BILL NUMBER: AB 1729 CHAPTERED 04/23/02 CHAPTER 29 FILED WITH SECRETARY OF STATE APRIL 23, 2002 APPROVED BY GOVERNOR APRIL 22, 2002 PASSED THE SENATE APRIL 8, 2002 PASSED THE ASSEMBLY JANUARY 29, 2002 AMENDED IN ASSEMBLY JANUARY 17, 2002 AMENDED IN ASSEMBLY JANUARY 14, 2002 AMENDED IN ASSEMBLY APRIL 26, 2001 INTRODUCED BY Committee on Insurance (Calderon (Chair), Chavez, Diaz, Dutra, Frommer, Havice, Horton, Keeley, Kehoe, and Vargas) MARCH 26, 2001 An act to amend Sections 305, 320.5, 329, 411, 633, 832, 931.5, 1087, 1128, 1177.5, 2606, 13003, 13021.5, 13028, 13050, and 13052.5 of, and to repeal Sections 328, 605.5, and 1141.5 of, the Unemployment Insurance Code, relating to unemployment insurance. LEGISLATIVE COUNSEL'S DIGEST AB 1729, Committee on Insurance. Unemployment insurance. (1) Existing law designates the Director of Employment Development as the chairperson of a strike force on the underground economy. The strike force is required to make annual reports to the Governor and the Legislature. This bill would require the annual reports to be made by June 30 of each year. (2) Existing law requires that the director provide certain information to school employers by October 15 of each year. This bill would change the reporting date to March 31. (3) Under existing law relating to employer withholding of taxes from employee wages, a banking day is defined as any day other than a weekend day or a banking holiday recognized by the Federal Reserve System. This bill would revise the definition of a banking day to exclude weekend days and banking holidays recognized by the Internal Revenue Service. (4) The bill would also correct erroneous cross-references, update references to federal law, and repeal outdated provisions or provisions with outdated cross-references. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 305 of the Unemployment Insurance Code is amended to read: 305. Regulations for the administration of the functions of the Employment Development Department under this code shall be adopted, amended, or repealed by the Director of Employment Development as provided in Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. SEC. 2. Section 320.5 of the Unemployment Insurance Code is amended to read: 320.5. The director may by authorized regulations prescribe the information required to be reported to the department by employing units under this division and employers subject to withholding tax under Division 6 (commencing with Section 13000) in order to make reports required by the Secretary of Labor, to provide information necessary to administer this code, to estimate unemployment rates or to make other estimates required for the purpose of dispensing or withholding money payments under the Welfare Reform Act of 1971, the Employment Security Amendments of 1970, the Emergency Unemployment Compensation Act of 1971, or the Workforce Investment Act of 1998, and to make any other reports or estimates that may be required by any other state or federal law. The authorized regulations of the director may include requirements for the reporting of employment, unemployment, hours, wages, earnings, the location and nature of the industrial, business, or other activity of each establishment for the conduct of business, performance of services, or industrial operations, and such other requirements as are necessary to comply with this section. SEC. 3. Section 328 of the Unemployment Insurance Code is repealed. SEC. 4. Section 329 of the Unemployment Insurance Code is amended to read: 329. (a) The director, or his or her designee, shall serve as Chairperson of the Joint Enforcement Strike Force on the Underground Economy provided for in Executive Order W-66-93. The strike force shall include, but not be limited to, representatives of the Employment Development Department, the Department of Consumer Affairs, the Department of Industrial Relations, the Department of Insurance, and the Office of Criminal Justice Planning. Other agencies that are not part of the administration, such as the Franchise Tax Board, the State Board of Equalization, and the Department of Justice, are encouraged to participate in the strike force. (b) The strike force shall have the following duties: (1) To facilitate and encourage the development and sharing of information by the participating agencies necessary to combat the underground economy. (2) To improve the coordination of activities among the participating agencies. (3) To develop methods to pool, focus, and target the enforcement resources of the participating agencies in order to deter tax evasion and maximize recoveries from blatant tax evaders and violators of cash-pay reporting laws. (4) To reduce enforcement costs wherever possible by eliminating duplicative audits and investigations. (c) In addition, the strike force shall be empowered to: (1) Form joint enforcement teams when appropriate to utilize the collective investigative and enforcement capabilities of the participating members. (2) Establish committees and rules of procedure to carry out the activities of the strike force. (3) To solicit the cooperation and participation of district attorneys and other state and local agencies in carrying out the objectives of the strike force. (4) Establish procedures for soliciting referrals from the public, including, but not limited to, an advertised telephone hotline. (5) Develop procedures