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S Corporations and Partnerships
A Partnership includes syndicates, pools, joint ventures or any other unincorporated organization of two or more persons through which any business, trade, profession, occupation or venture is carried on.
The following partnerships are required to file an Annual return.
A Resident Partnership is any partnership organized under the laws of West Virginia whose principal office, place of business, or other activity is within the borders of West Virginia. It may also carry on its business or other activities in other states.
A Nonresident Partnership is any partnership other than a resident partnership that has:
Limited Liability Companies (LLC)
A limited liability company which is treated like a partnership for federal income tax purposes will also be treated as such for West Virginia income tax purposes. If it is not treated like a partnership, it will be taxed as a Corporation.
Every corporation electing to be taxed under sub-chapter S of the Internal Revenue Code that engages in business in West Virginia or that derives income from property, activity or other sources in West Virginia.
Extensions of Time to File
Any partnership or S corporation needing an extension of time to file and/or that expects to owe nonresident withholding tax must file Form
PTE-100EXT Extension of Time to File Information Returns (formerly SPF-100EXT or SPF-100T), on or before the due date of the return .
Any partnership granted an extension of time to file their federal return is granted the same extension of time to file their West Virginia return.
Be sure to attach a copy of your federal extension
(Federal Form 7004) to each tax return to avoid any penalty for late filing. An extension of time for filing does not extend the time for payment.
A state extension of time to file may be obtained, even if a federal extension has not been requested, provided Form
PTE-100EXT (formerly SPF-100EXT or SPF-100T) is filed prior to the due date of the West Virginia return.
Penalty for Late Filing and Failure to Include Correct Information
Any S corporation or partnership that fails to file and/or include all the correct information on their
PTE-100 return, and Form
NRW-2 or Form
NRW-4 when applicable, by the required filing date, is subject to a penalty of $50.00 for each information return on which they failed to file or include correct information, not to exceed $100,000.00.
Provisions for the reduction of the penalty amount exist if the S corporation or partnership corrects the failure or error within specified time frames.
If the failure is due to intentional disregard for the filing requirements or the correct information reporting requirement, the penalty is $100.00 or ten percent (.10) of the aggregate amount of the items required to be reported correctly, whichever is greater.
For additional information about this penalty, request a copy of Publication
TSD-391 by calling Taxpayer Services at (304) 558-3333 or toll free at 1-800-982-8297.
Where to File
West Virginia State Tax Department
Tax Account Administration Division
PO Box 11751
Charleston, WV 25339-1751
Nonresident Partner / Shareholder Withholding
Partnerships and S corporations are required to withhold West Virginia income tax from each nonresident partner / shareholder that has not provided the partnership or S corporation a West Virginia Nonresident Income Tax Agreement, Form
The amount to be withheld is six and one-half percent (.065) of the nonresident partner's/shareholder's share of the federal taxable income or portion thereof that is derived from or attributable to West Virginia sources, whether such amount is distributed or is deemed to have been distributed for federal income tax purposes.
The entire tax withheld is required to be remitted with Form
PTE-100 Income Tax Return S Corporation and Partnership (Pass-Through Entity).
The individual nonresident partners/shareholders may claim the amount withheld as a credit against their West Virginia Income Tax liability by attaching a copy of the information statement provided by the partnership/S corporation to the West Virginia Income Tax Return.
Information Statement of Tax Withheld
Every S corporation or partnership required to deduct and withhold tax on nonresident shareholders/partners must provide an information statement to each nonresident shareholder/partner on or before the date it files its West Virginia Income Tax Return.
The information statement shall show the amount of West Virginia income subject to withholding and the amount of West Virginia income tax withheld.
The S corporation or partnership may satisfy this requirement by indicating this information on one of the following forms with the “From SP” box checked:
The nonresident shareholder/partner must attach their copy of Form
Federal Schedule K-1 including the information statement of West Virginia Income Tax Withheld to their West Virginia Income Tax Return to claim credit for tax withheld. For the nonresident claiming the credit, the “From SP” box should not be checked on their copy of the form.
An S corporation or partnership may opt to satisfy the nonresident withholding requirements by filing Form
IT-140NRC West Virginia Nonresident Composite Income Tax Return for one or more of its nonresident shareholders.
A nonresident composite return is a return filed on a group basis as though there was only one taxpayer. A list setting forth the name, address, taxpayer identification number, and percent of ownership of each nonresident shareholder/partner included in the return must be maintained. The return does not have to be signed by each nonresident shareholder/partner provided it is signed by a corporate officer.
When filing a nonresident composite return, no personal exemptions may be utilized and the rate of tax is six and one-half percent (.065) of the taxable income.
The S corporation or partnership is responsible for collecting and remitting all income tax due at the time the return is filed.
