Nonresident Withholding S Corporation and Partnership Guidelines. State of California Franchise Tax Board

Transcription

1 Nonresident Withholding S Corporation and Partnership Guidelines State of California Franchise Tax Board

2 For additional information, contact the Withholding Services and Compliance Section Telephone: (888) (toll-free call) (916) If you need additional information, please call us. Our automated telephone system allows you to access important information seven days a week, 24 hours a day. If the system does not completely answer your questions, you may speak with a representative Monday through Friday between the hours of 8 a.m. and 5 p.m., except state holidays. Assistance for persons with disabilities: We comply with the Americans with Disabilities Act. Persons with hearing or speech impairments please call TTY/TDD (800) Asistencia Telefonica y en el Internet Dentro de los Estados Unidos, llame al (800) Fuera de los Estados Unidos, llame al (cargos aplican) (916) Sitio en el Internet: Asistencia para personas discapacitadas: Nosotros estamos en conformidad con el Acta de Americanos Discapacitados. Personas con problemas auditivos pueden llamar al TTY/TDD (800) To get forms, publications, and other withholding information, you can visit our Website: Internet Address: Address: WSCS.GEN@FTB.CA.GOV (for non-confidential ) FAX: (916) Mailing Address: (for remitting withholding) Mailing Address: (correspondence) FRANCHISE TAX BOARD PO BOX SACRAMENTO CA WITHHOLDING SERVICES AND COMPLIANCE SECTION FRANCHISE TAX BOARD PO BOX SACRAMENTO CA For FTB Privacy Notice, get form FTB 1131.

3 Table of Contents Page Purpose Law Limited Liability Companies (LLCs) and Limited Liability Partnerships (LLPs) Questions and Answers Part I General Information Part II Domestic (non-foreign) Nonresident S Corporation Shareholders and Partners Withholding Requirements Income Subject to Withholding Entities Subject to Withholding Residency Status Waivers and Reduced Rates Reporting and Sending Withholding Amounts/Due Dates Penalties Part III Foreign (non-u.s.) Partners Withholding Requirements Income Subject to Withholding Entities Subject to Withholding Foreign Status Waivers or Reduced Rates Reporting and Sending Withholding Amounts/Due Dates Penalties Part IV Partnerships and Other Pass-Through Entities That Have Been Withheld Upon Part V Where to Get More Information Index

4 State of California Franchise Tax Board FTB Pub Nonresident Withholding S Corporation and Partnership Guidelines Purpose This publication provides guidance on domestic S corporation shareholders and partners (Part II) and foreign (Part III) nonresident partner withholding requirements. This publication does not cover withholding on payments made to independent contractors or to nonresident sellers of California real estate. For more information on independent contractor or real estate withholding, refer to FTB Pub. 1023, Nonresident Withholding Independent Contractor Rent & Royalty Guidelines, or FTB Pub. 1016, Real Estate Withholding Guidelines. Law Domestic (non-foreign) Nonresident S Corporation Shareholders and Partners California Revenue and Taxation Code (R&TC) Section and the related California regulations require S corporations and partnerships to withhold income taxes when distributing current or prior year income to domestic nonresident S corporation shareholders and partners. Withholding is not required if distributions to a S corporation shareholder or partner are $1,500 or less during the calendar year. Foreign (non-u.s.) Partners R&TC Section requires withholding on income from California sources which is allocated to foreign partners. R&TC Section generally conforms to federal Internal Revenue Code (IRC) Section 1446 to the extent that the income is from California sources. Limited Liability Companies (LLCs) and Limited Liability Partnerships (LLPs) For withholding purposes, both LLCs classified as partnerships and LLPs are treated like partnerships. For purposes of this publication, LLCs and LLPs are generally included in the term partnership and members are generally included in the term partner. LLC and LLP returns are included in the term partnership returns. Form 568 is included in the Form 565. However, LLCs should specifically see Questions relating to consenting and nonconsenting members. Questions and Answers Part I. General Information Note: Most questions and answers which apply to both domestic (non-foreign) nonresident S corporation shareholders and partners and foreign (non-u.s.) partners are included here in General Information and also in Part IV Partnerships and Other Pass-Through Entities That Have Been Withheld Upon, and Part V Where to Get More Information. Questions and answers that are different or unique for domestic and foreign partners are included in Part II Domestic (non-foreign) Nonresident S Corporation Shareholders and Partners and Part III Foreign (non-u.s.) Partners. 1. What is nonresident withholding? Nonresident withholding is a prepayment of California state income or franchise tax for nonresident S corporation shareholders and partners (similar to wage withholding). 2. What forms do S corporations and partnerships use for withholding on nonresident S corporation shareholders and partners? Use Form 592-A, Nonresident Withholding Remittance Statement, to send the payment to the Franchise Tax Board (FTB). Use Form 592, Nonresident Withholding Annual Return, to report the total S corporation and partnership withholding for the year and to transmit Forms 592-B, Nonresident Withholding Tax Statement. Use Form 592-B, Nonresident Withholding Tax Statement, to show the amount subject to withholding and the amount withheld for the year for each nonresident S corporation shareholder and partner. Attach Copy A of Forms 592-B to Form 592 and send to FTB. Send Copies B and C to the S corporation shareholders or partners. Keep Copy D for the S corporation s and partnership s records. Please refer to the instructions for Forms 592, 592-A, and 592-B for more information. 3. How can S corporations and partnerships get the withholding forms? We update our forms annually, so it is important to make sure to use the most current forms. Forms 592 A, 592, 592-B, and other current FTB forms are available on our Website at You can also call us at (888) (toll-free) or (916) to get withholding forms. 4. How do S corporations and partnerships report individual S corporation shareholder and partner withholding information to the FTB? Withholding information is reported on Form 592 B, Nonresident Withholding Tax Statement. S corporations and partnerships must send Copy A of Form 592-B to the FTB. If a S corporation or partnership is filing 250 or more Forms 592-B, the Form 592-B information must be filed with the FTB via magnetic media instead of paper. See FTB Pub. 1023F, Nonresident Withholding Magnetic Media Requirements, for more information on the required file format and record layout. Page FTB Pub (REV )

