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General Laws

[ Text of section effective until July 1, 2013. For text effective July 1, 2013, see below.]

  Section 24A. (a) Members or indirect owners of a pass-through entity shall report items of income, expense or credit derived from the pass-through entity in a manner consistent with the reporting of the pass-through entity, except to the extent that a taxpayer member or indirect owner makes a declaration of inconsistency with its original return.

  (b) The commissioner shall establish by regulation unified audit procedures. The commissioner may audit, in a unified proceeding, a pass-through entity 1 or more of whose members or indirect owners are subject to tax under chapters 62 or 63; provided, however, that nothing in this section shall limit the ability of the commissioner to audit or assess individual members or indirect owners with respect to items derived from a pass-through entity. The commissioner's regulations shall establish the types of pass-through entities subject to unified audit proceedings which may include, but shall not be limited to, partnerships and S corporations. The regulations shall also provide for the designation by the pass-through entity of a tax matters partner who shall have the authority to represent all the members or indirect owners in the unified proceeding, except to the extent that a member or indirect owner opts out of the unified proceeding as provided in subsection (d). The authority of the tax matters partner in a unified proceeding generally shall include, but not be limited to, the following: (i) receiving tax notices on behalf of participating members or indirect owners with respect to pass-through entity items; (ii) entering into settlement agreements with the commissioner under section 37C on behalf of the participating members or indirect owners with regard to pass-through entity items; (iii) filing applications for abatement under section 37 on behalf of the participating members or indirect owners with respect to pass-through entity items; and (iv) filing appeals with the appellate tax board under section 39 on behalf of participating members or indirect owners in the case of a denial of an abatement by the commissioner, if the underlying abatement application relates to pass-through entity items. So far as practicable, the commissioner's regulations shall be modeled on federal rules.

  (c) The statute of limitations for the assessment of tax of a member or indirect owner with respect to a pass-through entity item for an entity's taxable year shall not expire before the latest of: (i) 3 years after the later of the date on which the entity's return for the taxable year was filed or the last day for filing the entity's return for that year, without extensions, or (ii) an assessment period otherwise applicable to the taxpayer member or indirect owner. Subsections (d) and (h) of section 26 shall apply to returns filed by a pass-through entity. In the case of a unified proceeding, the tax matters partner or other person authorized by a pass-through entity may enter into a written agreement with the commissioner under section 27 to extend the statute of limitations for assessment with respect to items of the pass-through entity, in which case such agreement shall operate to extend the statute of limitation for assessment with respect to all members or indirect owners with respect to such items, including any members or indirect owners who may have opted out of the unified proceeding pursuant to subsection (d).

  (d) Members or indirect owners of a pass-through entity may choose not to participate in a unified audit procedure by providing notice to the commissioner in such manner as the commissioner may require. Non-participating members or indirect owners shall retain all rights provided under this chapter with respect to determining and disputing tax related to pass-through entity items; provided, however, that the statute of limitations for assessment of tax to non-participating members or indirect owners with respect to items derived from a pass-through entity that is subject to a unified proceeding shall not expire before the end of the time period provided in subsection (c).

Chapter 62C: Section 24A. Income reporting by member or indirect owner of pass-through entity; unified audit procedure; statute of limitations for tax assessment; opting out of unified audit procedure

[ Text of section as amended by 2013, 38, Sec. 57 effective July 1, 2013. See 2013, 38, Sec. 219. For text effective until July 1, 2013, see above.]

  Section 24A. (a) Members or indirect owners of a pass-through entity shall report items of income, expense or credit derived from the pass-through entity in a manner consistent with the reporting of the pass-through entity, except to the extent that a taxpayer member or indirect owner makes a declaration of inconsistency with its original return.

  (b) The commissioner shall establish by regulation unified audit procedures. The commissioner may audit, in a unified proceeding, a pass-through entity 1 or more of whose members or indirect owners are subject to tax under chapters 62 or 63; provided, however, that nothing in this section shall limit the ability of the commissioner to audit or assess individual members or indirect owners with respect to items derived from a pass-through entity or the ability of the commissioner to inspect books and records of a pass-through entity outside of a unified audit procedure. The determination of pass-through entity items shall be binding on all members and indirect owners participating in the unified audit procedure. For purposes of this section, "members and indirect owners participating in the unified audit procedure'' shall mean all members and indirect owners of a pass-through entity subject to audit in a unified proceeding pursuant to this section, other than members and indirect owners that elect not to participate in the unified audit proceding under subsection (e). The regulations shall establish the types of pass-through entities subject to unified audit proceedings which may include, but shall not be limited to, partnerships and S corporations. The regulations shall also require the pass-through entity to designate a tax matters partner who may represent all the members and indirect owners participating in the unified proceeding. The authority of the tax matters partner in a unified audit procedure shall include, but not be limited to, the following on behalf of members and indirect owners participating in the unified audit procedure: (i) receiving tax notices; (ii) representing members and indirect owners during the unified audit proceding and in administrative appeals with the commissioner; (iii) entering into settlement agreements with the commissioner under section 37C with regard to pass-through entity items; and (iv) filing petitions with the appellate tax board and pursuing any subsequent judicial appeal with respect to a determination of pass-through entity items by the commissioner. So far as practicable, the commissioner's regulations shall be modeled on federal rules.

