ARTICLE 1.5. Notice to Withhold
(Article 1.5 added by Stats. 1959, Ch. 1040.)
30311. If any person is delinquent in the payment of the amount required to be
paid by him or in the event a determination has been made against him
which remains unpaid, the board may, not later than three years after
the payment became delinquent, or within 10 years after the last recording
or filing of a notice of state tax lien under Section 7171 of the Government
Code, give notice thereof personally or by first-class mail to all persons,
including any officer or department of the state or any political subdivision
or agency of the state, having in their possession or under their control
any credits or other personal property belonging to the delinquent, or
person against whom a determination has been made which remains unpaid,
or owing any debts to the delinquent or such person. In the case of any
state officer, department or agency, the notice shall be given to such
officer, department or agency prior to the time it presents the claim
of the delinquent taxpayer to the State Controller.
History.—Stats. 1971, p. 3529, operative on and after January 1, 1972, applicable only with respect to certificates of lien or abstract of judgment filed on or after that date. Substitutes "10 years after last recording" for "3 years after last recording". Stats. 1977, Ch. 481, operative July 1, 1978, deleted "of a certificate" and substituted "or filing of a notice of state tax lien" following "last recording". Stats. 1978, Ch. 827, effective January 1, 1979, substituted "first-class" for "registered". Stats. 1980, Ch. 600, operative January 1, 1981, substituted "Section 7171 of the Government Code" for "Section 30322"
30312. After receiving the notice the persons so notified shall neither transfer nor make any other disposition of the credits, other personal property, or debts in their possession or under their control at the time they receive the notice until the board consents to a transfer or disposition or until 60 days elapse after the receipt of the notice, whichever period expires the earlier.
30313. All persons so notified shall forthwith after receipt of the notice advise
the board of all such credits, other personal property, or debts in their
possession, under their control, or owing by them. If such notice seeks
to prevent the transfer or other disposition of a deposit in a bank or
other credits or personal property in the possession or under the control
of a bank, the notice to be effective shall state the amount, interest
and penalty due from the person and shall be delivered or mailed to the
branch or office of such bank at which such deposit is carried or at which
such credits or personal property is held. Notwithstanding any other provision,
with respect to a deposit in a bank or other credits or personal property
in the possession or under the control of a bank, the notice shall only
be effective with respect to an amount not in excess of two times the
amount, interest and penalty due from the person.
History.—Stats. 1972, Ch. 103, operative July 1, 1973, inserted the words "shall state the amount, interest and penalty due from the person and," and added the third sentence
30314. If, during the effective period of the notice to withhold, any person so notified makes any transfer or disposition of the property or debts required to be withheld hereunder, to the extent of the value of the property or the amount of the debts thus transferred or paid he shall be liable to the State for any indebtedness due under this part from the person with respect to whose obligation the notice was given if solely by reason of such transfer or disposition the State is unable to recover the indebtedness of the person with respect to whose obligation the notice was given.
30315. (a) The board may, by notice of levy served personally or by first-class
mail, require all persons having in their possession, or under their control,
any payments, credits other than payments, or other personal property
belonging to a distributor, dealer or other person liable for any amount
under this part to withhold from these credits or other personal property
the amount of any tax, interest, or penalties due from the distributor,
dealer, or other person, or the amount of any liability incurred by them
under this part, and to transmit the amount withheld to the board at the
time it may designate. The notice of levy shall have the same effect as
a levy pursuant to a writ of execution except for the continuing effect
of the levy, as provided in subdivision (b).
(b) The person served shall continue to withhold pursuant to the notice of levy until the amount specified in the notice, including accrued interest, has been paid in full, until the notice is withdrawn, or until one year from the date the notice is received, whichever occurs first.
(c) The amount required to be withheld is the lesser of the following:
(1) The amount due stated on the notice.
(2) The sum of both of the following:
(A) The amount of the payments, credits other than payments, or personal property described above and under the person's possession or control when the notice of levy is served on the person.