5 5. How do S corporations and partnerships report withholding information to their S corporation shareholders or partners? S corporations and partnerships must provide each S corporation shareholder or partner who was withheld upon with Copies B and C of Form 592-B. 6. May S corporations and partnerships use Schedule K-1 to report withholding? No. Although withholding is included on Schedule K 1, the withholding must be reported to the FTB, using Form 592 B. 7. Where should S corporations and partnerships send amounts withheld? Send the payment and Form 592-A, Nonresident Withholding Remittance Statement, to: FRANCHISE TAX BOARD PO BOX SACRAMENTO CA Is interest charged on late payments of withholding? Yes. Interest is computed on the unpaid amount from the due date of the withholding payment to the actual date paid. Interest is not a penalty, but compensation for the loss of the use of funds. 9. How can S corporation shareholders and partners determine if California returns are required to be filed? Usually, nonresident S corporation shareholders and partners who receive California source income have a California filing requirement. For more information on the California filing requirements or to order tax forms, call the numbers listed below: From within the United States, call (toll-free)...(800) From outside the United States, call (916) For hearing impaired with TDD, call (toll-free)......(800) You can view, download, and print withholding forms, publications (including Pub. 1017), and California tax forms from the Franchise Tax Board s Website at Tax forms can also be ordered by mail. Written or typed requests should include the requester s name, form numbers and the titles of the forms requested. (If you need a quantity of Form 592-B, specify the quantity needed.) Mail your request to: TAX FORMS REQUEST UNIT FRANCHISE TAX BOARD PO BOX 307 RANCHO CORDOVA CA Please allow two to three weeks for a reply. 10. Does withholding exempt a nonresident S corporation shareholder or partner from the requirement to file a California return? No. The nonresident S corporation shareholder or partner must file a California tax return if the S corporation shareholder or partner meets the filing requirements. 11. Does a waiver of withholding exempt a nonresident S corporation shareholder or partner from the requirement to file a California return? No. A nonresident S corporation shareholder or partner must file a California tax return if the S corporation shareholder or partner meets the filing requirements even if a waiver was granted or the partner was exempt from withholding. 12. Does withholding on S corporation shareholders or partners relieve S corporations and partnerships of the requirement to file California S corporation or partnership returns? No. S corporations or partnerships must file California tax returns if they engage in a trade or business in California or have income from California sources. 13. Can nonresident S corporation shareholders or partners, who believe their withholding will be more than their tax liability, receive an early refund from the FTB? No. Nonresident S corporation shareholders or partners must file California tax returns to claim the withholding. If the withholding is more than the actual tax liability, FTB will refund the overpayment. If the withholding is less than the actual tax liability, additional tax will be due. 14. Are LLCs required to withhold on nonresident members who have signed form FTB 3832, Limited Liability Company Nonresident Members Consent? Yes. The LLCs must withhold on nonresident members who have signed form FTB 3832, Limited Liability Company Nonresident Members Consent. 15. Are LLCs required to withhold on nonresident members if the nonresident members have not signed form FTB 3832, Limited Liability Company Nonresident Members Consent, and the LLCs are paying the non-consenting nonresident tax for the non-consenting members? Yes. Payment of non-consenting nonresident tax does not relieve LLCs of the requirement to withhold on nonresident members. However, LLCs who can show they pay the non-consenting nonresident tax on all non-consenting members may request a waiver of withholding on their non-consenting members from the FTB. FTB Pub (REV ) Page

6 Part II. Domestic (non-foreign) Nonresident S Corporation Shareholders and Partners Withholding Requirements 16. What is the withholding rate? The withholding rate is 7% of distributions of California source income to domestic nonresident S corporation shareholders and partners. 17. When are S corporations and partnerships required to withhold? S corporations and partnerships must withhold on distributions of California source income to nonresident S corporation shareholders and partners. This includes, but is not limited to, distributions of current year income and distributions of prior year income that were not previously reported as income from California sources on the S corporation shareholder s or partner s California return. Withholding is not required if California source income distributed to the S corporation shareholder or partner is $1,500 or less during the calendar year or the S corporation shareholder or partner has received a waiver of withholding from the FTB. See Questions for more information on waivers. Also, certain distributions from investment partnerships are exempt from withholding. (See Question 24.) 18. How does the FTB notify S corporations and partnerships of the withholding requirements? The FTB annually mails notices to S corporations and partnerships that are first time return filers. In addition, notice is considered constructively given yearly in the S corporation and partnership return instructions. S corporations and partnerships that do not file California S corporation or partnership returns when required to file are still considered to have received constructive notice of the withholding requirements. Constructive notification is considered to have been given on the due date of the S corporation and partnership return (without regard to any extensions of time to file). 