January 7, 2010, read first time and referred to Committee on Rules and Legislative
Second Regular Session 116th General Assembly (2010)
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HOUSE BILL No. 1208
A BILL FOR AN ACT to amend the Indiana Code concerning
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 6-8.1-10-2.1; (10)IN1208.1.1. -->
SECTION 1. IC 6-8.1-10-2.1, AS AMENDED BY
P.L.182-2009(ss), SECTION 258, IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 2.1.
(a) If a person:
(1) fails to file a return for any of the listed taxes;
(2) fails to pay the full amount of tax shown on the person's return
on or before the due date for the return or payment;
(3) incurs, upon examination by the department, a deficiency that
is due to negligence;
(4) fails to timely remit any tax held in trust for the state; or
(5) is required to make a payment by electronic funds transfer (as
defined in IC 4-8.1-2-7), overnight courier, or personal delivery
and the payment is not received by the department by the due date
in funds acceptable to the department;
the person is subject to a penalty.
(b) Except as provided in subsection (g), the penalty described in
subsection (a) is determined by multiplying:
(1) a penalty rate of:
(A) five percent (5%), if the person pays the full amount of
the tax due not later than thirty (30) days after the due
ten percent (10%),
of: if clause (A) does not apply; by
(2) the amount on which the penalty is based, which is:
the full amount of the tax due if the person failed to file
the amount of the tax not paid, if the person filed the
return but failed to pay the full amount of the tax shown on the
the amount of the tax held in trust that is not timely
the amount of deficiency as finally determined by the
the amount of tax due if a person failed to make
payment by electronic funds transfer, overnight courier, or
personal delivery by the due date.
(c) For purposes of this section, the filing of a substantially blank or
unsigned return does not constitute a return.
(d) If a person subject to the penalty imposed under this section can
show that the failure to file a return, pay the full amount of tax shown
on the person's return, timely remit tax held in trust, or pay the
deficiency determined by the department was due to reasonable cause
and not due to willful neglect, the department shall waive the penalty.
(e) A person who wishes to avoid the penalty imposed under this
section must make an affirmative showing of all facts alleged as a
reasonable cause for the person's failure to file the return, pay the
amount of tax shown on the person's return, pay the deficiency, or
timely remit tax held in trust, in a written statement containing a
declaration that the statement is made under penalty of perjury. The
statement must be filed with the return or payment within the time
prescribed for protesting departmental assessments. A taxpayer may
also avoid the penalty imposed under this section by obtaining a ruling
from the department before the end of a particular tax period on the
amount of tax due for that tax period.
(f) The department shall adopt rules under IC 4-22-2 to prescribe the
circumstances that constitute reasonable cause and negligence for
purposes of this section.
(g) A person who fails to file a return for a listed tax that shows no
tax liability for a taxable year, other than an information return (as
defined in section 6 of this chapter), on or before the due date of the
return shall pay a penalty of ten dollars ($10) for each day that the
return is past due, up to a maximum of two hundred fifty dollars
(1) corporation which otherwise qualifies under IC 6-3-2-2.8(2);
(2) partnership; or
that fails to withhold and pay any amount of tax required to be withheld
under IC 6-3-4-12, IC 6-3-4-13, or IC 6-3-4-15 shall pay a penalty
equal to twenty percent (20%) of the amount of tax required to be
withheld under IC 6-3-4-12, IC 6-3-4-13, or IC 6-3-4-15. This penalty
shall be in addition to any penalty imposed by section 6 of this chapter.
(i) Subsections (a) through (c) do not apply to a motor carrier fuel
(j) If a partnership or an S corporation fails to include all
nonresidential individual partners or nonresidential individual
shareholders in a composite return as required by IC 6-3-4-12(h) or
IC 6-3-4-13(j), a penalty of five hundred dollars ($500) per partnership
or S corporation is imposed on the partnership or S corporation.