The due-date for a nonresident composite return is the 15th day of the 4th month following the close of the taxable year. A $50.00 processing fee must also accompany the composite return.
Any nonresident shareholder/partner included in a composite return that has income from any other West Virginia source, must file a separate
IT-140 West Virginia Personal Income Tax Return for the taxable year to report and pay personal income tax on all of their West Virginia source income.
The nonresident shareholder/partner may claim credit for their share of West Virginia income tax remitted with the nonresident composite return.
Schedule SP – Summary of K-1 Shareholders/Partners Ownership and Computation of Withholding Tax
Every S corporation or partnership is required to complete a
Schedule SP. This schedule must be completed in order to provide information required by the West Virginia State Tax Department on each shareholder/partner.
Schedule SP must include the amount of withholdings required to be remitted by the S corporation/partnership on behalf of their nonresident shareholders/partners.
PTE-100 return as well as the
Schedule SP is used to identify all shareholders and to account for each shareholder's portion of the S corporation's income.
The Schedule SP is also used to calculate the amount of withholding that is required on each nonresident shareholder's portion of the S corporation's income.
All shareholders are subject to West Virginia Personal Income Tax under the provisions of West Virginia Code
Chapter 11, Article 21.
Also, the nonresident shareholder's share of the S corporation's West Virginia source income under the provisions of
Chapter 11, Article 21, Section 71a.
West Virginia Income Tax Withheld on behalf of the S Corporation or Partnership
Electronic Filing or Paper Filed Returns: If an entity withheld tax on behalf of the S corporation or partnership filing a
PTE-100, and that withholding is reported on a Form
Federal K-1, failure to submit these documents with your SPF-100 return will result in the disallowance of the credit claimed.
Taxable Year/Method of Accounting
You must use the same taxable year and method of accounting as you use for federal tax purposed.
Federal Return Information
A signed, true copy of the first five pages of
Federal Form 1120S or
Federal K-1 and any supporting documents must be attached to the return when filed.
Federal Form M-3 must also be attached if required.
If a Federal copy of the return is not included, then the return is not complete and is not valid.
Additions to Tax
Additions to tax are imposed for failure to file a return on or before the due date (determined with regard to an extension of time to file).
On any amount of tax shown to be due on the return, the additions to tax for late filing is five percent (.05) per month or any part of a month not to exceed twenty-five percent (.25).
Additions to tax are imposed for failure to pay all tax shown to be due on a return on or before the due date (determined without regard to an extension of time to file). The additions to tax for late payment is imposed at the rate of one half of one percent (.005) per month or part of a month not to exceed twenty-five percent (.25).
When both the five percent (.05) additions to tax for late filing and the one half of one percent (.005) additions to tax for late payment are imposed, the maximum monthly percent is five percent (.05) not to exceed forty-seven and one-half of one percent (.475) of tax due.
Completion and Signature
All appropriate sections of the return must be completed. All required supporting documents must be attached. An incomplete return will not be accepted as timely filed. The returns must be signed by an authorized officer, partner, or member.
If the return is prepared by someone other than the taxpayer, the preparer must also sign the return and enter his or her complete address.
Changes on Federal Return
Any S corporation or partnership whose reported income or deductions are changed or corrected by the Internal Revenue Service or through renegotiation of a contract with the United States is required to report the change or correction to the West Virginia State Tax Department.
This report must be made within 90-days of the final determination by filing an amended return and attaching a copy of the revenue agent's report detailing such adjustments.
An S corporation or partnership that filed an amended return with the Internal Revenue Service must file an amended return with the West Virginia State Tax Department within 90-days of filing the amended federal return.
On the amended West Virginia return, attach all schedules that have amended amounts in order to verify the changes made to the return.
Amended West Virginia returns filed for the purpose of obtaining a refund of an overpayment must be filed within three years of the due date of the original return (with regard to an extension of time to file), or two years from the date the tax was paid, whichever expires later.
If your Amended Return has a balance due, send the payment along with the tax return.
Consistency in Reporting
In completing your West Virginia S Corporation and Partnership return, if you depart from or modify past procedures for classifying business income and nonbusiness income, for valuing property or including or excluding property in the property factor, for treating compensation paid in the payroll factor, for including or excluding gross receipts in the sales factor, you must disclose by separate attached schedule the nature and extent of the variance or modification.
If you make sales of tangible personal property which are shipped into a state in which you are not taxable, you must identify the state to which the property is shipped and report the total amount of sales assigned to such state.
Tax information, which is disclosed to the West Virginia State Tax Department, whether through returns or through department investigations, is held in strict confidence by law.
The State Tax Department, the United States Internal Revenue Service, and other states have agreements under which tax information is exchanged. This is to verify the accuracy and consistency of information reported on federal, other state, and West Virginia returns.
Tax Forms, Schedules and Instructions
Credit Forms and Schedules