19. Are there exceptions to withholding? Yes. Withholding is not required if one of the following exceptions are met: The S corporation shareholder or partner is a California resident. The S corporation shareholder or partner is a corporation that is qualified through the California Secretary of State to do business in California or has a permanent place of business in California. The S corporation shareholder or partner is a S corporation or partnership that has a permanent place of business in California. The total distributions of California source income to the S corporation shareholder or partner are less than or equal to $1,500 for the calendar year. The S corporation shareholder or S corporation receives a withholding waiver from the FTB. The partner or partnership receives a withholding waiver from the FTB. The partner is a tax-exempt entity under either California or federal law. The distribution is exempt income. The S corporation shareholder or partner has certified that income was previously reported on the S corporation shareholder s or partner s California tax return. 20. If the S corporation or partnership expects the distributions of California source income to a nonresident S corporation shareholder or partner to exceed $1,500 during the year, should withholding start at the time of the first distribution or when the distribution exceeds $1,500? If the S corporation or partnership expects the total distributions will exceed $1,500 during the calendar year, the S corporation or partnership should begin withholding on the first distribution of California source income to that nonresident S corporation shareholder or partner. When the S corporation or partnership distributes more than $1,500 of California source income to a nonresident S corporation shareholder or partner, the entire distribution is subject to withholding, not just the amount exceeding $1, Will the FTB require catch-up withholding if the S corporation or partnership reasonably believed that California source income distributions for the year would not exceed $1,500, but later determines that the distributions will exceed $1,500? No. If the S corporation or partnership reasonably believed that California source income distributions would not exceed $1,500 for the calendar year, the FTB will not require the S corporation or partnership to catch up withholding for prior distributions. Once the S corporation or partnership determines total distributions of California source income for the calendar year will exceed $1,500, the current and all future distributions of California source income for that year are subject to withholding. 22. Does the $1,500 limit per S corporation shareholder or partner apply to distributions made on a per S corporation or partnership basis, or should other sources of income received by S corporation shareholder or partner be included? The $1,500 threshold applies on a per S corporation or partnership basis. Other sources of income or distributions from other S corporations and partnerships are not considered. Page 6 FTB Pub (REV )

7 Income Subject to Withholding 23. What amounts are subject to withholding? Distributions of California source income are subject to withholding. This is different from foreign partner withholding under R&TC Section 18666, which is based on allocations (not distributions) of income. (See Part III of this publication for withholding on foreign partners.) Note: For withholding purposes, California source income does not include return of capital, income sourced in another state, or other distributions not taxable by California. 24. Is withholding required on distributions by investment partnerships? No. According to R&TC Sections and , income earned by partners in investment partnerships from the buying, selling, or holding of qualified investment securities is not derived from California sources. Therefore, this income is not subject to withholding. Income of nonresident partners, including banks or corporations, derived from qualified investment securities of investment partnerships is considered to be income from the partner s state of residence, except as noted below. Therefore, nonresident partners generally will not be taxed by California on this income. Partnerships should inform their nonresident partners if all or part of their distributive share of income is from qualified investment securities of an investment partnership. Nonresident partners are taxed by California on their distributive share of income from investment partnerships if: The qualified investment securities are interrelated with any other business activity of the nonresident partners that is separate and distinct from the investment activity and is conducted in California, or If the qualified investment securities are acquired with the working capital of a California trade or business in which the nonresident owns an interest. A bank or corporation is taxed on its distributive share of income if it participates in the management of the investment activities or is engaged in a unitary business with another taxpayer that participates in managing the investment activities or has income from California sources. An investment partnership is a partnership that meets the following two criteria: 1. No less than 90% of the cost of the partnership s assets consists of: Qualifying investment securities. Deposits at banks or other financial institutions. Office equipment and office space reasonably necessary to carry on the activities of an investment partnership. 2. No less than 90% of the partnership s gross income is from interest, dividends, and gains from the sale or exchange of qualifying investment securities. Qualifying investment securities include: Common and preferred corporate stock as well as debt securities convertible into common stock. Bonds, debentures, and other debt instruments. Foreign and domestic currency deposits or equivalents and securities convertible into foreign securities. Mortgage or asset-backed securities secured by governmental agencies. Repurchase agreements and loan participations. Foreign currency exchange contracts and forward and futures contracts on foreign currencies. Stock and bond index securities and futures contracts and other similar securities. Regulated futures contracts. Options to purchase or sell any of the preceding qualified investment securities, except regulated futures contracts. Qualifying investment securities do not include an interest in a partnership unless such partnership qualifies as an investment partnership. 