CHAPTER 12 - NEW CASTLE COUNTY INCOME TAX
AN ACT TO PROVIDE REVENUE FOR THE RELIEF OF CERTAIN POOR, RESIDENT IN NEW CASTLE COUNTY AND FOR THE PAYMENT TO THE LEVY COURT OF NEW CASTLE COUNTY OF MONEYS ADVANCED BY THE SAID LEVY COURT SUBSEQUENT TO JANUARY FIRST, 1935, FO_R THE SUPPORT OF SAID POOR.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:
ARTICLE I - Persons Taxable
Section 1. As used in this article, the following words and phrases are defined as follows:
(a) The phrase "Income Tax" means the tax imposed by Section 2 hereof.
(b) The word "Taxable" means:
(1) A natural person twenty-one years of age or over who is a citizen or resident of New Castle County, or who has been a citizen or resident of said New Castle County at any time during the income year.
(2) A minor with a net income of one hundred dollars or more who is a citizen or resident of the said New Castle County, or who has been a citizen or resident of said New Castle County at any time during the income year.
(3) A minor citizen or resident of said New Castle County who has attained the age of 21 years during the income year.
(4) A fiduciary, including a guardian, trustee, agent or representative of a taxable or the executor or the administrator of the estate of the decedent.
Definitions
(c) The words "Income Year" mean the calendar year or the fiscal year on the basis of which the income is computed under this Act.
(d) The phrase "Net Income" means gains or profits and income derived and actually received into possession of, or credited subject to withdrawal by, a taxable from any source whatever, and shall include the aggregate of all gains, capital gains, profits, salaries, wages and compensation for personal service of whatever kind and in whatever form paid, including bonus, honorariums and fees; income derived from professions, vocations, business, trade commerce, sales, exchange or other disposition of or dealings in real or personal property growing out of the ownership or use of or interest in such property or otherwise; income derived from interest, dividends, securities or the transaction of any business carried on for gain or profit; the share of the profits of any taxable in an unincorporated association of persons, syndicate, joint venture or copartnership whether such profits have been divided or otherwise; and all amounts recovered during the income year from bad debts or capital losses that have been deducted from income in any return of income under this Act, less the aggregate of the exemptions provided for in Section 3 (a), paragraphs 1 to 11 inclusive and of the deductions provided for in Section 4.
() The word "Dividends" means any distribution made by a corporation, joint stock company or association out of its earnings or profits paid to or subject to withdrawal by its shareholders during the income year, whether in cash or property, but does not mean a distribution of earnings or profits accrued prior to January 1, 1920, or a distribution of capital stock of the corporation, joint stock company or association making the distribution. Every distribution shall be deemed to be made out of earnings or profits to the extent thereof, and from the most recently accumulated earnings or profits.
(f) Net income shall be accounted "actually received into possession" when cash, check, script certificate or other evidence of ownership has been received by the owner or by his agent, or representative or by a fiduciary.
Net income shall be accounted "credited subject to withdrawal", when the taxable credited, or his agent, representative or a fiduciary has the right or option to make withdrawal.
(g) "Capital gains or losses" Mean gains or losses resulting from the sale, exchange or disposition, other than by gift, donation, devise or inheritance, of real or personal property, stocks, bonds, notes or securities, but do not mean gains or losses arising from the operation of any business. Capital losses shall include all debts ascertained to be worthless during the income year, excepting accounts or bills receivable arising from professional fees, salaries or wages or from sales of merchandise or stock in trade appertaining to the business of the taxable, as provided for in Section 4, paragraph 8.
(h) The "Basis for determining the capital gain or loss" resulting from the sale, exchange or disposition other than by gift, donation, devise or inheritance, of real or personal property, stocks, bonds, notes, or securities acquired before January 1, 1920, shall be as provided in Section 7.
The Income Tax
Section 2. (a) The Levy Court of New Castle County shall during the month of February, 1935, calculate and settle the amount which has been expended by it on and after January 1st, 1935, for the support of the poor resident in said County and the amount which shall be necessary to be raised for the remainder of said year for the support of said poor, and the said Levy Court shall during the month of February, 1936, calculate and settle the amount which shall be necessary to be raised for said year commencing January 1st, 1936, for the support of said poor and for the purpose of raising said amounts shall levy such tax as shall be fixed by it upon the net income of every taxable. In calculating and settling said amounts the Levy Court shall exclude therefrom the sums required by law to be appropriated by it to the hospitals located within New Castle County for the care of the indigent sick, to the State Old Age Welfare Commission for the maintenance of the State Welfare Home and the support of its inmates and to the Mothers' Pension Fund.
(b) Said tax shall be levied, assessed and collected annually during the years 1935 and 1936 upon the entire net income received in the preceding calendar year from all sources, by every taxable, subject to the exemptions hereinafter named, at a rate to be fixed by the said Levy Court but not in excess of the following: one percentum of the amount of net income not in excess of Three Thousand Dollars; two percentum of the amount of net income in excess of Three Thousand Dollars but not in excess of Ten Thousand Dollars; three percentum of the amount of net income in excess of Ten Thousand Dollars. Said tax shall be levied, assessed, collected and paid upon and in respect to the net income for the calendar year or for any income year ending during the said calendar year. The rate fixed by the said Levy Court shall on or before the first day of March of the year in which it is fixed, be certified by the Clerk of the Peace of New Castle County to the State Tax Department of the State of Delaware.
If it shall appear to the said Levy Court at any time after the 15th day of March of the year in which the tax is payable, that the amount which would be collected by said State Tax Department at the rates fixed by the said Levy Court, will be in excess of the amount which the said Levy Court has calculated and settled as required by this Section as necessary for said year, the said Levy Court shall have the power and authority to make such abatement or abatements in the amount to be paid by said taxables, as the Levy Court shall deem proper, provided that in the judgment of the said Levy Court the amount which would have been produced for said year at the rate fixed by the said Levy Court less the amount of such abatement or abatements will be sufficient to produce the said amount so calculated and settled by the said Levy Court for said year, and provided further that any such abatement or abatements if made, shall be uniform with respect to all taxables. Any such abatement so made shall within ten days after it has been made, be certified by the Clerk of the Peace of New Castle County to the State Tax Department.
