Bill Summary for S 322 (2021-2022)

Summary date: 

Mar 18 2021

Bill Information:

View NCGA Bill Details2021
Senate Bill 322 (Public) Filed Thursday, March 18, 2021
AN ACT TO UPDATE THE REFERENCE TO THE INTERNAL REVENUE CODE; TO MAKE VARIOUS TECHNICAL, ADMINISTRATIVE, AND CLARIFYING CHANGES TO THE REVENUE LAWS AS RECOMMENDED BY THE DEPARTMENT OF REVENUE; TO REDUCE THE IMPACT OF THE FEDERAL STATE AND LOCAL TAX DEDUCTION CAP; TO MODIFY THE EXCISE TAX ON PREMIUM CIGARS; TO EXTEND THE TIME TO COMPLETE AN ELIGIBLE PROJECT UNDER THE MILL REHABILITATION TAX CREDIT PROGRAM; TO LIMIT THE GROSS PREMIUMS TAX ON SURETY BONDS; TO PROVIDE TAX PARITY FOR SHORT-TERM VEHICLE RENTALS; TO GRADUATE LATE PAYMENT PENALTIES; AND TO CREATE A SEPARATE STATE NET LOSS CALCULATION FOR INDIVIDUAL INCOME TAX PURPOSES.
Intro. by Newton, Rabon, Daniel.

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Bill summary

Identical to H 279, filed 3/11/21.

Part I. IRC Update

Amends GS 105-228.90 to update the term Code as it applies to the general administration of taxation to mean the Internal Revenue Code as enacted as of January 1, 2021 (currently, May 1, 2020).

Amends GS 105-153.5(a)(2)b. to modify the allowable itemized deduction an individual may elect to deduct from their gross income for mortgage expense and property tax. Prohibits the amount allowed as a deduction for interest paid or accrued during the taxable year under the Code with respect to any qualified residence from including the amount for mortgage insurance premiums treated as qualified residence interest for taxable years 2014 through 2021 (currently limited to taxable years 2014 through 2020).

Amends GS 105-153.5(c2) to modify the required adjustments to an individual’s gross income, which are decoupled from federal requirements. Requires the taxpayer to add the amounts excluded from the taxpayer’s gross income for the discharge of qualified principal residence indebtedness and qualified tuition and related expenses under the Code for taxable years 2014 through 2025 (currently limited to taxable years 2014 through 2020). Requires the taxpayer to add the amounts excluded from the taxpayer's gross income for payment by an employer of principal or interest on any qualified education loan incurred by the taxpayer for education of the taxpayer for taxable years 2020 through 2020 (currently limited to taxable year 2020), expanding the purpose of the provision to include decoupling from the federal exclusion of payments under the Consolidated Appropriations Act, 2021. Adds a new decoupling provision for taxable years 2021 and 2022 to require a taxpayer to add an amount equal to the amount which the taxpayer's deduction under of the specified section of the Code, regarding business-related expenses for food and beverages provided by a restaurant, exceeds the deduction that would have been allowed under the Code enacted as of May 1, 2020, stating the purpose of the provision is to decouple from the increased federal deduction under the Consolidated Appropriations Act, 2021.

Part II. Exempt COVID-19 Relief from Homestead Income

Deems Extra Credit Grants and COVID-19 Recovery Rebates, as defined, not to be considered income for purposes of determining a person's eligibility under the elderly or disabled property tax homestead exclusion of GS 105-277.1.

Part III. Personal Income Tax Changes

Amends GS 105-153.5(b) to extend the sunset for the personal income tax deduction for amounts granted to the individual under the Extra Credit Grant program, now setting the provision to expire on January 1, 2022, rather than January 1, 2021.

Modifies and adds to the decoupling adjustments set forth in GS 105-135.5(c2) for individual income tax. Clarifies that the add-back provision for taxable years 2019 and 2020 under subdivision (17) regarding federal deduction for business interest expenses that would have been allowed under the Code as enacted on January 1, 2020, is not required to the extent the amount was required to be added back under another provision of subsection (c2). Enacts GS 105-135.5(c2)(21) to allow a taxpayer who made an addition under subdivision (17) to deduct 20% of the addition in each of the taxable years 2021 through 2025.