25. Is withholding required on distributions that have incurred losses every year? No. The distributions would be a return of capital if the partnerships have incurred losses every year. 26. When are distributions considered a return of capital as opposed to income distributions? Distributions are deemed first from distributable income and second as return of capital. 27. How do you determine the amount subject to withholding with income from inside and outside California? For withholding purposes, use any reasonable method to approximate the ratio of California income to world-wide income. Reasonable methods include using the prior year s ratio or apportionment factors, annualizing current year data and using actual year-to-date figures. (See California Schedule R, Apportionment and Allocation of Income, for more information on apportionment.) The FTB does not expect exactness in meeting this requirement. Making a good faith effort to comply with the withholding requirements, will satisfy this requirement. 28. How is current year income subject to withholding determined before the end of the year? Make a good faith effort to estimate the total amount of California source income for the current year. Where it is impractical or impossible to estimate, use the amount of California source income recognized as of the date of the distribution. FTB Pub (REV ) Page 7

8 29. Are guaranteed payments subject to withholding? Yes. If the guaranteed payments represent income from California sources and are not subject to wage withholding through the California Employment Development Department, the payments are subject to withholding. 30. Are distributions of property subject to withholding? Yes. If the property distribution represents California source income, withholding is required. Withhold based on the fair market value of the property being distributed. 31. If net operating losses (NOLs) are generated in prior years, resulting in NOL carryovers for their S corporation shareholders or partners, is withholding required on current year distributions of California source income? Yes. The FTB requires withholding on distributions of California source income even though NOLs are generated in prior years. NOL carryovers and deductions are determined at the S corporation shareholder or partner level, not at the S corporation or partnership level. 32. If a domestic nonresident S corporation shareholder or partner is a S corporation shareholder or partner in more than one S corporation or partnership, some generating income and others generating losses, may the income and losses be netted to determine if withholding is required? No. A S corporation or partnership that distributes California source income is required to withhold even though the S corporation shareholder or partner has losses from other California S corporations and partnerships. 33. Is withholding required on distributions of prior year income if the S corporation shareholder or partner has already been reported to California? Withholding is not required on distributions of prior year California source income if the S corporation shareholder or partner provides the S corporation or partnership with a signed Form 590-P, Nonresident Withholding Exemption Certificate for Previously Reported Income, certifying that the S corporation shareholder or partner previously reported the income on the S corporation shareholder s or partner s California return. The S corporation or partnership may rely on this certification to waive the withholding obligation on that prior year income for that S corporation shareholder or partner. Entities Subject to Withholding 34. What entities are subject to withholding? Domestic nonresident partners include individuals who are nonresidents of California and corporations that are not qualified by the California Secretary of State to do business in California or do not have a permanent place of business in California. Domestic nonresident partners also include nonresident estates and trusts and partnerships that do not have a permanent place of business in California. Resident S corporation shareholders and partners that have a permanent place of business in California may complete California Form 590, Withholding Exemption Certificate, to exempt them from withholding. See Questions for more information on the use of Form 590 and for definitions of resident and permanent place of business in California. 35. Is withholding required on distributions to irrevocable trusts? Yes. Partnerships must withhold on distributions to irrevocable trusts. 36. Is withholding required on distributions to revocable trusts? Yes. A revocable trust is a trust where the grantor retains substantial control and is deemed to remain the owner. As a result, revocable trusts are not recognized for tax purposes. The determination to withhold depends on the residency of the grantor. If the grantor is a California resident, the grantor may certify to the residency exemption on Form 590, Withholding Exemption Certificate, noting that the grantor is signing as the grantor of a revocable trust. 37. Is withholding required on distributions to estates? Yes. Partnerships must withhold on distributions to estates unless the decedent was a California resident at the date of death. A partnership can rely on a certification by the estate that the decedent was a California resident at the date of death. Use Form 590 for this purpose. 38. Is withholding required on distributions to tax-exempt entities, such as churches and pension plans, i.e., IRA s and other tax-deferred plans? No. Withholding is not required on entities exempt from tax under either California or federal law. The partnership may rely on a completed Form 590, Withholding Exemption Certificate, from the partner stating it is exempt from tax. 39. Is withholding required on distributions to insurance companies? No. Insurance companies pay a gross premium tax to the California Department of Insurance instead of California corporation income or franchise tax. Withholding only applies to income or franchise tax. 40. Is withholding required when a partnership makes distributions of California source income to domestic nonresident partners that are partnerships, publicly-traded partnerships, or master limited partnerships? Yes. Unless the partnership receives a waiver, the partnership is required to withhold on all California source income distributions made to these domestic nonresident partners. Waivers are generally approved on distributions by publicly-traded Page 8 FTB Pub (REV )

