The forms and accompanying instructions for this tax have not yet been developed. Further information will be provided once they are available. While these guidelines and rules will be updated in the future as necessary, it is the intent of TAX to supplement these guidelines with permanent regulations. Nothing in these guidelines shall be construed to affect the current withholding requirements applicable to employers that are provided for in Article 16 (§ 58.1-460 et seq.) of Chapter 3 of Title 58.1.
“Income from Virginia sources” means the items of income, gain, loss and deduction attributable to the ownership, sale, exchange or other disposition of any interest in real or tangible personal property in Virginia or attributable to a business, trade, profession or occupation carried on in Virginia or attributable to intangible personal property employed in a business, trade, profession or occupation carried on in Virginia. If the entire business of the pass-through entity is not deemed to have been transacted or conducted within the Commonwealth, then the “income from Virginia sources” means that portion of the pass-through entity's income that has been allocated and apportioned to Virginia in the same manner as corporations.
“Nonresident owner” means any person who is treated as a partner, member, or shareholder of the pass-through entity for federal income tax purposes and, in the case of an individual, is not a domiciliary or actual resident of Virginia, or, in the case of any other entity, does not have its commercial domicile in Virginia.
"Pass-through entity" means any entity, including a limited partnership, a limited liability partnership, a general partnership, a limited liability company, a professional limited liability company, a business trust or a Subchapter S corporation, that is recognized as a separate entity for federal income tax purposes, in which the partners, members or shareholders report their share of the income, gains, losses, deductions and credits from the entity on their federal income tax returns.
“Taxable income from Virginia sources” means the amount of income from Virginia sources allocated to all nonresident owners not exempt under the section titled “Who is Subject to the Withholding Tax” below. The income from Virginia sources should be allocated to the nonresident owners in proportion to their percentage of ownership or participation in the pass-through entity or as provided in the partnership agreement or other entity document.
Withholding Tax Requirements
Pass-through entities that have taxable income from Virginia sources and that must allocate any portion of that income to at least one nonresident owner who was a nonresident owner during any portion of the previous taxable year must pay the withholding tax unless an exemption applies. If an owner was a nonresident owner for only a portion of the taxable year, the income allocated to such owner must be prorated by the number of days of residence outside of Virginia in order to determine the amount on which the withholding tax must be paid.
This tax is effective for taxable years beginning on or after January 1, 2008. As a result, pass-through entities will be required to pay this tax for the first time when 2008 returns are filed in 2009.
Who is Subject to the Withholding Tax
Pass-through entities must pay the withholding tax for all nonresident owners, with the following exceptions:
Exception 2: Entities other than individuals and corporations that are exempt from paying federal income taxes by reason of their purpose or activities. The exemption from federal income tax must apply to the entity’s share of the pass-through entity’s income. Examples of such exempt entities are:
Example 2: Entities exempt by reason of diplomatic immunity or pursuant to treaties between the United States and other countries. An entity desiring to avail itself of this exemption must furnish a statement on a form to be prescribed by the Tax Commissioner to the pass-through entity stating that it has diplomatic immunity from federal income tax.
Exception 3: Corporations that are exempt from Virginia income tax. Examples of such exempt corporations are:
Example 2: Corporations exempt from federal income tax under Internal Revenue Code § 501. A corporation desiring to avail itself of this exemption must furnish a statement on a form to be prescribed by the Tax Commissioner to the pass-through entity stating that it is exempt from federal income tax by reason of its purpose or activities and citing the relevant section and subsection of the Internal Revenue Code.
The determination of nonresident status will be based on the owner’s address of record for the pass-through entity unless the pass-through entity has other information relating to the owner’s residence or commercial domicile by reason of the owner’s participation in management of the pass-through entity. If an owner is also employed by the pass-through entity the information relating to withholding on wages shall also be considered.
The pass-through entity shall provide with its return of withholding tax a list of every individual, corporation and other entity claiming exemption from the withholding tax on a form to be prescribed by the Tax Commissioner. The list shall contain the name, federal social security number, employer identification number or other taxpayer identification number and the address of each nonresident owner claiming exemption, as well as a description of the basis for the claimed exemption.
Amount of Withholding Tax
The amount of withholding tax is equal to five percent of the share of taxable income from Virginia sources that is allocable to each nonresident owner. In determining the amount of withholding tax, the pass-through entity may apply any tax credits earned by it and allowable under the Code of Virginia that pass through to nonresident owners. The credit or credits may not, however, reduce the tax liability of any nonresident owner to less than zero; nor may an unused credit be carried forward on a unified return.
The liability of the pass-through entity for withholding tax is determined annually without regard to whether or not the pass-through entity has actually withheld amounts from any owner’s distributions, allocations, or payments.
To the extent that a pass-through entity has paid, or reasonably anticipates paying, Virginia withholding tax with respect to its present and former nonresident owners, the pass-through entity may make such adjustments to such owner’s allocations and accounts at such times as it and its owners may agree or as permitted by its operating agreement or charter.
