§ 47:112 — Income tax withheld at source

Louisiana § 47:112

• Jurisdiction: Louisiana
• Title 47: Revenue and Taxation

Text

§112. Income tax withheld at source
A. Requirement of withholding. Every employer making payment of
wages shall deduct and withhold from such wages a tax in amounts to be
provided in withholding tables promulgated by the secretary.
B, C. Repealed by Acts 2002, No. 51, eff. Jan. 1, 2003.
D. Tax paid by recipient. If the employer in violation of the provisions
of this Subpart, fails to deduct and withhold the tax under this Chapter, and
thereafter the tax against which such tax may be credited is paid, the tax so
required to be deducted and withheld shall not be collected from the employer,
but this Subsection shall in no case relieve the employer from liability for any
penalties or additions to the tax otherwise applicable because of such failure
to deduct and withhold.
E. Included and excluded wages. If the remuneration paid by an
employer to an employee for services performed during one-half or more of
any payroll period of not more than 31 consecutive days constitutes wages, all
the remuneration paid by such employer to such employee for such period shall
be deemed to be wages; but if the remuneration paid by an employer to an
employee for services performed during more than one-half of any such
payroll period does not constitute wages, then none of the remuneration paid
by such employer to such employee for such period shall be deemed to be
wages.
F. Withholding exemptions and withholding credits for dependents.
(1) An employee receiving wages shall on any day be entitled to the
following withholding exemptions:
(a) an exemption for himself;
(b) if the employee is married, any exemption to which his spouse is
entitled, but only if such spouse does not have in effect a withholding
exemption certificate claiming such exemption;
(2) An employee receiving wages shall on any day be entitled to a
withholding credit for each dependent claimed by the employee as being a
dependent for whom the employee is entitled to a credit under the provisions
of R.S. 47:79(3).
G. Exemption certificates.
(1) On January 1, 1961, or on the date of the commencement of
employment with an employer, whichever is later, the employee shall furnish
the employer with a signed withholding exemption certificate claiming the
number of withholding exemptions and withholding credits for dependents
which he claims, which shall in no event exceed the number to which he is
entitled.
(2) If on any day during the calendar year the number of withholding
exemptions or credits for dependents to which the employee is entitled is less
than the number of withholding exemptions or credits for dependents claimed
by the employee on the withholding exemption certificate then in effect with
respect to him, the employee shall within 10 days thereafter furnish the
employer with a new withholding exemption certificate relating to the number
of withholding exemptions and credits for dependents which the employee
then claims, which shall in no event exceed the number to which he is entitled
on such day. If on any day during the calendar year the number of withholding
exemptions or credits for dependents to which the employee is entitled is
greater than the number of withholding exemptions or credits for dependents
claimed, the employee may furnish the employer with a new withholding
exemption certificate relating to the number of withholding exemptions or
credits for dependents which the employee then claims, which shall in no event
exceed the number to which he is entitled on such day.
(3) If on any day during the calendar year the number of withholding
exemptions or credits for dependents to which the employee will be, or may
reasonably be expected to be, entitled at the beginning of his next taxable year
is different from the number to which the employee is entitled on such day, the
employee shall, in such cases and at such times as the collector may by
regulations prescribe, furnish the employer with a withholding exemption
certificate relating to the number of withholding exemptions or credits for
dependents which he claims with respect to such next taxable year, which shall
in no event exceed the number to which he will be, or may reasonably be
expected to be, entitled.
(4) A withholding certificate furnished to the employer in cases in
which no previous certificate is in effect shall take effect as of the beginning
of the first payroll period ending, or the first payment of wages made without
regard to a payroll period, on or after the date on which such certificate is
furnished. A withholding certificate furnished to the employer in cases in
which a previous certificate is in effect shall take effect for the first payment
of wages made on or after the first status determination date which occurs at
least 30 days from the date on which such certificate is furnished, except that
at the election of the employer such certificate may be made effective with
respect to any payment of wages made on or after the date on which such
certificate is furnished; but a certificate furnished pursuant to Paragraph (3) of
this Subsection shall not take effect, and may not be made effective, for any
payment of wages made in the calendar year in which the certificate is
furnished. For purposes of this Paragraph the term "status determination date"
means January 1 and July 1 of each year.
