[Rev. 11/21/2013 11:06:28 AM--2013]

CHAPTER 363B - BUSINESS TAX

GENERAL PROVISIONS

NRS 363B.010        Definitions.

NRS 363B.015        “Business activity” defined.

NRS 363B.020        “Commission” defined.

NRS 363B.030        “Employer” defined.

NRS 363B.040        “Employment” defined.

NRS 363B.050        “Taxpayer” defined.

ADMINISTRATION

NRS 363B.060        Duties of Department.

NRS 363B.070        Maintenance and availability of records of taxpayer; penalty.

NRS 363B.080        Examination of records by Department; payment of expenses of Department for examination of records outside State.

IMPOSITION AND COLLECTION

NRS 363B.110        Imposition, amount and payment of tax; filing of return. [Effective through June 30, 2015.]

NRS 363B.110        Imposition, amount and payment of tax; filing of return. [Effective July 1, 2015.]

NRS 363B.115        Deduction of certain amounts paid for health insurance or health benefit plan for employees.

NRS 363B.120        Partial abatement of tax during initial period of operation of employer.

NRS 363B.130        Extension of time for payment; payment of interest during period of extension.

OVERPAYMENTS AND REFUNDS

NRS 363B.140        Certification of excess amount collected; credit and refund.

NRS 363B.150        Limitations on claims for refund or credit; form and contents of claim; failure to file claim constitutes waiver; service of notice of rejection of claim.

NRS 363B.160        Interest on overpayments; disallowance of interest.

NRS 363B.170        Injunction or other process to prevent collection of tax prohibited; filing of claim is condition precedent to maintaining action for refund.

NRS 363B.180        Action for refund: Period for commencement; venue; waiver.

NRS 363B.190        Rights of claimant upon failure of Department to mail notice of action on claim; allocation of judgment for claimant.

NRS 363B.200        Allowance of interest in judgment for amount illegally collected.

NRS 363B.210        Standing to recover.

NRS 363B.220        Action for recovery of erroneous refund: Jurisdiction; venue; prosecution.

NRS 363B.230        Cancellation of illegal determination.

MISCELLANEOUS PROVISIONS

NRS 363B.240        Prohibited acts; penalty.

NRS 363B.250        Remedies of State are cumulative.

_________

_________

 

GENERAL PROVISIONS

      NRS 363B.010  Definitions.  As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 363B.015 to 363B.050, inclusive, have the meanings ascribed to them in those sections.

      (Added to NRS by 2003, 20th Special Session, 141; A 2005, 22nd Special Session, 139)

      NRS 363B.015  “Business activity” defined.  “Business activity” means the performance of a service or engagement in a trade for profit.

      (Added to NRS by 2005, 22nd Special Session, 137)

      NRS 363B.020  “Commission” defined.  “Commission” means the Nevada Tax Commission.

      (Added to NRS by 2003, 20th Special Session, 141)

      NRS 363B.030  “Employer” defined.  “Employer” means any employer who is required to pay a contribution pursuant to NRS 612.535 for any calendar quarter with respect to any business activity of the employer, except a financial institution, an Indian tribe, a nonprofit organization, a political subdivision or any person who does not supply a product or service, but who only consumes a service. For the purposes of this section:

      1.  “Financial institution” has the meaning ascribed to it in NRS 363A.050.

      2.  “Indian tribe” includes any entity described in subsection 10 of NRS 612.055.

      3.  “Nonprofit organization” means a nonprofit religious, charitable, fraternal or other organization that qualifies as a tax-exempt organization pursuant to 26 U.S.C. § 501(c).

      4.  “Political subdivision” means any entity described in subsection 9 of NRS 612.055.

      (Added to NRS by 2003, 20th Special Session, 141; A 2005, 2480; 2005, 22nd Special Session, 139)

      NRS 363B.040  “Employment” defined.  “Employment” has the meaning ascribed to it in NRS 612.065 to 612.145, inclusive.

      (Added to NRS by 2003, 20th Special Session, 141)

      NRS 363B.050  “Taxpayer” defined.  “Taxpayer” means any person liable for the tax imposed by this chapter.

