§ 18662-4. Withholding on Payments (Nonresident Individuals and Non-California Business Entitie...
18 CA ADC § 18662-4Barclays Official California Code of Regulations
18 CCR § 18662-4
§ 18662-4. Withholding on Payments (Nonresident Individuals and Non-California Business Entities) -- General.
(1) Nonresident Individuals and Non-California Business Entities. Except as otherwise provided in Revenue and Taxation Code section 18662 and Regulation sections 18662-0 through 18662-8, withholding of tax at source is required for payments of California source income made to nonresident individuals and non-California business entities, including, but not limited to, such other entities as nonresident estates or trusts, suspended or forfeited corporations, and foreign (non-U.S.) entities. Withholding on payments of income to resident individuals and California business entities is optional; however, if withholding and remitting of tax at source is performed, it must be performed according to the rules applicable to mandatory withholding of tax as set forth in Revenue and Taxation Code section 18662 and Regulation sections 18662-0 through 18662-8.
(4) Cross-References. See Regulation sections 18662-5 (Other Types of Payments and Withholding), 18662-6 (Nonresident Withholding, Entertainers, Athletes and Speakers), 18662-7 (Withholding Rules for Domestic (U.S.) Pass-through Entities) [reserved], and Regulation section 18662-8 (Reporting and Remitting Amounts Withheld, Penalties and Interest; Other Procedures) for specific requirements.
Example 1: Withholding agents may send their payees an exemption certificate, on FTB Form 590, Withholding Exemption Certificate, or any successor form designated by the Franchise Tax Board on its website at www.ftb.ca.gov (“FTB Form 590”). The required information specified in FTB Form 590 is set forth in subsection (h), below. Payees may use this form to certify their residency status, provided that the withholding agent may only rely upon an exemption certificate, on FTB Form 590, if payees include their taxpayer identification number.
Example 2: Withholding agents may rely on a California street address as an indication of a payee's residency status. If the payee has a California street address, no withholding is required. An exemption certificate, on FTB Form 590, may be used to verify residency status. A valid California street address does not include a California post office box, or an “in care of” address. If a change of address occurs, the withholding agent must reevaluate the payee's residency status.
If a non-California business entity payee is doing business in California within the meaning of Revenue and Taxation Code section 23101 and is receiving California source income, withholding is required unless the payee qualifies under the requirements of the exemption certificate, on FTB Form 590, or the amount is excluded from amounts subject to withholding.
If a corporate payee has not qualified with the Office of the California Secretary of State (SOS) and does not have a permanent place of business in this State, but is a member of a combined report filed under Regulation section 25106.5 and included in a group return filed pursuant to that regulation, then the key corporation is treated as a guarantor and surety for the other members, so that the corporate payee is deemed to be a California Business Entity.
The following are examples of methods the Franchise Tax Board will consider reasonable for withholding agents to rely upon in determining if a corporation has a permanent place of business in California or is qualified to do business in this State for purposes of the withholding regulations (Regulation sections 18662-0 through 18662-8):
Example 1: Withholding agents may rely on a completed exemption certificate, on FTB Form 590. A completed exemption certificate, on FTB Form 590, showing the payee's taxpayer identification number and stating that the corporation has a permanent place of business in California (or is included in a combined return with a California key corporation) protects the withholding agent from penalties for failure to withhold, unless the withholding agent has actual knowledge that the statement in the exemption certificate, on FTB Form 590, is false.
Example 2: If a corporation is incorporated in California or qualified to do business in California with the SOS, it is a California business entity for withholding purposes. Withholding agents can determine if a corporate payee is a California corporation or qualified to do business in this State by contacting the SOS. Withholding agents may rely on a printout from the SOS's website showing the payee's entity number, that the corporation has a permanent place of business in California (e.g., the “jurisdiction” field shows “California” or the “entity city, state, zip” field shows “CA” for the state), and that the corporation is in good standing (e.g., the “status” field shows “active”). The SOS website printout-- which must be printed within 30 days prior to making a payment-- protects the withholding agent from penalties for failure to withhold, unless the withholding agent has actual knowledge that the information received from the SOS is false.