for improved information sharing among the participating agencies, such as shared automated information data base systems, the use of a common business identification number, and a centralized debt collection system. (6) Develop procedures to permit the participating agencies to use more efficient and effective civil sanctions in lieu of criminal actions wherever possible. (7) Evaluate, based on its activities, the need for any statutory change to do any of the following: (A) Eliminate barriers to interagency information sharing. (B) Improve the ability of the participating agencies to audit, investigate, and prosecute tax and cash-pay violations. (C) Deter violations and improve voluntary compliance. (D) Eliminate duplication and improve cooperation among the participating agencies. (E) Establish sharable information data bases. (F) Establish a common business identification number for use by participating agencies. (G) Establish centralized, automated debt collection services for the participating agencies. (H) Strengthen civil penalty procedures to allow the strike force to emphasize civil rather than criminal penalties wherever possible. (d) The strike force shall report to the Governor and the Legislature annually during the period of its existence, by June 30, of each year, regarding its activities. The report shall include, but not be limited to, all of the following: (1) The number of cases of blatant violations and noncompliance with tax and cash-pay laws identified, audited, investigated, or prosecuted through civil action or referred for criminal prosecution. (2) Actions taken by the strike force to publicize its activities. (3) Efforts made by the strike force to establish an advertised telephone hotline for receiving referrals from the public. (4) Procedures for improving information sharing among the agencies represented on the strike force. (5) Steps taken by the strike force to improve cooperation among participating agencies, reduce duplication of effort, and improve voluntary compliance. (6) Recommendations for any statutory changes needed to accomplish the goals described in paragraph (7) of subdivision (c). (e) This section shall remain in effect only until January 1, 2006, and as of that date is repealed, unless a later enacted statute, which is enacted before January 1, 2006, deletes or extends that date. SEC. 5. Section 411 of the Unemployment Insurance Code is amended to read: 411. The appeals board, acting as a whole, may promulgate rules or amend or rescind rules pertaining to hearing appeals and other matters falling within its jurisdiction. All such rules, amendments thereto, or repeals thereof, shall be made in accordance with the provisions of Chapter 3.5 (commencing with Section 11340), Part 1, Division 3, Title 2 of the Government Code. SEC. 6. Section 605.5 of the Unemployment Insurance Code is repealed. SEC. 7. Section 633 of the Unemployment Insurance Code is amended to read: 633. (a) For purposes of coverage under Part 2 (commencing with Section 2601) of Division 1, "employment" does not include services performed as an intermittent or adjunct instructor at a postsecondary educational institution which meets the requirements of Article 8 (commencing with Section 94900) of Chapter 7 of Part 59 of the Education Code if the intermittent or adjunct instructor and the employing unit enter a written contract with the following provisions: (1) That any federal or state income tax liability shall be the responsibility of the party providing the services. (2) That no disability insurance coverage is provided under the contract. (3) That the party performing the services certifies that he or she is doing so as a secondary occupation or as a supplemental source of income. (b) This section shall not apply to services performed under a collective bargaining agreement. (c) This section shall become operative on January 1, 1997. SEC. 8. Section 832 of the Unemployment Insurance Code is amended to read: 832. The administrator shall at least annually calculate, as of the close of and for the immediately preceding fiscal year, the experiences of school employers relative to usage of the Unemployment Fund. The calculations shall include tabulations on the experience of each school employer in relation to the expenditures from and the income to the School Employees Fund from the wages paid by the employer. All school employers shall be listed and ranked by ratio of use. The report shall contain comments and recommendations on improvements to the administration, enforcement, and financing of the provisions relative to this article. The report by the administrator on the above shall be made each year to the affected school employer and governing board thereof prior to March 31. The administrator shall develop experience relationships on all benefits paid to employees via the School Employees Fund and on school employers' experience related to use and exposure. Data shall relate to numbers of employees and types of programs and shall be calculated as of the close of and for the immediately preceding fiscal year. A report by the administrator on the above shall be made each year to the Legislature prior to March 31 containing comments and recommendations on improvement to administration, enforcement and financing of the provisions relative thereto. SEC. 9. Section 931.5 of the Unemployment Insurance Code