(b) A taxable during part of an income year, shall be taxed on the net income received during such part of the income year only or, if that amount cannot be determined, shall be taxed for a part of the whole net income proportionate to the part of the year in which such person or fiduciary, association or minor citizen has been a taxable.
Exempted Income
Section 3. The following income shall be exempt from income tax:
(a) (1) The proceeds of life insurance policies paid upon the death of the insured to any taxable.
(2) The amount received by the insured as a return of premium or premiums paid by him under life insurance, endowment or annuity contracts, either during the term or at the maturity of the term mentioned in the contract or upon the surrender of the contract.
(3) The value of property acquired by gift, bequest, devise or inheritance but the income received from such property after its acquisition shall be included in taxable income. The profit or loss on the sale, exchange or other disposition of such property shall be determined as provided in Section 7 of this Article.
(4) Interest upon the obligations of the State of Delaware or any political subdivision thereof or upon the obligations of the District of Columbia, of the United States or of its possessions.
(5) Dividends paid out of earnings or profits accrued prior to January 1, 1920.
(6) Dividends paid in the capital stock of the corporation, joint stock company, or association which has declared and authorized the distribution.
(7) Capital gains accrued prior to January 1, 1920.
(8) Salaries, fees, wages, or pensions received from the United States.
(9) The amount received as alimony or support from a person who has paid tax thereon under these Articles.
(10) Any amounts paid to injured employees or to the dependents of deceased employees under the terms of "The Delaware Workmen's Compensation Law of 1917."
(11) Moneys paid from the revenue derived under the provisions of this Act to any indigent person or food, clothing or other supplies furnished to any such indigent person.
(b) In the case of the head of a family, or a married person living with husband or wife, a personal exemption of one thousand dollars, provided, however, that husband and wife living together shall receive but one personal exemption of one thousand dollars. Said one thousand dollars may be divided in the separate returns of the husband and wife in any manner they may choose.
There shall be a credit of One Hundred Dollars (100.00) for each person (other than husband or wife) dependent upon and receiving his or her chief support from the taxpayer if such dependent person is under twenty-one years of age or is incapable of self-support because mentally or physically defective.
"Head of family" means one who maintains a dwelling, house or apartment for the use of himself or herself and another or others who pay no rent or compensation for their accommodation and who are chiefly dependent upon said head of family for support. Such other person or persons need not be related to the head of family.
In the case of death or separation of husband or wife, the exemption authorized shall be apportioned to the time of death or separation. A separated wife or husband who is the head of a family shall be allowed an exemption of One Thousand Dollars; while a separated wife or husband who is not the head of a family shall not be allowed any exemption.
If through death, change of residence or otherwise, a taxable is required to report income for a portion of the year only, exemption and deductions sustained during the said portion of a year shall be allowed, providing that if they cannot be accurately ascertained for the taxable period, a proportionate part of the exemptions and deductions for the whole year shall be allowed.
Deductions
Section 4. In computing net income, the following deductions shall be allowed:
(1) The necessary expenses actually paid by the taxable in carrying on any business or trade, not including personal, living or family expenses and not including transportation costs between residence and usual place of business.
(2) All interest paid by the taxable within the year on his indebtedness.
(3) Taxes paid within the income year, except taxes imposed by this Act and taxes assessed for local benefits of a kind tending to increase the value of the property assessed.
(4) A reasonable allowance for the exhaustion, wear and tear, obsolescence and depletion of property, arising out of its use or employment in the trade or business of the taxable, but not including such allowance on the residence of the taxable.
(5) Contributions or donations to the State of Delaware or any political subdivision thereof or to any institution supported in whole or in part by the State or any contribution or donation for religious, charitable, scientific or educational purposes for use in the State of Delaware only, provided that such contributions or donations shall not exceed fifteen per centum of the taxpayer's net income, as computed without the benefit of this paragraph.
(6) Losses sustained during the income year in the operation of farms or in other agricultural, horticultural, dairy or poultry pursuits or in the raising or preparation of animals, birds, poultry, vegetables, fruit, fish or sea food for the market. Depreciation of buildings or other property used in sach operations may be included in losses incurred but no personal or household expenses of the owner or manager of the operation or of his family shall be included in such' loss.
(0) Losses sustained during the income year through destruction of property by fire, flood, lightning, storm or collision, and losses caused by other casualty or by theft, provided that such losses are not compensated for by insurance or otherwise.
(1) Debts ascertained during the income year to be worthless and represented by accounts or bills receivable arising from professional fees, salaries, wages or from sales of merchandise or stock in trade appertaining to the business of the taxable, provided that such accounts or bills receivable have previously and while uncollected been included as income in an income tax return under this Act.
(2) Debts ascertained to be worthless within the income year represented by accounts or bills receivable that have not previously and while uncollected been included in gross income, in an income tax return under this Act, but such debts shall be deductible as capital losses only and to the extent that capital losses are deductible as provided in paragraph (11) hereof. (This provision shall not apply if the income from a business, trade or profession is reported on the basis of cash receipts and disbursements, in which case such debts shall not be deductible).
(3) Losses sustained during the income year through endorsement or guaranty of notes or obligations of any kind or through liability on subscription to stocks, bonds and notes or through contingent liability but such losses shall be deductible as capital losses only and to the extent that capital losses are deductible as provided in paragraph (11) hereof.
(11) Capital losses as defined in Section 1, paragraph (g) accrued after January 1, 1920, and that have been realized during the income year, but such losses shall be deductible from capital gains and to the extent thereof only.