  (c)(1) A unified audit procedure shall begin when the commissioner so notifies the tax matters partner. Except as otherwise provided, the commissioner shall begin a unified audit procedure and issue a notice of determination of pass-through entity items within 3 years after the later of the date on which the entity's return for the taxable year was either filed or required to be filed, taking extensions into account. The 3-year period shall be extended to the extent the statute of limitations for audit or assessment is extended under subsection (d). It shall be the responsibility of the tax matters partner to provide notice to members and indirect owners of the pendency of the unified audit procedure. Such notice shall be provided in the manner and to the extent required in the partnership or other agreement governing the pass-through entity and its members and indirect owners. The failure of the tax matters partner to provide notice shall not affect the validity of the unified audit procedure with respect to all members and indirect owners participating in the unified audit procedure. The determination of pass-through entity items after the commencement of a unified audit procedure shall be made exclusively under the unified audit process which, except as specified in this section, shall supersede the assessment and abatement process otherwise applicable under this chapter to members and indirect owners with respect to pass-through entity items. If, in the course of a unified audit procedure, it appears to the commissioner that the statement of pass-through entity items on the entity's return will result in a tax liability of members and indirect owners that is different from the correct amount, the commissioner shall give notice of proposed adjustments to the tax matters partner and other members specified in regulations issued by the commissioner. Within 30 days after the notice, the tax matters partner or other members specified in regulations issued by the commissioner may request a conference with regard to proposed adjustments of pass-through entity items. After unified audit administrative proceedings are concluded, the commissioner shall issue a notice of determination of pass-through entity items to the tax matters partner. The tax matters partner or other members specified in regulations issued by the commissioner may petition the appellate tax board for review of the determination of pass-through entity items within 60 days after the determination has been sent to the tax matters partner. The appellate tax board shall have jurisdiction to decide petitions under this section and its decision shall be a final decision of the board for the purpose of the right to a judicial appeal.

  (2) If no petition is filed with the appellate tax board as provided in this subsection, the determination of pass-through entity items shall become a final determination the day after the last date on which the pass-through entity may appeal the determination of pass-through entity items. If a timely petition is filed with the appellate tax board, the determination of pass-through entity items shall become a final determination on the later of: (i) the date of the appellate tax board decision or subsequent final judicial decision; or (ii) the day after the date on which the right to any further appeal expires. After a final determination of pass-through entity items is made, the commissioner shall assess or abate members and indirect owners in accordance with the final determination. The commissioner shall not be required to issue a notice of intent to assess prior to assessment.

  (d)(1) Except as provided in this subsection, the statute of limitations for the assessment of tax of a member or indirect owner with respect to a pass-through entity item or an item affected by a pass-through entity item for a taxable year to which pass-through entity items relate shall not expire before the later of: (i) the assessment period, including subsections (d) or (h) of section 26, applicable to the taxpayer member or indirect owner for tax periods to which pass-through entity items relate; or (ii) 1 year after the date the determination of pass-through entity items becomes a final determination under paragraph (2) of subsection (c).

  (2) Subsections (d) and (h) of section 26 shall apply to returns filed by a pass-through entity. In such cases, the commissioner may conduct a unified audit of pass-through entity items and reach final determination of those items during such extended time periods as are consistent with those described in said subsections (d) and (h) of said section 26.

  (3) The tax matters partner or other person authorized by a pass-through entity may enter into a written agreement with the commissioner following the procedures under section 27 to extend the statute of limitations for the conduct of a unified audit procedure and determination of pass-through entity items.

  (4) A member or indirect owner participating in the unified audit procedure may, within 6 months after an assessment or abatement made after a final determination of pass-through entity items in accordance with paragraph (2) of subsection (d), challenge the computation of tax as it applies to that taxpayer by filing an application for abatement under section 37; provided, however, that the application shall be limited to computational matters on the member's or indirect owner's return attributable to pass-through entity items and shall not contest the underlying determination of the pass-through entity items.

  (e) Members or indirect owners of a pass-through entity may elect not to participate in a unified audit procedure by providing notice to the commissioner in such time and manner as the commissioner may require. Members or indirect owners who elect not to participate in the unified audit procedure shall follow the procedures under section 26 for pre-assessment conferences and procedures under section 37 for abatement requests and appeals with respect to determining and disputing tax related to pass-through entity items; provided, however, that the statute of limitations for assessment of tax to members or indirect owners who have elected not to participate in the unified audit procedure with respect to pass-through entity items and affected items derived from a pass-through entity that is subject to a unified audit procedure shall not expire in any event sooner than the end of 1 year after the date the determination of pass-through entity items becomes a final determination under paragraph (2) of subsection (c).

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