[Rev. 5/4/2013 1:54:33 PM]
[NAC-364A Revised Date: 10-02]
GENERAL PROVISIONS
364A.010 Definitions.
364A.012 Interpretation by department of certain terms used in chapter 364A of NRS.
ADMINISTRATION
364A.020 Notification of change in business affecting administration of tax.
364A.030 Date for receipt of material transmitted by mail.
BUSINESS LICENSE
364A.050 Payment of fee for license.
364A.060 Suspension or revocation of license.
IMPOSITION AND COLLECTION OF TAX
364A.070 Methods of payment of tax; waiver of requirement for direct deposits.
364A.088 “Natural person who performs all of his duties for the business outside of this state” interpreted.
364A.089 “Operator” and “trade show or convention” interpreted; effect of payment by operator of annual fee.
364A.090 “Previous calendar quarter” and “preceding quarter” interpreted.
364A.104 Application of tax to estates and trusts.
364A.114 Counting of partners or equivalent full-time employees.
364A.118 Determining average number of employees: Corporate officers; members of boards of directors, advisory boards or other similar boards.
364A.120 Determining average number of employees: Extension of due date of tax for business.
364A.124 Exclusion of hours worked by pupil in calculation of hours worked by employees: Requirements.
364A.127 Application for certificate of exemption of payment of taxes on behalf of other persons.
EVIDENCE OF COMPLIANCE REQUIRED BY LOCAL GOVERNMENTS
364A.180 Form of evidence of compliance required before issuance of business license by local government.
MISCELLANEOUS PROVISIONS
364A.200 Documentation required to be supplied by subcontractor to general contractor.
GENERAL PROVISIONS
NAC 364A.010 Definitions. (NRS 364A.060) As used in this chapter, unless the context otherwise requires:
1. “Commission” means the Nevada tax commission.
2. “Department” means the department of taxation.
3. “Executive director” means the executive director of the department of taxation.
(Added to NAC by Tax Comm’n, eff. 9-16-91)
NAC 364A.012 Interpretation by department of certain terms used in chapter 364A of NRS. (NRS 364A.060) As used in chapter 364A of NRS, the department shall interpret:
1. “Governmental entity” to mean:
(a) The United States and its unincorporated agencies and instrumentalities;
(b) An incorporated agency or instrumentality of the United States;
(c) A corporation that is wholly owned by the United States;
(d) Any state and its unincorporated agencies and instrumentalities; and
(e) A county, city, district or other political subdivision of a state.
2. “Independent contractor” to mean a self-employed person who makes available to the public a specific trade or profession and who is responsible for estimating and filing his own federal self-employment and income taxes. Such a person may be identified by the fact that he:
(a) Has a recognized trade or profession.
(b) May employ others to assist in the completion of his contract.
(c) Owns, rents or leases the tools or equipment used in the completion of his work required by the contract.
(d) Normally contracts with more than one business for more than one project.
(e) Is in a position to make a financial gain or suffer a financial loss as a result of the contract.
3. Except as otherwise provided in this subsection, “organization that conducts an activity for profit” to mean a business entity, association, partnership, business association or other organization which has not qualified as a tax-exempt organization pursuant to 26 U.S.C. § 501(c). The term does not include an informally structured investment venture between spouses, children, grandchildren, parents, grandparents, brothers, sisters, aunts, uncles, cousins or any combination thereof.
4. “Personal service” to include the significant services rendered to a partnership for which the person who renders the service is compensated.
5. “Remuneration” to mean any form of compensation for services, including, but not limited to, monetary payments and tangible and intangible property. The term does not include payments that represent a reasonable return on an investment, loan repayments or expense reimbursements.
(Added to NAC by Tax Comm’n, eff. 1-16-92; A 7-16-92)
ADMINISTRATION
NAC 364A.020 Notification of change in business affecting administration of tax. (NRS 364A.060) Each licensed business shall inform the department in writing of any change within the business which will affect the administration of the business license tax, including, without limitation, any change in:
1. The name of the corporation or business.
2. The mailing address and physical location of the business in Nevada, including the addition or deletion of physical locations.
3. The mailing address and physical location of the principal place of business, wherever located, including the addition or deletion of physical locations.
4. General partners and owners of unincorporated businesses.
(Added to NAC by Tax Comm’n, eff. 9-16-91)
NAC 364A.030 Date for receipt of material transmitted by mail. (NRS 364A.060)
1. Any report, return or remittance which is transmitted through the United States mail shall be deemed to have been received on the date shown by the post office cancellation mark stamped upon the envelope containing it, or on the date it was mailed if proof satisfactory to the commission establishes that the document or remittance was timely deposited in the United States mail, postage prepaid and properly addressed to the commission.
