MISSISSIPPI LEGISLATURE

2002 Regular Session

To: Finance

By: Senator(s) Bryan

Senate Bill 3036

AN ACT TO AMEND SECTIONS 27-7-309, 27-55-13; 27-55-523, 27-59-13, 27-65-33 AND 27-67-17, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT PERSONS WHO ACCRUE LIABILITY FOR WITHHOLDING TAXES, MOTOR FUEL TAXES, SALES TAXES AND USE TAXES IN AN AMOUNT IN EXCESS OF $10,000.00, SHALL, WITHIN 72 HOURS, PAY THE AMOUNTS FOR WHICH THEY ARE LIABLE; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 27-7-309, Mississippi Code of 1972, is amended as follows:

27-7-309. (1) (a) Except as otherwise provided in this subsection, every employer required to deduct and withhold from wages under this article shall, for each calendar quarter, on or before the fifteenth day of the month following the close of such calendar quarter, file a withholding return as prescribed by the commissioner and pay over to the commissioner the full amount required to be deducted and withheld from wages by such employer for the calendar quarter. Provided that the commissioner may, by regulation, provide that every such employer shall, on or before the fifteenth day of each month, pay over to the commissioner or a depository designated by the commissioner, the amount required to be deducted and withheld by such employer for the preceding month, if such amount is One Hundred Dollars ($100.00) or more. Returns and payments placed in the mail must be postmarked by the due date in order to be timely filed, except when the due date falls on a weekend or holiday, returns and payments placed in the mail must be postmarked by the first working day following the due date in order to be considered timely filed.

(b) Once an employer who is require to deduct and withhold from wages under this article has deduced and withheld in excess of Ten Thousand Dollars ($10,000.00), such employer shall, within seventy-two (72) hours, pay over to the commissioner or a depository designated by the commissioner, all amounts he has deducted and withheld. Such payments shall be made in the manner prescribed by the commissioner.

(c) The commissioner may promulgate rules and regulations to require or permit filing periods of any duration, in lieu of monthly or quarterly filing periods, for any taxpayer or group thereof.

(2) Notwithstanding any of the other provisions of this section, all transient employers and all employers engaged in any business which is seasonal shall make return and pay over to the commissioner on a monthly basis, the full amounts required to be deducted and withheld from the wages by such employer for the calendar month. Such returns and payments to the commissioner by such employers shall be made on or before the fifteenth day of the month following the month for which such amounts were deducted and withheld from the wages of his employees. The commissioner shall have the authority to issue reasonable rules and regulations designating or classifying said transient and seasonal employers.

(3) If the commissioner, in any case, has justifiable reason to believe that the collection of funds required to be withheld by any employer as provided herein is in jeopardy, he may require the employer to file a return and pay such amount required to be withheld at any time.

(4) Every employer who fails to withhold or pay to the commissioner any sums required by this article to be withheld and paid, shall be personally and individually liable therefor, except as provided in Section 27-7-307; and any sum or sums withheld in accordance with the provisions of this article shall be deemed to be held in trust for the State of Mississippi and shall be recorded by the employer in a ledger account so as to clearly indicate the amount of tax withheld and that the amount is the property of the State of Mississippi.

(5) Once an employer has become liable to a quarterly return of withholding, he must continue to file a quarterly report, even though no tax has been withheld, until such time as he notifies the commissioner, in writing, that he no longer has employees or that he is no longer liable for such quarterly returns.

(6) Once an employer has become liable to a monthly return of withholding, he must continue to file a monthly report, even though no tax has been withheld until such time as he notifies the commissioner, in writing, that he no longer has employees or that he is no longer liable for such monthly returns.

(7) Magnetic media reporting may be required in a manner to be determined by the commissioner.

SECTION 2. Section 27-55-13, Mississippi Code of 1972, is amended as follows:

27-55-13. Except as otherwise provided in this section, for the purpose of determining the amount of his liability for the tax imposed by this article, each bonded distributor of gasoline shall, not later than the twentieth day of the month next following the month in which this article becomes effective, and not later than the twentieth day of each month thereafter, file with the commission a monthly report which shall include a statement of the number of gallons of gasoline or blend stock received by such distributor within this state during the preceding calendar month, and such other information as may be reasonably necessary for the proper administration of this article.

