Current through Register Vol. 50, No. 9, September 20, 2024
A. Definitions. For the purposes of this
Section, the following terms are defined. Any terms not specifically defined
shall be defined as provided in
R.S.
47:339.
Applicant-any association, corporation,
estate, firm, individual, joint venture, limited liability company,
partnership, receiver, syndicate, trust, or any other entity, combination or
group that has a state or local sales or use tax liability to the commission
and submits or arranges through a representative for the submission of an
application to request a voluntary disclosure agreement for said undisclosed
sales or use tax. Applicants may be registered or unregistered with the
commission. If the application is submitted through a representative, anonymity
of the applicant can be maintained until the commission accepts the application
to request a voluntary disclosure agreement.
Application-a completed application to
request voluntary disclosure agreement or an application for multistate
voluntary disclosure filed with the Multistate Tax Commission's National Nexus
Program and all supplemental information including, but not limited to, cover
letters, schedules, reports, and any other documents that provide evidence of
the applicant's qualification for a voluntary disclosure agreement.
Supplemental information requested by the commission and timely provided by the
applicant shall be considered part of the application.
Application Date-the date a fully completed
application requesting a voluntary disclosure agreement is received by the
commission. Supplemental information requested by the commission timely
provided by the applicant shall not extend or delay the application
date.
Commission-the Louisiana Sales and Use Tax
Commission for Remote Sellers.
Delinquent Penalty-any specific penalty
imposed pursuant to
R.S.
47:1602, 1604.1, 337.70 or 337.73 as a result
of the failure of the taxpayer to timely make any required return or
payment.
Look-Back Period-a period for which an
applicant agrees to disclose and pay the tax and interest due.
Signing Date-the date the voluntary
disclosure agreement is signed by the chairman or his authorized
representative.
Undisclosed Liability-a tax liability that
became due during the look-back period and which has not been determined,
calculated, researched, identified by or known to the commission at the time of
disclosure and which would likely not be discovered through normal
administrative activities. The undisclosed liability must exceed $500 during
the look-back period to qualify for consideration of a voluntary disclosure
agreement. The commission has the discretion to conduct an audit of the
applicant's records to confirm the amount of the undisclosed liability.
Voluntary Disclosure Agreement-a contractual
agreement between an applicant and the commission wherein the applicant agrees
to pay the tax and interest due on an undisclosed liability, and the commission
agrees to remit or waive payment of the whole or any part of the penalty
associated with that liability and to restrict collection of prior liabilities
to the look-back period, except for periods in which tax was collected and not
remitted.
B. Program
Requirements
1. An undisclosed liability will
qualify for a voluntary disclosure agreement if it results from the
underpayment or non-payment of sales tax due to an error in the mathematical
computation of the tax due on the return, interpretation of the law, or process
of reporting the tax due on the return. An undisclosed liability also qualifies
if it resulted from the merger or acquisition of a company that previously
failed to properly report sales and use taxes to the commission.
a. An error in the mathematical computation
of the tax due on the return is an error on the part of the taxpayer in
mathematical computation on the face of the return or on any of the supporting
documents or the unintentional failure to include all amounts necessary for
calculating the correct amount of taxes due on the return.
b. An error in the interpretation of the law
is a construction of the law on the part of the taxpayer contrary to the
commission's construction of the law that caused the applicant to incorrectly
determine that no tax or a smaller amount of tax was due.
c. An error in the process of reporting the
tax due on the return is an error, omission, or a mistake of fact of
consequence to the determination of the tax liability on the part of the
taxpayer.
2.
Notwithstanding the provisions of Paragraph 1 of this Subsection, an applicant
shall fail to comply with the requirements for a voluntary disclosure agreement
under the following conditions.
a. The
applicant is registered as a dealer that is required to report retail sales or
sales at retail, as defined in
R.S.
47:301(4)(m), to the
commission on the application date and the undisclosed liability results from
the applicant's failure to file remote seller sales tax returns.
b. The undisclosed liability results from the
filing of false, fraudulent, or grossly incorrect returns and the circumstances
indicate that the taxpayer had intent to defraud the commission of the tax due
under all state and local sales tax impositions.
c. The applicant has been contacted by the
commission to inquire about a tax matter, including but not limited to nexus, a
potential tax liability or an audit of the taxpayer's records provided such
contact occurred in writing and prior to the application date of the
agreement.
d. The applicant is
affiliated, as defined by law, with an entity that has been contacted by the
commission for the purpose of performing an audit. An applicant shall be
considered in compliance with the requirements of the voluntary disclosure
program after the audit of the affiliated entity has been completed, provided
the undisclosed liability qualifies under the criteria described in Paragraph 1
of this Subsection and the applicant is not disqualified under the criteria
listed in Subparagraphs a, b or c of this Paragraph.
3. Notwithstanding the conditions listed in
Paragraphs 1 and 2 of this Subsection, applicants that applied for a voluntary
disclosure agreement with the commission prior to the effective date of this
rule and subsequently entered into a voluntary disclosure agreement with the
commission shall be deemed to have met the program requirements.
C. Application and Evaluation of
Offer to Enter into a Voluntary Disclosure Agreement
1. Applications to enter into voluntary
disclosure agreements by taxpayers seeking relief from penalties in cases where
a liability to the commission is owed shall be filed on forms provided and in
the manner prescribed by the commission. The applicant or his authorized
representative, acting under the authority of a power of attorney, shall sign
the application, provide a statement of the facts, and include any other
information or declarations required to verify that the applicant has complied
with program requirements. Taxpayers may apply anonymously or disclose their
identity on the application form.