(B) The amount of each payment that becomes due following service of the notice of levy on the person and prior to the expiration of the levy.
(d) For the purposes of this section, the term "payments'' does not include earnings as that term is defined in subdivision (a) of Section 706.011 of the Code of Civil Procedure or funds in a deposit account as defined in Section 9105 of the Commercial Code. The term "payments'' does include any of the following:
(1) Payments due for services of independent contractors, dividends, rents, royalties, residuals, patent rights, or mineral or other natural rights. (2) Payments or credits due or becoming due periodically as a result of an enforceable obligation to the distributor, dealer, or other person liable for the tax.
(3) Any other payments or credits due or becoming due the distributor, dealer, or other person liable as the result of written or oral contracts for services or sales whether denominated as wages, salary, commission, bonus, or otherwise.
(e) In the case of a financial institution, to be effective, the notice shall state the amount due from the taxpayer and shall be delivered or mailed to the branch or office of the financial institution where the credits or other property is held, unless another branch or office is designated by the financial institution to receive the notice.
History.—Added by Stats. 1982, Ch. 1589, in effect January 1, 1983. Stats. 1993, Ch. 1113, in effect January 1, 1994, added "(a)"; added a comma following "The board may" and deleted a comma following "notice of levy" in the first paragraph; substituted "these" for "such" following "withhold from"; substituted "the" for "such" following "due from"; substituted "the" for "such" following "the board at"; and substituted "time" for "times" before "as it may designate" in the first paragraph; added "(b)" to the second paragraph; and added subdivision (c). Stats. 1998, Ch. 609 (SB 2232), in effect January 1, 1999, substituted "payments, credits, or other payments," for "credits" after "their control, any", deleted "as" after "Controller at the" in the first sentence , and added "The notice of … in subdivision (b)." as the second sentence of subdivision (a); relettered subdivision (b) as (e); relettered subdivision (c) as (b); and added subdivisions (c) and (d)
30316. (a) Notwithstanding Article 7 (commencing with Section 706.151) of Chapter
5 of Title 9 of Part 2 of the Code of Civil Procedure, if the board determines
upon receiving information from a distributor or other person liable for
any amount under this part that the person's employer withheld earnings
for taxes pursuant to Section 30315 and failed to remit the withheld earnings
to the board, the employer shall be liable for the amount not remitted.
The board' s determination shall be based on payroll documents or other
substantiating evidence furnished by the person liable for the tax.
(b) Upon its determination, the board shall mail notice to the employer at its last known address that upon failure to remit the withheld earnings to the board within 15 days of the date of its notice to the employer, the employer shall be liable for that amount which was withheld and not remitted.
(c) If the employer fails to remit the amount withheld to the board upon notice, that amount for which the employer is liable shall be determined, collected, and paid as though it were a tax deficiency. The amount may be assessed at any time prior to seven years from the first day that the unremitted amount, in the aggregate, was first withheld. Interest shall accrue on that amount from the first day that the unremitted amount, in the aggregate was first withheld. (d) When the determination against the employer is final and due and payable, the person's account shall be immediately credited with an amount equal to that determined amount as though it were a payment received by the board on the first date that the unremitted amount, in the aggregate, was first withheld by the employer.
(e) Collection against the person liable for the tax is stayed for both the following amount and period:
(1) An amount equal to the amount determined by the board under subdivision (a).
(2) The earlier of the time the credit is applied to the person's account pursuant to subdivision (d) or the determination against the employer is withdrawn or revised and the person is notified by the board thereof.
(f) If under this section an amount that was withheld and not remitted to the board is final and due and payable by the employer and credited to the person's account, this remedy shall be the exclusive remedy for the person to recover that amount from the employer.
(g) This section shall apply to determinations made by the board on or after the effective date of the act adding this section.
History.—Added by Stats. 2000, Ch. 1052 (AB 2898), in effect January 1, 2001