Makes a technical change to remove a statutory reference in GS 105-153.9 which has since been repealed. 

Amends GS 105-163.7 to modify the deadlines for informational returns due to the Secretary of Revenue (Secretary) to now require an employer who terminates its business before the close of the calendar year to file its informational return on or before the last day of the month following the end of the calendar quarter in which the employer terminates its business, but no later than January 31 of the succeeding year (previously required filing within 30 days of the last payment of remuneration for employers who terminated business or permanently ceased paying wages during the calendar year).

Enacts GS 105-163.8(c) to require the Secretary to estimate the individual tax due and assess the withholding agent based on the estimate if a withholding agent fails to file a return and pay the tax due under Article 4A or fails a grossly incorrect or false or fraudulent return.

Amends GS 105-241.6(b), regarding exceptions to the statute of limitations for individual tax refunds. Now establishes that the period to request a refund of individual overpayment is six months after the end of an event that a taxpayer claims prevents the taxpayer from filing an accurate and definite request within the statutory period. Requires rather than permits the taxpayer to submit a written request to the Secretary seeking an extension prior to the statute of limitations.

Amends GS 105-252.1 to now prohibit a TTIN (Truncated Taxpayer Identification Number) from being used on any return, statement, or other document required to be filed or furnished to the Department of Revenue (DOR) unless specifically authorized by the Secretary, rather than specifically authorized by statute in GS Chapter 105.

Part IV. Corporate Income Tax Changes

Amends GS 105-83, which governs privilege taxes for installment paper dealers, to exclude from the statute's scope banks and savings and loans associations (currently, corporations liable under a since repealed statutory cross-reference, and savings and loans associations). Defines bank by statutory cross-reference. Applies retroactively for taxable years beginning on or after July 1, 2016.

Amends GS 105-130.5(a), regarding additions to federal corporate income tax. Clarifies that regarding the required addition of amounts equal to the deduction for business-related interest expenses for taxable years 2019 and 2020 which would have been allowed under the Code as enacted on January 1, 2020, under subdivision (31), the add-back is not required to the extent the amount was required to be added back under another provisions of subdivision (31). Enacts GS 105-130.5(b)(33) to permit a taxpayer who made an addition under subdivision (a)(31) to deduct 20% of the addition in each of the taxable years 2021 through 2025.

Amends the Secretary's authority to adjust the net income of a corporation under GS 105-130.5A to authorize the Secretary to require the corporation to file a return that reflects the net income on a combined basis of all members of its affiliated group with intercompany transactions that are conducting a unitary business when authorized adjustments are not adequate to redetermine State net income (previously did not specify for members of its affiliated group with intercompany transactions for this authority). Regarding voluntary redetermination, authorizes the Secretary and a corporation to jointly agree to a combined return methodology that accurately reports State net income (currently refers to agreement to alternative filing). Adds a new provision to prohibit a combined return from achieving tax benefits when the Secretary finds intercompany transactions do not distort income properly attributable to the State or could otherwise be corrected without a combined return. Makes the Secretary's authority regarding methods for redetermination subject to the statute's provisions and that of GS 105-130.7A, which governs the option of royalty income reporting. Makes further changes to provisions regarding required combined returns to refer to members of a group that have intercompany transactions. Expands the statute's penalty provisions to replace the statutory reference to negligence penalties regarding consolidated or combined returns in GS 105-236(a)(5)f. to instead refer to the entire subdivision regarding negligence,(a)(5).

Amends GS 105-130.7B to add that the limitation on qualified interest expense does not apply to interest paid or accrued to a related member if the proportionate amount of interest paid or accrued to a related member has already been disallowed by the application of another specified section of the Code regarding the limitations on business interest. Applies retroactively for taxable years beginning on or after January 1, 2018.