At the time of filing each monthly report with the commission, a distributor may take a credit for the number of gallons of gasoline that he purchased during the preceding calendar month from a distributor who pays the excise tax imposed by this article on such gasoline.

Except as otherwise provided in this section, at the time of filing each monthly report with the commission, each distributor of gasoline shall pay to the commission the full amount of the gasoline tax due from such distributor for the preceding calendar month, less two percent (2%) to cover evaporation, shrinkage and other normal losses.

Reports and payments sent to the commission by mail must be postmarked by the due date in order to be considered timely filed, except when the due date falls on a weekend or holiday, in which case such reports and payments must be postmarked by the first working day following the due date in order to be considered timely filed.

The monthly report of the distributor of gasoline shall be prepared and filed with the commission on forms prescribed by the commission, or the distributor of gasoline may, with the approval of the commission, furnish the required information on machine-prepared schedules. Such monthly reports or schedules shall be signed by the distributor or his duly authorized agent and shall contain a declaration that the statements contained therein are true and correct and are made under the penalty of perjury.

Once a distributor of gasoline has accrued liability for gasoline taxes in excess of Ten Thousand Dollars ($10,000.00), such distributor shall, within seventy-two (72) hours, pay to the commission in the manner prescribed by the commission all amounts for which he is liable.

SECTION 3. Section 27-55-523, Mississippi Code of 1972, is amended as follows:

27-55-523. Except as otherwise provided for in this section, for the purpose of determining the amount of his liability for the tax imposed by this article, each bonded distributor of special fuel shall, not later than the twentieth day of the month next following the month in which this article becomes effective, and not later than the twentieth day of each month thereafter, file with the commission a monthly report which shall include a statement of the number of gallons of special fuel received and sold by such distributor of special fuel within this state during the preceding calendar month, and such other information as may be reasonably necessary for the proper administration of this article.

At the time of filing each monthly report with the commission, a distributor may take a credit for the number of gallons of special fuel that he purchased during the preceding calendar month from a distributor who pays the excise tax imposed by this article on such special fuel.

Except as otherwise provided in this section, at the time of filing each monthly report with the commission, each distributor of special fuel shall pay to the commission the full amount of the special fuel tax due from such distributor for the preceding calendar month.

Reports and payments sent to the commission by mail must be postmarked by the due date in order to be considered timely filed, except when the due date falls on a weekend or holiday, in which case such reports and payments must be postmarked by the first working day following the due date in order to be considered timely filed.

The monthly report of the distributor of special fuel shall be prepared and filed with the commission on forms prescribed by the commission, or the distributor of special fuel may, with the approval of the commission, furnish the required information on machine-prepared schedules. Such monthly reports or schedules shall be signed by the distributor or his duly authorized agent and shall contain a declaration that the statements contained in such report are true and correct and are made under the penalty of perjury.

Once a distributor has accrued liability for special fuel taxes in an amount in excess of Ten Thousand Dollars ($10,000.00), such distributor shall, within seventy-two (72) hours, pay to the commission in the manner prescribed by the commission all amounts for which he is liable.

When special fuel, which would otherwise be taxable under the provisions of this article, is imported, sold, delivered or exported, under conditions which will exclude such special fuel from the tax levied under this article by reasons of one or more of the exemptions provided in this article, deduction for such exempt special fuel may be taken without prior approval of the commission on the monthly report of the bonded distributor of special fuel importing, selling, delivering or exporting such special fuel. Provided, however, that the commission may require proof to be furnished of such deduction for exempt special fuel.

When the Five and Three-fourths Cents (5.75) per gallon tax has accrued or has been paid on special fuel that is taxed at Eighteen Cents (18) per gallon, a deduction of Five and Three-fourths Cents (5.75) per gallon may be made.

SECTION 4. Section 27-59-13, Mississippi Code of 1972, is amended as follows:

27-59-13. Except as otherwise provide in this section, the excise taxes levied in this chapter shall become due and payable on or before the twentieth day of the month succeeding the month in which the tax accrues. Each distributor shall file with the commission a monthly report setting forth the quantity of compressed gas received within this state, less any authorized exemptions; the quantity of compressed gas sold for use on the highways of this state; and any other information as may be reasonably necessary for the administration of this chapter. The distributor shall remit to the commission, with the monthly report, the full amount of the excise tax shown thereon to be due.