9 partnerships and on distributions to brokerage firms and tiered partnerships upon written request. See Questions for more information on waivers. Residency Status 41. How can S corporations and partnerships identify nonresident S corporation shareholders and partners? The following methods are acceptable: 1. Use Form 590, Withholding Exemption Certificate, to certify if they are residents of California or entities not subject to withholding. The S corporations and partnerships should request their S corporation shareholders and partners complete this form if it is likely they meet one of these criteria. Retain this form and do not send a copy to the FTB unless requested. 2. If other than a non-individual, a California street address is an indication of residency status. When a partner has a California street address, withholding is not required and Form 590 is not needed to verify residency status. A valid California street address does not include a California Post Office Box, a broker s address, or an in care of address. If a change of address occurs, reevaluate the residency status. 3. Use other reasonable methods approved by the FTB. 42. Should Form 590, Withholding Exemption Certificate, be completed annually? No. The certification does not need to be renewed annually. Use Form 590 at the start of the S corporation s or partnership s withholding program and when new partners are added. Evaluate the need for securing a new Form 590 for a S corporation shareholder or partner when any indication of a residency change occurs, such as a change of address. 43. Who is a California resident? The term resident includes every individual who is in California for other than a temporary or transitory purpose and every individual domiciled in California who is absent for a temporary or transitory purpose. Generally, an individual who comes to California for a purpose extending over a long or indefinite period will be considered a resident. However, an individual who comes to perform a particular contract of short duration will be considered a nonresident. For more information on residency, get FTB Pub. 1031, Guidelines for Determining Resident Status. 44. What is a permanent place of business in California? A corporation has a permanent place of business in California if it is organized and existing under the laws of California or has qualified to transact intrastate business through the California Secretary of State. A corporation that has not qualified to transact intrastate business. i.e., a corporation engaged exclusively in interstate commerce will be considered as having a permanent place of business in this state only if it maintains a permanent office in this state that is permanently staffed by its employees. Waivers and Reduced Rates 45. When will waivers be allowed? The FTB handles waiver requests on a case-by-case basis and generally grants a waiver when one of the following applies: 1. The S corporation shareholder or partner consistently files California returns and makes estimated tax payments when required. 2. The partner is a partnership. A condition of this waiver is that the partnership, which ultimately passes the income through to entities other than partnerships (such as individuals, corporations, estates or trusts), will withhold on distributions of California source income to its nonresident partners unless the FTB grants a waiver. 3. The S corporation shareholder or partner is included in a group return. Individual nonresidents may elect under R&TC Section to file a group return in lieu of filing an individual Form 540NR, California Nonresident or Part-Year Resident Income Tax Return. For more information on group returns, contact the Franchise Tax Board, Group Filing Program MS L140 Attn: Information Validation Section (732), PO Box 1468, Sacramento, California , Telephone (916) The partner is a newly admitted partner. A newly admitted partner is any entity that becomes a partner after the end of the partnership s taxable year. 5. The partnership is a publicly-traded partnership. 6. The S corporation shareholder or partner can demonstrate that the 7% rate will result in over withholding. Waiver request situations not addressed above are handled on a case-by-case basis. 46. How does one apply for a waiver or reduced rate? Use California Form 588, Nonresident Withholding Waiver Request. Individuals may submit a request, or the S corporation or partnership may submit the request on behalf of its nonresident S corporation shareholders and partners. Complete Form 588 and attach any documentation to support the request. If sufficient information is not provided, the FTB may request additional information or deny the waiver. If the request is submitted, the request must include a list of the nonresident S corporation shareholders or partners, their identification numbers, and the reason for requesting the waiver. Send requests to: FRANCHISE TAX BOARD WITHHOLDING SERVICES AND COMPLIANCE SECTION PO BOX SACRAMENTO CA or FAX the request to the FTB at (916) FTB Pub (REV ) Page 9