      (Added to NRS by 2003, 20th Special Session, 141)

ADMINISTRATION

      NRS 363B.060  Duties of Department.  The Department shall:

      1.  Administer and enforce the provisions of this chapter, and may adopt such regulations as it deems appropriate for those purposes.

      2.  Deposit all taxes, interest and penalties it receives pursuant to this chapter in the State Treasury for credit to the State General Fund.

      (Added to NRS by 2003, 20th Special Session, 141; A 2009, 2518)

      NRS 363B.070  Maintenance and availability of records of taxpayer; penalty.

      1.  Each person responsible for maintaining the records of a taxpayer shall:

      (a) Keep such records as may be necessary to determine the amount of the liability of the taxpayer pursuant to the provisions of this chapter;

      (b) Preserve those records for 4 years or until any litigation or prosecution pursuant to this chapter is finally determined, whichever is longer; and

      (c) Make the records available for inspection by the Department upon demand at reasonable times during regular business hours.

      2.  The Department may by regulation specify the types of records which must be kept to determine the amount of the liability of a taxpayer pursuant to the provisions of this chapter.

      3.  Any person who violates the provisions of subsection 1 is guilty of a misdemeanor.

      (Added to NRS by 2003, 20th Special Session, 141)

      NRS 363B.080  Examination of records by Department; payment of expenses of Department for examination of records outside State.

      1.  To verify the accuracy of any return filed or, if no return is filed by a taxpayer, to determine the amount required to be paid, the Department, or any person authorized in writing by the Department, may examine the books, papers and records of any person who may be liable for the tax imposed by this chapter.

      2.  Any person who may be liable for the tax imposed by this chapter and who keeps outside of this State any books, papers and records relating thereto shall pay to the Department an amount equal to the allowance provided for state officers and employees generally while traveling outside of the State for each day or fraction thereof during which an employee of the Department is engaged in examining those documents, plus any other actual expenses incurred by the employee while he or she is absent from his or her regular place of employment to examine those documents.

      (Added to NRS by 2003, 20th Special Session, 141)

IMPOSITION AND COLLECTION

      NRS 363B.110  Imposition, amount and payment of tax; filing of return. [Effective through June 30, 2015.]

      1.  There is hereby imposed an excise tax on each employer at the rate of 1.17 percent of the amount by which the sum of all the wages, as defined in NRS 612.190, paid by the employer during a calendar quarter with respect to employment in connection with the business activities of the employer exceeds $85,000.

      2.  The tax imposed by this section:

      (a) Does not apply to any person or other entity or any wages this State is prohibited from taxing under the Constitution, laws or treaties of the United States or the Nevada Constitution.

      (b) Must not be deducted, in whole or in part, from any wages of persons in the employment of the employer.

      3.  Each employer shall, on or before the last day of the month immediately following each calendar quarter for which the employer is required to pay a contribution pursuant to NRS 612.535:

      (a) File with the Department a return on a form prescribed by the Department; and

      (b) Remit to the Department any tax due pursuant to this chapter for that calendar quarter.

      (Added to NRS by 2003, 20th Special Session, 142; A 2003, 20th Special Session, 230; 2005, 2081; 2005, 22nd Special Session, 139; 2007, 1712; 2009, 2190; 2011, 2891; 2013, 3425, 3427, 3428)

      NRS 363B.110  Imposition, amount and payment of tax; filing of return. [Effective July 1, 2015.]

      1.  There is hereby imposed an excise tax on each employer at the rate of 0.63 percent of the wages, as defined in NRS 612.190, paid by the employer during a calendar quarter with respect to employment in connection with the business activities of the employer.

      2.  The tax imposed by this section:

      (a) Does not apply to any person or other entity or any wages this State is prohibited from taxing under the Constitution, laws or treaties of the United States or the Nevada Constitution.

      (b) Must not be deducted, in whole or in part, from any wages of persons in the employment of the employer.

      3.  Each employer shall, on or before the last day of the month immediately following each calendar quarter for which the employer is required to pay a contribution pursuant to NRS 612.535:

      (a) File with the Department a return on a form prescribed by the Department; and

      (b) Remit to the Department any tax due pursuant to this chapter for that calendar quarter.