2. A receipt for material sent by certified or registered mail, if different than the post office cancellation mark, will prevail if the date on the receipt is earlier than the cancellation date.
3. A record authenticated by the post office that the cancellation date on certain batches of mail was erroneous is proof satisfactory to the commission that the mailing was made on a date other than the post office cancellation date.
4. If it is known that the postal service was inoperative at a certain time due to strikes, riots, warfare, acts of God or other reasons, the commission will consider the circumstances, and if there is other evidence of timely mailing, will accept the evidence and deem the return or payment timely.
5. Under no circumstances will:
(a) The cancellation date affixed by a postage meter in the possession of the taxpayer or other person; or
(b) Statements by the taxpayer or his employees,
be considered sufficient to refute the post office cancellation date as the date of mailing.
(Added to NAC by Tax Comm’n, eff. 9-16-91)
BUSINESS LICENSE
NAC 364A.050 Payment of fee for license. (NRS 364A.060, 364A.130)
1. Each business that operates in Nevada shall register with the department and pay a fee for licensing. The fee will only be required once during the term for which a business operates in Nevada unless the license is:
(a) Revoked for failure to comply with the provisions of Title 32 of NRS or any regulation adopted pursuant thereto; or
(b) Voluntarily canceled by the taxpayer or an authorized representative of the taxpayer.
2. A taxpayer whose account is closed for seasonal or temporary reasons will not be required to pay an additional fee upon reopening the business.
3. A business that is incorporated pursuant to chapter 78 or 78A of NRS but has no employees in Nevada shall pay the fee required by NRS 364A.130 pursuant to subsection 1 but is not required to file the tax returns otherwise required by NRS 364A.140.
(Added to NAC by Tax Comm’n, eff. 12-13-91; A 3-27-92)
NAC 364A.060 Suspension or revocation of license. (NRS 364A.060, 364A.135)
1. Upon the receipt of a notice of the suspension or revocation of a state business license, the business shall, upon demand, immediately surrender the license to any employee of the department.
2. Any subsequent violation of the laws or the regulations of the commission will be cause for the permanent revocation of a business license for habitual violations. The suspension or revocation of temporary or provisional licenses shall be deemed prima facie evidence of habitual violations.
3. A new license will only be issued for a previously suspended or revoked account if the business:
(a) Pays all outstanding amounts, including the amounts of tax, penalties, interest and costs, if any costs were incurred;
(b) Files all returns due and outstanding;
(c) Pays the required fees for renewal or issuance of licenses; and
(d) Confirms in writing that it will henceforth comply with all the provisions of the laws and regulations prescribed by the commission.
4. A license issued for a previously suspended or revoked account will be prominently marked temporary or provisional and will include an effective date and an expiration date no earlier than 1 calendar year later.
5. If during the 1-year period the business becomes delinquent or otherwise fails to comply with the applicable statutes and regulations, the department shall immediately initiate proceedings to permanently revoke the license.
6. Full compliance with applicable laws and regulations for the period of the temporary or provisional licenses entitles the holder to apply for and receive a regular business license upon request without an additional fee.
7. The department shall not issue a business license to the previous holder of a business license which has been permanently revoked without the express action of the commission.
(Added to NAC by Tax Comm’n, eff. 9-16-91)
IMPOSITION AND COLLECTION OF TAX
NAC 364A.070 Methods of payment of tax; waiver of requirement for direct deposits. (NRS 364A.060, 364A.140)
1. Remittances to the department must be by money order, bank draft or check payable to the department. Remittances in currency or coin are wholly at the risk of the remitter and the department assumes no responsibility for loss thereof, unless payment is tendered directly to an authorized employee of the department and a receipt for payment is issued.
2. All payments of the business license tax must be:
(a) Mailed to the department’s lock box facility or an office of the department; or
(b) Hand delivered to an office of the department.
3. The department is unable to accept direct deposits as provided in subsection 4 of NRS 364A.140. Therefore, the requirement is waived until such time as a direct deposit mechanism can be established for the department.
4. Postage stamps will not be accepted as remittances.
(Added to NAC by Tax Comm’n, eff. 9-16-91)
NAC 364A.088 “Natural person who performs all of his duties for the business outside of this state” interpreted. (NRS 364A.040, 364A.060) As used in paragraph (d) of subsection 3 of NRS 364A.040, the department shall construe the phrase “natural person who performs all of his duties for the business outside of this state” to include a natural person whose only contact with the state is a business meeting conducted in this state which is:
1. Not a part of the regular operations of the business or its reason for being in business;
2. Conducted for training, education or enhancement of management quality; or
3. Not held in conjunction with the display or sale of tangible personal property or services either in this state or subsequently out of state.