10 47. How soon will a response to a waiver or reduced rate request be received? FTB s goal is to respond within two to four weeks from the request date. If additional information is needed, the requester may be contacted or the request may be denied. 48. What are the procedures to get a rush response to waiver requests when making distributions on short notice? Rush requests may be sent via FAX. If you send your request via FAX, do not mail the original to the FTB. Mailing the original could cause a duplication of effort and slow down the response time. The Withholding Services and Compliance Section s FAX number is (916) Must a waiver be requested for each distribution? No. Currently waivers are granted for fixed periods with a maximum expiration date of two years. However, waivers may be granted for a specific distribution, if requested. 50. Does one need to request a waiver from withholding if the S corporation or partnership has no California source income? No. If the distribution is a return of capital (see Question 26) or does not represent California source income, withholding is not required and a waiver is not necessary. Reporting and Sending Withholding Amounts/Due Dates 51. When are withholding amounts due to the FTB? Withholding is due by the 20th day of the month following the date of the distribution. However, you are not required to send withholding until total amounts withheld from all payees, but not previously remitted, exceed $2,500. If previously unremitted amounts do not exceed $2,500 by the end of the calendar year, the withholding is due to the FTB by January 31 of the following year. 52. If more than one partnership is managed by the same general partner, should the funds be paid to the FTB when withholding exceeds $2,500 collectively or for each individual partnership? The $2,500 limit applies to each individual partnership. 53. When are Form 592 and Form 592-B due? Form 592, Nonresident Withholding Annual Return, and Form 592-B, Nonresident Withholding Tax Statement, are due to the FTB by January 31 of the following year for S corporation shareholders and domestic nonresident partners. If the partnership has both domestic nonresident partners and foreign partners, a separate Form 592 should be filed for each group, since the two groups have different due dates. 54. For which year is withholding reported on a distribution of California source income from one or more prior years? The withholding is reported on the withholding forms (Form 592, Nonresident Withholding Annual Return, Form 592-A, Nonresident Withholding Remittance Statement, and Form 592-B, Nonresident Withholding Tax Statement) using the calendar year in which the income was generated. If the withholding applies to more than one year, separate Forms 592-A, 592, and 592-B must be completed for each year. If income generated in prior years has not been previously distributed, distributions will first be considered prior year income, to the extent prior year income was not previously distributed. The balance is considered to be current year income. If income was earned in more than one prior year, the income from the earliest year is considered distributed first. 55. When should withholding on prior year income be reported? If the distribution of prior year income is made after the end of the calendar year in which the income was earned, but before the January 31 due date for Form 592, Nonresident Withholding Annual Return, and Form 592-B, Nonresident Withholding Tax Statement, the withholding may be reported on Forms 592 and 592-B as if the withholding had been done in the just-completed calendar year. If the distribution of prior year income is after January 31 of the year following the calendar year in which the income was earned, Forms 592 and 592-B are not actually due until January 31 of the following year. However, when all of the income from a prior year has been distributed, the withholding agent should file Forms 592 and 592-B as soon as possible so that the S corporation shareholders or partners may file their prior year tax returns without further delay. Note: Attach a note to Form 592 specifying the actual distribution date of the prior year income to avoid being assessed penalties for failing to timely file Form 592-B. Example 1: A nonresident partner s share of partnership California source income for calendar year 2005 is $100,000. The partnership distributes $50,000 in November 2004 and $50,000 in January 2006 before the 2004 year-end Forms 592 and 592-B are due. The partnership withholds on both distributions. The entire $100,000 and related withholding should be reported on 2005 Forms 592 and 592-B by January 31, 2006 to allow the partner to file the 2005 tax return and claim the entire withholding credit. Example 2: The partnership does not make the second distribution in Example 1 until May If the partner does not certify on Form 590-P that the income was already reported on the 2005 California tax return, the second distribution is also subject to withholding. The November 2005 withholding is shown on 2005 Forms 592 and 592-B, which are due by January 31, The May 2005 distribution of 2005 income is shown on 2005 Forms 592 and 592 B, but the forms are not due until January 31, However, to allow the partner to file the 2005 tax return and claim the entire withholding credit, Forms 592 and 592-B should be filed as soon as possible after the distribution. Page 10 FTB Pub (REV )

11 56. Does the due date for Forms 592 and 592-B change if a S corporation or partnership has a fiscal year that ends on a date other than December 31? No. Withholding is reported on a calendar year basis. The due date for filing Forms 592 and 592 B is January 31 regardless of the accounting period adopted. 57. Can an extension to file Forms 592 and 592-B for withholding be requested? No. There is no provision to grant an extension to file Forms 592 and 592-B for domestic nonresident S corporation shareholders or partners. Note: Extensions to file Forms 592 and 592-B for foreign partners (see Question 79) do not apply to Forms 592 and 592-B. 58. Does a federal extension also apply to the filing of Forms 592 and 592-B? No. The federal extension does not apply to the filing of Forms 592 and 592-B. 59. What if more than required is withheld? If the S corporation or partnership has not yet sent the payment to the FTB, refund the excess withholding to the S corporation shareholders or partners. If the excess withholding was already sent to the FTB, the S corporation or partnership should reduce the next withholding payment as long as the next payment is for the same year. If the final payment was made for the year, report the full amount withheld on Form 592-B. The excess credit will be claimed on his or her income tax return. The law does not allow a refund for amounts overwithheld on domestic nonresident S corporation shareholders and partners. Penalties 60. What are the penalties for failure to withhold or failure to send the amounts withheld to the FTB? Failure to withhold, under-withhold, or fails to send the amounts withheld to the FTB is liable for the greater of: the amount actually withheld. the amount of taxes due from the S corporation shareholders or partners, but not more than the amount required to be withheld. In addition, the S corporation or partnership is liable for penalties and interest as if the withholding due to the FTB is the S corporation s or partnership s tax liability. These penalties could include underpayment penalty (5% plus.5% per month from the date payment is due), late filing penalty (5% per month up to a maximum of 25% from the date the return was due to the date filed) and accuracy related penalty (20%). See R&TC Sections 18668, 19132, 19164, 19708, and for further information. 