§ 6-8.1-9-2 — Excess tax payments; procedure for credit or refund; pass through entities

Indiana § 6-8.1-9-2

• Jurisdiction: Indiana
• Art. 8.1: DEPARTMENT OF STATE REVENUE; TAX
• Ch. 9: Refunds

Text

(a) If the department finds that a person has
paid more tax for a taxable year than is legally due, the department
shall apply the amount of the excess against any amount of that same
tax that is assessed and is currently due. The department may then
apply any remaining excess against any of the listed taxes that have
been assessed against the person and that are currently due. Subject to
subsection (c), if any excess remains after the department has applied
the overpayment against the person's tax liabilities, the department
shall either refund the amount to the person or, at the person's request,
credit the amount to the person's future tax liabilities.
(b) Subject to subsection (c), if a court determines that a person has
paid more tax for a taxable year than is legally due, the department
shall refund the excess amount to the person.
(c) As used in this subsection, "pass through entity" means a
corporation that is exempt from the adjusted gross income tax under IC 6-3-2-2.8(2), a partnership, a limited liability company, or a limited
liability partnership and "pass through income" means a person's
distributive share of adjusted gross income for a taxable year
attributable to the person's interest in a pass through entity. This
subsection applies to a person's overpayment of adjusted gross income
tax for a taxable year if:
(1) the person has filed a timely claim for refund with respect to
the overpayment under section 1 of this chapter;
(2) the overpayment:
(A) is with respect to a taxable year beginning before January
1, 2009; and
(B) is attributable to amounts paid to the department by:
(i) a nonresident shareholder, partner, or member of a pass
through entity;
(ii) a pass through entity under IC 6-3-4-12 or IC 6-3-4-13 on
behalf of a nonresident shareholder, partner, or member of
the pass through entity; or
(iii) a pass through entity under IC 6-3-4-12 or IC 6-3-4-13 on
behalf of a nonresident shareholder, partner, or member of
another pass through entity; and
(3) the overpayment arises from a determination by the
department or a court that the person's pass through income is not
includible in the person's adjusted gross income derived from
sources within Indiana as a result of the application of IC 6-3-2-2(a)(5) and IC 6-3-2-2.2(g).
The department shall apply the overpayment to the person's liability for
taxes that have been assessed and are currently due as provided in
subsection (a) and apply any remaining overpayment as a credit or
credits in satisfaction of the person's liability for listed taxes in taxable
years beginning after December 31, 2008. If the person, including any
successor to the person's interest in the overpayment, does not have
sufficient liability for listed taxes against which to credit all the
remaining overpayment in a taxable year beginning after December 31,
2008, and ending before January 1, 2019, the taxpayer is not entitled
for any taxable year ending after December 31, 2018, to have any part
of the remaining overpayment applied, refunded, or credited to the
person's liability for listed taxes. If an overpayment or part of an
overpayment is required to be applied as a credit under this subsection
to the person's liability for listed taxes for a taxable year beginning after
December 31, 2008, and has not been determined by the department or
a court to meet the conditions of subdivision (3) by the due date of the
person's return for a listed tax for a taxable year beginning after
December 31, 2008, the department shall refund to the person that part
of the overpayment that should have been applied as a credit for such
taxable year within ninety (90) days of the date that the department or
a court makes the determination that the overpayment meets the
conditions of subdivision (3). However, the department may establish
a program to refund small overpayment amounts that do not exceed the
threshold dollar value established by the department rather than
crediting the amounts against tax liability accruing for a taxable year
after December 31, 2008. A person that receives a refund or credit
under this subsection shall file a report with the department in the form
and in the schedule specified by the department that identifies under
penalties of perjury the home state or other jurisdiction where the
income subject to the refund or credit was reported as income
attributable to that state or jurisdiction.
(d) An excess tax payment that is not refunded or credited against
a current or future tax liability within ninety (90) days after the date the
refund claim is filed, the date the tax payment was due, or the date the
tax was paid, whichever is latest, accrues interest from:
(1) the date the refund claim is filed, if the refund claim is filed
before July 1, 2015; or
(2) for a refund claim filed after June 30, 2015, the latest of:
(A) the date the tax payment was due;
(B) the date the tax was paid;
(C) the date the tax return was filed for the period and tax type
for which the refund is claimed;
(D) in the case of a refund based on payment of a tax by the
taxpayer to another state, country, or locality, the date of such
payment of tax to the other state, country, or locality; or
(E) July 1, 2015;
at the rate established under IC 6-8.1-10-1 until a date, determined by
the department, that does not precede by more than thirty (30) days, the
date on which the refund or credit is made. As used in this subsection,
"refund claim" includes a return and an amended return that indicates
an overpayment of tax. For purposes of this subsection only, the due
date for the payment of a periodic tax is January 31 of the calendar year
following the calendar year that contains the taxable period for which
the payment is remitted.
(e) A person who is liable for the payment of excise taxes under IC 7.1-4-3 or IC 7.1-4-4 is entitled to claim a credit against the person's
excise tax liability in the amount of the excise taxes paid in duplicate
by the person, or the person's assignors or predecessors, upon both:
(1) the receipt of the goods subject to the excise taxes, as reported
by the person, or the person's assignors or predecessors, on excise
tax returns filed with the department; and
(2) the withdrawal of the same goods from a storage facility
operated under 19 U.S.C. 1555(a).
(f) The amount of the credit under subsection (e) is equal to fifty
percent (50%) of the amount of excise taxes:
(1) that were paid by the person as described in subsection (e)(2);
(2) that are duplicative of excise taxes paid by the person as
described in subsection (e)(1); and
(3) for which the person has not previously claimed a credit.
The credit may be claimed by subtracting the amount of the credit from
the amount of the person's excise taxes reported on the person's
monthly excise tax returns filed under IC 7.1-4-6 with the department
for taxes imposed under IC 7.1-4-3 or IC 7.1-4-4. The amount of the
credit that may be taken monthly by the person on each monthly excise
tax return may not exceed ten percent (10%) of the excise tax liability
reported by the person on the monthly excise tax return. The credit may
be claimed on not more than thirty-six (36) consecutive monthly excise
tax returns beginning with the month in which credit is first claimed.
(g) The amount of the credit calculated under subsection (f) must be
used for capital expenditures to:
(1) expand employment; or
(2) assist in retaining employment within Indiana.
The department shall annually verify whether the capital expenditures
made by the person comply with this subsection.
(h) An excess tax payment under section 1(k) of this chapter that is
not refunded or credited against a current or future tax liability within
ninety (90) days after the date the refund claim is filed, the date the tax
payment was due, or the date the tax was paid, whichever is latest,
accrues interest from April 1, 2020. For purposes of this subsection, a
refund claim filed prior to April 1, 2020, shall be treated as filed on
April 1, 2020.
As added by Acts 1980, P.L.61, SEC.1. Amended by
P.L.6-1987, SEC.13; P.L.92-1987, SEC.11; P.L.48-1994, SEC.2;
P.L.28-1997, SEC.27; P.L.111-2006, SEC.10; P.L.182-2009(ss),
SEC.257; P.L.293-2013(ts), SEC.32; P.L.242-2015, SEC.40;
P.L.146-2020, SEC.45; P.L.159-2021, SEC.36; P.L.118-2024,
SEC.24.