BILL NUMBER: AB 2458 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 19, 2010
PASSED THE ASSEMBLY AUGUST 23, 2010
AMENDED IN SENATE JUNE 29, 2010
AMENDED IN ASSEMBLY MAY 3, 2010
AMENDED IN ASSEMBLY APRIL 5, 2010
INTRODUCED BY Assembly Member Saldana
FEBRUARY 19, 2010
An act to amend Section 17942 of the Revenue and Taxation Code,
relating to taxation.
LEGISLATIVE COUNSEL'S DIGEST
AB 2458, Saldana. Taxation: penalties: limited liability
companies.
Existing law requires every limited liability company subject to
tax to pay an annual fee, as specified. Existing law requires this
fee to be estimated and paid on a specified date, and requires a
penalty of 10% of the amount of any underpayment to be added to the
fee.
This bill would, for a small business, as defined, instead require
the penalties described above to be due and payable 60 days from the
date the small business is notified of the penalty. This bill would
require this provision to be applied to penalties imposed on or after
January 1, 2011, and before January 1, 2016.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 17942 of the Revenue and Taxation Code is
amended to read:
17942. (a) In addition to the tax imposed under Section 17941,
every limited liability company subject to tax under Section 17941
shall pay annually to this state a fee equal to:
(1) Nine hundred dollars ($900), if the total income from all
sources derived from or attributable to this state for the taxable
year is two hundred fifty thousand dollars ($250,000) or more, but
less than five hundred thousand dollars ($500,000).
(2) Two thousand five hundred dollars ($2,500), if the total
income from all sources derived from or attributable to this state
for the taxable year is five hundred thousand dollars ($500,000) or
more, but less than one million dollars ($1,000,000).
(3) Six thousand dollars ($6,000), if the total income from all
sources derived from or attributable to this state for the taxable
year is one million dollars ($1,000,000) or more, but less than five
million dollars ($5,000,000).
(4) Eleven thousand seven hundred ninety dollars ($11,790), if the
total income from all sources derived from or attributable to this
state for the taxable year is five million dollars ($5,000,000) or
more.
(b) (1) (A) For purposes of this section, "total income from all
sources derived from or attributable to this state" means gross
income, as defined in Section 24271, plus the cost of goods sold that
are paid or incurred in connection with the trade or business of the
taxpayer. However, "total income from all sources derived from or
attributable to this state" shall not include allocation or
attribution of income or gain or distributions made to a limited
liability company in its capacity as a member of, or holder of an
economic interest in, another limited liability company if the
allocation or attribution of income or gain or distributions are
directly or indirectly attributable to income that is subject to the
payment of the fee described in this section.
(B) For purposes of this section, "total income from all sources
derived from or attributable to this state" shall be determined using
the rules for assigning sales under Sections 25135 and 25136 and the
regulations thereunder, as modified by regulations under Section
25137, other than those provisions that exclude receipts from the
sales factor.
(2) In the event a taxpayer is a commonly controlled limited
liability company, the total income from all sources derived from or
attributable to this state, taking into account any election under
Section 25110, may be determined by the Franchise Tax Board to be the
total income of all the commonly controlled limited liability
company members if it determines that multiple limited liability
companies were formed for the primary purpose of reducing fees
payable under this section. A determination by the Franchise Tax
Board under this subdivision may only be made with respect to one
limited liability company in a commonly controlled group. However,
each commonly controlled limited liability company shall be jointly
and severally liable for the fee. For purposes of this section,
commonly controlled limited liability companies shall include the
taxpayer and any other partnership or limited liability company doing
business (as defined in Section 23101) in this state and required to
file a return under Section 18633 or 18633.5, in which the same
persons own, directly or indirectly, more than 50 percent of the
capital interests or profits interests.
(c) The fee assessed under this section shall be due and payable
on the date the return of the limited liability company is required
to be filed under Section 18633.5, shall be collected and refunded in
the same manner as the taxes imposed by this part, and shall be
subject to interest and applicable penalties.
(d) (1) The fee imposed by this section shall be estimated and
paid on or before the 15th day of the sixth month of the current
taxable year.
(2) A penalty of 10 percent of the amount of any underpayment
shall be added to the fee. The underpayment amount shall be equal to
the difference between the total amount of the fee imposed by this
section for the taxable year less the amount paid under paragraph (1)
by the date specified in that paragraph. A penalty shall not be
imposed with respect to any fee estimated and paid under this section
if the amount paid by the date prescribed in this subdivision is
equal to or greater than the total amount of the fee of the limited
liability company for the preceding taxable year.
(3) (A) Notwithstanding paragraph (1), for a small business, any
penalty imposed under this subdivision shall be due and payable 60
days from the date the small business is notified of the penalty.
(B) For purposes of this paragraph, a "small business" means a
business whose total income from all sources derived from or
attributable to this state for the taxable year is less than five
hundred thousand dollars ($500,000).
(C) This paragraph shall apply to penalties imposed on or after
January 1, 2011, and before January 1, 2016.