Reports and payments sent to the commission by mail must be postmarked by the due date in order to be considered timely filed, except when the due date falls on a weekend or holiday, in which case such reports and payments must be postmarked by the first working day following the due date in order to be considered timely filed.

Once the distributor has accrued liability for excise taxes in an amount in excess of Ten Thousand Dollars ($10,000.00), such distributor shall, within seventy-two (72) hours, pay to the commission in the manner prescribed by the commission all amounts for which he is liable.

An amount equal to One-fourth Cent (1/4) per gallon on all compressed gas shown to be taxable for highway use may be deducted; provided, that the One-fourth Cent (1/4) per gallon tax on such compressed gas has been paid or is covered by the bond of a distributor of compressed gas.

The monthly report of the distributor shall be prepared and filed with the commission on forms prescribed by the commission or the distributor may, with the approval of the commission, furnish the required information on machine-prepared schedules. Such monthly reports shall be signed by the distributor or his duly authorized agent and contain a declaration that the statements contained therein are true and are made under the penalty of perjury.

All persons storing compressed gases, excepting natural gas, in underground caverns or cavities in this state shall make monthly reports of withdrawals of such compressed gases from storage, on forms prescribed by the commission at the same time, in the same manner, and subject to the same terms, conditions and penalties as is otherwise provided for distributors of compressed gas. Sales and deliveries of compressed gases to nonpermitted distributors shall be listed and reported on such reports separately from sales and deliveries to permitted distributors.

SECTION 5. Section 27-65-33, Mississippi Code of 1972, is amended as follows:

27-65-33. Except as otherwise provided in this section, the taxes levied by this chapter shall be due and payable on or before the twentieth day of the month next succeeding the month in which the tax accrues, except as otherwise provided. Returns and payments placed in the mail must be postmarked by the due date in order to be considered timely filed, except when the due date falls on a weekend or holiday, returns and payments placed in the mail must be postmarked by the first working day following the due date in order to be considered timely filed. The taxpayer shall make a return showing the gross proceeds of sales or the gross income of the business, and any and all allowable deductions, or exempt sales, and compute the tax due for the period covered.

As compensation for collecting sales and use taxes, complying fully with the applicable statutes, filing returns and supplements thereto and paying all taxes by the twentieth of the month following the period covered, the taxpayer may discount and retain two percent (2%) of the liability on each return subject to the following limitations:

(a) The compensation or discount shall not apply to taxes levied under the provisions of Sections 27-65-19 and 27-65-21, or on charges for ginning cotton under Section 27-65-23.

(b) The compensation or discount shall not apply to taxes collected by a county official or state agency.

(c) The compensation or discount shall not exceed Fifty Dollars ($50.00) per month, or Six Hundred Dollars ($600.00) per calendar year, per business location on each state sales tax return, or on each use tax return.

(d) The compensation or discount shall not apply to any wholesale tax, the rate of which is equal to or greater than the tax rate applicable to retail sales of the same property or service. The retailer of such items shall be entitled to the compensation based on the tax computed on retail sales before application of the credit for any tax paid to the wholesaler, jobber, or other person.

(e) The compensation or discount allowed and taken for any filing period may be reassessed and collected when an audit of a taxpayer's records reveals a tax deficiency for that period.

Once the taxpayer has accrued liability for sales taxes in excess of Ten Thousand Dollars ($10,000.00), such taxpayer shall, within seventy-two (72) hours, pay to the commission in the manner prescribed by the commission all amounts for which he has become liable.

All returns shall be sworn to by the taxpayer, if made by an individual, or by the president, vice president, secretary or treasurer of a corporation, or authorized agent, if made on behalf of a corporation. If made on behalf of a partnership, joint venture, association, trust, estate, or in any other group or combination acting as a unit, any individual delegated by such firm shall swear to the return on behalf of the taxpayer. The commissioner may prescribe methods by which the taxpayer may swear to his return.

The commissioner may promulgate rules and regulations to require or permit filing periods of any duration, in lieu of monthly filing periods, for any taxpayer or group thereof.

The commissioner may require the execution and filing by the taxpayer with the commissioner of a good and solvent bond with some surety company authorized to do business in Mississippi as surety thereon in an amount double the aggregate tax liability by such taxpayer for any previous three (3) months' period within the last calendar year or estimated three (3) months' tax liability. Said bond is to be conditioned for the prompt payment of such taxes as may be due for each such return.