      (Added to NRS by 2003, 20th Special Session, 142; A 2003, 20th Special Session, 230; 2005, 2081; 2005, 22nd Special Session, 139; 2007, 1712; 2009, 2190; 2011, 2891; 2013, 3425, 3427, effective July 1, 2015)

      NRS 363B.115  Deduction of certain amounts paid for health insurance or health benefit plan for employees.

      1.  Except as otherwise provided in subsection 2, an employer may deduct from the total amount of wages reported for the purpose of calculating the amount of the excise tax required to be paid pursuant to NRS 363B.110 any amount authorized pursuant to this section that is paid by the employer for health insurance or a health benefit plan for its employees in the calendar quarter for which the tax is paid. The amounts for which the deduction is allowed include:

      (a) For a self-insured employer, all amounts paid during the calendar quarter for claims, direct administrative services costs, including such services provided by the employer, and any premiums paid for individual or aggregate stop-loss insurance coverage. An employer is not authorized to deduct the costs of a program of self-insurance unless the program is a qualified employee welfare benefit plan pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq.

      (b) The premiums for a policy of health insurance or reinsurance for a health benefit plan for employees.

      (c) Any amounts which are:

             (1) Paid by an employer to a Taft-Hartley trust which:

                   (I) Is formed pursuant to 29 U.S.C. § 186(c)(5); and

                   (II) Qualifies as an employee welfare benefit plan; and

             (2) Considered by the Internal Revenue Service to be fully tax deductible pursuant to the provisions of the Internal Revenue Code.

      (d) Such other similar payments for health care or insurance for health care for employees as are authorized by the Department.

      2.  An employer may not deduct pursuant to subsection 1 any:

      (a) Amounts paid for health care or premiums paid for insurance for an industrial injury or occupational disease for which coverage is required pursuant to chapters 616A to 616D, inclusive, or 617 of NRS; or

      (b) Payments made by employees for health care or health insurance or amounts deducted from the wages of employees for such health care or insurance.

      3.  If the amount of the deduction allowed pursuant to this section to an employer for a calendar quarter exceeds the amount of reported wages for that calendar quarter, the excess amount of that deduction may be carried forward to the following calendar quarter until the deduction is exhausted. An employer claiming the deduction allowed pursuant to this section shall, upon the request of the Department, explain the amount claimed to the satisfaction of the Department and provide the Department with such documentation as the Department deems appropriate for that purpose.

      4.  As used in this section:

      (a) “Claims” means claims for those categories of health care expenses that are generally deductible by employees on their individual federal income tax returns pursuant to the provisions of 26 U.S.C. § 213 and any federal regulations relating thereto, if those expenses had been borne directly by those employees.

      (b) “Direct administrative services costs” means, if borne directly by a self-insured employer and reasonably allocated to the direct administration of claims:

             (1) Payments for medical or office supplies that will be consumed in the course of the provision of medical care or the direct administration of claims;

             (2) Payments to third-party administrators or independent contractors for the provision of medical care or the direct administration of claims;

             (3) Rent and utility payments for the maintenance of medical or office space used for the provision of medical care or the direct administration of claims;

             (4) Payments for the maintenance, repair and upkeep of medical or office space used for the provision of medical care or the direct administration of claims;

             (5) Salaries and wages paid to medical, clerical and administrative staff and other personnel employed to provide medical care or directly to administer claims; and

             (6) The depreciation of property other than medical or office supplies, used for the provision of medical care or the direct administration of claims.

      (c) “Employee welfare benefit plan” has the meaning ascribed to it in 29 U.S.C. § 1002.

      (d) “Employees” means employees whose wages are included within the calculation of the amount of the excise tax imposed upon an employer by NRS 363B.110, and their spouses, children and other dependents who qualify for coverage under the terms of the health insurance or health benefit plan provided by that employer.

      (e) “Health benefit plan” means a health benefit plan that covers only those categories of health care expenses that are generally deductible by employees on their individual federal income tax returns pursuant to the provisions of 26 U.S.C. § 213 and any federal regulations relating thereto, if those expenses had been borne directly by those employees.

      (f) “Self-insured employer” means an employer that provides a program of self-insurance for its employees.

      (Added to NRS by 2005, 22nd Special Session, 137; A 2011, 2892)

      NRS 363B.120  Partial abatement of tax during initial period of operation of employer.