Regarding the corporate net loss provisions in the context of mergers and acquisitions under GS 105-130.8A, requires the Secretary to apply the net economic loss standards of GS 105-130.8 (repealed for taxable years beginning on or after January 1, 2015) for mergers and acquisitions occurring prior to January 1, 2015, and the standards of the statute, which requires the Secretary to apply federal regulations, for taxable years beginning on or after January 1, 2015.

Adds to the kinds of information the Secretary can request of a corporation under GS 105-251 to include financial or tax documentation required to determine the appropriate adjustment under GS 105-130.5A, as amended. Authorizes the Secretary to propose any adjustment allowable under the corporate income tax provisions of Part I, Article 4 of the Chapter if the information is not timely provided as required by GS 105-130.5A.

Part V. Sales and Use Tax Changes

Amends GS 105-164.13E to exempt fowl, rather than baby chicks and poults, purchased by qualifying farmers from sales and use tax. Applies retroactively to purchases made on or after July 1, 2020. 

Eliminates the authorized disclosure of tax information by State officers, employees and agents under GS 105-259(b) for the purpose of furnishing a list of the utility taxable gross receipts and piped natural gas tax revenues attributable to a city to the appropriate finance officials of the city.

Part VI. Excise Tax Hearings Changes

Makes the following changes to the revocation procedure for tobacco product licenses under GS 105-113.4B. Authorizes the Secretary to summarily revoke a license when the Secretary determines (rather than finds) that the licensee is incurring liability after failure to pay applicable taxes when due. Requires notice of revocation and notice of hearing to be held within 10 days of the notice, unless the licensee requests the hearing to be rescheduled before the date of the hearing whereby the Secretary must reschedule the hearing to allow for 10 days' notice. Establishes that the revocation is not stayed pending the hearing decision. Details notice of hearing requirements. Requires the Secretary to issue a final decision and notify the revoked licensee in writing within 10 days of the hearing stating the basis of the decision, though the stated basis is not binding on DOR. Details the required procedure for revocation applicable to non-summary revocations, which include, (1) notice of the proposed revocation that includes the basis and effectiveness of the proposed revocation as well as the circumstances under which revocation will not occur and an explanation of how the licensee can contest the proposed revocation, (2) deeming any proposed revocation final, and not subject to further administrative review, if not timely contested by requesting a hearing within 45 days of the proposed revocation notice, and (3) requiring the Secretary to conduct a hearing with 20 days' written notice, if timely requested, and issue a final decision and notify the licensee within 60 days of the hearing, with extension allowed upon mutual agreement, with the final decision, basis for the decision which is not binding on DOR, and if applicable, the effectiveness of revocation. Establishes criteria for delivery of notice and return of credentials.

Enacts GS 105-449.47B, establishing substantively identical authority of the Secretary and revocation procedure for motor carrier licenses or decals for noncompliance with Articles 36B, 36C or 36D, as that provided for non-summary revocations in GS 105-113.4B, as amended. 

Amends GS 105-449.76 to modify the procedures for summary and non-summary revocations of fuel importer licenses to be the same as those provided in GS 105-113.4B, as amended. 

Amends GS 119-19 to modify the procedures for summary and non-summary revocations of kerosene suppliers, distributors and operators, and dyed diesel fuel distributors' licenses for noncompliance with Article 3 or Article 36C or 36D of GS Chapter 105, to be the same as those provided in GS 105-113.4B, as amended. Adds to the procedure required for cancellation of a license upon written request of the licensee to require the request to include a proposed effective date, and require the license be returned on or before the proposed effective date. Otherwise cancels the license within 15 days after DOR receives the request. Requires the inclusion of an explanatory statement when a license cannot be returned. Requires the Secretary to notify the licensee when the license is cancelled. 

Applies to summary revocations and non-summary revocations initiated by DOR on or after January 1, 2022.

Part VII. Excise Tax Changes

Recodifies GS 105-113.8 as GS 105-113.4H, regarding the federal Constitution and statutes applicable to tobacco products tax. 

