67. What about payments made prior to May 14, 1919, if the employe has left the service of the employer, or if payments made or to be made since May 14, 1919, are insufficient to meet the withholding requirements

In such a case the liability of the withholding agent is limited to the amount, if any, which he has the opportunity to deduct and withhold. If the employee left his service and was fully paid prior to May 14, no liability exists. If amounts due and payable are insufficient to meet the withholding requirement after May 14, 1919, the withholding agent will be liable to the full extent thereof but no more. (Letter opinion

of attorney-general, May 29, 1919)

68. Should a withholding agent calculate as a portion of the amount paid or to be paid during 1919, the aggregate of payments made before May 14, 1919?

Yes.

69. Is deducting and withholding required in cases where the personal services are rendered entirely without the state by a non-resident?

No.

(Letter opinion of attorney-general, May 29, 1919)

70. Where the income of a non-resident is for personal service rendered partly within and partly without the state, is all of it taxable in New York?

No. That portion received for services without the state is not taxable against nonresidents, but payments for services performed within the state are taxable. (Letter opinion of attorney-general, May 29, 1919)

70a. Is withholding required in cases where the personal services are rendered partly within and partly without the state by a non-resident?

Yes. Rules and regulations to be established by the comptroller will provide for the abatement to the nonresident of such portion of the sum deducted and withheld as relates to the personal service compensation earned without the state, or that the withholding agent may deduct in respect of the income earned within the state only and support his return to the comptroller with an appropriate affidavit.

70b. What must a withholding agent do with the per cent of income withheld?

He must pay it to the comptroller on or before the 15th day of March next following the close of the calendar year during which the payments were made or credited. (Section 366, subdivision 3)

70c. Is there any exception to the foregoing rule?

Yes; if the taxpayer shall have paid the tax to the comptroller, it shall not be again collected from the withholding agent. (Section 366, subdivision 5)

70d. What must a withholding agent do in respect of income, whether withheld or not?.

He shall return to the comptroller complete information concerning the items of fixed and determinable annual or periodical income of any taxpayers, except interest represented by coupons payable to bearer, if the amount of such income in any taxable year, under the receipt, custody or control of the withholding agent, equals or exceeds $1,000, subject to the authority of the comptroller to limit and regulate these requirements as he may determine. (Section 366, subdivision 2) 71. Is a withholding agent personally liable for a tax required to be withheld?

Yes, to the extent that the 2 per cent required to be retained will pay the tax. (Section 366, subdivision 3)

72. Is a withholding agent relieved of liability to the recipient for the percentage of income withheld?

Yes. (Section 366, subdivision 3)

RETURNS

73. With whom is a return of income required to be filed? Taxpayers must file returns of income with the state comptroller. (Section 371)

74. When must they be filed?

On March 15 or before, next following the close of a taxable year. (Section 371)

75. Can the time for filing a return be extended?

Yes; the comptroller may grant a reasonable extension if, in his judgment, good cause exists. The extension of time may not be for a longer period than six months, except in the case of a taxpayer abroad, and, in both cases, interest at 6 per cent per annum will be charged on the tax. Rules and regulations to be adopted will answer this question more fully. (Section 371)

76. Who must file returns?

In general, returns must be filed by (a) resident taxpayers (section 367, (b) nonresident taxpayers, (c) fiduciaries (section 369), (d) withholding agents (section 366, subdivisions 2 and 3) and (e) partnerships (section 368).

77. When must a resident taxpayer file a return and what must it show?

Every resident taxpayer having a net income for a taxable year of $1,000 or over, if single or if married and not living with husband or wife, or of $2,000 or over if married and living with husband or wife, is required to make a return of income.

It must show a taxpayer's gross income" and the deductions and the credits allowed by law, and such other data as may be called for on the return form to be prescribed by the comptroller. in order that the true tax liability may be determined. ( (Section 367)

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78. If a husband and wife living together have an aggregate net income" of $2,000 or more, must each file a return? Each may file a return or they may join in rendering a single return. (Section 367)

79. In such a case, if they make separate returns, how may the personal exemption be claimed?

The personal exemption of $2,000 may be taken by either or pro rated between them. (Section 362, subdivision 1)

80. If a taxpayer is unable to be rendered?

make a return, by whom shall it

In such a case it may be made by a duly authorized agent or by the guardian or other person charged with the care of the person or property of the disabled taxpayer. (Section 367) 81. What should the return of a non-resident taxpayer show? It must show " gross income" from all sources within the state, and if the deductions authorized by section 360 are claimed, it must show " gross income from sources both

within and without the state. (Section 367)

82. Are partnerships required to file returns?

Yes; every partnership must make a return for cach taxable year. (Section 368)

83. What must the return of a partnership disclose?

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gross income " (b) the deductions

י.

It must show (a) allowed by law, (c) the names and addresses of individual members entitled to distributive shares of "net income " and (d) the distributive share of each. (Section 368) 84. May individuals who are members of partnerships be required to make a return in relation to the business of the partnership?

Yes; the comptroller may require any such taxpayer to make a return stating the gross receipts and net gains or profits of the partnership for any taxable year. (Section 364)

85. Are fiduciaries required to file returns?

Yes. Every fiduciary, except receivers appointed by authority of law in possession of part only of the property of a taxpayer, must make a return for the estate or trust or for the taxpayer for whom he acts (a) in case the taxpayer is a resident single person or if married and not living with husband or wife, if the "net income " is $1,000 or more, or in case the taxpayer is married and lives with husband or wife, if the 22 net income is $2,000 or more in a taxable year; (b) in case the net income" of the taxpayer, if an estate or trust, is $1,000 or over, or, (c) in case any beneficiary is a taxpayer other than a resident of the state. (Section 365, subdivision 2, and section 369)

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86. What must the return of a fiduciary show?

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It shall disclose the items of (a) gross income " ', (b) deductions, (c) exemptions, (d) credits and (e) a statement of each beneficiary's distributive share whether distributed or not, and such other data as may be called for on the form to be prescribed by the comptroller, in order that the income tax liability of the estate or trust or the distributive interests of the beneficiaries may be disclosed.

87. Is a withholding agent required to make a return?

Yes; if required to deduct and withhold any tax, he shall make a return thereof and pay the tax to the comptroller. If not required to deduct and withhold any tax, he must, nevertheless, make a return of information to the comptroller of the taxable income paid by him to any taxpayer if the amount of such income in any taxable year equals or exceeds $1,000. Exception is made in the case of income represented by interest coupons payable to bearer. (Section 366, subdivisions 2 and 3)

88. Should a non-resident taxpayer make a return of income withheld by a withholding agent?

Yes; income upon which any tax is required to be withheld at the source should be included in the return of the recipient of the income, but the tax withheld shall be credited against the amount of tax computed on such return. (Section 365, subdivision 4)

89. If a taxpayer changes from fiscal to calendar year or vice versa, are separate returns required for the partial year? Yes, as provided in section 370, but such a change in the cannot after the first year

basis of computing

66 net income

be made without the consent of the comptroller.

90. Will blanks be furnished upon which to render returns? Yes; but failure to receive a form does not relieve a taxpayer from the obligation of rendering a return. (Section 371)