is amended to read: 931.5. (a) Except for Part 2 (commencing with Section 2601) of this division and Division 6 (commencing with Section 13000), any third party which makes a payment included in the term "wages" solely by reason of subdivision (a) of Section 931 shall be the employer with respect to those wages unless the third-party payer notifies the last employer, who is a member of the plan and for whom the services were performed, within 15 days of payment, and provides all of the following information to that last employer: (1) The name and social security account number of the recipients of the wages paid pursuant to subdivision (a) of Section 931. (2) The amount of gross wages paid pursuant to subdivision (a) of Section 931. (b) The special rule prescribed by this subdivision applies to the payment of sick pay made by a third-party payer, such as an insurer, under a contract of insurance pursuant to a multiple employer plan that is obligated to make payments for sick pay to employees of participating employers. If the third-party payer provides the plan with the notification required by subdivision (a) within the time required, the plan, not the third-party payer, shall be treated as the employer under subdivision (a). If within six business days after receipt of the notification the plan similarly notifies the last employer for whom the services are performed, and who is a plan member, that employer, not the plan, shall be required to report and pay the contributions due with respect to the wages. (c) The employer, as determined by subdivision (a) or (b), shall pay contributions, required by this part, except as provided in Sections 984 and 986, and shall comply with the requirements of subdivision (a) of Section 1088. (d) When an employer receives the notification prescribed in subdivision (a) or (b), the wages described therein shall be deemed paid when the notice is received. (e) The director shall not make an assessment pursuant to Section 1126, 1127, or 1137 to assess employee contributions required by Sections 984 and 13020 on third-party sick pay as described in subdivision (a) for the period from January 1, 1987, through the date on which this subdivision became effective. (f) Except as provided by Section 1176 and Section 19301 of the Revenue and Taxation Code, no refunds may be made for employee contributions required by Sections 984 and 13020 paid on third-party sick pay as described in subdivision (a) for the period from January 1, 1987, through the date on which this subdivision became effective. SEC. 10. Section 1087 of the Unemployment Insurance Code is amended to read: 1087. Any officer or employee of the Sales and Use Tax Division of the Board of Equalization who is authorized to accept an application for a seller's permit under Section 6066 of the Revenue and Taxation Code or authorized to register a retailer under Section 6226 of the Revenue and Taxation Code is a duly authorized agent of the Employment Development Department for purposes of accepting registration of employers as required in this part. The department shall reimburse the Board of Equalization for any additional costs incurred by reason of services by any of its officers or employees to the department pursuant to this section. SEC. 11. Section 1128 of the Unemployment Insurance Code is amended to read: 1128. (a) If the failure of the employing unit to file a return or report within the time required by this division and authorized regulations or if any part of the deficiency for which an assessment is made is due to fraud or an intent to evade this division or authorized regulations, a penalty of 50 percent of the amount of contributions assessed shall be added to the assessment. This penalty is in addition to the penalties provided pursuant to Sections 1126 and 1127. (b) An additional penalty of 50 percent of the amount of contributions assessed shall be added to any assessment that includes a penalty under subdivision (a), if the employer paid wages and failed to provide information returns as required under Section 13050 of this code or Section 6041A of the Internal Revenue Code. This penalty shall be in addition to any penalties under Section 1126 or 1127. SEC. 12. Section 1141.5 of the Unemployment Insurance Code is repealed. SEC. 13. Section 1177.5 of the Unemployment Insurance Code is amended to read: 1177.5. (a) If the director determines that an overpayment has been made to the department by an employing unit or the School Employees Fund because of a reason specified in this subdivision, and the amount of the overpayment has been reimbursed to the state by the federal government pursuant to the federal Workforce Investment Act of 1998, then the director shall credit the employing unit or the School Employees Fund with the amount of that overpayment, provided that the director determines that the overpayment was made because of one of the following: (1) An employing unit paid unemployment insurance contributions after December 31, 1974, based on wages paid to individuals participating in a public service employment program under the federal Workforce Investment Act of 1998. (2) An employing unit paid amounts after December 31, 1975, pursuant to Section 803 of this part, for benefits awarded based on wages paid to individuals participating in a public service employment program under the federal Workforce Investment Act