61. Will penalties for under-withholding be assessed when using an estimate to determine the portion of the distribution that represents California source income and that estimate later proves inaccurate? No. The FTB expects that there will be differences between estimated and actual California source income. We will not impose penalties on partnerships that make a good faith effort to comply with the law. 62. What is the penalty for filing Form 592 late? Filing Form 592 late you may be assessed a penalty of 5% of the unpaid tax for each month or part of a month the return is late, up to a maximum of 25% of the unpaid tax. 63. What is the penalty for failing to file complete, correct, and timely Forms 592-B with the FTB? The penalty per Form 592-B is: $15 if filed within 30 days after the due date. $30 if filed by August 1. $50 if filed after August 1 or a correct form is not filed. $100 or 10% of the amount required to be reported (whichever is greater), if the failure is due to intentional disregard of the requirement. 64. What is the penalty for failing to furnish correct and timely Forms 592-B to S corporation shareholders or partners? The penalty for failing to furnish correct and timely Forms 592-B to the S corporation shareholders or partners is $50 per Form 592-B. If the failure is due to intentional disregard of the requirement, the penalty is $100 or 10% of the amount required to be reported (whichever is greater). 65. What is considered a correct Form 592-B? To be considered correct, all required information must be filled out completely and accurately on Form 592-B. (Form 1099 is not acceptable.) If there are more than 250 Forms 592-B, the Form 592 B information must be filed with the FTB using magnetic media in the required format provided in FTB Pub. 1023F, Nonresident Withholding Magnetic Media Requirements. Paper Forms 592-B must be provided to the S corporation shareholders or partners, even if the number of Forms 592-B exceeds Can penalties be withdrawn? Yes. If the failure was due to reasonable cause, the FTB will withdraw the penalty. 67. What is reasonable cause? Reasonable cause is a standard exception to most penalties imposed under the R&TC and the IRC. Generally, reasonable cause exists where the failure to comply occurs despite the exercise of ordinary business care and prudence. The same standards of reasonable cause apply to penalties imposed in the partnership withholding area as currently apply in other areas such as penalties imposed for failure to file income tax returns. FTB Pub (REV ) Page 11

12 Part III. Foreign (non-u.s.) Partners Withholding Requirements 68. What are the withholding rates for foreign partners? The withholding rate is California s highest tax rate for each partner s entity type. The current withholding rates are: Non-corporate partners - 9.3% Corporate partners % Foreign bank and financial institution partners %. 69. When are partnerships with foreign (non-u.s.) partners required to withhold for California purposes? California generally conforms to IRC Section R&TC Section requires partnerships to withhold on amounts subject to IRC Section 1446 withholding which represent California source income effectively connected to a California trade or business. 70. Is there a minimum amount of allocable California source income that must be reached before partnerships must withhold on foreign partners? No. There is no minimum threshold. Partnerships must withhold on all allocable California source income. Income Subject to Withholding 71. What income is subject to withholding? A foreign (non-u.s.) partner s allocable share of California source income is subject to withholding. This is different than for domestic nonresident partners, where the income subject to withholding is limited to the amount of income being distributed. 72. How do the partnerships with income from inside and outside California determine the amount subject to withholding? For withholding purposes, partnerships may use any reasonable method to approximate the ratio of California income to world-wide income. Reasonable methods include using the prior year s ratio or apportionment factors, annualizing current year data and using actual year-to-date figures. (See California Schedule R, Apportionment and Allocation of Income, for more information on apportionment.) The FTB does not expect exactness in meeting this requirement. If the partnership makes a good faith effort to comply with the withholding requirements, it will satisfy this requirement. Entities Subject to Withholding 73. What entities are subject to foreign partner withholding? California conforms to the federal definition of foreign partners. Thus, foreign partners who are nonresident alien individuals, foreign corporations, foreign partnerships, foreign estates, or foreign trusts are subject to foreign partner withholding. Foreign Status 74. How can partnerships identify non-foreign partners? Partnerships should withhold on partners with a foreign address under the foreign partner withholding requirements, unless the partner has documentation to show non-foreign status. Partnerships may rely on a partner s federal certification of non-foreign status. See federal Publication 515, Withholding Tax on Nonresident Aliens and Foreign Entities, for acceptable documentation. However, unless the partner is a California resident, the partnership would be required to withhold under the domestic nonresident partner withholding requirements. Waivers or Reduced Rates 75. May foreign partners receive a waiver from withholding or a reduced rate? No. There is no provision in R&TC Section or IRC Section 1446 to allow waivers or reduced withholding for foreign nonresident partners. Reporting and Sending Withholding Amounts/Due Dates 76. When are withholding payments due for foreign partners? Withholding payments for foreign partners are due in four equal installment payments during the taxable year in which the California source income is derived. The due dates are the same as the federal due dates, on or before the 15th day of the fourth, sixth, ninth, and twelfth months of the partnership s tax year. If any additional amounts are determined to be due at the year end, the additional amounts are required to be paid with the filing of Form 592, Nonresident Withholding Annual Return. 