Trusts and Estates
Section 5. (a) The tax imposed by this Article shall apply, to the income of estates or of any kind of property held in trust, including:
(1) Income received by estates of deceased persons during the period of administration or settlement of estate.
(2) Income accumulated in trust for the benefit of unborn or unascertained persons, or persons with contingent interests.
(3) Income held for future distribution under the terms of the will or trusts.
(4) Income which is to be distributed to beneficiaries periodically, whether or not at regular intervals.
(5) Income collected by a guardian of an infant or infants to be held or distributed as the court may direct.
(b) The fiduciary shall be responsible for making the return of income for an estate or trust for which he or it acts. The net income of the estate or trust shall be computed in the same manner and on the same basis as hereinbefore provided in this Article, except that there shall also be allowed as a deduction, any part of the gross income which, pursuant to the terms of the will or deed creating the trust, is during the taxable year paid to or permanently set aside for the United States, any state or territory or any political subdivision thereof, or the District of Columbia or for any corporation or association organized or operated exclusively for religious, charitable, scientific or educational purposes or for the prevention of cruelty to children or animals, provided that no part of the net earnings of such corporation or association inures to the benefit of any individual stockholder or individual. In cases under paragraphs (3), (4) and (5) of subdivision (a) of this section the fiduciary shall include in the return a statement of each beneficiary's distributive share of net income, whether or not distributed before the close of the taxable year for which the return is made.
(c) In cases under paragraphs 1, 2, 3, 4 or 5 of subdivision (a) the tax shall be imposed upon the net income of the estate or trust and shall be paid by the fiduciary. In determining net income under this paragraph, there shall be deducted the amount of any income properly paid to or credited subject to withdrawal by any legatee, heir or other beneficiary, and a further deduction for net income paid to or accruing to the benefit of a non-taxable. The same exemptions of income and deductions allowable under Sections 3 and 4 of this Act, shall be allowed to estates and trusts.
(d) Income properly paid or credited subject to withdrawal, deducted under subdivision (c) shall be returned by the legatee, heir or beneficiary to whom it has been paid or credited subject to withdrawal, as part of his or its income for the income year in which received or credited.
(e) Unincorporated associations of persons, syndicates, joint ventures and co-partnerships shall make a return of income for information of the State Tax Department. Said return shall show the names and addresses of taxables to whom the net income received has accrued or has been distributed and the proportionate interest of each taxable in the net income.
Returns to State Tax Department
Section 6. (a) Every taxable shall make a return upon the printed form provided by the State Tax Department,' hereinafter referred to as Tax Department, stating specifically the items of gross income, if any, the deductions and such other facts as said Tax Department may require.
(b) Such taxable shall certify to the truth and correctness of the return.
The return required by this Section may be made for a taxable when the taxable is unable to make return, by some other person who shall state the cause of the taxable's inability to file return and, if required, shall make oath that he has sufficient knowledge of the affairs of the taxable, for whom he makes the return, to make such return and that the return is true and correct. Such person so making a return for another may be held liable for the penalties provided in Section 20 (e) for makers of false or fraudulent statements or returns, if error is due to his willful neglect or false statement.
(c) Unincorporated associations of persons and partnerships shall make a return of information as provided in Section 5 (e).
(d) Officers or employees of the United States who are citizens or residents of another State but by reason of their assignment of duty are stationed in New Castle County, need not make a return and are exempt from payment of tax under this Act.
(e) Women receiving mother's pensions, persons receiving outside support from public funds and persons who, because of age, infirmity or mental disability, are wholly or partly dependent for support shall make return or, if incapable of so doing, return shall be made for them by the person upon whom dependent.
(f) The officer in charge of any charitable or public institution in New Castle County in which reside any persons incapable of making returns shall annually on or before March 15th furnish to the Tax Department a complete list of such persons in their charge.
Failure to File Returns
(g) If the Tax Department shall be of the opinion that any taxable has failed to file a return, or to include in a return filed, either intentionally or through error, items of taxable income, it may require from such taxable a return or a supplementary return, under oath, in such form as it shall prescribe, of all the items of income which the taxable received during the year for which the return is made, whether or not taxable under the provisions of this Act. If from a supplementary return, or otherwise, the Tax Department finds that any items of income, taxable under this Act, have been omitted to be disclosed to it, under oath of the taxable, and to be added to the original return, such supplementary return and the correction of the original return shall not relieve the taxable from any of the penalties to which he or it may be liable under the provisions of this Act. The Tax Department may proceed under the provisions of Section 20 of this Act whether or not it requires a return or a supplementary return under this Section.
Determination of Amount of Gain or Loss
Section 7. (a) Except as hereinafter provided in this Section, the gain derived from the sale, exchange or other disposition of property, real or personal, shall be the excess of the amount realized therefrom over the basis determined in accordance with the provisions of this Section, and the loss sustained shall be the excess of such basis over the amount realized. As used in this Section: the term "amount realized" means the sum of any money plus the fair market value of the property (other than money) received from the sale, exchange or other disposition of property.
(b) The basis for ascertaining the gain derived or the loss sustained from the sale, exchange or other disposition of property, real or personal, acquired after December 31, 1919, shall be the cost of such property, except that:
(1) In the case of such property acquired by gift: The basis shall be the same as that which it would be in the hands of the donor or the last preceding owner by whom it was not acquired by gift. If the necessary facts are unknown to the donee, the Commissioner shall obtain such facts from the donor, or from any other person cognizant thereof. If the Commissioner finds it impossible to obtain such facts, the basis shall be the fair market value of the property as found by the Commissioner as of the date or approximate date at which, according to the best information the Commissioner is able to obtain, the property was acquired by the donor or last preceding owner.
(2) In the case of personal property acquired by bequest, devise or inheritance: The basis shall be the value of such property as determined by the officer appointed by the Register of Wills.
(3) In the case of real property acquired by bequest, devise . or inheritance: The basis shall be the fair market value at the date of acquisition by the taxable.
