From September 1, 2015, through October 30, 2015, the Comptroller of Maryland will administer a Tax Amnesty Program (Program) for tax periods beginning before December 31, 2014. Eligible taxpayers that participate in the Program will receive a waiver of certain civil penalties and a reduction of 50% of the interest associated with certain delinquent taxes.
Overview of the Program
During the 2015 legislative session, the Maryland General Assembly passed legislation (Senate Bill 763) creating the Program. The Program applies to tax periods on or before December 31, 2014, for the following tax types:
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Corporate income tax
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Personal income tax
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Sales and use tax
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Fiduciary income tax
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Pass-through entity nonresident income tax
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Employer withholding tax
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Admissions and amusement tax
The Program runs from September 1 through October 30, 2015, and waives civil penalties (except for previously assessed fraud penalties) and 50% of the applicable interest for delinquent taxpayers. Program applications will be accepted beginning September 1, 2015, and must be received or postmarked by October 30, 2015.
Eligibility/Ineligibility for the Program
Taxpayers that were granted amnesty between 1999 and 2014 (i.e., through either the 2001 or the 2009 programs) are not eligible for the Program. S.B. 763 § 2(a)(3)(i). In addition, taxpayers that were eligible for the Delaware Holding Company Settlement established by Chapter 577 of the Acts of 2004 for tax periods before tax year 2003 are also not eligible for the Program. S.B. 763 § 2(a)(3)(ii). Most other taxpayers are eligible to participate.
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Sutherland Observation
Like all state amnesty programs, businesses should carefully review the 2015 Maryland amnesty criteria. Most importantly, there is no prohibition on Program participation if a taxpayer is under audit or identified for audit by the Comptroller. There are prohibitions on participation in the 2015 Program for taxpayers that participated in certain prior amnesty periods. For example, participation in the 2001 or 2009 amnesty programs disqualifies a taxpayer, but participation in the 1987 amnesty does not. Moreover, the Program disqualifies businesses that were eligible for participation in the 2004 Delaware Holding Company settlement for tax periods before tax year 2003; actual participation in that program is not required for disqualification from the Program.
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Amnesty Application Form
The AM-15 Application for Tax Amnesty form is a fillable PDF. Taxpayers can complete the AM-15 online, print it out, and then submit the signed application form, along with returns and payments (electronic filing and payment options listed below) to the Comptroller by mail or in person at any of the Comptroller’s local offices. Taxpayers may also submit amnesty applications electronically.
Payment
Taxpayers submitting an application may elect to either pay their outstanding debts in full with their application or include at least 10% of the amnesty amount due with their application, and set up a payment plan. Taxpayers choosing the payment plan option must successfully complete the terms of the agreement on or before December 31, 2016.
Revenue Estimates Drop From Prior Amnesty Programs
The Program is estimated to bring in $11.4 million in Fiscal Year 2016 (July 1, 2015 – June 30, 2016) and $3.6 million in Fiscal Year 2017 (July 1, 2016 – June 30, 2017), bringing the total revenue from the Program to $15 million. By way of comparison, Maryland’s prior amnesty programs in 1987, 2001, and 2009 brought in $33.5 million, $39.5 million, and $38.9 million, respectively. Other than the possible decrease in revenues due to the recent 2009 amnesty, the fiscal note to S.B. 763 explains that the Program will likely bring in less money because, unlike the earlier amnesty programs: (1) the Program restricts the taxpayers eligible to participate (i.e., those that did not participate in prior programs), and (2) the Program waives 50% of the interest otherwise due from eligible taxpayers. Interestingly, the S.B. 763 fiscal note also suggests that 25% of the revenue from the Program—about $3.75 million—“would have been otherwise paid or collected under existing tax compliance programs by fiscal 2020.” Such tax compliance programs include various “tax clearance” requirements and non-wage withholding initiatives. The Comptroller must report by March 15, 2016, to the Governor and General Assembly on the revenues raised by the Program.
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Sutherland Observation
Taxpayers that believe they may have a delinquent tax liability should consider participating in the Program. Given the confusion and ambiguity resulting from recent cases (see, e.g., Gore Enterprise Holdings, Inc. v. Comptroller of the Treasury, 87 A.3d 1263 (Md. 2014); ConAgra Brands, Inc. v. Comptroller of the Treasury, No. 09-IN-OO-0150 (Md. Tax Ct. Feb. 24, 2015)), this Program presents a unique opportunity for taxpayers that are currently under audit, or that have been notified of an audit, to be granted amnesty for potential Maryland tax liabilities. Unlike prior Maryland amnesty programs, for example, the 2015 Program affords participating taxpayers interest relief in the amount of the 50% reduction.
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