77. When are the Form 592 and Form 592-B due for foreign partners? The due dates for foreign partners are the same as the federal due dates. Therefore, Form 592, Nonresident Withholding Annual Return, and Form 592-B, Nonresident Withholding Tax Statement, are due to the FTB on or before the 15th day of the fourth month (sixth month if all partners are foreign) following the close of the partnership s tax year. Caution: If the partnership withholds on both domestic nonresident partners and foreign partners, a separate Form 592 should be filed for each group since the two groups have different due dates. (See Question 53 for domestic nonresident partner due dates.) Page 12 FTB Pub (REV )

13 78. Can partnerships request an extension to file Forms 592 and 592-B for withholding on foreign partners? Yes. The FTB will grant an extension to file Forms 592 and 592-B for foreign partners if the partnership has received an extension from the IRS to file Form 8804, Annual Return for Partnership Withholding Tax (Section 1446). The partnership should send a copy of the original federal Form 2758, Application for Extension of Time to File Certain Excise, Income, Information, and Other Returns, to the FTB when the request is sent to the IRS. The IRS approval or denial should be attached to Form 592 when the Form 592 is filed with the FTB. Caution: If a partnership has both domestic nonresident and foreign partners, the extension is only effective for the filing of the forms for foreign partners. In addition, the extension only extends the due date for filing the forms with the FTB. It does not extend the due date for any final payment of withholding. 79. If a partnership has received a federal extension to file the partnership return (Form 1065, U.S. Partnership Return of Income), does this extension also apply to the filing of Form 592, Nonresident Withholding Annual Return? No. Partnerships must have received an approval to extend the due date to file Form 8804, Annual Return for Partnership Withholding Tax (Section 1446) on federal Form 2758, Application for Extension of Time to File Certain Excise, Income, Information, and Other Returns. 80. What should the partnership do if the partnership s estimation of the allocable income for withholding results in an amount being overwithheld at year-end based on the partnership s actual allocable income? When the partnership files Form 592, it can either request that the excess credits be applied to the next year s withholding liability or refunded. Penalties 81. Are the policies and penalties related to domestic nonresident partner withholding applicable to foreign partner withholding? All of the policies and penalties are the same except for the penalty for failing to file correct and timely Forms 592-B with the FTB. (See Questions and Questions for policies and penalties which are the same.) 82. What is the penalty for failing to file complete, correct, and timely Forms 592-B with the FTB? The penalty per Form 592-B is: $15 if filed within 30 days after the due date. $50 if filed more than 30 days late or a correct form is not filed. $100 or 10% of the amount required to be reported (whichever is greater) if the failure is due to intentional disregard of the requirement. Part IV. Partnerships and Other Pass Through Entities That Have Been Withheld Upon 83. What are pass-through entities? Pass-through entities include partnerships, LLCs, S corporations, estates, trusts, etc. A pass-through entity may pass through profits or losses to its partners, members, S corporation shareholders, or beneficiaries instead of paying the related tax at the entity level. Partners, members, S corporation shareholders, or beneficiaries must include the passthrough items on their tax returns. 84. May pass-through entities which are withheld upon claim the withholding on their own tax returns? The answer depends on the type of pass-through entity as follows: Partnerships Since partnerships have no tax liabilities except for the annual tax paid by limited partnerships, the withholding can only be claimed on Form 565, Partnership Return of Income, to the extent that the annual tax is still due at the time the return is filed. Partnerships may not receive a refund of withholding on Form 565. The withholding in excess of the tax due on Form 565 must be allocated to the partners. (Even if the partnership will owe tax with Form 565, the partnership can still choose to allocate the entire withholding to its partners instead of using a portion to offset the tax due.) LLCs LLCs can either allocate the entire withholding credit to its members or use a portion of the credit to offset any LLC tax (including nonconsenting nonresident tax) or fees still due with Form 568, Limited Liability Company Return of Income, and allocate any excess to its members. LLCs may not receive a refund of withholding on Form 568. Estates and Trusts Withholding on estates and trusts must follow the income. If the related income is not being distributed in the current year to the beneficiaries, the withholding credit must be claimed on Form 541, California Fiduciary Income Tax Return. If the related income is being distributed in the current year, the withholding credit must be allocated to the beneficiaries. S corporations Since S corporations are taxed at the entity level, S corporations can choose to allocate the withholding credit to their S corporation shareholders, claim the withholding on the S corporation tax return, or use a combination of both. If a pass-through entity claims any of the amount withheld on its tax return, attach the Form 592-B, Form 593-B, or Form 594 from the withholding entity to the front lower portion of the tax return and include a schedule in the body of the return explaining that the remainder of the credit (if any) was allocated. Pass-through entities must also attach a note to Form 592 specifying the amount that will be claimed on its tax return. FTB Pub (REV ) Page 13