§ 19195-2. Determination of Current Financial Hardship Under Subdivision (h)(3) of Section 494....
18 CA ADC § 19195-2Barclays Official California Code of Regulations
18 CCR § 19195-2
§ 19195-2. Determination of Current Financial Hardship Under Subdivision (h)(3) of Section 494.5 of the Business and Professions Code.
(2) Any and all other information or documentation requested by the Franchise Tax Board for the purposes of making a determination of whether the applicant or licensee is unable to pay the outstanding tax obligation due to a current financial hardship pursuant to subdivision (h)(3) of section 494.5 of the Business and Professions Code in the form and manner requested by the Franchise Tax Board and under penalty of perjury.
(c) Applicant's or Licensee's Entitlement to Release. An applicant or licensee has a current financial hardship under subdivision (h)(3) of section 494.5 of the Business and Professions Code and the Franchise Tax Board shall send a release under section 494.5 of the Business and Professions Code if both of the following are true:
(1) The amount of the applicant's or licensee's assets that are cash or readily converted to cash, without regard to whether such conversion will have an adverse tax consequence to the applicant or licensee, including, but not limited to, assets that are separate, community or quasi-community property of the applicant or licensee, but excluding non-cash assets that are necessary for the operation of the applicant's or licensee's trade or business that produces income for the applicant or licensee, including, but not limited to, a trade or business that is separate, community or quasi-community property of the applicant or licensee, less
(B) Necessary to pay the reasonable costs, during the five (5)-year period after the date of the determination under this subsection (d), of the operation of the applicant's or licensee's trade or business that produces income for the applicant or licensee, including, but not limited to, a trade or business that is separate, community or quasi-community property of the applicant or licensee.
(e) An applicant or licensee is able to qualify for an installment payment arrangement as provided for by section 19008 of the Revenue and Taxation Code within the meaning of subsection (c)(2) and is not entitled to a release under subsection (c) if the following calculated amount is greater than zero:
(1) The amount of any and all assets owned or to be owned by the applicant or licensee that are cash or can be converted to cash during the five (5)-year period after the date of the determination under this subsection (e), without regard to whether such conversion will have an adverse tax consequence to the applicant or licensee, including, but not limited to, assets that are separate, community or quasi-community property of the applicant or licensee, but excluding non-cash assets that are necessary for the operation of the applicant's or licensee's trade or business that produces income for the applicant or licensee, including, but not limited to, a trade or business that is separate, community or quasi-community property of the applicant or licensee, plus
(2) The amount of any and all income projected to be received by the applicant or licensee during the five (5)-year period after the date of the determination under this subsection (e), including, but not limited to, income that is separate, community or quasi-community property of the applicant or licensee, less
(B) Necessary to pay the reasonable costs, during the five (5)-year period after the date of the determination under this subsection (e), of the operation of a trade or business of the applicant or licensee that produces income for the applicant or licensee, including, but not limited to, a trade or business that is separate, community or quasi-community property of the applicant or licensee.
(A) The amount of the applicant's or licensee's assets that are cash or can be readily converted to cash, without regard to whether such conversion will have an adverse tax consequence to the applicant or licensee, including, but not limited to, assets that are separate, community or quasi-community property of the applicant or licensee, but excluding non-cash assets that are necessary for the operation of the applicant's or licensee's trade or business that produces income for the applicant or licensee, including, but not limited to, a trade or business that is the applicant's or licensee's separate, community or quasi-community property, less
2. Necessary to pay for the reasonable costs, during five (5)-year period after the date of the determination under this subsection (f), of the operation of the applicant's or licensee's trade or business that produces income for the applicant or licensee, including, but not limited to, a trade or business that is the separate, community or quasi-community property of the applicant or licensee.