(5) A withholding certificate which takes effect under this Subsection
shall continue in effect until another certificate takes effect under this
Subsection, except as provided in Paragraph (7) of this Subsection.
(6) Withholding certificates shall be in such form and contain such
information as the collector may prescribe by regulation.
(7)(a) There is hereby imposed a civil penalty in the amount of five
hundred dollars for the submission of a false or fraudulent withholding
exemption certificate by a taxpayer/employee. False or fraudulent withholding
exemption certificates shall not include certificates filed whereby an
employee/taxpayer claims less withholding exemptions and withholding
credits for dependents than the employee/taxpayer is entitled to claim under the
provisions of this Subpart.
(b) If the secretary of the Department of Revenue believes or has
reason to believe that a taxpayer/employee has submitted a false or fraudulent
withholding exemption certificate, the Department of Revenue shall send to
the taxpayer/employee a certified letter, return receipt requested, requesting
that within thirty days from the receipt of the letter he contact the department
and furnish such documentary evidence that may be needed to prove the
exemptions or exemption credits claimed within the certificate submitted by
him to his employer.
(c)(i) If the taxpayer/employee fails to comply with the department's
request within thirty days or if from the information submitted by the
taxpayer/employee the department determines that the taxpayer/employee has
submitted a false or fraudulent withholding exemption certificate, there shall
be assessed a civil penalty in the amount of five hundred dollars.
(ii) The taxpayer/employee shall have a period of thirty days from the
date of assessment to appeal the assessment made by the department to the
Nineteenth Judicial District Court in and for the parish of East Baton Rouge,
state of Louisiana. The use of a summary proceeding in the nature of a rule to
show cause as authorized by Article 2592 of the Louisiana Code of Civil
Procedure is hereby established as the method by which the taxpayer/employee
may have the assessment made by the Department of Revenue reviewed
judicially.
(iii) After the delays provided herein above have run, the five hundred
dollars civil penalty assessment shall become executory and the Department
of Revenue shall have the right to proceed with collection of that penalty as
provided by law.
(d) If a taxpayer/employee fails to furnish to the Department of
Revenue the information requested under this Paragraph, the department shall
require the employer of the taxpayer/employee to withhold tax from that
taxpayer/employee at a rate as if the taxpayer/employee claims no withholding
exemptions or dependency credits and is not exempt from withholding. In
addition, the department shall notify the taxpayer/employee of such action.
Withholding pursuant to this provision shall continue until the
taxpayer/employee has filed a corrected withholding exemption certificate and
information supporting the corrected withholding exemption certificate with
the Department of Revenue and the certificate has been accepted as correct by
the department. The department shall notify the taxpayer/employee of its
acceptance or rejection of the corrected withholding exemption certificate
within thirty days of submission of the certificate. Upon acceptance of the
withholding exemption certificate as correct, the department shall notify the
employer of the taxpayer/employee to withhold from that taxpayer/employee
in accordance with the corrected withholding exemption certificate.
(e) The civil penalty provided herein is in addition to any other penalty
that may exist under the laws of this state and the penalty provided for shall be
an obligation against and accounted for by the taxpayer/employee in the same
manner as if it were a part of the withholding tax due and can be assessed and
collected in a separate action or in the same action for the total tax liability due
by the taxpayer/employee; except that the penalties provided for herein shall
not apply to "seasonal" workers having a work history which indicates that the
tax liability for the current year will not equate to the withholding tax rate
applicable to the months employed as a wage earner if the worker indicates on
his exemption certificate that the number of exemptions claimed is to
compensate for the months in which the worker will not be a wage earner, it
being the intent of this provision that the total taxes withheld from a worker's
wages shall not be greater than his tax liability for the full year.
(f) The secretary shall promulgate rules and regulations for the
coordination of the provisions of this Subsection with the provisions of this
Section.
H. Overlapping pay periods and payment by agent or fiduciary.
In order to allow to the employee exemptions and credits which
approximate the exemptions and credits allowable for an annual payroll period,
the collector shall promulgate regulations describing the manner of
withholding and the amount to be withheld under this Chapter in the following
special circumstances where the payment of wages is made to an employee by
an employer:
(1) for a payroll period or other period, any part of which is included
in a payroll period or other period with respect to which wages are also paid
to such employee by such employer, or
(2) without regard to any payroll period or other period, but on or prior
to the expiration of a payroll period or other period for which wages are also
paid to such employee by such employer, or
(3) for a period beginning in one and ending in another calendar year,
or
(4) through an agent, fiduciary, or other person who also has the
control, receipt, custody, or disposal of, or pays, the wages payable by another
employer to such employee.
I. Withholding on basis of average wages. The collector may, under
regulations prescribed by him, authorize employers to:
(1) estimate the wages which will be paid to any employee in any
quarter of the calendar year,
(2) determine the amount to be deducted and withheld upon each
payment of wages to such employee during such quarter as if the appropriate
average of the wages so estimated constituted the actual wages paid, and
(3) deduct and withhold upon any payment of wages to such employee
during such quarter the amount necessary to adjust the amount actually
deducted and withheld upon the wages of such employee during such quarter
to the amount required to be deducted and withheld during such quarter
without regard to this Subsection.
J. Additional withholding. The collector is authorized by regulations
to provide for withholding in addition to that otherwise required under this
Section in cases in which the employer and the employee agree to such
additional withholding. Such additional withholding shall for all purposes be
considered tax required to be deducted and withheld under this Chapter.
K. Non-cash remuneration to retail commission salesman. In the case
of remuneration paid in any medium other than cash for services performed by
an individual as a retail salesman for a person, where the service performed by
such individual for such person is ordinarily performed for remuneration solely
by way of cash commission, an employer shall not be required to deduct or
withhold any tax under this Subpart for such remuneration, provided that the
employer files with the collector information describing the remuneration
under regulations prescribed by the collector.
L. Receipts for employees. Every person required to deduct and
withhold from an employee a tax under this Subpart, or who would have
required to deduct and withhold a tax under this Subpart if the employee had
claimed no more than a single exemption status, shall furnish, in duplicate, to
each such employee in respect of the remuneration paid by such person to such
employee during the calendar year, on or before January 31 of the succeeding
year, or, if his employment is terminated before the close of such calendar
year, on or before the thirtieth day after the day on which the last payment of
remuneration is made, a written receipt, in the form prescribed by the collector,
showing the name and address of such person, the name and address of the
employee, the total amount of wages paid such employee during said period,
and total amount deducted and withheld as tax under this Subpart. Such a
receipt shall be furnished at such other times, shall contain such other
information, and shall be in such form as the collector by regulation may
prescribe. The collector may grant a reasonable extension of time, not
exceeding thirty days, for furnishing the aforesaid receipts.
M. Fraudulent statement or failure to furnish statement to employee.
In addition to the criminal penalty provided by R.S. 47:119, any person,
required under the provisions of Subsection L of this Section to furnish a
statement to an employee, who willfully furnishes a false or fraudulent
statement, or who willfully fails to furnish a statement in the manner, or at the
time, or showing the information required under Subsection L of this Section,
or regulations prescribed thereunder, shall for each such failure be subject to
a penalty of $50, which shall be collected in the same manner as the tax on
employers imposed by R.S. 47:111.
N. Employees incurring no income tax liability
(1) Notwithstanding any other provision of this Section, an employer
shall not be required to deduct and withhold any tax under this Chapter upon
a payment of wages to an employee if there is in effect with respect to such
payment a withholding exemption certificate (in such form and containing
such other information as the secretary may prescribe) furnished to the
employer by the employee certifying that the employee:
(a) Incurred no liability for income tax imposed under Subtitle A for
his preceding taxable year, and
(b) Anticipates that he will incur no liability for income tax imposed
under Subsection A of this Section for his current taxable year.
(2) However, if the secretary of the Department of Revenue believes
or has reason to believe that a taxpayer/employee has submitted a false or
fraudulent withholding exemption certificate, the Department of Revenue shall
send to the taxpayer/employee a certified letter, return receipt requested,
requesting that within thirty days from the receipt of the letter that he contact
the department and furnish such documentary evidence that may be needed to
prove the exemptions or exemption credits claimed within the certificate
submitted by him to his employer.
(3)(a) If the taxpayer/employee fails to comply with the department's
request within thirty days or if from the information submitted by the
taxpayer/employee the department determines that the taxpayer/employee has
submitted a false or fraudulent withholding exemption certificate, there shall
be assessed a civil penalty in the amount of five hundred dollars.
(b) The taxpayer/employee shall have a period of thirty days from the
date of assessment to appeal the assessment made by the department to the
Nineteenth Judicial District Court in and for the parish of East Baton Rouge,
state of Louisiana. The use of a summary proceeding in the nature of a rule to
show cause as authorized by Article 2592 of the Louisiana Code of Civil
Procedure is hereby established as the method by which the taxpayer/employee
may have the assessment made by the Department of Revenue reviewed
judicially.
(c) After the delays provided herein above have run, the five hundred
dollars civil penalty assessment shall become executory and the Department
of Revenue shall have the right to proceed with collection of that penalty as
provided by law.
(4) If a taxpayer/employee fails to furnish to the Department of
Revenue the information requested under this Paragraph, the department shall
require the employer of the taxpayer/employee to withhold tax from that
taxpayer/employee at a rate as if the taxpayer/employee claims no withholding
exemptions or dependency credits and is not exempt from withholding. In
addition, the department shall notify the taxpayer/employee of such action.
Withholding pursuant to this provision shall continue until the
taxpayer/employee has filed a corrected withholding exemption certificate and
information supporting the corrected withholding exemption certificate with
the Department of Revenue and the certificate has been accepted as correct by
the department. The department shall notify the taxpayer/employee of its
acceptance or rejection of the corrected withholding exemption certificate
within thirty days of submission of the certificate. Upon acceptance of the
withholding exemption certificate as correct, the department shall notify the
employer of that taxpayer/employee to withhold from the taxpayer/employee
in accordance with the corrected withholding exemption certificate.
(5) The civil penalty provided herein is in addition to any other penalty
that may exist under the laws of this state, and the penalty provided for shall
be an obligation against and accounted for by the taxpayer/employee in the
same manner as if it were a part of the withholding tax due and can be assessed
and collected in a separate action or in the same action for the total tax liability
due by the taxpayer/employee; except that the penalties provided for herein
shall not apply to "seasonal" workers having a work history which indicates
that the tax liability for the current year will not equate to the withholding tax
rate applicable to the months employed as a wage earner if the worker
indicates on his exemption certificate that the number of exemptions claimed
is to compensate for the months in which the worker will not be a wage earner,
it being the intent of this provision that the total taxes withheld from a worker's
wages shall not be greater than his tax liability for the full year.
(6) The secretary shall promulgate rules and regulations for the
coordination of the provisions of this Subsection with the provisions of this
Section.

Legislative History

Added by Acts 1960, No. 342, §1. Amended by Acts 1970, No. 258, §5; Acts 1973, Ex.Sess., No. 8, §1; Acts 1974, No. 454, §1, eff. Dec. 31, 1974; Acts 1984, No. 935, §1, eff. July 1, 1984; Acts 1984, No. 531, §1, eff. July 6, 1984; Acts 1997, No. 658, §2; Acts 2002, No. 51, §§1 and 2, eff. Jan. 1, 2003.