of 1998. (3) Payments were made by the School Employees Fund after December 31, 1975, to the Unemployment Fund pursuant to Section 821 of this part for benefits awarded based on wages paid to individuals participating in a public service employment program under the federal Workforce Investment Act of 1998. (b) No overpayment described in subdivision (a) shall be refunded to an employing unit or to the School Employees Fund. SEC. 14. Section 2606 of the Unemployment Insurance Code is amended to read: 2606. "Employment" for the purposes of this part means: (a) Service included in "employment" as defined by Part 1 (commencing with Section 100) of this division, except that with respect to service for any public entity as defined by Section 605 "employment" for the purposes of this part includes only: (1) Service for a hospital established, maintained and operated pursuant to Division 23 (commencing with Section 32000) of the Health and Safety Code. (2) Service performed for a public housing administration agency whether operated by state or local governmental subdivisions. (3) Service performed by a state employee to the extent provided by Section 2781. (4) Service covered under this part by an elective coverage agreement. (b) Notwithstanding any other provision of this division, all service performed in the employ of a corporation, community chest, fund, or foundation, in connection with the operation of a health facility as defined in Section 1250 of the Health and Safety Code including the institutions described in subdivision (a) of Section 1270 of the Health and Safety Code but not including county hospitals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation, which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office and which is exempt from income tax under Section 501 (a) of the Internal Revenue Code of 1954, except service performed by an individual as a duly ordained priest, clergyman, rabbi, rector, vicar, pastor, or minister of religion, or by a practitioner who heals the sick by prayer in the practice of religion, or by a reader whose duty it is to conduct regular religious services of a religious organization, or by a member of a religious order in the exercise of duties required by the order, or by any other individual performing service in the practice of religion by designation of the governing body of a religious organization and subject to discipline by, including removal by, the governing body. This section shall become operative on July 1, 1978. SEC. 15. Section 13003 of the Unemployment Insurance Code is amended to read: 13003. (a) Except where the context otherwise requires, the definitions set forth in this chapter, and in addition the definitions and provisions of the Personal Income Tax Law referred to and hereby incorporated by reference as set forth in the following provisions of the Revenue and Taxation Code, shall apply to and govern the construction of this division: (1) "Corporation" as defined by Section 17009. (2) "Fiduciary" as defined by Section 17006. (3) "Fiscal year" as defined by Section 17011. (4) "Foreign country" as defined by Section 17019. (5) "Franchise Tax Board" as defined by Section 17003. (6) "Husband" and "wife" as defined by Section 17021. (7) "Individual" as defined by Section 17005. (8) "Military or naval forces" as defined by Section 17022. (9) "Nonresident" as defined by Section 17015. (10) "Partnership" as defined by Section 17008. (11) "Person" as defined by Section 17007. (12) "Resident" as defined by Sections 17014 and 17016. (13) "State" as defined by Section 17018. (14) "Taxable year" as defined by Section 17010. (15) "Taxpayer" as defined by Section 17004. (16) "Trade or business" as defined by Section 17020. (17) "United States" as defined by Section 17017. (b) The provisions of Part 10 (commencing with Section 17001) and Part 10.2 (commencing with Section 18401) of Division 2 of the Revenue and Taxation Code, relating to the following items, are hereby incorporated by reference and shall apply to and govern construction of this division: (1) Trade or business expense (Article 6 (commencing with Section 17201) of Chapter 3 of Part 10). (2) Deductions for retirement savings (Article 6 (commencing with Section 17201) of Chapter 3 of Part 10). (3) Distributions of property by a corporation to a shareholder (Chapter 4 (commencing with Section 17321) of Part 10). (4) Deferred compensation (Chapter 5 (commencing with Section 17501) of Part 10). (5) Partners and partnerships (Chapter 10 (commencing with Section 17851) of Part 10). (6) Gross income of nonresident taxpayers Chapter 11 (commencing with Section 17951) of Part 10). (7) Postponement of the time for certain acts by individuals in or in support of the armed forces (Article 3 (commencing with Section 18621) of Chapter 2 of Part 10.2). (8) Disclosure of information (Article 2 (commencing with Section 19542) of Chapter 7 of Part 10.2). For this purpose "Franchise Tax Board" as used therein shall mean the Employment Development Department in respect to information obtained in the administration of this division. SEC. 16. Section 13021.5 of the Unemployment Insurance Code is amended to read: 13021.5. (a) "Electronic funds transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, that is initiated through an electronic terminal, telephonic instrument, or computer or magnetic tape, so as to