-21-54 of this code. An
employer that is required to file electronically but does not do so is subject
to a penalty in the amount of $25 per employee for whom the return was not
filed electronically, unless the employer shows that the failure is due to a
technical inability to comply.
NOTE: The purpose of this bill is to change the due date for employers to file their annual reconciliation and withholding statements with the Tax Commissioner to January 31, which date is consistent with the date by which employers must file their annual employer withholding reconciliation statements with the Internal Revenue Service; and to require more employers to file withholding return information electronically with the Tax Commissioner. Additionally, obsolete language would be deleted from the current law.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.