      1.  An employer that qualifies pursuant to the provisions of NRS 360.750 is entitled to an exemption of 50 percent of the amount of tax otherwise due pursuant to NRS 363B.110 during the first 4 years of its operation.

      2.  If a partial abatement from the taxes otherwise due pursuant to NRS 363B.110 is approved by the Office of Economic Development pursuant to NRS 360.750, the partial abatement must be administered and carried out in the manner set forth in NRS 360.750.

      (Added to NRS by 2003, 20th Special Session, 144; A 2011, 3467)

      NRS 363B.130  Extension of time for payment; payment of interest during period of extension.  Upon written application made before the date on which payment must be made, the Department may for good cause extend by 30 days the time within which a taxpayer is required to pay the tax imposed by this chapter. If the tax is paid during the period of extension, no penalty or late charge may be imposed for failure to pay at the time required, but the taxpayer shall pay interest at the rate of 1 percent per month from the date on which the amount would have been due without the extension until the date of payment, unless otherwise provided in NRS 360.232 or 360.320.

      (Added to NRS by 2003, 20th Special Session, 144)

OVERPAYMENTS AND REFUNDS

      NRS 363B.140  Certification of excess amount collected; credit and refund.  If the Department determines that any tax, penalty or interest has been paid more than once or has been erroneously or illegally collected or computed, the Department shall set forth that fact in the records of the Department and certify to the State Board of Examiners the amount collected in excess of the amount legally due and the person from whom it was collected or by whom it was paid. If approved by the State Board of Examiners, the excess amount collected or paid must, after being credited against any amount then due from the person in accordance with NRS 360.236, be refunded to the person or his or her successors in interest.

      (Added to NRS by 2003, 20th Special Session, 144; A 2009, 66)

      NRS 363B.150  Limitations on claims for refund or credit; form and contents of claim; failure to file claim constitutes waiver; service of notice of rejection of claim.

      1.  Except as otherwise provided in NRS 360.235 and 360.395:

      (a) No refund may be allowed unless a claim for it is filed with the Department within 3 years after the last day of the month following the calendar quarter for which the overpayment was made.

      (b) No credit may be allowed after the expiration of the period specified for filing claims for refund unless a claim for credit is filed with the Department within that period.

      2.  Each claim must be in writing and must state the specific grounds upon which the claim is founded.

      3.  Failure to file a claim within the time prescribed in this chapter constitutes a waiver of any demand against the State on account of overpayment.

      4.  Within 30 days after rejecting any claim in whole or in part, the Department shall serve notice of its action on the claimant in the manner prescribed for service of notice of a deficiency determination.

      (Added to NRS by 2003, 20th Special Session, 144)

      NRS 363B.160  Interest on overpayments; disallowance of interest.

      1.  Except as otherwise provided in this section, NRS 360.320 or any other specific statute, interest must be paid upon any overpayment of any amount of the taxes imposed by this chapter at the rate set forth in, and in accordance with the provisions of, NRS 360.2937.

      2.  If the Department determines that any overpayment has been made intentionally or by reason of carelessness, the Department shall not allow any interest on the overpayment.

      (Added to NRS by 2003, 20th Special Session, 144; A 2007, 913)

      NRS 363B.170  Injunction or other process to prevent collection of tax prohibited; filing of claim is condition precedent to maintaining action for refund.

      1.  No injunction, writ of mandate or other legal or equitable process may issue in any suit, action or proceeding in any court against this state or against any officer of the State to prevent or enjoin the collection under this chapter of the tax imposed by this chapter or any amount of tax, penalty or interest required to be collected.

      2.  No suit or proceeding may be maintained in any court for the recovery of any amount alleged to have been erroneously or illegally determined or collected unless a claim for refund or credit has been filed.

      (Added to NRS by 2003, 20th Special Session, 145)

      NRS 363B.180  Action for refund: Period for commencement; venue; waiver.

      1.  Within 90 days after a final decision upon a claim filed pursuant to this chapter is rendered by the Commission, the claimant may bring an action against the Department on the grounds set forth in the claim in a court of competent jurisdiction in Carson City, the county of this state where the claimant resides or maintains his or her principal place of business or a county in which any relevant proceedings were conducted by the Department, for the recovery of the whole or any part of the amount with respect to which the claim has been disallowed.