(4) In the case of such property held in trust: The basis shall be the same as that which it would be if it had remained in the hands of the creator of the trust.
(5) In the case of such property acquired upon an exchange described in sub-divisions (h) and (i) of this Section: The basis shall be the same as in the case of the property exchanged, decreased by the amount of any money received in the exchange, and increased by the amount of gain, or decreased by the amount of loss to the taxpayer recognized upon such exchange under the law applicable to the year in which such exchange was made. If the property so acquired consisted in part of the type of property permitted by sub-division (h) to be received without the recognition of gain or loss, and in part of other property, the basis provided in this paragraph shall be allocated between the properties (other than money) received, and for the purpose of the allocation there shall be assigned to such other property an amount equivalent to its fair market value, at the date of the exchange.
(6) In the case of stock upon which stock dividend has been paid the cost basis for original and dividend holdings shall be determined in accordance with the following rules:
(I) Where the stock issued as a dividend is of the same character or preference as the stock upon which the dividend is paid: The basis of each share shall be the quotient found by dividing the total cost of the original shares by the total shares both original and dividend.
(II) Where the stock issued as a dividend is of a character or preference different from the stock upon which the dividend is paid: The cost of the original shares of stock shall be divided between such stock and the dividend stock in proportion, as nearly as may be, to the respective values of each class of stock at the time the dividend is paid. If no value at time of payment of dividend can be established preferred shares having par value shall be valued at par and the remainder of the total value shall be allotted to the common shares.
(7) In the case of stock received in a distribution described in paragraph (4) of sub-division (h) the basis for the original stock and the stock received in such distribution shall be determined in accordance with the rules contained in the preceding paragraph, in the same manner as if the stock received in such distribution were received as the result of a stock dividend.
(c) The basis for, ascertaining the gain derived or the loss sustained from the sale, exchange or other disposition of property, real or personal, acquired prior to January 1, 1920, shall be (1) the same as it would be if determined in accordance with the provisions of sub-division (b) or (2) the fair market value of such property as of January 1, 1920, whichever is higher.
(d) In computing the amount of gain or loss under subdivision (a)
(1) Proper adjustment shall be made for any expenditure or item of loss properly chargeable to capital account.
(2) The basis shall be diminished by the deductions for exhaustion, wear and tear, obsolescence and depletion which have since the acquisition of the property been allowed to such property under this Act.
(e) Where, in the case of property received as a bonus in the purchase of other property, there is a sale, exchange or other disposition of such bonus or the property purchased, or both, the cost of the purchased property shall be fairly apportioned to such bonus and purchased property in ascertaining the basis for determining the gain derived or loss sustained. But if such apportionment should be'impracticable, sales of any part of the property purchased or of the bonus shall be charged to cost until the latter shall have been completely recovered from such sales. The proceeds of further sales shall then be accounted as gain in the year such sales are made.
(f) Where, in the case of the sale, exchange or other disposition of property, the amount realized is substantially less than the fair market value of such property at the time of such sales, exchange or other disposition, the State Tax Commissioner may treat the difference between the fair market value and the amount realiked as a gift and not a capital loss as defined in Section 1, provided, that in such event the basis of the property shall remain the same as it was before such sale, exchange or disposition.
(g) (1) In the case of the shares of stock in a corporation which are sold or exchanged from lots purchased at different dates or at different prices and when the identity of the lots cannot be determined: The stock sold shall be charged against the earliest acquired stock.
(2) If the stock upon which a stock dividend is paid was purchased at different times and at different prices and the identity of the lots cannot be established, sale of the original stock shall be charged to the earliest purchases of such stock and a sale of dividend stock shall be accounted as made from the dividend paid on the earliest purchased original stock to the extent of the dividend chargeable to such stock.
(h) No gain or loss shall be recognized in the following cases:
(1) If property held for productive use in trade or business or for investment (not including stock in trade or other property held primarily for sale, nor stocks, bonds, notes, choses in action, certificates of trust or beneficial interest, or other securities or evidences of indebtedness or interest) is exchanged solely for property of a like kind to be held either for productive use in trade or business or for investment.
(2) If common stock in a corporation is exchanged solely for common stock in the same corporation, or if preferred stock in a corporation exchanged solely for preferred stock in the same corporation.
(3) If stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.
(4) If there is distributed, in pursuance of a plan of reorganization, to a shareholder in a corporation, a party to the reorganization, stock or securities in such corporation or in another corporation a party to the reorganization, without the surrender by such shareholder of stock or securities in such a corporation, such a distribution shall not be considered a distribution of earnings or profit within the meaning of sub-division (e) of Section 1.
(5) If property is transferred to a corporation by one or more persons solely in exchange for stock or securities in such corporation, and immediately after the exchange such person or persons are in control of the corporation; but in the case of an exchange by two or more persons this paragraph shall apply only if the amount of the stock and securities received by each is substantially in proportion to his interest in the property prior to the exchange.
As used in this Section: The term "reorganization" means (a) a merger or consolidation (including the acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock, of another corporation, or substantially all the properties of another corporation), or (b) a transfer by a corporation of all or part of its assets to another corporation if immediately after the transfer the transferor or its stockholders or both are in control of the corporation to which the assets are transferred, or (c) a recapitalization, or (d) a mere change in identity, form or place or organization, however affected.
As used in this Section: The term "control" means the ownership of at least 80 per centum of the voting stock and at least 80 per centum of the total number of shares of all other classes of stock of the corporation.
(i) If an exchange would be within the provisions of subdivision (h) of this Section, if it were not for the fact that the property received in exchange consists not only of property permitted by such sub-division to be received without the recognition of gain, but also of other property or money, then no loss shall be recognized, but the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property.
