In a long awaited decision reversing 26 years of existing precedent, on June 21st the United States Supreme Court ruled in South Dakota v. Wayfair, Inc., that states and other taxing jurisdictions could require out of state retailers to collect sales tax on online sales even though the retailers had no physical presence in the taxing jurisdiction.
Recently enacted House Bill 2 includes a tax amnesty plan for all New Hampshire taxes collected by the Department of Revenue Administration. This is the first New Hampshire general tax amnesty program since 2001 and includes taxes such as the Business Profits Tax, the Business Enterprise Tax, the Real Estate Transfer Tax, the Interest and Dividends Tax and the Meals and Rentals Tax. Under the program, a taxpayer who pays all unpaid taxes between December 1, 2015 and February 15, 2016 will receive amnesty from all penalties and all interest in excess of 50% of the applicable interest rate. Amnesty applies even if the Department of Revenue Administration has not assessed the tax or if the assessment is, or will be, appealed. A taxpayer who has not filed a return can participate in the amnesty program by filing the missing return and paying the associated tax by February 15, 2016. No special form or application is required to request participation in the amnesty program. The Department of Revenue Administration intends to place an online interest calculator on its website to facilitate amnesty filings.
House Bill 2 also includes a provision requiring mandatory penalties for a taxpayer owing taxes due on or before December 31, 2015 who does not participate in the amnesty program. The mandatory penalty provision will apply on and after March 1, 2016. The mandatory penalty provision prohibits “the department or any administrative tribunal or court with jurisdiction” from waiving, abating or reducing a penalty for any reason on taxes due before December 31, 2015. The Department has taken the position that the mandatory penalty provision does not prohibit the reversal of an improperly assessed penalty on appeal. The Department has published Technical Information Release 2015-006 describing the amnesty program. This Release is available at http://revenue.nh.gov/tirs/technical-releases.htm.
House Bill 2 also revises RSA 21-J:3 by adding a provision requiring the Department to implement a Voluntary Disclosure Program. Under the Disclosure Program, the Department will waive penalties for any taxpayer that self-discloses a failure to file required tax returns. Several years ago, the Department began an informal disclosure program. Since then, it has formalized the program. Thus, the statutory revision will not change Department procedure, but provides authorization for the Department to provide a disclosure program. Under the existing program, a self-disclosing non-filer agrees to file returns for the past three years in exchange for penalty relief and no requirement to file earlier returns. Note that as of March 1, 2016, the mandatory penalty provisions in the amnesty program will prevent waiver of penalties for voluntary disclosures of taxes due on or before December 31, 2015.