order, instruct, or authorize a financial institution to debit or credit an account. Electronic funds transfers shall be accomplished by an automated clearinghouse debit, an automated clearinghouse credit, Fedwire, or by other specific electronic funds transfer methods approved in advance by the department. (b) "Automated clearinghouse" means any federal reserve bank, or an organization established in agreement with the National Automated Clearing House Association, that operates as a clearinghouse for transmitting or receiving entries between banks and/or bank accounts and which authorizes an electronic transfer of funds between those banks or bank accounts. (c) "Automated clearinghouse debit" means a transaction in which the state, through its designated depository bank, originates an automated clearinghouse transaction debiting the employer's bank account and crediting the state's bank account for the amount of tax. Banking costs incurred for the automated clearinghouse debit transaction shall be paid by the state. (d) "Automated clearinghouse credit" means an automated clearinghouse transaction in which the employer through its own bank, originates an entry crediting the state's bank account and debiting its own bank account. Banking costs incurred for the automated clearinghouse credit transaction charged to the employer and to the state shall be paid by the employer. (e) "Fedwire" means any transaction originated by the employer and utilizing the national electronic payment system to transfer funds through the federal reserve banks, pursuant to which the employer debits its own bank account and credits the state's bank account. Electronic funds transfer payments may be made by Fedwire only if prior approval is obtained from the department and payment cannot, for good cause, be made pursuant to subdivision (a). Banking costs incurred for the Fedwire transaction charged to the employer and to the state shall be paid by the employer. (f) "Banking day" means any day other than a Saturday, Sunday, or banking holiday as recognized by the Internal Revenue Service. (g) "Settlement date" means the date on which an exchange of funds with respect to an entry is reflected on the books of the Federal Reserve Bank. (h) For the purposes of Section 13021, the "cumulative average payment" means the cumulative dollar amount of deposits divided by the number of payments submitted during a given period. For the purposes of this section, the "cumulative average payment" may also be defined as a single annual deposit, when only one payment is made during the 12-month period ending June 30. SEC. 17. Section 13028 of the Unemployment Insurance Code is amended to read: 13028. (a) For purposes of this division (and so much of Part 10 (commencing with Section 17001) and Part 10.2 (commencing with Section 18401) of Division 2 of the Revenue and Taxation Code as relates to this division) pensions, annuities, and other deferred income, as described in Section 3405 of the Internal Revenue Code, are wages and subject to withholding under this division. Amounts withheld shall be treated as if the amounts are withheld by an employer for a payroll period and only amounts withheld shall be reported to the department pursuant to Section 1088 and Section 13021. (b) If an individual makes an election under Section 3405(a)(2) or Section 3405(b)(2) of the Internal Revenue Code not to have tax withheld, that election shall apply to withholding under this division, unless the individual elects, with the consent of the payer, to have those payments subject to withholding under this division. If an individual has not made an election under Section 3405(a)(2) or Section 3405(b)(2) of the Internal Revenue Code, that individual may elect to exclude those payments from withholding under this division. Elections provided in this subdivision shall be made pursuant to regulations of the director. (c) Where Section 3405 of the Internal Revenue Code provides that tables or other computational procedures shall be prescribed by the Secretary of the Treasury, for the purposes of this division, any of the following amounts may be withheld, upon election of the payer: (1) An amount determined by the method prescribed under Section 13020. (2) A designated dollar amount as requested by the payee. (3) Ten percent of the amount of federal withholding computed pursuant to Section 3405 of the Internal Revenue Code. (d) Where the amount of withholding computed pursuant to subdivision (c) is less than ten dollars ($10) per month, the payer shall not be required to withhold that amount. (e) This section shall not apply to pensions, annuities, and other deferred income of payees with addresses outside this state, as shown on the most current records of the payer. (f) The department shall, in consultation with the affected payers and payees, issue regulations to implement this section. Those regulations shall provide for delay (but not beyond July 1, 1987) of the application of this section with respect to any payer or class of payers until that time as the payers are able to comply without undue hardship with the requirements of this section. In that case, no retroactive compliance shall be required. SEC. 18. Section 13050 of the Unemployment Insurance Code is amended to read: 13050. (a) Every employer or person required to deduct and withhold from an employee a tax under Section 986, 