25-A-65 - Additions to tax and civil penalties.
§ 65. Additions to tax and civil penalties.--(a) Failure to file tax return.--In case of failure to file a tax return under this local law on or before the prescribed date (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return five per cent of the amount of such tax if the failure is for not more than one month, with an additional five per cent for each additional month or fraction thereof during which such failure continues, not exceeding twenty-five per cent in the aggregate. For this purpose, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed upon the return. (b) Deficiency due to negligence.--If any part of a deficiency is due to negligence or intentional disregard of this local law or rules or regulations hereunder (but without intent to defraud), there shall be added to the tax an amount equal to five per cent of the deficiency. (c) Failure to file declaration or underpayment of estimated tax.--If any taxpayer fails to file a declaration of estimated tax or fails to pay all or any part of an installment of estimated tax, he shall be deemed to have made an underpayment of estimated tax. There shall be added to the tax for the taxable year an amount at the rate of six per centum per annum upon the amount of the underpayment for the period of the underpayment but not beyond the fifteenth day of the fourth month following the close of the taxable year. The amount of underpayment shall be the excess of the amount of the installment which would be required to be paid if the estimated tax were equal to seventy per cent of the tax (two-thirds of the tax for farmers referred to in subdivision (e) of section thirty-five) shown on the return for the taxable year (or if no return was filed, of the tax for such year) over the amount, if any, of the installment paid on or before the last day prescribed for such payment. No underpayment shall be deemed to exist with respect to a declaration or installment otherwise due on or after the taxpayer's death. (d) Exception to addition for underpayment of estimated tax.--The addition to tax under subdivision (c) with respect to any underpayment of any installment shall not be imposed if the total amount of all payments of estimated tax made on or before the last date prescribed for the payment of such installment equals or exceeds whichever of the following is the lesser-- (1) The amount which would have been required to be paid on or before such date if the estimated tax were whichever of the following is the least-- (A) The tax shown on the return of the individual for the preceding taxable year, if a return showing a liability for tax was filed by the individual for the preceding taxable year and such preceding year was a taxable year of twelve months, or (B) An amount equal to the tax computed, at the rates applicable to the taxable year, on the basis of the taxpayer's status with respect to personal exemptions for the taxable year, but otherwise on the basis of the facts shown on his return for, and the law applicable to, the preceding taxable year, or (C) An amount equal to seventy per cent of the tax for the taxable year (two-thirds of the tax for farmers referred to in subdivision (e) of section thirty-five) computed by placing on an annualized basis the taxable income for the months in the taxable year ending before the month in which the installment is required to be paid. For purposes ofthis subparagraph, the taxable income shall be placed on an annualized basis by-- (i) multiplying by twelve (or, in the case of a taxable year of less than twelve months, the number of months in the taxable year) the taxable income (computed without deduction for personal exemptions) for the months in the taxable year ending before the month in which the installment is required to be paid, (ii) dividing the resulting amount by the number of months in the taxable year ending before the month in which such installment date falls, and (iii) deducting from such amount the deductions for personal exemptions allowable for the taxable year (such personal exemptions being determined as of the last date prescribed for payment of the installment); or (2) An amount equal to ninety per cent of the tax computed, at the rates applicable to the taxable year, on the basis of the actual taxable income for the months in the taxable year ending before the month in which the installment is required to be paid. For the purposes of this subdivision the amounts specified in subparagraphs (B) and (C) of paragraph (1) and in paragraph (2) shall be computed without regard to any increase in the rates applicable to the taxable year unless such increase was enacted at least thirty days prior to the time a declaration or amended declaration of estimated tax is required to be filed for such taxable year. (e) Deficiency due to fraud.--If any part of a deficiency is due to fraud, there shall be added to the tax an amount equal to fifty per cent of the deficiency. This amount shall be in lieu of any other addition to tax imposed by subdivision (a) or (b). (f) Non-willful failure to pay withholding tax.--If any employer, without intent to evade or defeat any tax imposed by this local law or the payment thereof, shall fail to make a return and pay a tax withheld by him at the time required by or under the provisions of section fifty-four, such employer shall be liable for such tax and shall pay the same together with interest thereon and the addition to tax provided in subdivision (a), and such interest and addition to tax shall not be charged to or collected from the employee by the employer. The administrator shall have the same rights and powers for the collection of such tax, interest and addition to tax against such employer as are now prescribed by this title for the collection of tax against an individual taxpayer. (g) Willful failure to collect and pay over tax.--Any person required to collect, truthfully account for, and pay over the tax imposed by this local law who willfully fails to collect such tax or truthfully account for and pay over such tax or willfully attempts in any manner to evade or defeat the tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. No addition to tax under subdivisions (b) or (e) shall be imposed for any offense to which this subdivision applies. (h) Failure to file certain information returns.--In case of each failure to file a statement of a payment to another person, required under authority of subdivision (c) of section thirty-eight (relating to information at source, including the duplicate statement of tax withheld on wages) on the date prescribed therefor (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not to willful neglect, there shall, upon notice and demand by the administrator and in the same manner as tax, be paid by the person so failing to file the statement, a penalty of onedollar for each statement not so filed, but the total amount imposed on the delinquent person for all such failures during any calendar year shall not exceed one thousand dollars. (i) Additional penalty.--Any person who with fraudulent intent shall fail to pay, or to deduct or withhold and pay, any tax, or to make, render, sign or certify any return or declaration of estimated tax, or to supply any information within the time required by or under this local law, shall be liable to a penalty of not more than one thousand dollars, in addition to any other amounts required under this local law, to be imposed, assessed and collected by the administrator. The administrator shall have the power, in his discretion, to waive, reduce or compromise any penalty under this subdivision. (j) Additions treated as tax.--The additions to tax and penalties provided by this section shall be paid upon notice and demand and shall be assessed, collected and paid in the same manner as taxes, and any reference in this local law to income tax or tax imposed by this local law, shall be deemed also to refer to the additions to tax and penalties provided by this section. For purposes of section sixty-one, this subdivision shall not apply to-- (1) any addition to tax under subdivision (a) except as to that portion attributable to a deficiency; (2) any addition to tax under subdivision (c); and (3) any additional penalty under subdivision (i). (k) Determination of deficiency.--For purposes of subdivisions (b) and (e), the amount shown as the tax by the taxpayer upon his return shall be taken into account in determining the amount of the deficiency only if such return was filed on or before the last day prescribed for the filing of such return, determined with regard to any extension of time for such filing. (l) Person defined.--For purposes of subdivisions (g) and (i), the term "person" includes an individual, corporation or partnership or an officer or employee of any corporation (including a dissolved corporation), or a member or employee of any partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.