The following article was submitted by Guest Author, Kathryn Rookes. Kathryn is an experienced franchise attorney and a member of FSB Legal, a virtual law firm. She is one of the very few franchise attorneys in the United States with experience in a government regulatory practice (Maryland Division of Securities), private practice, and as in-house counsel. With this diversity of experience, Kathryn understands the issues that franchisors face on a daily basis.
New York State Tax Law
as submitted by Kathryn Rookes, Attorney, FSB Legal
New York state has become the first state to pass a law that requires franchisors to provide detailed information on their franchisees and their franchisees’ operations to the state, so that the state can compare the submitted information to the tax returns that the franchisees file with the state. Complying with this new law can be quite burdensome and many franchisors do not even collect some of the information that must be submitted to the state of New York.
Who Must File?
The New York law applies to every franchisor that has at least one franchise in New York state that is required to be registered as a sales tax vendor. The law does not require that the franchisor itself be physically present in New York and applies even if the franchisor does not conduct any business in New York, other than having New York franchises.
The actual franchisees have no reporting responsibility under this new law, however, each reporting franchisor should let its franchisees know that it will be providing information on its New York franchises in its annual report.
What Must Be Reported?
The information that franchisors must report on their New York franchises includes:
· Each franchisee’s legal name
· Each franchisee’s phone number
· Each franchisee’s d/b/a name, if different from its legal name
· The owners’ names of each franchisee (e.g., principal shareholder, LLC member)
· Each franchisee’s Federal Employer Identification number (for an individual franchisee, this will be each franchisee’s social security number)
· Each franchisee’s New York Sales Tax Certificate of Authority number
· The beginning date of each franchisee’s unit
· Each franchise unit’s physical address
· Each franchise unit’s mailing address, if different
· Each franchisee’s gross sales, as reported under each franchise agreement
· Any discrepancies between each franchisee’s reported gross sales and gross sales of any audit that the franchisor conducted
· If known, the amount of New York state and local sales tax that each franchisee collected at each franchised unit
· The amount of royalty payments each franchisee paid to its franchisor
· The percentage of royalty that each franchisee pays to its franchisor
· The amount of sales the franchisor or its affiliates made to each franchisee
· The amount of sales each of the franchisor’s designated suppliers made to each franchisee
As you can see, the information required is quite extensive. Many franchisors will have to amend the manner in which they capture data on each New York franchise, as they may not currently be gathering all of the required information.
When Are Reports Due?
The first report under this new law is due September 20, 2009 and must contain information from March 1, 2009 to August 31, 2009. After that, franchisors must file by March 20 of each year, and each report must contain information from the end of the previous report to February 28 of that year.
Franchisees Must Be Notified
By March 20 of each year, the franchisor must provide each New York franchisee with a statement that includes all of the information that the franchisor submitted as part of its report. The statement may be in summary form, as long as certain of the required information is included. Each franchisor should send this statement to its franchisees in such a manner as to be able to verify that each statement was sent in a proper and timely manner.
Where Do You File?
Franchisors must file their information return electronically with the New York State Department of Taxation and Finance. To file a return and for additional information go to the Tax Department’s Web site. Information on how to file will be available at this site after September 1, 2009.
What Happens If You Don’t File?
Violations of the law can result in a penalty of $500 for 10 or fewer failures and up to $50 for each additional failure. If a franchisor fails to timely file an information return under the new law, additional penalties of not less than $500 but up to $2000, will apply to each failure. The total penalties assessed for each reporting period may not exceed $10,000.