(Added to NAC by Tax Comm’n, eff. 3-27-92)
NAC 364A.089 “Operator” and “trade show or convention” interpreted; effect of payment by operator of annual fee. (NRS 364A.060, 364A.152)
1. As used in NRS 364A.152, the commission will interpret:
(a) “Operator” to mean:
(1) If referring to the operator of a facility which is owned by a governmental entity, the governmental entity or subdivision of the governmental entity that is directly responsible for the daily operation of the facility, such as a convention authority.
(2) If referring to the operator of a facility which is owned by a business, the business that is directly responsible for the daily operation of the facility, such as a subsidiary of a corporation.
(b) “Trade show or convention” to mean a meeting or assembly of businesses which are in the same field or related fields which is held for purposes related to the conduct of business.
2. Payment by an operator of the annual fee set forth in paragraph (b) of subsection 4 of NRS 364A.152 satisfies the operator’s duty, set forth in subsection 1 of that section, to pay the taxes imposed by chapter 364A of NRS on behalf of the persons who:
(a) Do not have a business license issued pursuant to chapter 364A of NRS; and
(b) Take part in a trade show or convention held at a facility he operates for a purpose related to the conduct of a business,
for all facilities that he operates.
(Added to NAC by Tax Comm’n, eff. 1-3-94)
NAC 364A.090 “Previous calendar quarter” and “preceding quarter” interpreted. (NRS 364A.060, 364A.130, 364A.140) For the purposes of paragraph (c) of subsection 2 of NRS 364A.130 and subsections 1, 3 and 4 of NRS 364A.140, the terms “previous calendar quarter” and “preceding quarter” mean the immediately preceding 3 months ending with the day on which the tax for that quarter is due.
(Added to NAC by Tax Comm’n, eff. 12-16-91)
NAC 364A.104 Application of tax to estates and trusts. (NRS 364A.020, 364A.040, 364A.060)
1. An estate or trust which is:
(a) Organized to conduct activities for profit is subject to the fee imposed pursuant to NRS 364A.130 and the tax imposed pursuant to NRS 364A.140.
(b) Not organized for profit and is created to hold assets is not subject to the fee imposed pursuant to NRS 364A.130 or the tax imposed pursuant to NRS 364A.140.
2. An example of a trust which is subject to the fee imposed pursuant to NRS 364A.130 and the tax imposed pursuant to NRS 364A.140 is a trust which:
(a) Is established for purposes relating to the federal tax on personal income; and
(b) Employs seven employees and owns a chain of department stores.
3. An example of an estate which is not subject to the fee imposed pursuant to NRS 364A.130 or the tax imposed pursuant to NRS 364A.140 is an estate which:
(a) Has no employees; and
(b) Consists of residential rental property which was owned by the deceased owner of the estate.
4. For the purposes of NRS 364A.040, an estate or trust:
(a) Is not a natural person.
(b) Which is part of a partnership is not an employee.
(Added to NAC by Tax Comm’n, eff. 3-27-92)
NAC 364A.114 Counting of partners or equivalent full-time employees. (NRS 364A.040, 364A.060)
1. If a partner is compensated for services rendered, the department shall consider the personal services to be significant and the partner must be counted as an employee for the purposes of the tax. A partner who works less than 36 hours per week may be counted as a part-time employee if the partnership maintains a record of the actual number of hours worked by that partner.
2. A partnership must calculate its number of equivalent full-time employees and then, if one of the partners is a natural person, subtract one for the partner not subject to the tax.
(Added to NAC by Tax Comm’n, eff. 1-16-92; A 1-3-94)
NAC 364A.118 Determining average number of employees: Corporate officers; members of boards of directors, advisory boards or other similar boards. (NRS 364A.040, 364A.060)
1. For the purposes of chapter 364A of NRS, the department shall treat the members of a board of directors, advisory board or other similar board as independent contractors if those members do not provide other services to the business in the State of Nevada.
2. The department shall consider corporate officers as employees of the corporation if they receive wages, compensation or other benefits for services rendered. The department shall consider the officer an employee if the compensation or other benefits are reported or required to be reported to any other state or federal agency as salary or wages. Examples of compensation or benefits that must be considered salary or wages include, but are not limited to:
(a) An automobile provided by the corporation for the use of the officer or employee.
(b) Expenses incurred in operating or maintaining such an automobile.
(c) Travel expenses.
(d) The cost of providing medical insurance.
(e) Pensions, profit-sharing or similar contributions.
(Added to NAC by Tax Comm’n, eff. 1-16-92; A 1-3-94)
NAC 364A.120 Determining average number of employees: Extension of due date of tax for business. (NRS 364A.060, 364A.180)
1. A business may request a 15-day extension of the due date of the tax. The department will grant the extension if the business makes its request in writing to the department on or before the date the taxes are due for the first quarter for which the business is liable for taxes of each fiscal year. The request must include the specific reasons for which the extension is requested.