(j) Where property is sold or otherwise disposed of on the installment plan, gain or loss may, under regulation prescribed by the Commissioner, be determined in accordance with the following provisions:--
(1) In the case of a business which regularly sells or otherwise disposes of property on the installment plan, the gain or loss from such sales or other disposition to be included in the income of such business for any income year shall be that proportion of the installment payments actually received in that year which the gross profit realized or to be realized when payment is completed, bears to the total contract price.
(2) In the case (A) of a casual sale or other casual disposition of personal property (other than property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year) for a price exceeding $1,000, or (B) of a sale or other disposition of real property, if in either case the initial payments do not exceed 40 per centum of the selling price, the income may be returned on the basis and in the manner above prescribed in this sub-division. As used in this sub-division the term "Initial payments" means the payments received in cash or property other than evidences of indebtedness of the purchaser during the income year in which the sale or other disposition is made.
(3) If a taxpayer entitled to the benefits of paragraph (1) elects for any income year to report his net income on the installment basis, then in computing his income for the year of change or any subsequent year, amounts actually received during any such year on account of sales or other dispositions of property made in any prior year shall not be excluded.
(4) If an installment obligation is satisfied at other than its face value or distributed, transmitted, sold, or otherwise disposed of, gain or loss shall result to the extent of the difference between the basis of the obligation and (A) in the case of satisfaction at other than face value or a sale or exchange--the amount realized, or (B) in case of a distribution, transmission, or disposition otherwise than by sale or exchange--the fair market value of the obligation at the time of such distribution, transmission or dispOsition. The basis of the obligation shall be the excess of the face value of the obligation over an amount equal to the income which would be returnable were the obligation satisfied in full.
ADMINISTRATION OF INCOME TAX
ARTICLE II Tax Department and Collection of Taxes
Section 8. Definitions
(a) The words "Tax Department" mean the State Tax Department.
(b) The words "Tax Board" mean the State Tax Board.
(c) The words "Commissioner" or "Tax Commissioner" mean the State Tax Commissioner.
(d) The word "Taxable" means any person, fiduciary, association of persons, syndicate, joint venture or co-partnership subject to making return or to payment of tax imposed by Article I of this Act.
(e) The words "Notice", "Notification" or "Receipt" required to be given or provided for by these Articles mean a written notice, notification or receipt, contained in a sealed envelope, addressed to the taxable at his last known address and deposited in the United States mails unless delivered to the taxable in person or to his representative or agent.
State Tax Department
(f) The Administration and enforcement of the provisions of Article I and II of this Act and the collection of the taxes imposed thereby are hereby vested in the State Tax Department, a State Tax Board and the State Tax Commissioner, created under the provisions of Chapter 8, Volume 36, Laws of Delaware, and such officers and employees as may be authorized to be appointed or employed by authority of said Chapter 8, Volume 36.
Section 9. The State Tax Commissioner is hereby authorized and empowered to appoint or employ such additional officers and employees as he shall deem necessary for the purpose of carrying out the provisions of this Act and the cost and expenses incurred thereby shall be paid out of the income tax collected under the provisions of this Act.
Powers and Duties of the State Tax Department
Section 10. The Tax Department shall:
Administer, supervise, collect and enforce the Income Tax imposed by Article I of this Act.
Prepare all necessary forms and blanks required in the administration of the said Income Tax.
Pay daily to the County Treasurer of New Castle County all sums collected by the Tax Department under the provisions of this Act, except such sums as are retained in accordance with the provisions of this Act as a repayment fund, a contingent fund, and for the expenses of the Tax Department as provided by Section 21 (b) of this Act.
Powers and Duties of the State Tax Board
Section 11. The Tax Board shall have the same powers and duties with respect to the Income Tax under this Act as are conferred upon it relative to the Income Tax under the provisions of Chapter 8, Volume 36, Laws of Delaware, subject to the same right of appeal, by any claimant, in the same manner, to the Superior Court for revisions of tax under the provisions of Section 17 of this Act or for other relief as is given under the provisions of said Chapter 8, Volume 36.
Powers and Duties of the State Tax Conimissioner
Section 12. The Tax Commissioner shall:
(a) On or before March 5th of 1935 and 1936, mail to the last recorded address of each person, fiduciary, association of persons, syndicate, joint venture or co-partnership that has made a return or report under the provisions of Chapter 8, Volume 36, Laws of Delaware, and that has not ceased to be a taxable, a blank for the purpose of making a return under the provisions of this Act. Excepting the duty imposed upon him by paragraph (g), Section 12 of said Chapter 8, Volume 36, he shall have the same powers, duties, and rights with respect to the Income Tax under this Act, as are conferred upon him relative to the Income Tax under the provisions of said Chapter 8, Volume 36.
Signing and Filing Returns
Section 13. (a) Returns shall be in such form as the Tax Department shall prescribe, from time to time, and shall be filed by every taxable described in Sections 1, 5, 6 and 8 hereof, with the Tax Department at its main or any branch office within New Castle County, on or before the Fifteenth day of March in each year, for the preceding year. In case of continued sickness, absence or other disability or whenever in its judgment good cause exists, the Tax Department may allow further time for filing returns. Failure to receive as provided in Section 12 (a) hereof, or to secure the blank forms for said return shall not relieve any taxable from the obligation of making the return.
(b) Return of the income of minors, idiots, insane persons, other persons incapable or unable to act for themselves, or for taxables absent from New Castle County, shall be made as provided in Section 14.
(c) A return shall be signed by the person making the return or by the representative or fiduciary acting for such taxable. The signature shall be the full name, both given name or names, and surname. If a married woman, her own name as well as the name of her husband shall appear.
Returns for Minors, Incompetents and Absentees
Section 14. All returns and payments of income tax for minors, idiots, insane persons, other persons incapable or unable to act for themselves, or for taxables absent from the said New Castle County shall be made by their guardians, trustees or other persons having charge of their estate and the collection of the income thereof. All such fiduciaries shall have credit for the amount of such payments made on behalf of the beneficiary in any account which they make as such fiduciaries, and receipts for such payments from the Tax Department shall be sufficient vouchers to entitle these fiduciaries to such credit.