(10) Wages Paid to Employees. Withholding of tax at source is not required on payments of California source wages to employees. However, wages are subject to wage withholding. Employee wage withholding is covered by the Unemployment Insurance Code and administered by the Employment Development Department.
(11) Nonresident Corporate Directors. Withholding of tax at source is not required on payments of California source income to a nonresident corporate director for director's services. However, information returns for nonresident corporate directors for director's services must be filed in accordance with Revenue and Taxation Code section 18662, subdivision (g). Nonresident directors must file California tax returns if they otherwise meet return filing requirements or may elect to be included in a group return pursuant to Revenue and Taxation Code section 18536.
(12) Insurance Companies, Individual Retirement Plans, Pension or Profit Sharing Plans. Withholding of tax at source is not required on gross premiums paid to insurance companies. Withholding of tax at source is not required on payments of income made to individual retirement accounts or federally qualified pension or profit sharing plans.
(1) General. Where the payee otherwise properly certifies that it qualifies under the requirements of an exemption certificate, as set forth in FTB Form 590, no withholding is required. The certification on FTB Form 590 does not need to be renewed annually. The certification on FTB Form 590 remains valid until the payee's status changes. The withholding agent should evaluate the need for securing a new certificate, on FTB Form 590, when any indication of a change in residency status occurs, such as a change of address.
(2) Incomplete or Invalid Exemption Certificates. An incomplete exemption certificate, on FTB Form 590, is invalid and the withholding agent should not accept it. If the withholding agent receives an incomplete exemption certificate, on FTB Form 590, the withholding agent is required to withhold tax on payments made to the payee until a valid certificate, on FTB Form 590, is received. In lieu of a completed exemption certificate, on FTB Form 590, on the preprinted form, the withholding agent may accept as a substitute a letter from the payee explaining why the payee is not subject to withholding. The letter must contain all the information required on the certificate, on FTB Form 590, in substantially similar language, including the penalty of perjury statement and the payee's taxpayer identification number. The withholding agent may accept facsimiles or photocopies of the withholding forms.
(3) California Address. Withholding agents may accept a completed exemption certificate, on FTB Form 590, when an individual certifies residency but does not show a California address, unless the withholding agent reasonably believes the exemption certification, on FTB Form 590, is fraudulent. Regardless of whether a copy of the exemption certificate, on FTB Form 590, is required to be filed, the withholding agent must retain a copy of the exemption certificate, on FTB Form 590, or substitute for at least five years after the last payment to which the certificate, on FTB Form 590, applies, and provide it upon request to the Franchise Tax Board.
(d) Information Returns Also Required. A withholding agent who withholds tax at source may also be required to file an information return, on FTB Form 592, Resident and Nonresident Withholding Statement, or any successor form designated by the Franchise Tax Board on its website at www.ftb.ca.gov (“FTB Form 592”), FTB Form 592-PTE, Pass-Through Entity Annual Withholding Return, or any successor form designated by the Franchise Tax Board on its website at www.ftb.ca.gov (“FTB Form 592-PTE”), or FTB Form 592-F, Foreign Partner or Member Annual Withholding Return, or any successor form designated by the Franchise Tax Board on its website at www.ftb.ca.gov (“FTB Form 592-F”). The required information specified in FTB Form 592, FTB Form 592-PTE, and FTB Form 592-F is set forth in subsection (i), subsection (j) and subsection (k), respectively, below. The Franchise Tax Board may provide the form and manner of filing information returns, on FTB Form 592, FTB Form 592-PTE, or FTB Form 592-F, and withholding statements by forms and instructions on its website at www.ftb.ca.gov, including circumstances where they may be filed together on a single document or filed electronically.
