RS 47:112

§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 B, C. Repealed by Acts 2002, No. 51, eff.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. 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.