      2.  Failure to bring an action within the time specified constitutes a waiver of any demand against the State on account of alleged overpayments.

      (Added to NRS by 2003, 20th Special Session, 145)

      NRS 363B.190  Rights of claimant upon failure of Department to mail notice of action on claim; allocation of judgment for claimant.

      1.  If the Department fails to mail notice of action on a claim within 6 months after the claim is filed, the claimant may consider the claim disallowed and file an appeal with the Commission within 30 days after the last day of the 6-month period. If the claimant is aggrieved by the decision of the Commission rendered on appeal, the claimant may, within 90 days after the decision is rendered, bring an action against the Department on the grounds set forth in the claim for the recovery of the whole or any part of the amount claimed as an overpayment.

      2.  If judgment is rendered for the plaintiff, the amount of the judgment must first be credited towards any tax due from the plaintiff.

      3.  The balance of the judgment must be refunded to the plaintiff.

      (Added to NRS by 2003, 20th Special Session, 145)

      NRS 363B.200  Allowance of interest in judgment for amount illegally collected.  In any judgment, interest must be allowed at the rate of 3 percent per annum upon the amount found to have been illegally collected from the date of payment of the amount to the date of allowance of credit on account of the judgment, or to a date preceding the date of the refund warrant by not more than 30 days. The date must be determined by the Department.

      (Added to NRS by 2003, 20th Special Session, 145; A 2011, 3144)

      NRS 363B.210  Standing to recover.  A judgment may not be rendered in favor of the plaintiff in any action brought against the Department to recover any amount paid when the action is brought by or in the name of an assignee of the person paying the amount or by any person other than the person who paid the amount.

      (Added to NRS by 2003, 20th Special Session, 145)

      NRS 363B.220  Action for recovery of erroneous refund: Jurisdiction; venue; prosecution.

      1.  The Department may recover a refund or any part thereof which is erroneously made and any credit or part thereof which is erroneously allowed in an action brought in a court of competent jurisdiction in Carson City or Clark County in the name of the State of Nevada.

      2.  The action must be tried in Carson City or Clark County unless the court, with the consent of the Attorney General, orders a change of place of trial.

      3.  The Attorney General shall prosecute the action, and the provisions of NRS, the Nevada Rules of Civil Procedure and the Nevada Rules of Appellate Procedure relating to service of summons, pleadings, proofs, trials and appeals are applicable to the proceedings.

      (Added to NRS by 2003, 20th Special Session, 146)

      NRS 363B.230  Cancellation of illegal determination.

      1.  If any amount in excess of $25 has been illegally determined, either by the Department or by the person filing the return, the Department shall certify this fact to the State Board of Examiners, and the latter shall authorize the cancellation of the amount upon the records of the Department.

      2.  If an amount not exceeding $25 has been illegally determined, either by the Department or by the person filing the return, the Department, without certifying this fact to the State Board of Examiners, shall authorize the cancellation of the amount upon the records of the Department.

      (Added to NRS by 2003, 20th Special Session, 146)

MISCELLANEOUS PROVISIONS

      NRS 363B.240  Prohibited acts; penalty.

      1.  A person shall not:

      (a) Make, cause to be made or permit to be made any false or fraudulent return or declaration or false statement in any return or declaration with intent to defraud the State or to evade payment of the tax or any part of the tax imposed by this chapter.

      (b) Make, cause to be made or permit to be made any false entry in books, records or accounts with intent to defraud the State or to evade the payment of the tax or any part of the tax imposed by this chapter.

      (c) Keep, cause to be kept or permit to be kept more than one set of books, records or accounts with intent to defraud the State or to evade the payment of the tax or any part of the tax imposed by this chapter.

      2.  Any person who violates the provisions of subsection 1 is guilty of a gross misdemeanor.

      (Added to NRS by 2003, 20th Special Session, 146)

      NRS 363B.250  Remedies of State are cumulative.  The remedies of the State provided for in this chapter are cumulative, and no action taken by the Department or the Attorney General constitutes an election by the State to pursue any remedy to the exclusion of any other remedy for which provision is made in this chapter.

      (Added to NRS by 2003, 20th Special Session, 144)