Recodifies GS 105-113.11 as GS 105-113.4I. Amends the statute, expanding the licensure mandate regarding engagement in the tobacco product business in the State to include wholesale dealers and retail dealers in addition to the existing requirement for distributors.

Recodifies GS 105-113.29 as GS 105-113.4J. Amends the statute to make conforming changes, expanding the prohibition on operating an unlicensed business that sells, offers for sale, or possess with the intent to sell tobacco products.

Recodifies GS 105-113.33 as GS 105-113.4K, regarding criminal penalties for violations.

Amends GS 105-113.18 to exclude licensed distributors from the required use tax reports.

Amends GS 105-113.35 to no longer allow a manufacturer to request a waiver from tax on vapor products shipped to either a wholesale dealer or retail dealer.

Amends GS 105-113.37 to specify that tobacco product taxes levied by the Part (rather than the Article) are payable by a licensed wholesale dealer or licensed retail dealer when the monthly report is required to filed covering tobacco products, excluding cigarettes. Adds a new requirement for persons not licensed as wholesale dealers or retail dealers that have acquired non-tax-paid tobacco products other than cigarettes to file a report with the Secretary within 96 hours after receipt, showing the product amount and any other required information, along with the tax owed.

Amends GS 105-113.83 to relieve alcoholic beverage excise tax liability for breweries or wineries who have transferred malt beverages or wine, so long as specified conditions are met, with the wholesaler receiving the transfer liable for the tax due. Makes organizational changes.

Amends GS 105-113.86 to authorize the Secretary to require, rather than mandating, wholesalers or importers to furnish a bond of at least $5,000. Additionally authorizes the Secretary to require a distillery to furnish a similar bond of at least $2,000. Makes clarifying and conforming changes.

Amends GS 105-236 to include failure to pay a license required under GS 105-113.4I, as recodified and amended, after written notification from DOR, among those actions which are punishable by a $1,000 penalty. Applies to penalties assessed on or after January 1, 2022.

Adds to GS 105-449.45 regarding penalties for failure of motor carriers to file a return as required. Adds a new penalty for failing to pay the tax, set at the greater of $50 or 10% of the tax due. Provides exceptions and authorizes the Secretary to reduce or waive a penalty under specified state law.

Adds fuel grade ethanol to the defined terms set out in GS 105-449.60, applicable to Article 36C, defined by specified federal standards. Makes conforming changes to the defined term gasohol, now defining the term to mean a blended fuel composed of gasoline and fuel alcohol or gasoline and ethanol. Effective January 1, 2022.

Amends the duties of a transporters of motor fuel by railroad tank car or transport truck under GS 105-449.115 to include maintaining a copy of the shipping document at a centralized place of business for at least three years from the date of delivery. Modifies the language of the duties of the transporter related to delivery to no longer refer to printed specifications. Makes technical and clarifying changes. Eliminates the review required of the person receiving the shipment to determine an NC destination. Adds a new requirement for the receiver to maintain a copy of the shipping document for three years from the date of delivery. Makes similar changes to GS 105-449.115A regarding the duties of transporters and receivers of fuel by tank wagon. Adds to the duties of the transporter (1) delivery of the motor fuel to the person designated in the shipping document unless three conditions are satisfied, and (2) provision of a copy of the shipping document to the person to whom the motor fuel is delivered. Enacts duties of the person receiving the shipment to mirror those of receivers under GS 105-449.15, as amended. Effective January 1, 2022.

Amends GS 105-449.123 to replace the civil penalty provided for failure to properly mark dyed fuel storage facilities. Sets the penalty at $250, with each inspection that results in a finding of noncompliance constituting a separate and distinct offense (previously set at amounts equal to the tax at the motor fuel rate on the inventory held in the violating storage tank, or if that cannot be determined, the capacity of the storage tank). Applies to penalties assessed on or after January 1, 2022. 

Part VIII. Local Government Tax Changes

Corrects a statutory cross-reference in GS 105-278.

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