Time and Place of Payment of Tax
Section 15. (a) (1). The tax as the same shall appear from the face of the return, shall be paid to the Tax Department at the office where the return is filed in four equal installments as follows: one-fourth of the amount at the time fixed for filing the return; one-fourth of the amount on the fifteenth day of the third month after the time fixed for filing return; one-fourth of the amount on the fifteenth day of the sixth month after the time fixed for filing return; and one-fourth of the amount on the fifteenth day of the ninth month after the time fixed for filing the return, less such abatement if any, as shall be made pursuant to the authority contained in paragraph (b) of Section 2.
(b) If it shall appear that prompt collection of any quarter-annual payment of taxes, interest or penalties due will impose severe hardship on the taxable, the Commissioner may, in his discretion, permit payments by installments and may require a bond from the taxable for the carrying out of the agreement to pay.
(c) The Tax Board at a meeting or by written assent, may reasonably extend the time for making any payment of tax due under this Act but such extension of time shall be recorded in the minutes of the Tax Board.
(d) If the time for filing the return shall be extended, interest at the rate of six per centum per annum, from the time when the return was originally required to be filed, to the date of payment shall be added and paid.
(e) The tax may be paid with uncertified check, certified check or money order during such time and under such regulations as the Tax Commissioner shall prescribe, but if a check or money order so received is not paid on demand by the bank or post office on which it is drawn, the taxable by whom such check or money order is tendered shall remain liable for the payment of the tax and for all legal penalties the same as if such check or money order had not been tendered.
(f) Every tax imposed by this Act, and all increases, interest and penalties thereon shall become, from the time it is due and payable, a personal debt, from the person or persons or corporation liable to pay the same, to the State of Delaware for the use of New Castle County.
(g) If, after the assessment of any tax, increase, interest and/or penalty shall have become final, the same or any part thereof shall remain unpaid for ten days, the Tax Department shall file with the Prothonotary of the Superior Court of New Castle County, a certificate of such assessment, stating the amount thereof, the date assessed, and the dates of the notice or notices, if any, given to the taxable in connection therewith, together with a brief summary of the proceedings had thereon. It shall thereupon be the duty of the Prothonotary to enter the total amount of such assessment as a judgment in favor of the State of Delaware for the use of New Castle County and the said amount so entered shall thereupon be and constitute a judgment of record in said Court with like force and effect as any other judgment in said Court. Upon the entry of such judgment it shall be the duty of the Tax Department forthwith to utilize the most expeditious means provided by law for the collection of the amount thereof; and it is hereby expressly provided that no property, wages, salaries, or other income of any taxable shall be exempt from execution or attachment process issued upon or for the collection of any such judgment.
Examination of Returns
Section 16. (a) As soon as practicable after the return is filed, the Tax Department shall examine it and compute the tax and the amount so computed shall be the tax.
Additional Taxes
(b) If the Tax Department discovers from the examination of the return or otherwise that the income of any taxable, or any portion thereof, has not been assessed, it may, at any time within two years after the time when the return was due or filed, assess the same and give notice to the taxable of such assessment, and at the termination of thirty days the additional tax determined by the Tax Department shall be due and payable, unless the taxable or his agent or attorney shall have within said thirty days, filed complaint or appeal in writing over his signature from the assessment of the Tax Commissioner and requested a hearing before the State Tax Board, as provided in Section 11 of this Article. The limitation of two years to the assessment of such tax shall not apply to the assessment of additional taxes upon returns which are false or fraudulent or the income thereon grossly understated, or in cases where no returns have been filed.
Refunds of Overpayments
(c) If the amount of tax found due shall be less than the amount theretofore paid, either as a result of examination of the return by the Tax Department or by the allowance of a claim for overassessment filed by the taxable, the excess shall be refunded by the Tax Department out of the repayment fund retained by it as provided in this Act. Interest shall be allowed the taxable at the rate of one-half percent per month or fraction of a month, from the time the payment was made to the date of refund.
No refund of excess payment shall be made until the same has been approved by the Tax Board or a majority thereof at a recorded meeting or in writing.
Appeals
Section 17. After determination of the State Tax Board upon a complaint or appeal of a taxable at a formal hearing as provided in Section 11, appeal may be made within thirty days from notification of said Board's decision, to the Superior Court.
The Superior Court of the State of Delaware, sitting in and for New Castle County is hereby vested with jurisdiction to hear and determine all such appeals and may by proper rules, prescribe the procedure to be followed in such appeals. Every such appeal shall be determined by the Court without the aid of a jury. Costs may be awarded by the said Court in its discretion and when so awarded the same shall be collected as other costs are collected.
Delinquent Taxes
Section 18. (a) Any person, fiduciary, association of persons, syndicate, joint venture or co-partnership required to make a return under this Act, whether taxable or not, and failing so to do within 30 days after the time when such return is required to be filed shall be subject to a specific penalty of $5.00 in addition to all other penalties prescribed by this Act.
(b) If any taxable liable to file a return and pay taxes imposed by these Articles neglects or refuses to pay the same within thirty days after notification of the said liability for the return and taxes, the Commissioner or Assistant Commissioner, shall make the return from his own knowledge or from such information as he may obtain through testimony or otherwise, and the tax shown to be due on such return shall be assessed and collected in the same manner as prescribed for additional taxes, in Section 15 (b), (c) and (d) and Section 16 (b) of this Article, except that no right of appeal shall be possessed by a taxable so assessed except through a claim for refund.
(c) If a taxable shall fail or refuse to make a return or to pay a tax as provided in this Act, such taxable shall be deemed guilty of fraud and shall be liable to the penalties provided for fraudulent returns.