3260, or 13020, or who would have been required to deduct and withhold a tax under Section 13020 (determined without regard to Section 13025) if the employee had claimed no more than one withholding exemption, shall furnish to each employee in respect of the remuneration paid by the person to the employee during the calendar year, on or before January 31 of the succeeding year, or, if his or her employment is terminated before the close of the calendar year, on the day on which the last payment of remuneration is made, a written statement showing all of the following: (1) The name of the person. (2) The name of the employee, and his or her social security or identifying number if wages have been paid. (3) The total amount of wages subject to personal income tax, as defined by Section 13009.5. (4) The total amount deducted and withheld as tax under Section 13020. (5) The total amount of worker contributions paid by the employee pursuant to Section 986. (6) The total amount of worker contributions paid by the employee pursuant to Section 3260. (7) The total amount of elective deferrals (within the meaning of Section 402(g)(3) of the Internal Revenue Code) and compensation deferred pursuant to Section 457 of the Internal Revenue Code. (b) The statement required to be furnished pursuant to this section in respect of any remuneration shall be furnished at other times, shall contain other information, and shall be in a form, as the department may by authorized regulations prescribe. (c) (1) A duplicate of any statement made pursuant to this section and in accordance with authorized regulations prescribed by the department shall, when required by the regulations, be filed with the department. (2) Effective January 1, 1995, this subdivision shall apply only to those employers exempted under subdivision (h) of Section 1088 or subdivision (k) of Section 13021 from the requirements to report individual amounts withheld on the report of wages and to file the annual reconciliation return for the 1995 calendar year only. This subdivision shall remain in effect only until March 1, 1996, and on that date is repealed, unless a later enacted statute that is enacted before March 1, 1996, deletes or extends that date. (d) If, during any calendar year, any person makes a payment of third-party sick pay to an employee, that person shall, on or before January 15 of the succeeding year, furnish a written statement to the employer in respect of whom the payment was made showing all of the following: (1) The name and, if there is withholding under this division, the social security number of that employee. (2) The total amount of the third-party sick pay paid to that employee during the calendar year. (3) The total amount, if any, deducted and withheld from that sick pay under this division. For purposes of the preceding sentence, the term "third-party sick pay" means any sick pay, as defined in subdivision (b) of Section 13028.6, which does not constitute wages for purposes of this division, determined without regard to subdivision (a) of Section 13028.6. (A) For purposes of Chapter 10 (commencing with Section 2101) of Part 1 of Division 1, the statements required to be furnished by this subdivision shall be treated as statements required under this section to be furnished to employees. (B) Every employer who receives a statement under this subdivision with respect to sick pay paid to any employee during any calendar year shall, on or before January 31 of the succeeding year, furnish a written statement to that employee showing all of the information shown on the statement furnished under this subdivision. (e) The Franchise Tax Board shall be allowed access to the information filed with the department pursuant to this section. SEC. 19. Section 13052.5 of the Unemployment Insurance Code is amended to read: 13052.5. (a) In addition to the penalty imposed by Section 19183 of the Revenue and Taxation Code (relating to failure to file information returns), if any person, or entity fails to report amounts paid as remuneration for personal services as required under Section 13050 of this code or Section 6041A of the Internal Revenue Code on the date prescribed thereof (determined with regard to any extension of time for filing), that person or entity may be liable for a penalty determined under subdivision (b). (b) For purposes of subdivision (a), the amount determined under this subdivision is the maximum rate under Section 17041 of the Revenue and Taxation Code multiplied by the unreported amounts paid as remuneration for personal services. (c) The penalty imposed by subdivision (a) shall be assessed against that person or entity required to file a return under Section 13050 of this code or Section 6041A of the Internal Revenue Code. (d) Sections 1221 and 1222 of the Unemployment Insurance Code shall not apply to assessments imposed by this section. (e) The penalty imposed under this section shall be in lieu of the penalty imposed under Section 19175 of the Revenue and Taxation Code. In the event that a penalty is imposed under both this section and Section 19175 of the Revenue and Taxation Code, only the penalty imposed under this section shall apply. (f) The penalty imposed by this section may be assessed in lieu of, or in addition to, the penalty imposed by Section 13052 with respect to the failure to furnish a withholding statement to an employee.