Filing Requirements of the Pass-Through Entity
Pass-through entities that are required to pay the withholding tax must pay the required amount using a form to be prescribed by the Tax Commissioner when the Form 502 must be filed, which is the 15th day of the fourth month following the close of the taxable year. Although the time for filing the Form 502 may be extended, the time for paying the amount of withholding tax due will not be extended.
For taxable year 2008, if a filing extension for Form 502 has been elected, the pass-through entity must pay at least ninety percent of the withholding tax due for the 2008 taxable year in order to avoid a penalty. This payment must be made using a form prescribed by the Tax Commissioner.
In order to avoid a penalty in subsequent taxable years, the pass-through entity must pay either ninety percent of the withholding tax due for the taxable year or one hundred percent of the withholding tax paid for the prior taxable year, if that taxable year was a taxable year of 12 months and the withholding tax was paid for that taxable year. This payment must be made on or before the fifteenth day of the fourth month following the close of its taxable year using a form to be prescribed by the Tax Commissioner.
The remaining portion of the withholding tax due, if any, must be paid at the time the pass-through entity files the Form 502 return on a form to be prescribed by the Tax Commissioner. If the balance due is paid by the last day of the extension period for filing the Form 502 return and the amount of tax due with that return is ten percent or less of the withholding tax due for the taxable year, or if the taxpayer has paid one hundred percent of the withholding tax paid for the prior taxable year, no penalty will be imposed.
If the return is filed within the six month extension, but the pass-through entity has failed to pay ninety percent of the tax due by the original due date, then the pass-through entity is subject to an extension penalty of two percent per month. The penalty is applied to the balance of tax due with the return from the original due date through the date the return is filed. The maximum extension penalty is twelve percent of the tax due.
If the return is filed within the six month extension, but the pass-through entity does not pay the full amount of the tax due at the time of filing, the unpaid balance will be subject to a late payment penalty of six percent per month or fraction of a month from the date of filing through the date of payment, up to a maximum of thirty percent. The late payment penalty will be assessed in addition to any extension penalty that may apply.
If the return is filed after the extended due date, the extension provisions do not apply and the pass-through entity is subject to the maximum late filing penalty of thirty percent.
Interest on the unpaid balance of any tax and penalty is charged at the underpayment rate established by § 6621 of the Internal Revenue Code, plus two percent, from the due date until paid. Interest will be accrued on any balance of tax, regardless of whether the ninety percent payment requirement is met.
Statements Provided by the Pass-Through Entity
Pass-through entities that are required to pay Virginia withholding tax must provide each nonresident owner with a statement on a form to be prescribed by the Tax Commissioner that shows:
This statement is in addition to the statements that are required to be filed as part of the pass-through entity’s Form 502.
Filing Requirements of the Nonresident Owner
The payment of the withholding tax does not relieve the nonresident owner of the obligation to file a Virginia income tax return. Penalty and interest may be imposed on any tax owed by the nonresident owner after credit for the withholding tax paid by the pass-through entity.
Upon filing an individual or corporate income tax return relating to income received from the pass-through entity, the nonresident owner will be allowed a credit for that owner's share of the withholding tax paid by the pass-through entity, provided that the pass-through entity has filed its Form 502, the withholding tax has been paid in full, the nonresident owner has received the Form VK-1 and the statement described in the section titled “Statements Provided by the Pass-Through Entity” above, and the nonresident owner includes a copy of that statement with the income tax return.
Examples of the relationship between the time of filing by the pass-through entity and nonresident owner:
Example 2: The pass-through entity return is due April 15th, but the entity chooses to extend the time for filing until October 15th. At that time, the entity files the Form 502, pays the withholding tax in full, and sends the VK-1 and statement to the individual nonresident owner. The individual nonresident owner does not receive the VK-1 and the statement before November 1st. Because the individual nonresident owner’s return is due November 1st, he must file a return without claiming the credit. After he receives the appropriate documentation, he may file an amended return to claim the credit and receive a refund.
If an individual nonresident owner is included on one or more Form 765 but has other income from Virginia sources, he or she must file the Nonresident Individual Income Tax Return (Form 763). The individual shall deduct income that has previously been reported on the Form 765.
Publicly Traded Partnerships
A publicly traded partnership will not be required to pay the withholding tax if it is a publicly traded partnership as defined by § 7704 b of the Internal Revenue Code, as in effect on January 1, 2007, is treated as a partnership for the purposes of federal income taxation, and files Virginia Form 502 and the related schedules.
If a pass-through entity is disregarded for federal purposes, it is also disregarded for purposes of the Virginia income tax. As a result, the disregarded entity is not required to pay this withholding tax. This provision does not affect the existing income tax withholding requirements regarding employees of the disregarded pass-through entity however.
The pass-through entity will not be required to pay the withholding tax if it files a Form 765. In order to do so, the pass-through entity must obtain the consent of each nonresident owner to be included in the return. Such consent must be on a form to be prescribed by the Tax Commissioner and must indicate that the nonresident owner agrees to be taxed under the following conditions: