BILL REQ. #:  S-2369.1 

Read first time 04/14/11.   Referred to Committee on Ways & Means.

     AN ACT Relating to strengthening compliance measures for the collection of excise taxes from corporate officers responsible for tax payments to provide funding for essential government services; amending RCW 82.32.145; creating a new section; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   (1) The legislature finds that there is a critical need to maintain public services that support the high quality of life in Washington state by providing opportunities for Washingtonians to live healthy, productive, and successful lives, providing care and support for those who are unable to care for themselves, and helping to ensure that Washington remains a safe, beautiful, vibrant place to live, work, and raise a family.
     (2) The legislature finds that the payment of duly owed excise taxes is the responsibility of a business' corporate officers. By failing to meet these obligations, such corporate officers shift the burden of the payment of taxes onto other businesses and provides those officers with a competitive advantage. The legislature further finds that during this economic crisis and the necessity to balance the budget, strengthening compliance measures meets general tax policy goals and enhances revenue collections without the imposition of new taxes. At a time when virtually every area of the budget is being reduced by substantial amounts, corporate officers must meet their fairly imposed tax obligations so that all citizens bear some of the burden to balance the budget.
     (3) Therefore, it is the legislature's intent that the additional revenues from enhanced compliance of excise tax payments by responsible corporate officers in this act be used to support schools, colleges, health care, public safety, environmental protection, and other core functions of the state.

Sec. 2   RCW 82.32.145 and 2010 1st sp.s. c 23 s 801 are each amended to read as follows:
     (1) Whenever the department has issued a warrant under RCW 82.32.210 for the collection of unpaid ((retail sales tax funds collected and held in trust under RCW 82.08.050)) taxes from a limited liability business entity and that business entity has been terminated, dissolved, or abandoned, or is insolvent, the department may pursue collection of the entity's unpaid ((sales)) taxes, including penalties and interest on those taxes, against any or all of the responsible individuals. For purposes of this subsection, "insolvent" means the condition that results when the sum of the entity's debts exceeds the fair market value of its assets. The department may presume that an entity is insolvent if the entity refuses to disclose to the department the nature of its assets and liabilities.
     (2) Personal liability under this section may be imposed for state and local sales ((taxes)) and use taxes, state business and occupation taxes, and any other state and local taxes collected by the department in respect to which the provisions of this chapter apply, regardless of whether the tax is denominated a tax, fee, charge, or some other term.
     (3)(a) For a responsible individual who is the current or a former chief executive or chief financial officer, liability under this section applies regardless of fault or whether the individual was or should have been aware of the unpaid ((sales)) tax liability of the limited liability business entity.
     (b) For any other responsible individual, liability under this section applies only if he or she willfully fails to pay or to cause to be paid to the department the ((sales)) taxes due from the limited liability business entity.
     (4)(a) Except as provided in this subsection (4)(a), a responsible individual who is the current or a former chief executive or chief financial officer is liable under this section only for ((sales)) tax liability accrued during the period that he or she was the chief executive or chief financial officer. However, if the responsible individual had the responsibility or duty to remit payment of the limited liability business entity's ((sales)) taxes to the department during any period of time that the person was not the chief executive or chief financial officer, that individual is also liable for ((sales)) tax liability that became due during the period that he or she had the duty to remit payment of the limited liability business entity's taxes to the department but was not the chief executive or chief financial officer.
     (b) All other responsible individuals are liable under this section only for ((sales)) tax liability that became due during the period he or she had the responsibility or duty to remit payment of the limited liability business entity's taxes to the department.
     (5) Persons described in subsection (3)(b) of this section are exempt from liability under this section in situations where nonpayment of the limited liability business entity's ((sales)) taxes is due to reasons beyond their control as determined by the department by rule.
     (6) Any person having been issued a notice of assessment under this section is entitled to the appeal procedures under RCW 82.32.160, 82.32.170, 82.32.180, 82.32.190, and 82.32.200.
     (7) This section does not relieve the limited liability business entity of its ((sales)) tax liability or otherwise impair other tax collection remedies afforded by law.
     (8) Collection authority and procedures prescribed in this chapter apply to collections under this section.
     (9) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.
     (a) "Chief executive" means: The president of a corporation; or for other entities or organizations other than corporations or if the corporation does not have a president as one of its officers, the highest ranking executive manager or administrator in charge of the management of the company or organization.
     (b) "Chief financial officer" means: The treasurer of a corporation; or for entities or organizations other than corporations or if a corporation does not have a treasurer as one of its officers, the highest senior manager who is responsible for overseeing the financial activities of the entire company or organization.
     (c) "Limited liability business entity" means a type of business entity that generally shields its owners from personal liability for the debts, obligations, and liabilities of the entity, or a business entity that is managed or owned in whole or in part by an entity that generally shields its owners from personal liability for the debts, obligations, and liabilities of the entity. Limited liability business entities include corporations, limited liability companies, limited liability partnerships, trusts, general partnerships and joint ventures in which one or more of the partners or parties are also limited liability business entities, and limited partnerships in which one or more of the general partners are also limited liability business entities.
     (d) "Manager" has the same meaning as in RCW 25.15.005.
     (e) "Member" has the same meaning as in RCW 25.15.005, except that the term only includes members of member-managed limited liability companies.
     (f) "Officer" means any officer or assistant officer of a corporation, including the president, vice president, secretary, and treasurer.
     (g)(i) "Responsible individual" includes any current or former officer, manager, member, partner, or trustee of a limited liability business entity with an unpaid tax warrant issued by the department.
     (ii) "Responsible individual" also includes any current or former employee or other individual, but only if the individual had the responsibility or duty to remit payment of the limited liability business entity's unpaid ((sales)) tax liability reflected in a tax warrant issued by the department.
     (iii) Whenever any taxpayer has one or more limited liability business entities as a member, manager, or partner, "responsible individual" also includes any current and former officers, members, or managers of the limited liability business entity or entities or of any other limited liability business entity involved directly in the management of the taxpayer. For purposes of this subsection (9)(g)(iii), "taxpayer" means a limited liability business entity with an unpaid tax warrant issued against it by the department.
     (h) "Willfully fails to pay or to cause to be paid" means that the failure was the result of an intentional, conscious, and voluntary course of action.

NEW SECTION.  Sec. 3   This act takes effect August 1, 2011.