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2010 SESSION
10101742DBe it enacted by the General Assembly of Virginia:
1. That §§ 58.1-393.1, 58.1-394.1, and 58.1-395 of the Code of Virginia are amended and reenacted as follows:
§ 58.1-393.1. Extension of time for filing return by pass-through entity.
A. In accordance with procedures established by the Tax Commissioner, any pass-through entity may elect an extension of time within which to file the report or return required by this article to the date six months after such due date, or 30 days after the extended date for filing the federal report, whichever is later.
B. If the return is not filed on or before the extended due
date elected under subsection A, the penalty imposed by § 58.1-394.1 shall apply as if no extension had been granted from the expiration of the extended due date.
§ 58.1-394.1. Failure of pass-through entity to make a return.
A. Any pass-through entity that fails to file a return
required by this article within the time required shall be liable for a penalty
of $200 if the failure is for not more than one month, with an additional $200
for each additional month or fraction thereof during which such failure to file
continues, not exceeding six months in the aggregate. In no case, however, shall the penalty be less than
$200 the event no tax is
due, the penalty shall be equal to the federal penalty for
the relevant taxable year for the failure to file
a timely return.
B. If any pass-through entity's failure to file a return required by this article exceeds six months, the Department shall assess a penalty of six percent of the total amount of Virginia taxable income derived by its owners from the pass-through entity for the taxable year. The Department may determine such penalty from any information in its possession. The penalty assessed pursuant to this subsection shall be reduced by the penalty assessed pursuant to subsection A and any tax paid by the owners on their share of income from the pass-through entity for the taxable year. In the event no tax is due, the penalty shall be equal to the federal penalty for the relevant taxable year for the failure to file a timely return.
C. The penalties set forth in this subsection section
shall be assessed and collected by the Department in the manner provided for
the assessment and collection of taxes under this chapter or in a civil action,
at the instance of the Department. In addition, such pass-through entity shall
be compellable by mandamus to file such return.
§ 58.1-395. Nonresident owners.
A. Pass-through entities may make written application to the Tax Commissioner for permission to file a statement of combined pass-through entity income attributable to nonresident owners and thereby relieve nonresident owners from filing individual nonresident returns. The application must state the reasons for seeking such permission. The Tax Commissioner, in his sole discretion, may, for good cause, grant permission to file a combined nonresident return upon such terms as he may determine.
B. Any pass-through entity that fails to pay or remit the nonresident withholding permitted in subsection A within the time required to make a return under § 58.1-392, including any extension of time allowed by § 58.1-393.1, shall be liable for a penalty in an amount, as determined by the Tax Commissioner, not to exceed what the federal penalty would be for the relevant taxable year for the underpayment of tax.