(1) Waivers. Requests shall be made in the form and manner that the Franchise Tax Board shall provide on FTB Form 588, Nonresident Withholding Waiver Request, or any successor form designated by the Franchise Tax Board on its website at www.ftb.ca.gov (“FTB Form 588”). The required information specified in FTB Form 588 is set forth in subsection (l), below. As set forth in FTB Form 588, the payee must have a history of timely filing and payment. Waivers may also be requested as provided in FTB Form 588, where the payee is a newly-admitted partner, member, or S corporation shareholder, a member of a combined report electing to be included in a California combined return with a key corporation within the meaning of Regulation section 25106.5, subsection (b)(13) and (14), or in certain circumstances where withholding would not be administratively practical. Requests for waivers, on FTB Form 588, must be submitted before the payment is made so the Franchise Tax Board can issue a determination notice authorizing a waiver before the withholding is required. Withholding is required unless the Franchise Tax Board issues a determination notice authorizing a waiver.
(2) Request for Reduced Withholding Amount. Payees in some circumstances, as set forth in FTB Form 589, Nonresident Reduced Withholding Request, or any successor form designated by the Franchise Tax Board on its website at www.ftb.ca.gov (“FTB Form 58 ”), can request a reduced withholding amount to reflect expenses and costs or other special circumstances that would justify a reduced amount whereby the total amount of expenses as calculated on FTB Form 589, Part IV (Withholding Computation), at line 12, cannot exceed 50 percent of the gross California source payment as calculated on FTB Form 589, Part IV (Withholding Computation) at line 1. The required information specified in FTB Form 589 is set forth in subsection (m), below. Requests shall be made in the form and manner that the Franchise Tax Board shall set forth in FTB Form 589.
(3) Other Conditions As May Be Required. After considering requests for waiver, on FTB Form 588, or reduced withholding amount, on FTB Form 589, the Franchise Tax Board may, as a further condition, require the payee to assure the Franchise Tax Board by bond, deposit, or other reasonable requirements as necessary, that the payee will comply with the withholding requirements applicable to the payee.
(f) Requirement to File a California Return. Withholding does not relieve the payee of the obligation to file a California income tax return. For individuals, a California return is required if the nonresident individual has any income from California sources and has a California tax liability. (See Revenue and Taxation Code section 18501.) Business entities must file returns if they are subject to franchise or income tax, are doing business in California, or have any California source income for the taxable year. No refund or credit of withholding may be made to an individual or entity that fails to file a tax return for the year. (See Revenue and Taxation Code section 19307.)
(6) A check box to indicate the types of income being reported: Payments to Independent Contractors; Trust Distributions; Rents or Royalties; Distributions to Domestic Nonresident Partners, Members, Beneficiaries, or S Corporation Shareholders; Estate Distributions; Elective Withholding; Elective Withholding by Indian Tribe; or Other. For “Other,” an explanation must be provided.
(15) Payee information, which includes the business or individual name (not both), identification number (SSN or ITIN, FEIN, California corporation number, or SOS file number), a check box indicating whether the amount submitted constitutes backup withholding, address, total amount of income, and amount of tax withheld. Multiple payees may be submitted on one form.
(5) Pass-Through Entity Information: Withholding agent information for pass-through entity which withheld on behalf of current Form 592-PTE filer. Withholding agent information includes the business or individual name (not both), identification number (SSN or ITIN, FEIN, California corporation number, or SOS file number), withholding agent's address, and telephone number.
(16) Payee information, which includes the business or individual name (not both), identification number (SSN or ITIN, FEIN, California corporation number, or SOS file number), a check box indicating whether the amount submitted constitutes backup withholding, address, total amount of income, and amount of tax withheld. Multiple payees may be submitted on one form.
(6) Pass-Through Entity Information: Withholding agent information for pass-through entity which withheld on behalf of current Form 592-PTE filer. Withholding agent information includes the business or individual name (not both), identification number (SSN or ITIN, FEIN, California corporation number, or SOS file number), withholding agent's address, and telephone number.
(14) Total of the following: (1) amount withheld by another entity and being allocated to partners or members under this FTB Form 592-F; (2) total of prior payments of foreign partners' or member's withholding for the taxable year; and (3) total amount of foreign partner or member credit carried over from the prior withholding year.
(19) Payee information, which includes the business or individual name (not both), identification number (SSN or ITIN, FEIN, California corporation number, or SOS file number), a check box indicating whether the amount submitted constitutes backup withholding, address, total amount of income, and amount of tax withheld. Multiple payees may be submitted on one form.