Refunds of Taxes
Section 19. (a) A taxable may apply to the State Tax Commissioner, State Tax Board, and the Superior Court sitting in and for New Castle County, in order named, as hereinbefore provided, for refund of the taxes imposed by this Act alleged to have been erroneously or illegally assessed or collected or of any interest or penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected from said taxable, at any time within two years from the date such tax was paid on the original return or thirty days from the date of payment of any additional tax. The Tax Board shall grant a hearing thereon and if it shall determine that the tax, interest or penalties are excessive or incorrect, it shall resettle the same according to the law and the facts and adjust the computation of tax, interest or penalties accordingly. The Tax Department shall notify the taxable of such determination and shall refund to the taxable the amount paid in excess of the tax, interest and penalties found by it to be due.
Claim for Abatement as Refund
(b) If the Tax Commissioner shall fail to act upon or shall reject any claim for abatement or refund of taxes alleged to have been illegally or erroneously assessed or paid, within sixty days from the filing of such claim, the taxable shall have and possess rights of appeal to the State Tax Board and as provided in Sections 16 (b) and 17 of this Article.
Penalties
Section 20. In any case where additional tax is found to be due, if it shall appear that the return was made in good faith and understatement of the tax is not due to any fault of the taxable there shall be no penalty added because of such understatement but interest shall be added to the amount of the deficiency at the rate of one-half of one per centum for each month or fraction of a month.
(d) If it shall appear that the understatement of tax is due to negligence on the part of the taxable, there shall be added to the amount of the deficiency, a penalty of five per centum thereof and, in addition, interest at the rate of one-half of one per centum per month or fraction of a month, which interest shall be on the amount of tax plus the penalty.
(e) If it shall appear that the return of income is grossly understated or is false or fraudulent, there shall be added to the tax on the additional income discovered to be taxable a penalty of one hundred per centum, and in addition, interest added at the rate of one-half of one per centum per month or fraction of a month which interest shall be on the amount of tax plus the penalty.
(f) If any taxable, without intent to evade any tax imposed by this Act, shall fail to file a return of income, or pay a tax if one is due, at the time required by or under the provisions of this Act, but shall voluntarily file a return of income and pay the tax due within thirty days thereafter, there shall be added to the tax a penalty equal to five per centum thereof and in addition interest at the rate of one-half per centum per month or fraction of a month, which interest shall be on the amount of tax plus penalty.
If any taxable wilfully fails or refuses to file a return of income, or to pay a tax if one is due within thirty days of the time required by or under the provisions of this Act, there shall be added to the tax, a penalty of one hundred per centum thereof, and in addition, interest added at the rate of one-half per centum per month or fraction of a month, which interest shall be on the amount of tax plus penalty.
(g) Any person or corporation or any officer or employee of any corporation, or any member or employee of any association of persons, syndicate, joint venture or co-partnership, who with intent to evade any requirement of this Act or any lawful requirement of the State Tax Department thereunder, shall fail to pay any tax or to make, sign or verify any return or to supply any information required by or under the provisions of this Act, or who, with like intent, shall make, render, sign or verify any false or fraudulent return or statement or shall supply any false or fraudulent information, shall be guilty of a misdemeanor and shall, upon conviction, be fined not to exceed five hundred dollars or be imprisoned not to exceed six months, or both, at the discretion of the Court. The penalties provided by this paragraph shall be additional to all other penalties in this Act provided.
(f) Any taxable who shall refuse or neglect to make the return required to be made under Articles I and II of this Act within thirty days after the last day for making such return, or who shall refuse or neglect to pay the tax assessed against such taxable within thirty days after it becomes due shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed five hundred dollars or by imprisonment not exceeding six months or both in the discretion of the Court.
(g) The Tax Board shall have power to compromise any penalty for which it is authorized to bring action under the foregoing provisions and all penalties collected by the Tax Department either by compromise or suit shall be paid to the Treasurer of New Castle County and the same shall go into and become part of the Separate Account hereinafter referred to.
(h) The failure to do any act required by or under the provisions of this act shall be deemed an act committed in part at the office of the Tax Department in Wilmington. The Certificate of the Tax Commissioner to the effect that a tax has not been paid, that a return has not been filed or that information has not been supplied, as required by or under the provisions of this Act, shall be prima facie evidence that such tax has not been paid, that such return has not been filed or that such information has not been supplied.
() If any taxable, who has failed to file a return or who has filed an incorrect or insufficient return and has been notified by the Tax Department of this delinquency, refuses or neglects within thirty days after such notice to file a proper return or files a fraudulent return, the income of said taxable shall thereupon be determined by the Tax Department according to its best information and belief and the tax shall be levied, assessed, collected and paid, together with penalty equal to one hundred per centum of the amount of the tax, together with interest at the rate of one-half per centum per month or fraction of a month on the amount of tax plus the penalty. The Tax Board may in its discretion allow further time for filing of a return in such cases.
(j) If a taxable has failed, without good cause to file a return within the time prescribed by law, or has filed a fraudulent return or having filed an incorrect return has failed, after notice, to file a proper return, the Tax Commissioner shall give full effect to the penalty provided in Section 20, paragraph I and shall not reduce the tax, interest and penalty below double the amount for which the taxable is found to be properly assessed but the Tax Board shall have power to reduce this penalty provided by Section 20, paragraph I to not less than twenty-five per centum of the amount of the tax with interest added at one-half of one per centum per month, or fraction of a month, which interest shall be on the amount of the tax plus the penalty.
(k) The interest provided for in this section shall in all cases be computed from the date the tax was originally due to the date of payment.
Receipts for Taxes
Section 21. (a) It shall be the duty of the Tax Department to give or send to the taxable or to his authorized agent, making payment in accordance with the provisions of this Act, a full written or printed receipt expressing the amount paid and the particular account for which such payment was made.