The commissioner, for good cause, may grant such reasonable additional time within which to make any return required under the provisions of this chapter as he may deem proper, but the time for filing any return shall not be extended beyond the twentieth of the month next succeeding the regular due date of the return without the imposition of interest at the rate of one percent (1%) per month or fractional part of a month from the time the return was due until the tax is paid.

For persistent, willful, or recurring failure to make any return and pay the tax shown thereby to be due by the time specified, there shall be added to the amount of tax shown to be due ten percent (10%) damages, or interest at the rate of one percent (1%) per month, or both.

Any taxpayer may, upon making application therefor, obtain from the commissioner an extension of time for the payment of taxes due on credit sales until collections thereon have been made. When such extension is granted, the taxpayer shall thereafter include in each monthly or quarterly report all collections made during the preceding month or quarter, and shall pay the taxes due thereon at the time of filing such report. Such permission may be revoked or denied at the discretion of the commissioner when, in his opinion, a total sales basis will best reflect the taxable income or expedite examination of the taxpayer's records.

Any taxpayer reporting credit sales before collection thereof has been made may take credit on subsequent returns or reports for bad debts actually charged off, if such amounts charged off have previously been included in taxable gross income or taxable gross proceeds of sales, as the case may be, and the tax paid thereon. However, any amounts subsequently collected on accounts that have been charged off as bad debts shall be included in subsequent reports and the tax shall be paid thereon.

In cases where an extension of time has been granted by the commissioner for payment of taxes due on credit sales and the taxpayer thereafter discontinues the business, such taxpayer shall be required to file with the commissioner within ten (10) days, or such further time as the commissioner may direct, from the date of the discontinuance of such business, a special report showing the amounts of any credit sales which have not been included in determining the measure of the tax previously paid and any other information with reference to credit sales as the commissioner may require. The commissioner shall thereupon investigate the facts with reference to credit sales and the condition of the accounts, and shall determine, from the best evidence available, the value of all open accounts, notes, or other evidence of debt arising from credit sales. The value of all notes, open accounts and other evidence of debt, as thus determined by the commissioner, shall be used in determining the amount of the tax for which such taxpayer shall be liable. When the amount of the tax shall have been ascertained, the taxpayer shall be required to pay the same within ten (10) days or such further time as the commissioner may allow, notwithstanding the fact that such note or accounts may still remain uncollected.

SECTION 6. Section 27-67-17, Mississippi Code of 1972, is amended as follows:

27-67-17. Except as otherwise provide in this section, the commissioner shall collect the tax imposed by this article, and every person subject to its provisions shall remit to the commissioner, on or before the twentieth day of each month, the amount of tax due by such person for the preceding calendar month. Returns and payments placed in the mail must be postmarked by the due date in order to be timely filed, except that when the due date falls on a weekend or holiday, returns and payments placed in the mail must be postmarked by the first working day following the due date in order to be considered timely filed. Every taxpayer shall file a return with his remittance, which return shall be prescribed by the commissioner and shall show for the calendar month preceding the tax payment date, the total sale or purchase price, or value of tangible personal property sold, used, stored or consumed by him for benefit received or service performed, and such other information as the commissioner may deem pertinent and necessary for determining the amount of tax due thereunder.

The commissioner, in his discretion, may authorize in writing the filing of returns and the payment of tax on a quarterly basis by any person required or authorized to pay the tax imposed, such authority to be subject to revocation for good cause by the commissioner.

In instances where it is impractical to file returns and pay the tax monthly or quarterly, the commissioner may authorize the filing of semiannual or annual returns.

Once the taxpayer has accrued liability for the tax in excess of Ten Thousand Dollars ($10,000.00), such taxpayer shall, within seventy-two (72) hours, pay to the commissioner in the manner prescribed by the commissioner, all amounts for which he is liable.

The commissioner, in his discretion, may authorize the computation of the tax on the basis of a formula in lieu of direct accounting of specific properties in instances where such method will expedite, simplify or provide a more equitable means of determining liability under this article. All formulas shall be subject to revocation for good cause by the commissioner.

SECTION 7. This act shall take effect and be in force from and after July 1, 2002.