2. If unregistered, the applicant shall apply
to the commission for a sales tax account within 30 days of the application
date.
3. The commission shall
review the application and, based upon the information included therein,
determine if the applicant complies with the requirements for a voluntary
disclosure agreement. If the applicant complies, the offer will be accepted. If
the applicant fails to comply, the offer will be denied.
D. Acceptance of Offer to Enter into
Voluntary Disclosure Agreement
1. After the
commission has reviewed the application and determined from the information
included therein that the applicant qualifies for a voluntary disclosure
agreement, the commission shall send a copy of the agreement, including the
legal name of the taxpayer, to the applicant or the applicant's representative
for signature.
2. The applicant or
applicant's representative, acting under the authority of a power of attorney,
must sign the agreement and return it to the commission within 30 calendar days
of the postmark or e-mail date, or within any extension of time authorized by
the commission beyond 30 calendar days from the postmark or e-mail
date.
3. After the signed agreement
is received from the applicant, the chairman will sign the agreement and return
a copy of the agreement which has been signed by both parties to the
applicant.
4. If the application
was submitted to the Multistate Tax Commission, the applicant shall return
signed agreements in accordance with policies established by the Multistate Tax
Commission.
E.
Determining the Look-back Period and Treatment of Periods prior to the
Look-back Period
1. Except for taxes collected
and not remitted, the look-back period for existing entities shall include that
portion of the current calendar year prior to and including the application
date and the three immediately preceding calendar years or the amount of time
they were required by
R.S.
47:340(G)(6)(a) to be
registered with the commission if less than three years.
2. Except for taxes collected and not
remitted, the look-back period for a discontinued, acquired, or merged entity
shall include the last calendar year in which the discontinued, acquired, or
merged entity had nexus in a jurisdiction and the three immediately preceding
calendar years.
3. For taxes
collected and not remitted, the look-back period shall include all filing
periods in which tax was collected and not remitted up to and including the
application date. This look-back period shall not affect the look-back period
described Paragraphs 1 or 2 of this Subsection for undisclosed liabilities
unrelated to tax collected and not remitted.
4. The commission, in concurrence with the
applicant, may adjust the look-back period to accommodate special
circumstances.
5. Look-back periods
shall be established from the application date, unless the liability results
from a merged or acquired entity as described in Paragraph 2 of this Subsection
or there is mutual agreement to adjust a lookback period as provided in
Paragraph 4 of this Subsection.
6.
Periods prior to the look-back period shall be considered part of the voluntary
disclosure agreement. However, payment is not required for any taxes due for
these periods.
7. Under the
agreement, the applicant and the commission agree to suspend prescription for
the look-back period as follows:
a. through
June 30 of the calendar year subsequent to the signature date when that date
occurs on or after January 1 and on or before June 30; and
b. through December 31 of the calendar year
subsequent to the signature date when that date occurs on or after July 1 and
on or before December 31.
F. Payment of Tax, Interest, and Penalty Due
1. All tax due for the look-back period must
be paid within 60 calendar days of the chairman's signing date of the voluntary
disclosure agreement or within any extension of time authorized by the
commission beyond 60 calendar days of the signing date. All schedules or
returns required by the commission to show the amount of tax due must be
included with this payment.
2. The
commission shall compute the interest and penalty due for the tax disclosed by
the applicant and send a schedule by mail or email to the applicant or his
representative showing the amount of tax, interest and delinquent penalty due.
The applicant must submit payment of the full amount of the interest and any
penalties not abated or waived within 30 calendar days from the postmark or
e-mail date of the schedule or, if applicable, within any extension of time
granted by the commission. If payment of the full amount due has not been
received at the expiration of such time, the commission may void the
agreement.
G. Waiver or
Remittance of Payment of Penalty
1. After all
tax and interest due for the look-back period have been paid, the delinquent
penalties will be abated or waived, unless the tax disclosed was collected but
not remitted.
2. Where the tax was
collected but not remitted, the commission may consider waiving payment of the
whole or any part of the delinquent penalties on a case-by-case
basis.
H. The commission
may disclose tax information to the Multistate Tax Commission or any political
subdivision of the state which has entered into an information exchange
agreement with the commission in order to coordinate the delivery and
acceptance of applications for voluntary disclosure agreements. Any information
so furnished shall be considered and held confidential and privileged by the
Multistate Tax Commission or the political subdivision to the extent provided
by R.S.
47:1508.
I. The commission may conduct an audit of the
lookback period to confirm that the correct amount of tax has been paid.
Interest and penalty may be assessed on tax found due in excess of the amounts
reported under the voluntary disclosure agreement. The commission shall not
assess additional interest or penalty for amounts reported and paid under the
voluntary disclosure agreement except in cases of fraud, material
misrepresentation, or any such misrepresentation of the facts by the
taxpayer.
J. The terms of the
voluntary disclosure agreement shall be valid, binding, and enforceable by and
against all parties, including their transferees, successors, and
assignees.
K. The commission
reserves the right to void the voluntary disclosure agreement if the applicant
fails to comply with any of the conditions outlined in the agreement.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
47:340(G)(11).