Expenses of Tax Department
(b) The Tax Board and the officers and employees of the Tax Department shall be entitled to receive a reasonable compensation for their services and necessary expenses under the provisions of this Act. The amount of such compensation and expenses shall be approved by the Tax Commissioner and shall be retained out of the revenue collected from taxes imposed by this Act and shall be paid by said Tax Department to the persons entitled thereto.
Legal Advice by Attorney General
Section 22. It shall be the duty of the Attorney General to give counsel, advice and legal assistance to the Tax Department and to assist in the prosecution of violations of this Act when such counsel, advice or assistance is requested by the Tax Department.
Repayment Fund
Section 23. The Tax Department shall retain out of the revenue collected from the taxes imposed under this Act, a sum sufficient to provide at all times during the time that this Act is in effect and for such time thereafter as the Tax Commissioner shall think reasonable and proper, a fund of Twenty Thousand Dollars out of which to pay any refunds provided in Section 19 to which taxables shall be entitled under the provisions of this Act. Said fund shall be deposited in the Farmers' Bank of the State of Delaware to the credit of the State Tax Department and shall be disbursible on order of the Tax Commissioner.
Contingent Fund
(b) The Tax Department shall retain in its hands of the revenue collected from the taxes imposed by this Act, a sum to be determined by the Tax Commissioner, provided however that such amount shall not exceed Fifteen Thousand Dollars in any one year. This fund shall be used as a contingent fund for the purchase of materials, equipment and other necessary expenses in connection with the operation of the Tax Department as required by the pro-'visions of this Act. This fund shall be disbursible on order of the Tax Commissioner.
Contract to Assume Taxes Illegal
Section 24. It shall be unlawful for any person to agree or contract directly or indirectly to pay, or assume, or bear the burden of any tax payable by any taxable under the provisions of these Articles. Any such contract or agreement shall be null and void and shall not be enforced or given effect by any Court.
Disposition of Certain Funds
Section 25. The Tax Department shall pay to the County Treasurer of New Castle County at such time or times as the Tax Commissioner shall think reasonable and proper, the amounts retained in accordance with the provisions of this Act, as a Repayment Fund and as a Contingent Fund or such balance thereof as shall not have been expended by the said Tax Department, and if thereafter it shall appear to the said Tax Commissioner that there are any unpaid obligations which should be properly chargeable against the Income Tax collected under the provisions of this Act, lie shall certify such fact to the said Levy Court and the said Levy Court shall direct the payment of the same either out of the Special Account referred to in Section 26 hereof, or out of the general fund of New Castle County.
Disposition of Taxes
Section 26. The proceeds of all taxes, interest, penalties and other collections under the provisions of this Act, paid by the said State Tax Department to the County Treasurer of New Castle County, shall be by him deposited in the Farmers' Bank of the State of Delaware, in a Separate Account to be opened for that purpose, and the said County Treasurer upon the warrant of the said Levy Court shall except as otherwise provided in Section 25 hereof, apply and use the same in such manner as the said Levy Court pursuant to the provisions of any law now in force or hereafter passed, shall direct, in the support of the said poor, excepting those receiving Mothers' Pensions and their dependents and those receiving support from the said State Old Age Welfare Commission; in the payment to the Levy Court of moneys advanced by said Levy Court at any time subsequent to January 1, 1935, for the support of said poor, excepting as aforesaid; in the payment of principal and interest due on Bonds, Notes, Certificates of Indebtedness or other evidences of debt hereafter issued to secure the payment of money borrowed and used for the support of said poor; excepting as aforesaid; and/or for the payment of principal and interest due on Bonds, Notes, Certificates of Indebtedness or other evidences of debt given to refund or renew such Bonds, Notes, Certificates of Indebtedness or other evidences of debt so given to secure the payment of money borrowed and used in the support of said poor, excepting as aforesaid, and for no other purpose.
Penalties for Disclosure of Returns
Section 27. It shall be unlawful for any officer or employee of the State of Delaware to make known intentionally information imparted by any income tax return made under this Act or to wilfully permit any income tax return of a taxable or copy thereof to be seen or examined by any person other than the taxable or his authorized agent and employees of the Tax Department, except as provided by law and any offense against the foregoing provisions shall be a misdemeanor and shall be punished by a fine not exceeding five hundred dollars 0500.00) or by imprisonment not exceeding one year, or both, at the discretion of the Court.
Taxes for School Purposes Not Affected
Section 28. The Income Tax assessed and levied against taxables under the provisions of this Act, is in addition to the Income Tax levied and assessed against said Taxables under the provisions of Chapter 8, Volume 36, Laws of Delaware, and the acts heretofore passed amendatory thereof and supplemental thereto, and nothing in this Act shall be deemed to amend or modify the provisions of said Chapter 8, Volume 36, Laws of Delaware, or any acts heretofore passed amendatory thereof or supplemental thereto, with respect to the Income Tax assessed and levied under said Chapter 8, Volume 36, Laws of Delaware.
Information Required of Employers and Others
Section 29. All persons, fiduciaries, associations of persons, syndicates, joint ventures, co-partnerships or corporations in whatever capacity acting, including lessees or mortgagors of real or personal property, and employers, making payments to other persons of interest, dividends, rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable gains, profits, and income, aggregating $100 or more and not in excess of $1,000 in any taxable year, shall render a true and accurate return to the Tax Department, under such regulations and in such form and manner and to such extent as may be prescribed by the Tax Department, setting forth the amount of any and all such payments made to citizens or residents of New Castle County and the names and addresses of the recipients of such payments. The provisions of this paragraph shall apply to officers or employees of the State of Delaware or of any political subdivision or any municipal corporation therein.
Unconstitutionality or Invalidity
Section 30. If any clause, sentence, paragraph or part of this Act shall, for any reason, be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of this Act but shall be confined in its operation to the clause, sentence, paragraph or part thereof directly involved in the controversy in which such judgment shall have been rendered. No caption of any Article, Section or set of Sections shall in any way affect the interpretation of this Act or any part thereof.
Approved February 4, 1935.