2. A business may submit a request to the department for an extension of longer than 15 days. Such a request must include specific reasons concerning the necessity of the longer extension.
(Added to NAC by Tax Comm’n, eff. 12-16-91; A 3-27-92; 1-3-94)
NAC 364A.124 Exclusion of hours worked by pupil in calculation of hours worked by employees: Requirements. (NRS 364A.060, 364A.151) A business that, in calculating the total number of hours worked by all employees pursuant to NRS 364A.150, excludes any hours pursuant to NRS 364A.151, shall:
1. Record the number of hours worked by each pupil, in the same manner and form used for other employees; and
2. Retain a copy of the authorization received from each pupil’s school district which allows the pupil to participate in a program supervised by the school district which combines work and study.
(Added to NAC by Tax Comm’n, eff. 9-6-96)
NAC 364A.127 Application for certificate of exemption of payment of taxes on behalf of other persons. (NRS 364A.060, 364A.152, 364A.1525)
1. To be designated as an organization that is created for religious, charitable or educational purposes that is not responsible for the payment of taxes on behalf of other persons pursuant to subsection 1 of NRS 364A.152, an organization must, not later than 30 days before the date on which the first trade show or convention of the calendar year begins, submit to the department an application for a certificate of exemption in the form prescribed by the department.
2. Upon request of the department, the organization shall provide any one or more of the following to the department:
(a) A copy of the organization’s bylaws;
(b) A copy of the organization’s articles of incorporation;
(c) A copy of any of the organization’s financial statements for the previous year;
(d) A copy of any certificate of exemption issued to the organization by any governmental agency; and
(e) Any other information requested by the department.
3. If an organization applying for a certificate of exemption has provided all necessary information, the department will approve or deny the application not later than 30 days after the date on which the application is received. If an organization applying for a certificate of exemption has not provided all necessary information, the department will approve or deny the application not later than 30 days after the date on which all necessary information has been received by the department. The department will notify an organization applying for a certificate of exemption in writing of the department’s decision regarding the approval or denial of the application.
4. If the department approves the application, the department will issue a certificate of exemption. The certificate of exemption is valid for the calendar year in which it is issued, and is not transferable.
5. The department may deny an application for a certificate of exemption or revoke a certificate of exemption if the department determines that the organization:
(a) Made a false statement of material fact on its application; or
(b) Does not meet or has ceased to comply with the requirements necessary to qualify as an organization created for religious, charitable or educational purposes pursuant to NRS 364A.1525.
6. An organization may appeal the denial of an application for a certificate of exemption or the revocation of a certificate of exemption in the same manner, and in accordance with the procedures and rules of practice, for a contested case pursuant to NAC 360.043 to 360.200, inclusive.
(Added to NAC by Tax Comm’n, eff. 9-6-96)
EVIDENCE OF COMPLIANCE REQUIRED BY LOCAL GOVERNMENTS
NAC 364A.180 Form of evidence of compliance required before issuance of business license by local government. (NRS 364A.060) Each local government shall require evidence of compliance with chapter 364A of NRS before issuing a business license. The evidence of compliance must be in one of the following forms:
1. A copy of a valid state business license or a written receipt for such a license; or
2. A signed and completed certificate of compliance, affirming the fact that the business is in compliance with chapter 364A of NRS as it related to obtaining a business license.
(Added to NAC by Tax Comm’n, eff. 3-27-92)
MISCELLANEOUS PROVISIONS
NAC 364A.200 Documentation required to be supplied by subcontractor to general contractor. (NRS 364A.060, 364A.340)
1. Before entering into initial written contracts with general contractors in this state, a subcontractor based in Nevada must supply the general contractors with either:
(a) Evidence of having obtained a state business license and evidence of being in good standing with the department, including:
(1) A receipt for or copy of a Nevada state business license; or
(2) A receipt for taxes paid to the department for the most recent calendar quarter; or
(b) A clearance letter provided by the department indicating a Nevada state business license is not required.
2. An out-of-state subcontractor entering into written contracts with general contractors in this state shall supply the general contractors with the document required by paragraph (a) or (b) of subsection 1 on an annual basis.
3. The provisions of subsections 1 and 2 do not apply to suppliers who are based in Nevada and registered with the department as sellers or consumers and who, through verbal contracts, furnish and install tangible personal property for general contractors.
4. As used in this section, the term “general contractor” includes a subcontractor who contracts with or otherwise employs another subcontractor.
(Added to NAC by Tax Comm’n, eff. 9-16-91)