(2) Requester information, which includes the business and/or individual name (if applicable), identification number (SSN or ITIN, FEIN, California corporation number, or SOS file number), individual name or contact name at the business, daytime telephone number, fax number, address, and a check box which requesters must mark to identify themselves as either the withholding agent, the payee, or an authorized third party of either the withholding agent or payee.
(3) A check box indicating one of the following types of income subject to withholding: Payments to Independent Contractors; Trust Distributions; Rents or Royalties; Distributions to Domestic Nonresident Partners, Members, Beneficiaries, or S Corporation Shareholders; Estate Distributions; or Other. For “Other,” an explanation must be provided.
(4) Payee information, which includes the business or individual name (or both for grantor trusts or sole proprietorships), identification number (SSN or ITIN, FEIN, California corporation number, or SOS file number), and address. If the payee is a newly admitted business entity or individual, the date of admittance must be provided. If the payee is a grantor trust, the grantor's individual name and SSN/ITIN must be provided. Multiple payees may be submitted on one form along with a check box for each indicating the reason for the waiver request.
(C) Payee is a corporation that is not qualified to do business and does not have a permanent place of business in California, but is filing a tax return based on a combined report with a corporation that does have a permanent place of business in California. Attach a copy of California Form 100, Schedule R-7 of Schedule R, Election to File a Unitary Taxpayers' Group Return, from the combined report.
(D) Payee is a newly admitted S corporation shareholder, partner of a partnership, or member of a limited liability company. In the “Newly Admitted Date” box, provide the date this shareholder, partner, or member was admitted. The waiver will expire at the end of the calendar year succeeding the date the payee was newly admitted. Once expired, the payee must have the most current California tax return due on file, or estimated tax payments for the current taxable year in order to have a new waiver granted.
(1) Withholding Agent information, which includes the business or individual name (not both), identification number (SSN or ITIN, FEIN, California corporation number, or SOS file number), daytime telephone number, fax number, withholding agent's address, and name of venue or property address (if applicable).
(3) A check box indicating one of the following types of income subject to withholding: Payment to Independent Contractor; Trust Distributions; Rents or Royalties; Distributions to Domestic Nonresident Partners, Members, Beneficiaries, or S Corporation Shareholders; Estate Distributions; or Other. For “Other,” an explanation must be provided.
Credits
Note: Authority cited: Section 19503, Revenue and Taxation Code. Reference: Sections 18662 and 18817, Revenue and Taxation Code.
History
1. Renumbering from 18662-18810(f) filed 12-14-71; procedural amendment filed 12-16-71; effective upon filing (Register 71, No. 51).
2. Renumbering of Section 18662(f) to Section 18662(d) filed 4-9-81; designated effective 6-30-81 (Register 81, No. 15).
3. Renumbering and amendment of Section 18662(d) to Section 18662-4 filed 8-19-82; effective thirtieth day thereafter (Register 82, No. 34).
4. Editorial correction (Register 83, No. 19).
5. Change without regulatory effect renumbering and amending former section 18805-4 to section 18662-4 filed 11-23-98 pursuant to section 100, title 1, California Code of Regulations (Register 98, No. 48).
6. Repealer and new section heading and section and amendment of Note filed 3-10-2014; operative 7-1-2014 (Register 2014, No. 11).
7. Change without regulatory effect amending subsections (a)(3), (e)(1), (h)(2), (h)(3)(C), (h)(4), (i)(3)-(4), (i)(14)-(16), (j)(5), (j)(18)-(20), (k)(1)-(4), (k)(6), (l)(1)-(2) and (l)(10)-(11) filed 12-9-2014 pursuant to section 100, title 1, California Code of Regulations (Register 2014, No. 50).
8. Amendment filed 10-8-2019; operative 10-8-2019 pursuant to Government Code section 11343.4(b)(3) (Register 2019, No. 41).
This database is current through 5/10/24 Register 2024, No. 19.
Cal. Admin. Code tit. 18, § 18662-4, 18 CA ADC § 18662-4
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