(2) If the tax obligation is not paid in full under subsection (f)(1), the applicant or licensee and the Franchise Tax Board enter into an installment payment arrangement as provided for by section 19008 of the Revenue and Taxation Code, if the applicant or licensee is able to qualify for installment payment arrangement as provided for by section 19008 of the Revenue and Taxation Code, and as is defined in subsection (e), that:
2. Necessary and reasonable costs, during the period of the installment payment arrangement, of the operation of the applicant's or licensee's trade or business that produces income for the applicant or licensee, including, but not limited to, a trade or business that is the applicant's or licensee's separate, community or quasi-community property, and
(B) Contains such terms and conditions as are required by the Franchise Tax Board in exercising its discretion under Section 19008 of the Revenue and Taxation Code, which may include terms and conditions allowable under Sections 19008 and 21019 of the Revenue and Taxation Code, including, but not limited to, some or all of the following terms and conditions:
4. As a condition to the Franchise Tax Board's agreement to the installment payment arrangement, the applicant or licensee shall complete a financial statement describing all of the applicant's or licensee's assets, income, liabilities and expenses that is signed under penalty of perjury, and the applicant or licensee shall agree that any false statement in the financial statement shall constitute a breach of the installment payment arrangement,
5. The applicant or licensee shall provide information and documentation requested by the Franchise Tax Board during the term of the installment payment arrangement, including, but not limited to, financial statements submitted under penalty of perjury, and the applicant or licensee shall agree that the Franchise Tax Board may require that the installment payment arrangement be modified based on a change of circumstances,
6. If the applicant or licensee receives wages, the applicant or licensee shall confirm that the withholding rates for Employment Development Department Form DE 4 and Internal Revenue Service W-4 on file with the applicant's or licensee's employer will withhold enough California income tax to pay the applicant's or licensee's California state income tax liability for the next California income tax return and shall agree that the applicant or licensee will ensure that the withholding rates for Employment Development Department Form DE 4 and Internal Revenue Service W-4 on file with the applicant's or licensee's employer will withhold enough California income tax to pay the applicant's or licensee's California income tax liability for the future California income tax returns,
(C) The Internal Revenue Service Allowable Living Expenses Standards -- Local Standards: Housing and Utilities, relating to mortgage or rent, property taxes, interest, insurance, maintenance, repairs, gas, electric, water, heating oil, garbage collection, residential telephone service, cell phone service, cable television, and internet service, pages 5 through 151, and
(3) In making its determination under the Internal Revenue Service standards described in subsection (g)(1), the Franchise Tax Board shall follow the Internal Revenue Service rules relating to shared expenses, as specified in The Internal Revenue Service Allowable Living Expense Standards (Rev. 10/16) -- Shared Expenses, which are hereby incorporated by reference, pages 156 through 158.
(1) The term “asset” means all real and personal property, including, but not limited to, cash; cash equivalents; deposits; shares in credit unions; publically traded stocks; mutual funds; investment accounts; money market accounts; non-publicly traded stocks; municipal bonds; interests in incorporated and unincorporated businesses, including, but not limited to, an interest in a corporation, limited liability company, partnership, and joint venture; government and corporate bonds; other negotiable and non-negotiable instruments such as personal checks, cashier's checks, promissory notes, and money orders; pre-paid debit cards; Individual Retirement Accounts, Keogh Plans, Simplified Employee Pensions, 401(k) Plans, and any other retirement or pension accounts and profit sharing plans; annuities; trusts; equitable or future interests in property; rights or powers exercisable for the benefit of the applicant or licensee or the applicant's or licensee's community or quasi-community; mineral rights; licensing agreements; tax refunds; interests in insurance policies; soft and hard commodities including, but not limited to, precious metals and agricultural products; jewelry; gems; artwork; vehicles, including, but not limited to, automobiles and trucks; aircraft; vessels; collectables; antiques; Bitcoin; funds deposited by crowd-sourced websites; accounts receivable; notes receivable; obligations owed to the applicant or licensee and the applicant's or licensee's community or quasi-community; real estate, including, but not limited to, rental property; trust accounts; furniture; mineral rights; factories; fixtures; buildings; inventories; merchandise; stock in trade; raw materials; work in progress; finished products; supplies; machinery; tools; equipment; intangible assets, including, but not limited to, good will, patents, copyrights, trademarks, franchises, licenses, domain names of websites and customer lists; and any other property or interest.
(2) The term “income” means payments that the applicant or licensee or the applicant's or licensee's community or quasi-community receives or is entitled to receive from any source (irrespective of whether such payments would be treated as gross income for tax purposes to the applicant or licensee), including, but not limited to, assets; wages, salary, tips, meal allowance, parking allowance, or any other monetary or non-monetary compensation as an employee for services rendered; interest; dividends; the conduct of a trade or business; pensions; social security; child support, including, but not limited to, the actual amount received in addition to other debts or bills the non-custodial parent is paying pursuant to a child support order; alimony, including, but not limited to, the debts or bills the other spouse is paying pursuant to an alimony order; royalties; gambling winnings; oil subsidies; and payments made by others on behalf of the applicant or licensee or the applicant's or licensee's community or quasi-community.
Credits
Note: Authority cited: Section 494.5, Business and Professions Code; and Section 19503, Revenue and Taxation Code. Reference: Section 494.5, Business and Professions Code; and Section 19195, Revenue and Taxation Code.
History
1. New section filed 11-17-2016 as an emergency; operative 11-17-2016 (Register 2016, No. 47). A Certificate of Compliance must be transmitted to OAL by 5-16-2017 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 11-17-2016 order transmitted to OAL 4-20-2017 and filed 5-24-2017 (Register 2017, No. 21).
This database is current through 5/10/24 Register 2024, No. 19.
Cal. Admin. Code tit. 18, § 19195-2, 18 CA ADC § 19195-2
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